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All opinions are subject to modification and technical correction prior to official publication in the North Carolina Reports and North Carolina Court of Appeals Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the North Carolina Reports and North Carolina Court of Appeals Reports, the latest print version is to be considered authoritative.
VERNETTA MARIE COCKERHAM-ELLERBEE, Individually and as
Administratrix of the Estate of CANDICE COCKERHAM, Plaintiff, v.
THE TOWN OF JONESVILLE, d/b/a The Jonesville Police Department,
SCOTT VESTAL and LEE GWYN, Defendants
Filed: 07 March 2006
1. Appeal and Error--appealability_denial of motion to dismiss--public duty doctrine
Although an appeal from the denial of a motion to dismiss is generally an appeal from an
interlocutory order, an appeal based on the public duty doctrine involves a substantial right
warranting immediate appellate review.
2. Police Officers--negligence--public duty doctrine-_special duty exception
The trial court did not err by denying defendants' motion to dismiss based on the public
duty doctrine in a negligence case arising out of officers' negligence in failing to enforce
domestic violence protective orders after they knew of repeated violations, failing to warn
plaintiff and her daughter that they had not arrested the perpetrator, and failing to protect plaintiff
and her daughter after officers knew the perpetrator had not been arrested, because: (1) plaintiff's
complaint reveals a special duty was created by virtue of a promise made by the officers to
protect plaintiff and her children, the protection was not forthcoming since the officers failed to
fulfill their promise to arrest the perpetrator, and plaintiff and her daughter's reliance on the
promise of protection was causally related to the injury suffered; and (2) the police officers'
assurances were much more specific than those made in Braswell v. Braswell, 330 N.C. 363
(1991), plaintiff had a protective order in this case while the wife in Braswell did not, and the
Supreme Court reviewed Braswell in light of a Rule 50 motion made at the end of the trial
whereas in this case the Court of Appeals is reviewing the judge's ruling made following a
motion to dismiss under N.C.G.S. § 1A-1, Rule 12(b)(6).
Appeal by defendants from judgment entered 2 March 2005 by
Judge James M. Webb in Yadkin County Superior Court. Heard in the
Court of Appeals 23 January 2006.
Kennedy, Kennedy, Kennedy & Kennedy, L.L.P., by Harvey L.
Kennedy and Harold L. Kennedy, III, for plaintiff-appellee.
Moss, Mason, and Hill, by Matthew L. Mason and William L.
Hill, for defendants-appellants.
Defendants appeal the trial court's order denying their motion
to dismiss. For the reasons discussed herein, we affirm the ruling
of the trial court.
When reviewing the trial court's denial of a motion to
dismiss, we must treat all of the factual allegations contained in
the plaintiff's complaint as true. Lane v. City of Kinston, 142
N.C. App. 622, 624, 544 S.E.2d 810, 813 (2001). The complaint
alleges that on 13 November 2002, plaintiff, Vernetta Marie
Cockerham-Ellerbee, obtained a Domestic Violence Protective Order
(protective order) against her estranged husband, Richard Ellerbee.
The protective order prohibited Ellerbee from threatening plaintiff
or her children or coming within 250 feet of them. Pursuant to the
requirements of N.C. Gen. Stat. § 50B-3(c), a copy of the order was
issued to and retained by the Jonesville Police Department (JPD).
Ellerbee violated the protective order on numerous occasions.
On 13 November 2002, Ellerbee dug graves directly across the street
from plaintiff's home and threatened to kill her and her children
and place their bodies in the graves. Plaintiff reported this to
the JPD. The Jonesville Chief of Police came to plaintiff's home
where she showed him the graves and told him of Ellerbee's death
threats. On 18 November 2002, Ellerbee violated the order when he
went to the daycare for one of plaintiff's children. Plaintiff and
her seventeen-year-old daughter, Candice Cockerham, were also
present. Plaintiff reported Ellerbee's violation of the protective
order to the JPD. That same day, plaintiff informed defendant,
Scott Vestal (Vestal), a Jonesville police officer, that Ellerbeewas following her and his vehicle was within 250 feet of her car at
an intersection. Ellerbee was in close proximity to Vestal at this
time. Vestal followed Ellerbee for a distance, but failed to
arrest him even though Vestal had knowledge of Ellerbee's
violations of the protective order. Later that day, plaintiff
called the JPD to arrange a meeting. At approximately 5:00 p.m.,
plaintiff met with Vestal and defendant Lee Gwyn, another
Jonesville police officer, at her father's home. When Vestal and
Gwyn arrived, she informed them Ellerbee had been stalking her.
While they were there, Ellerbee drove up in front of the home.
Vestal and Gwyn promised plaintiff and Candice they were going to
arrest Ellerbee. They also promised plaintiff and her daughter
that they would no longer have to worry about their safety. The
officers got into their vehicle and followed Ellerbee down the
street, which led plaintiff and her daughter to believe they would
arrest Ellerbee and place him in jail. However, the officers never
arrested Ellerbee, nor did they advise plaintiff of their failure
to do so.
On 19 November 2002, Ellerbee broke into plaintiff's home and
laid in wait until Candice arrived. When Candice arrived,
defendant stabbed her and suffocated her with duct tape, resulting
in her death. Ellerbee also repeatedly stabbed plaintiff when she
returned home, causing her to sustain serious bodily injuries.
On 18 November 2004, plaintiff filed this action against
defendants, the Town of Jonesville and two of its employees, Scott
Vestal and Lee Gwyn, in their official capacities. Plaintiffalleged the officers were negligent in failing to enforce the
protective order after they knew of Ellerbee's repeated violations,
failing to warn plaintiff and her daughter that they had not
arrested Ellerbee, and failing to protect plaintiff and her
daughter after they knew Ellerbee had not been arrested.
Defendants filed a motion to dismiss, asserting the public duty
doctrine as a bar to plaintiff's action. By order entered 2 March
2005, the trial court denied defendants' motion. Defendants
In their sole argument on appeal, defendants contend the trial
court erred in denying its motion to dismiss because the public
duty doctrine bars plaintiff's negligence claims. We disagree.
Appealability of Order
 Ordinarily, the denial of a motion to dismiss is
interlocutory and there is no immediate right of appeal. Smith v.
Jackson Cty. Bd. of Educ., 168 N.C. App. 452, 457, 608 S.E.2d 399,
405 (2005). However, because defendant's appeal is based on the
public duty doctrine, it involves a substantial right warranting
immediate appellate review. Id. at 458, 608 S.E.2d at 405.
Motion to Dismiss
 When reviewing the trial court's denial of a motion to
dismiss, we must decide whether the allegations of the complaint
are sufficient to state a claim upon which relief may be granted
under some legal theory. Lane, 142 N.C. App. at 624, 544 S.E.2d at
813. In doing so, we must treat plaintiff's factual allegations as
Public Duty Doctrine
In all negligence actions, the plaintiff must prove the
defendant owed the plaintiff a duty of care. Wood v. Guilford
Cty., 355 N.C. 161, 166, 558 S.E.2d 490, 494 (2002). To be
actionable, the duty must be one owed to the injured plaintiff and
not one owed to the public in general. Id. at 166, 558 S.E.2d at
493-94. This is true regardless of whether the defendant is a
governmental entity or a private person. Id. Generally, the
public duty doctrine bars negligence claims by individuals against
a municipality or its agents acting in a law enforcement role for
failure to provide protection to that person from the criminal acts
of a third party. Braswell v. Braswell, 330 N.C. 363, 370-71, 410
S.E.2d 897, 901 (1991), reh'g denied, 330 N.C. 854, 413 S.E.2d 550
(1992). 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, especially
since law enforcement has a duty to protect the general public, not
specific individuals. Id.
As an initial matter, we note that since plaintiff's cause of
action is based on defendant's failure to protect her from the acts
of a third party rather than any direct misconduct on their part,
the public duty doctrine is applicable. Smith, 168 N.C. App. at
459-60, 608 S.E.2d at 406.
Next, we must determine whether plaintiff's claim involves
'the type of discretionary governmental action shielded by the
public duty doctrine,' such as those acts that involve 'activelyweighing the safety interests of the public.' Id. at 461, 608
S.E.2d at 407 (citations omitted). Our Supreme Court has stated
that 'the public duty doctrine shields the state and its political
subdivisions from tort liability arising out of discretionary
governmental actions that by their nature are not ordinarily
performed by private persons.' Stone v. N.C. Dep't of Labor, 347
N.C. 473, 482, 495 S.E.2d 711, 716 (1998) (citations omitted).
N.C. Gen. Stat. § 50B-4.1(b) states: A law enforcement officer
shall arrest and take a person into custody without a warrant or
other process if the officer has probable cause to believe that the
person knowingly has violated a valid protective order . . . .
(emphasis added). N.C. Gen. Stat. § 50B-4(c) states: A valid
protective order entered pursuant to this Chapter shall be enforced
by all North Carolina law enforcement agencies without further
order of the court. (emphasis added). Plaintiff contends the use
of the word shall in these statutes creates a mandatory duty as
opposed to a discretionary one; therefore, the public duty doctrine
In Lassiter v. Cohn, this Court found it implicit in Braswell
and the public duty doctrine that an officer fulfilling his or her
duty to provide police protection must employ some level of
discretion as to what each particular situation requires, criminal
or otherwise. 168 N.C. App. 310, 317, 607 S.E.2d 688, 692-93,
disc. review denied, 359 N.C. 633, 613 S.E.2d 686 (2005). The
United States Supreme Court expressed this same opinion in Town of
Castle Rock v. Gonzales, stating: In each and every state there are
long-standing statutes that, by their terms,
seem to preclude nonenforcement by the police
. . . . However, for a number of reasons,
including their legislative history,
insufficient resources, and sheer physical
impossibility, it has been recognized that
such statutes cannot be interpreted literally
. . . . They clearly do not mean that a police
officer may not lawfully decline to make an
___ U.S. ___, ___, 162 L. Ed. 2d 658, 671 (2005) (citations
omitted). But see id. (noting in the alternative that '[t]here is
a vast difference between a mandatory duty to arrest [a violator
who is on the scene] and a mandatory duty to conduct a follow up
investigation [to locate an absent violator]') (quoting Donaldson
v. Seattle, 831 P.2d 1098, 1104 (Wn. App. 1992)).
Although the use of the word shall in these statutes implies
that law enforcement has a mandatory duty to arrest those in
violation of a protective order, without any ability to exercise
any discretion such an interpretation is unreasonable. There are
many factors and variables that a police officer must take into
consideration in deciding when and where to arrest an individual
believed of engaging in criminal conduct, not the least of which is
the public's safety. In order to find that the legislature
intended a true mandate of police action, a stronger indication
would be required. In the absence of such a specific legislative
intent, we hold that the statute is discretionary. Since
defendants had some level of discretionary authority in carrying
out the enforcement of the protective order, we hold the public
duty doctrine is applicable.
Exceptions to the Public Duty Doctrine
The public duty doctrine is not a blanket defense to all
actions by law enforcement officers. Smith
168 N.C. App. at 461,
608 S.E.2d at 407. [E]xceptions exist to prevent inevitable
inequities to certain individuals. Braswell
330 N.C. at 371, 410
S.E.2d at 902. An exception to the doctrine applies where a
special duty exists between the governmental entity and a
specific individual. Vanasek v. Duke Power Co.
, 132 N.C. App. 335,
338, 511 S.E.2d 41, 44, cert. denied
, 358 N.C. 851, 539 S.E.2d 13
(1999). A special duty may be created in one of three ways.
First, a special duty is created where the municipality, through
its police officers, . . . promise[s] 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
, 330 N.C. at 371, 410 S.E.2d at 902
(citations omitted). Second, a 'special duty' may be created by
virtue of a 'special relationship,' such as that between 'a state's
witness or informant . . . [and] law enforcement officers.'
, 132 N.C. App. At 338, 511 S.E.2d at 44 (quoting Hunt v.
N.C. Dept. of Labor
, 348 N.C. 192, 199, 499 S.E.2d 747, 751
(1998)). We note that some confusion has arisen in this area due
to the fact that this Court has previously referred to the special
relationship exception as being a separate exception to the public
duty doctrine, when, in fact, it is actually a subset of the
'special duty' exception[.] Id
. at 338, n.1, 511 S.E.2d at 44 n.1.
A special relationship is simply another way to show that aspecial duty exists. Id
. Third, a 'special duty' may be
created by statute; provided there is an express statutory
provision vesting individual claimants with a private cause of
action for violations of the statute. Id
. at 338, 511 S.E.2d at
44. Our courts have generally held that a private right of action
only exists where the legislature expressly provides for such in
the statute. Id
We look first to see whether a special duty was created by
virtue of a promise made by Officers Vestal and Gwyn to protect
plaintiff and her children. In order to fit within this exception,
plaintiff must specifically allege in her complaint that defendants
promised to protect her, the protection was not forthcoming, and
that her reliance on the promise of protection was causally related
to the injury suffered. Id
Whether defendants made a promise of protection, thereby
creating a special duty, depends not just on the statements made by
the police, but must be considered in light of all the attendant
circumstances. See Hobbs v. N.C. Dep't of Human Res.
, 135 N.C.
App. 412, 419, 520 S.E.2d 595, 601 (1999) (considering not just
assurances made by the agencies involved with the placement of a
child in foster care, but also considering the tenor of the
meetings and the conduct of those representatives in finding the
defendants had created a special duty by promise); see also Hull
, 104 N.C. App. 29, 38, 407 S.E.2d 611, 616 (considering
both representations and conduct of the police), disc. review
, 330 N.C. 441, 412 S.E.2d 72 (1999). In the instant case, plaintiff's complaint alleges that
plaintiff had obtained a protective order against Ellerbee
prohibiting him from being within 250 feet of herself or her
children. Pursuant to N.C. Gen. Stat. § 50B-4(c) and 4.1(b), the
police had a duty to arrest Ellerbee if they had probable cause to
believe he was in violation of the order. Defendants had actual
knowledge of the protective order.
Plaintiff informed defendants
of Ellerbee's violations of the protective order and his repeated
threats. On 13 November 2002, the Jonesville Chief of Police
visited plaintiff's home and personally saw the graves Ellerbee had
dug across the street, in which he threatened to bury plaintiff and
her children after he killed them. Defendants also had actual
knowledge of Ellerbee's violations of the protective order on two
separate occasions on 18 November 2002. Earlier that day,
plaintiff informed Officer Vestal that Ellerbee was following her
in violation of the order. Officer Vestal was in close proximity
to Ellerbee's car and witnessed this violation. He followed
Ellerbee for a distance, but failed to make an arrest. Later that
day, plaintiff met with Officers Vestal and Gwyn at her father's
home and informed them that Ellerbee had been stalking her for much
of the day. At that time, Ellerbee drove up in front of the house.
The officers promised plaintiff and her daughter they were going to
arrest Ellerbee right then and that they would no longer have to
worry about their safety. Following these assurances, the officers
got into their vehicle and followed Ellerbee's car down the street.
The officers failed to arrest Ellerbee and the next day he laid inwait at plaintiff's home where he killed Candice and stabbed
Viewing all these allegations as true, plaintiff's complaint
contains sufficient allegations to place her within the special
duty exception to the public duty doctrine. She specifically
alleged that the officers made a promise to protect her and her
daughter, that protection was not forthcoming since the officers
failed to fulfill their promise to arrest Ellerbee, and that she
and her daughter relied on this promise of protection to their
Defendants assert that Braswell
is factually indistinguishable
from the instant case and that it compels this Court to dismiss
plaintiff's action. In Braswell
, the wife found letters from her
estranged husband, a deputy sheriff, which intimated that he
planned to kill her and then commit suicide. She told the sheriff
she was afraid that her husband would go through with the plan.
Although the wife did not obtain a protective order against her
husband, the sheriff told her 'he would see she got back and forth
to work safely . . . [and] that his men would be keeping an eye on
330 N.C. at 369, 410 S.E.2d at 900. A few days later, the
wife's husband shot her to death while she was on a lunchtime
errand. Based on the public duty doctrine, our Supreme Court found
that the sheriff had no specific duty to protect the woman from her
husband; that the sheriff's statements were simply general words of
comfort and assurance of the type customarily used by law
enforcement officers in situations involving domestic problems, andthat such promises were not sufficient to constitute an actual
promise of protection. Id
. at 371-72, 410 S.E.2d at 902. Even so,
the Court acknowledged that the sheriff's promise to the wife to
protect her as she went to and from work was arguably specific
enough to create a special duty exception to the public duty
. at 372, 410 S.E.2d at 902. However, since the wife
was killed while on a lunchtime errand and not while traveling to
or from work, the Court determined this was outside the scope of
protection arguably promised by [the sheriff]. Id
The instant case is distinguishable from Braswell
. The police
officers' assurances here were much more specific than those made
. In addition, plaintiff had a protective order, while
the wife in Braswell
did not. Further, the Supreme Court reviewed
in the light of a Rule 50 motion made at the end of the
trial, while this Court is reviewing the judge's ruling made
following a motion to dismiss pursuant to Rule 12(b)(6).
Considering the totality of the circumstances alleged in
plaintiff's complaint and treating them as true, we hold
plaintiff's allegations are sufficient to state a claim falling
under the special duty exception to the public duty doctrine.
Plaintiff need only demonstrate that she meets one exception
to the public duty doctrine to survive a motion to dismiss. Since
we have held that the allegations in the complaint stated a claim
under the special duty exception, we need not determine whether the
allegations in the complaint satisfy the requirements of any other
exception. For the reasons discussed herein, we affirm the ruling of the
Chief Judge MARTIN and Judge MCGEE concur.
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