opinions are subject to modification and technical correction prior to official
publication in the
SUPREME COURT OF
FILED: 10 OCTOBER 2008
NORTH CAROLINA DEPARTMENT OF ENVIRONMENT AND NATURAL RESOURCES
Appeal pursuant to N.C.G.S. §7A-30(2) from the decision of a divided panel of the Court of Appeals, 182 N.C. App. 178, 641 S.E.2d 811 (2007), affirming in part and reversing in part and remanding a decision and order entered by the North Carolina Industrial Commission on 3 October 2005. Heard in the Supreme Court 17 March 2008. Following oral argument, the Court on 27 March 2008 allowed plaintiff’s petition for discretionary review of two additional issues. Determined on the supplemental briefs without further oral argument pursuant to N.C. R. App. P. 30(f)(1).
James, McElroy & Diehl, P.A., by John R. Buric and Preston O. Odom, III, for plaintiff-appellee/appellant.
Roy Cooper, Attorney General, by Dahr Joseph Tanoury, Assistant Attorney General, for defendant-appellant/appellee.
When the North Carolina Industrial Commission found as fact that the defendant Department of Environment and Natural Resources “admitted” it was “negligent in issuing Permit No. 99291” and when defendant failed to assign error to this finding, such finding of negligence is binding on appeal and precludes defendant’s assertion of the public duty doctrine as a defense in the instant case. We therefore affirm the opinion of the Court of Appeals to the extent it holds that the Industrial Commission did not err in failing to apply the public duty doctrine.
public duty doctrine is a rule grounded in common law negligence and provides
that “when a governmental entity owes a duty to the general public,
particularly a statutory duty, individual plaintiffs may not enforce the duty
in tort.” Myers v. McGrady, 360
N.C. 460, 465-66, 628 S.E.2d 761, 766 (2006).
The doctrine operates to “limit tort liability, even when the State has
waived sovereign immunity.”
Here, the Industrial Commission found that defendant admitted it was “negligent” in issuing the permit to plaintiff. Defendant assigned no error to this finding, thereby rendering it conclusive on appeal. See N.C. R. App. P. 10(a). This admission of negligence by defendant necessarily encompasses a concession that defendant either owed plaintiff a “special duty” or that a “special relationship” existed between plaintiff and defendant, for otherwise no action in negligence could lie. See Myers, 360 N.C. at 463, 628 S.E.2d at 764. As defendant’s admitted negligence in issuing the permit to plaintiff is conclusively established on appeal, defendant has effectively waived its argument that it owes no duty to plaintiff under the public duty doctrine. Because defendant has waived its right to argue the merits of whether the public duty doctrine would shield defendant from liability under the facts of the present case, we do not reach this issue, and we therefore express no opinion on the analysis of the public duty doctrine by the Court of Appeals. We therefore affirm the Court of Appeals to the extent it determined that the Industrial Commission did not err in failing to apply the public duty doctrine. The remaining issues addressed by the Court of Appeals are not properly before this Court and its decision as to these matters remains undisturbed.
MODIFIED AND AFFIRMED.