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SYBIL SMITH, Individually and as Guardian Ad Litem for Brittany
Smith, a minor, Plaintiff, v. JACKSON COUNTY BOARD OF EDUCATION,
ELIZABETH BALCEREK, Individually and as an Employee of Jackson
County Board of Education, JOSEPH CARROLL BROOKS, Individually
and as an Employee of Jackson County Board of Education, JAMES L.
CRUZAN, Individually and in his capacity as Sheriff of Jackson
County, CHARLES R. HESS, III, Individually and as an Employee of
the Sheriff of Jackson County, JEREMY STEWART, and WESTERN SURETY
COMPANY, Surety for James L. Cruzan, Sheriff of Jackson County,
2. Schools and Education; Police Officers_-school resource officer--public duty
doctrine--civil conspiracy--intentional infliction of emotional distress_-duty to
report child abuse--breach of fiduciary duty--negligent supervision, hiring, and
The trial court did not err by denying motions by defendants school resource officer and the sheriff to dismiss plaintiff's amended complaint and the cross-claims of defendants Board of Education and school principal on the ground that the claims are barred by the public duty doctrine in an action where plaintiff alleged that defendant teacher manipulated a 14-year-old female into having a sexual relationship with an 18-year-old student and then attempted to videotape her having sex with the student, because: (1) the public duty doctrine does not apply to plaintiff's claims against the school resource officer for civil conspiracy under N.C.G.S. § 99D-1 and intentional infliction of emotional distress since these claims were not based on negligence; (2) in regard to the claim under N.C.G.S. § 99D-1 for interference with civil rights, the allegations reflect affirmative conduct by the school resource officer directly injuring the minor female and do not constitute only the failure to prevent a third person's harmful conduct; (3) in regard to the intentional infliction of emotional distress claim, plaintiff included the necessary allegations of calculated conduct on the part of the school resource officer directed at the minor female to rise above mere aggravated negligence that cause the public duty doctrine to cease to apply; (4) in regard to the school resource officer's failure to report knowledge of defendant teacher's actions in promoting a sexual relationship between two students and in failing to notify administrative staff of the minor female's absence from school, the duty to report child abuse isnot the type of discretionary law enforcement function shielded by the public duty doctrine given the mandatory language and broad application of N.C.G.S. § 7B-301 to the general public; (5) to the extent the claims of plaintiff, the Board of Education, and the school principal are based on negligence other than a failure to report abuse, the amended complaint and cross-claims sufficiently allege that the facts of this case fall within the special duty exceptions to the public duty doctrine when the school resource officer undertook to provide protective services not the public generally, but to an identifiable group of students at the pertinent school, including the 14- year-old female, during school hours; (6) in regard to the claim for breach of fiduciary duty, the school resource officer failed to challenge on appeal plaintiff's allegations regarding the existence of a fiduciary duty; and (7) in regard to claims against the sheriff for negligent supervision, hiring, and retention of the school resource officer, the question of whether the parties have adequately alleged those claims is not before the Court of Appeals.
3. Pleadings--motion to amend--adding defendants
The trial court did not abuse its discretion by allowing plaintiff to amend her complaint a second time to add sheriff Cruzan in his individual capacity and Western Surety, the surety of Cruzan's official bond, in an action where plaintiff alleged that Cruzan negligently supervised and retained Hess, a school resource officer who knew of a teacher's improper conduct regarding students but failed to report it, because: (1) in regard to adding claims against Cruzan individually, the proposed amended complaint alleged willfulness and a factual basis for that general allegation; and (2) N.C.G.S. § 58-76-5 allows a plaintiff to maintain suit against a public officer and the surety on his official bond for acts of negligence in performing his official duties, and immunity is immaterial with respect to a claim on a bond under N.C.G.S. § 58-76-5.
McGuire, Wood & Bissette, P.A., by Joseph P. McGuire and Mary
E. Euler, for plaintiff-appellee.
Benjamin R. Olinger, Jr.; and Long, Parker, Warren & Jones, P.A., by Robert B. Long, for defendant-appellant Charles R. Hess, III.
Lovejoy & Bolster, P.A., by Jeffrey S. Bolster, for defendant-appellant James L. Cruzan.
Roberts & Stevens, P.A., by Christopher Z. Campbell and K. Dean Shatley, II, for defendant-appellee Jackson County Boardof Education.
Cranfill, Sumner & Hartzog, L.L.P., by Ann S. Estridge, for defendant-appellee Elizabeth Balcerek.
No brief filed on behalf of defendant-appellee Joseph Carroll Brooks .
No brief filed on behalf of defendant-appellee Jeremy Stewart.
No brief filed on behalf of defendant-appellee Western Surety
In this case, plaintiff Sybil Smith, individually and as guardian ad litem for her minor daughter Brittany Smith, has alleged that defendant Joseph Brooks, a teacher at Brittany's school, manipulated her 14-year-old daughter into having a sexual relationship with an 18-year-old student, defendant Jeremy Stewart, and then attempted to videotape her having sex with the student. According to plaintiff, the school resource officer _ defendant Charles R. Hess, III _ knew of Brooks' conduct, but failed to report it. Plaintiff further alleges that Hess' employer, defendant Jackson County Sheriff James L. Cruzan, negligently supervised and retained Hess. The school defendants _ defendant Jackson County Board of Education and Brittany's principal (defendant Elizabeth Balcerek) _ asserted cross-claims against defendants Hess and Cruzan.
Hess and Cruzan appeal from the trial court's denial of theirmotion to dismiss plaintiff's complaint and the school defendants' cross-claims based on the public duty doctrine. Because we find that the claims are either beyond the scope of the public duty doctrine or fall within one of the doctrine's exceptions, we affirm.
B. Negligence Claims Alleged against Hess
Plaintiff has asserted two claims against Hess based on negligence: negligent performance of law enforcement duties and negligent infliction of emotional distress. Specifically, with respect to each claim, plaintiff alleges that Hess was negligent (1) in failing to report knowledge of Brooks' actions in promoting a sexual relationship between Jeremy and Brittany and (2) in failing to notify administrative staff of Brittany's absence from school.
As the Court explained in Moses, application of the public duty doctrine as a "blanket defense" to all actions of police officers "would not be consistent with the purpose of the public duty doctrine, which is to shield the state and its political subdivisions from tort liability arising out of discretionary governmental actions." Moses, 149 N.C. App. at 618, 561 S.E.2d at335 (alteration in original) (internal quotation marks omitted). We must, therefore, first determine whether plaintiff's claims involve "the type of discretionary governmental action shielded by the public duty doctrine," such as those acts that involve "actively weighing the safety interests of the public." Id. at 618-19, 561 S.E.2d at 335 (internal quotation marks omitted).
N.C. Gen. Stat. § 7B-301 (2003) provides that "[a]ny person . . . who has cause to suspect that any juvenile is abused . . . shall report the case of that juvenile to the director of the department of social services in the county where the juvenile resides or is found." N.C. Gen. Stat. § 7B-310 (2003) states that "[n]o privilege shall be grounds for any person or institution failing to report that a juvenile may have been abused . . . even if the knowledge or suspicion is acquired in an official professional capacity . . . ." See also N.C. Gen. Stat. § 115C-400 (2003) (with respect to schools, providing: "Any person who has cause to suspect child abuse or neglect has a duty to report the case of the child to the Director of Social Services of the county, as provided in Article 3 of Chapter 7B of the General Statutes.").
Given the mandatory language and broad application of N.C. Gen. Stat. § 7B-301 to the general public, we conclude that the duty to report child abuse is not the type of discretionary law enforcement function shielded by the doctrine. Hess was not required _ nor was he permitted _ to weigh the safety interests ofthe public when he decided not to report Jeremy's possible statutory rape of Brittany or Brooks' sexual exploitation of Brittany and Jeremy. Rather, his duty to report abuse was imposed by statute and involved no deliberation or discretionary consideration. Hess' failure to report known child abuse was, therefore, outside the scope of conduct generally associated with law enforcement, and the public duty doctrine does not bar this claim.
In addition, "there are two well-established exceptions to the doctrine that prevent inequities to certain individuals: (1) when there is a special relationship between the injured party and the police; and (2) when a municipality creates a special duty by promising protection to an individual." Wood, 355 N.C. at 166, 558 S.E.2d at 495. To the extent the claims of plaintiff, the Board of Education, and Balcerek are based on negligence other than a failure to report abuse, we hold that the amended complaint and cross-claims sufficiently allege that the facts of this case fall within these exceptions to the public duty doctrine.
Our Supreme Court applied the special relationship exception in Isenhour, holding that the public duty doctrine did not apply to a city that "by providing school crossing guards, has undertaken an affirmative, but limited, duty to protect certain children, at certain times, in certain places." Isenhour, 350 N.C. at 608, 517 S.E.2d at 126. The Court explained: [T]here is a meaningful distinction between application of the public duty doctrine to the actions of local law enforcement, as in Braswell . . . and the application of the doctrine to the actions of a school crossing guard . . . . Unlike the provision of police protection to the general public . . . , a school crossing guard is employed to provide a protective service to an identifiable group of children. Moreover, the relationship between the crossing guard and the children is direct and personal, and the dangers are immediate and foreseeable.
Id. at 607-08, 517 S.E.2d at 126.
Taking the plaintiff's and cross-claimants' allegations as true in this case, Hess, as a school resource officer, undertook to provide protective services not to the public generally, but to an identifiable group of students at Blue Ridge School, including Brittany, during school hours. The pleadings do not allege that Hess breached a general law enforcement duty, but rather breached his duty to the school, the principal, and the children.
Our General Assembly has defined "a school resource officer" as a "person who is regularly present in a school for the purpose of promoting and maintaining safe and orderly schools . . . ." N.C. Gen. Stat. § 14-202.4(d)(3a) (2003). Indeed, the legislature has acknowledged the special nature of the relationship between a school resource officer and a student: if a school resource officer "takes indecent liberties with a victim who is a student, at any time during or after the time the defendant and victim were present together in the same school but before the victim ceases tobe a student, the defendant is guilty of a Class I felony, unless the conduct is covered under some other provision of law providing for greater punishment." N.C. Gen. Stat. § 14-202.4(a) (2003). Further, in order to implement the state policy "that all schools should be safe, secure, and orderly," N.C. Gen. Stat. § 115C-105.45 (2003), every school must be subject to a "safe school plan" that includes "[a] plan to work effectively with local law enforcement officials and court officials to ensure that schools are safe and laws are enforced." N.C. Gen. Stat. § 115C-105.47 (2003). These statutory provisions indicate that there is a direct and personal relationship between the school resource officer and the children and that danger to those students while attending school is foreseeable _ just as was the case with the school crossing guards in Isenhour.
Significantly, this Court has also distinguished the role of a school resource officer from that of a general law enforcement officer in the Fourth Amendment search context. In contrast to searches by police, searches by school officials do not require a warrant or probable cause under New Jersey v. T.L.O., 469 U.S. 325, 341, 83 L. Ed. 2d 720, 734, 105 S. Ct. 733, 742 (1985). As this Court has explained, "the T.L.O. standard has also been applied to cases where a school resource officer conducts a search, based upon his own investigation or at the direction of another school official, in the furtherance of well-established educational andsafety goals." In re D.D., 146 N.C. App. 309, 318, 554 S.E.2d 346, 352, appeal dismissed and disc. review denied, 354 N.C. 572, 558 S.E.2d 867 (2001). On the other hand:
Courts draw a clear distinction between [these] categories of cases and those cases in which outside law enforcement officers search students as part of an independent investigation or in which school official[s] search students at the request or behest of the outside law enforcement officers and law enforcement agencies. . . . The purpose of the search conducted by so-called outside police officers is not to maintain discipline, order, or student safety, but to obtain evidence of a crime.
Id., 554 S.E.2d at 252-53 (internal quotation marks omitted). We have, thus, already acknowledged that school resource officers acting to preserve student safety are not acting in a general law enforcement capacity.
In light of state policies, related case law authority, and the allegations of the claims, we cannot say to a certainty that the claimants will be unable to prove a special relationship sufficient to except the parties' negligence claims from the public duty doctrine. The claims presented by this case are more analogous to those in Isenhour than to those in Braswell. Accordingly, the trial court properly denied the motion to dismiss based on the special relationship exception.
With respect to the "special duty" exception, the public duty doctrine does not apply "'when a municipality, through its policeofficers, creates a special duty by promising protection to an individual, the protection is not forthcoming, and the individual's reliance on the promise of protection is causally related to the injury suffered.'" Braswell, 330 N.C. at 371, 410 S.E.2d at 902 (quoting Coleman v. Cooper, 89 N.C. App. 188, 194, 366 S.E.2d 2, 6, disc. review denied, 322 N.C. 834, 371 S.E.2d 275 (1988), partially overruled on other grounds, Meyer v. Walls, 347 N.C. 97, 489 S.E.2d 880 (1997)). In Braswell, the Court acknowledged that a sheriff's promise to protect a woman as she went to and from work was arguably specific enough to fall within the special duty exception. Id. at 372, 410 S.E.2d at 902. (See footnote 3)
Here, as the school defendants have observed, there is no statutory requirement that a sheriff provide a school resource officer. Nonetheless, according to the Board of Education's cross- claim, Hess, acting as a school resource officer, "undertook to provide protection to children at Blue Ridge School, had a special duty to these Defendants to perform his duties and obligations in a professional manner, and had a special duty to protect [Brittany] from criminal acts." Balcerek's cross-claim similarly alleges that "Hess, in his capacity as the school resource officer assigned to Blue Ridge School, had a duty to Balcerek and to minor plaintiff Brittany Smith to perform his duties and obligations in aprofessional manner and to protect all school children from criminal acts." These allegations allege a special duty to the school and principal apart from a general law enforcement obligation. (See footnote 4) The precise nature of Hess' duties and any contractual obligations between the Board of Education and the Sheriff's Department will be the subject of discovery and subsequent review, but on the basis of the pleadings we find that the cross-claims sufficiently allege a special duty to defeat a motion to dismiss based on the public duty doctrine.
C. Breach of Fiduciary Duty Claim Alleged against Hess
Plaintiff has also alleged that Hess' actions constituted a breach of fiduciary duty. Our appellate courts have never addressed whether the public duty doctrine applies to a claim for breach of fiduciary duty; nor have we found a decision of any other jurisdiction addressing this question.
"Breach of fiduciary duty occurs when there is unfair dealing with one to whom the defendant has an active responsibility; it requires a special relationship unlike actual fraud." Speck v. N.C. Dairy Found., Inc., 64 N.C. App. 419, 428, 307 S.E.2d 785, 792 (1983), rev'd on other grounds, 311 N.C. 679, 319 S.E.2d 139 (1984). As the Supreme Court has explained, a fiduciary relationship existswhen:
there has been a special confidence reposed in one who in equity and good conscience is bound to act in good faith and with due regard to the interests of the one reposing confidence. . . . [I]t extends to any possible case in which a fiduciary relation exists in fact, and in which there is confidence reposed on one side, and resulting domination and influence on the other.
Abbitt v. Gregory, 201 N.C. 577, 598, 160 S.E. 896, 906 (1931) (internal quotation marks omitted).
This fiduciary relationship is analogous to the special relationship that provides an exception to the public duty doctrine. Accordingly, we hold that if plaintiff is able to prove the special relationship necessary to support a claim for breach of fiduciary duty, then she will also have established an exception to the public duty doctrine. (See footnote 5) Since defendant has not challenged on appeal plaintiff's allegations regarding the existence of a fiduciary relationship, we hold that the trial court properly denied the motion to dismiss.
D. Claims of Negligent Supervision Against Cruzan
Plaintiff, the Board of Education, and Balcerek have asserted against Cruzan claims for negligent supervision, hiring, and retention. Defendant Cruzan's argument that these claims are barred by the public duty doctrine cannot be squared with Braswell or withthis Court's decision in Leftwich v. Gaines, 134 N.C. App. 502, 521 S.E.2d 717, disc. review denied, 351 N.C. 357, 541 S.E.2d 713-14 (1999).
In Braswell, the plaintiff sued for both negligent failure to protect and negligent supervision and retention. The Supreme Court applied the public duty doctrine only to the negligent failure to protect claim; it addressed the merits of the negligent supervision and retention claim. As this Court observed in Leftwich:
[T]he public duty doctrine is not incompatible with negligent supervision. The public duty doctrine was adopted in Braswell . . . . Our Supreme Court held that the trial court properly directed a verdict in favor of the defendant on the issue of negligent failure to protect because the public duty doctrine prevented a lawsuit against the sheriff. The Court also found that the trial court properly directed a verdict for the defendant as to negligent supervision and retention; however, the Braswell Court did not apply the public duty doctrine to the claim of negligent retention and supervision, even though the doctrine had been asserted as a defense and even though the Court had relied on the doctrine elsewhere in its opinion.
Leftwich, 134 N.C. App. at 514, 521 S.E.2d at 726. This Court then
pointed out that the Supreme Court instead reviewed whether the
evidence was sufficient to establish that the sheriff had the notice
necessary to impose liability for negligent supervision and
retention. Id. at 514-15, 521 S.E.2d at 726.
Based on Braswell, this Court in Leftwich also declined to apply the public duty doctrine to bar a negligent supervision claim,but rather reviewed the evidence to determine whether plaintiff offered sufficient evidence to allow her claim of negligent supervision to be submitted to the jury. Because it concluded that plaintiff had offered evidence that the municipality had notice of prior wrongdoing by the individual defendant of the same nature as that involved in the lawsuit and yet did not take action adequate to cause the individual defendant to change his ways, this Court held that the trial court properly declined to direct a verdict on plaintiff's claim for negligent supervision. Id. at 515, 521 S.E.2d at 727.
Braswell and Leftwich both involved review of a trial court's decision on a motion for a directed verdict during a jury trial. Although these two decisions compel our holding that the public duty doctrine does not bar the negligent supervision and retention claims, the question whether the parties have adequately alleged those claims is not before us.
Chief Judge MARTIN and Judge HUDSON concur.
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