YVONNE WALKER,
Plaintiff
v
.
Durham County
No. 01 CVS 2229
CITY OF DURHAM, N.C.
and BRUCE PREISS, individually
and in his official capacity
as a police technician employed
by the Durham City Police
Department,
Defendants
Douglas T. Simons, for plaintiff-appellant.
Newsom, Graham, Hedrick & Kennon, P.A., by Joel M. Craig, and
Faison & Gillespie, by Reginald B. Gillespie, Jr., for
defendants-appellees.
CALABRIA, Judge.
This appeal arises upon the trial court's granting of
defendants' motions to dismiss; therefore, we treat plaintiff's
factual allegations, which follow, as true. Cage v. Colonial
Building Co., 337 N.C. 682, 683, 448 S.E.2d 115, 116 (1994). In
late October of 1998, Yvonne Walker (“plaintiff”) was attacked and
raped. As a result of injuries sustained during the attack,
plaintiff went into a coma and was hospitalized for a substantial
period of time. During the investigation of the attack, BrucePreiss (“Preiss”), a police technician for the City of Durham
(“Durham”), was instructed to collect and store various pieces of
evidence from the original crime scene including, but not limited
to, items to be fingerprinted and plaintiff's clothing to be
analyzed for the suspect's DNA. After leaving the evidence in the
trunk of his car for several months, Preiss, either negligently or
intentionally, destroyed the evidence and subsequently submitted
false statements concerning their disposition.
A man suspected of the attack on plaintiff was arrested and
indicted for assault with a deadly weapon with intent to kill;
however, on 27 July 2000, the trial court learned of the
destruction of the evidence collected by Preiss and dismissed the
pending charges against the suspect. Upon learning of the
dismissal of charges due to the loss of evidence and the release of
her suspected assailant, plaintiff alleged she suffered severe
emotional distress.
On 9 May 2001, plaintiff filed a complaint for infliction of
emotional distress in Durham County Superior Court alleging
negligent and intentional misconduct by Durham through its agent
Preiss (collectively “defendants”) in the handling and reporting of
evidence taken during the investigation of the attack and rape
against plaintiff. Defendants moved to dismiss plaintiff's claim
pursuant to N.C. Gen. Stat. § 1A-1, Rule 12(b)(6) (2001). At the
hearing on defendants' motions, defendants asserted the public duty
doctrine and argued plaintiff had failed to allege the necessary
elements of intentional infliction of emotional distress. On 7November 2001, the trial court granted defendants' motions to
dismiss for failure to state a claim upon which relief could be
granted. Plaintiff appeals.
I. Standard of Review
Our standard for review on a motion to dismiss is “whether the
allegations of the complaint, if treated as true, are sufficient to
state a claim upon which relief can be granted under some legal
theory.” Thompson v. Waters, 351 N.C. 462, 463, 526 S.E.2d 650,
650 (2000).
II. Public Duty Doctrine
Defendants contend plaintiff's claims are barred by the public
duty doctrine. We do not agree. The public duty doctrine applies
where “a municipality and its agents act for the benefit of the
public[;] therefore, there is no liability for the failure to
furnish police protection to specific individuals.” Braswell v.
Braswell, 330 N.C. 363, 370, 410 S.E.2d 897, 901 (1991). “This
rule recognizes the limited resources of law enforcement and
refuses to judicially impose an overwhelming burden of liability
for failure to prevent every criminal act.” Id., 330 N.C. at 370-
71, 410 S.E.2d at 901. The doctrine is applicable to “law
enforcement departments when they are exercising their general duty
to protect the public[.]” Lovelace v. City of Shelby, 351 N.C.
458, 461, 526 S.E.2d 652, 654 (2000).
Plaintiff asserts the public duty doctrine is not implicated
because the evidence collected and subsequently destroyed concerned
only plaintiff and the criminal prosecution of her attack and rape,not the public at large. Plaintiff cites no authority for this
proposition, nor can we find any. Indeed, the collection of
forensic evidence to be used in a criminal prosecution is an
integral part of any criminal investigation undertaken by the
government to protect against crime. The “local government's duty
to protect against crime flows to the general public rather than to
specific individuals.” Wood v. Guilford Cty., 355 N.C. 161, 167,
558 S.E.2d 490, 495 (2002) (citing Braswell, 330 N.C. at 371, 410
S.E.2d at 901). To hold as plaintiff urges would make any
individual victim of any crime a person to whom local governments
and criminal investigators would be liable for deviations from
proper performance of their duties and would eviscerate the
conceptual underpinnings of the public duty doctrine. Accordingly,
we find no merit in plaintiff's argument.
Because Preiss' actions were an exercise of Durham's police
powers for the benefit of the general public, any claim based on
negligence, from simple to willful, must fail in light of the
public duty doctrine; however, plaintiff asserts that since the
allegations in the complaint allege intentional infliction of
emotional distress, the public duty doctrine does not shield
defendants from liability.
As stated before, the public duty doctrine is a prudential
doctrine necessarily functioning to prevent overwhelming liability
on the part of a local government as it undertakes the performance
of duties associated with its police power. Braswell, 330 N.C. at
370-71, 410 S.E.2d at 901. It balances the limited resources oflaw enforcement against the right of an individual to recover for
certain wrongful acts.
However, the public duty doctrine does not shield liability
for all wrongful acts. “As long as the claim is negligence, . . .
the public duty doctrine supports the dismissal of the complaint
based on the failure to state a claim.” Clark v. Red Bird Cab
Co., 114 N.C. App. 400, 406, 442 S.E.2d 75, 79 (1994) (emphasis
added). “[W]here the conduct complained of rises to the level of
an intentional tort . . . the public duty doctrine cease[s] to
apply . . . .” Id. See also Little v. Atkinson, 136 N.C. App. 430,
432, 524 S.E.2d 378, 380 (2000). Accordingly, we must determine
whether the complaint sufficiently alleges the elements of
intentional infliction of emotional distress.
III. Intentional Infliction of Emotional Distress
“The elements of intentional infliction of emotional distress
are: '(1) extreme and outrageous conduct, (2) which is intended to
cause and does cause (3) severe emotional distress.'”
Denning-Boyles v. WCES, Inc., 123 N.C. App. 409, 412, 473 S.E.2d
38, 40-41 (1996) (quoting Hogan v. Forsyth Country Club Co., 79
N.C. App. 483, 487-88, 340 S.E.2d 116, 119 (1986)). “'Because the
forecast of evidence as to the factual basis of each [claim of
intentional infliction of emotional distress] is unique, each claim
must be decided on its own merits.'” Denning-Boyles, 123 N.C. App.
at 412, 473 S.E.2d at 40 (quoting Hogan, 79 N.C. App. at 490, 340
S.E.2d at 121). To satisfy the intent requirement of this tort, plaintiff must
show Preiss intended to cause emotional distress or acted in a way
indicating reckless indifference to the likelihood that severe
emotional distress would result. Southern Furn. Hdwe., Inc. v.
Branch Banking & Tr. Co., 136 N.C. App. 695, 702, 526 S.E.2d 197,
201 (2000).
In her complaint, plaintiff alleged the following:
18. As a direct and proximate result of
Defendant Preiss' willful, malicious,
capricious intentional misconduct and/or
negligence, which conduct is imputed to
Defendant City of Durham, [the suspect] was
released from jail and immediately released
into the general public causing the plaintiff
to fear for her safety, her life, and the
lives of her children, based upon information
and belief that [the suspect] would attack and
brutally assault her and the children and rape
the Plaintiff again.
19. As a direct and proximate result of
Defendant Preiss' willful, malicious,
capricious intentional misconduct and/or
negligence, which conduct is imputed to
Defendant City of Durham, the Plaintiff has
suffered and continues to suffer severe
emotional distress from the release of [the
suspect] from the Durham County Jail, along
with the dismissal of the charge pending
against him . . . [.]
The allegations of the complaint indicate plaintiff suffered
emotional distress from fears relating to the suspect's release as
a result of the dismissal of the charges. No allegation tends to
show Preiss acted with intent or with reckless indifference as to
plaintiff's emotional state of mind either in destroying the
evidence or falsifying the documents. At most, plaintiff alleges
she suffered emotional distress resulting from the release of the
suspect following the dismissal of the charge after Preissdestroyed the evidence in question. The intent or reckless
indifference alleged by plaintiff is too attenuated from the
resulting emotional distress to be legally cognizable. We are
dismayed by Preiss' callous disregard for protocol and his duties
as a police technician; however, because plaintiff failed to allege
facts in her complaint necessary for the elements of intentional
infliction of emotional distress, defendants' motions to dismiss
were properly granted by the trial court.
Affirmed.
Judges McGEE and TYSON concur.
Report per Rule 30(e).
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