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.
NO. COA04-808
NORTH CAROLINA COURT OF APPEALS
Filed: 7 March 2006
MULTIPLE CLAIMANTS,
Plaintiffs,
v. North Carolina Industrial Commission
I.C.
File Nos. TA-17881, TA-17882,
TA-17913,
TA-18069, & TA-18125
NORTH CAROLINA
DEPARTMENT OF
HEALTH AND HUMAN SERVICES,
DIVISION OF
FACILITY SERVICES,
JAILS AND
DETENTION SERVICES,
Defendant.
Appeal by defendant from order entered 19 March 2004 by the
North Carolina Industrial Commission.
Heard in the Court of Appeals 2 February 2005.
Beasley,
Allen, Crow, Methvin, Portis & Miles, P.C., by Benjamin E. Baker, Jr.;
Grimes & Teich, by Henry E. Teich; William Hixon; Elmore, Elmore &
Williams, P.A., by Bruce A. Elmore, Jr.; C. Gary Triggs; Byrd, Byrd, Ervin,
Whisnant & McMahon, P.A., by Robert K. Denton and Lawrence D. McMahon, Jr.;
Anderson Law Firm, P.A., by Scott M. Anderson, for plaintiffs-appellees.
Attorney
General
Roy Cooper, by Special Deputy Attorney General David Roy Blackwell,
Special Deputy Attorney General Melissa L. Trippe, Special Deputy Attorney
General Amar Majmundar, and Assistant Attorney General Richard L. Harrison, for
defendant-appellant.
GEER, Judge.
Defendant North Carolina Department of Health and Human
Services (“DHHS”) appeals from an order of the North Carolina Industrial
Commission denying its motion to dismiss based on the public duty
doctrine. Plaintiffs’ claims under the
State Tort Claims Act arose out of a fire on 3 May 2002 at the Mitchell County
jail. The fire claimed the lives of
inmates Jason Jack Boston, Mark Halen Thomas, Jesse Allen Davis, and Danny Mark
Johnson and seriously injured inmate O.M. Ledford, Jr. Plaintiffs contend that the inspector for
DHHS was negligent in his inspection of the Mitchell County jail and that DHHS
failed to properly train the inspector to perform his duties as an inspector of
county jails.
Our Supreme Court has held that the public duty doctrine
applies “‘to state agencies required by statute to conduct inspections for
the public’s general protection’“ Wood
v. Guilford County, 355 N.C. 161, 167, 558 S.E.2d 490, 495 (2002) (emphasis
added) (quoting Lovelace v. City of Shelby, 351 N.C. 458, 461, 526
S.E.2d 652, 654 (2000)). Although DHHS
acknowledges that the General Assembly has placed a duty on DHHS to perform
inspections of local detention facilities to ensure the health and welfare of
prisoners in such facilities, it argues that these inspections “benefit the
public” because “[t]he inmates addressed in these statutes are members of the
public . . . .”
If we were to accept this facile argument, we would
effectively eviscerate the Tort Claims Act, since State agencies would be able
to argue that any duty that they owed was necessarily to a member of the public
since all residents of North Carolina are members of the public. This Court must, however, be ever vigilant
not to act as a super-legislature that imposes its notion of public policy in
the face of statutory determinations otherwise. It is for the General Assembly, and not judges, to decide
questions of public policy regarding how and when the State may be sued.
For 100 years, North Carolina’s courts have recognized that
governments owe a private duty to inmates to maintain their health and
safety. In connection with that duty,
our General Assembly has specifically provided that DHHS has the duty to
inspect local detention facilities, including jails, in order to ensure the
protection of jail inmates. Since this
duty is for the benefit of the inmates and not for the general public, the
public duty doctrine does not apply.
We, therefore, hold that the Industrial Commission properly denied DHHS’
motion to dismiss.
__________________________
Following the fire at the Mitchell County jail, plaintiffs
filed separate affidavits of claim in the Industrial Commission pursuant to the
Tort Claims Act, N.C. Gen. Stat. Art. 31, §§143-291 et seq. (2005). The claims of all five plaintiffs were
consolidated before the Industrial Commission on 27 August 2003. Because this appeal is before us on DHHS’
motion to dismiss, we treat the factual allegations in plaintiffs’ affidavits
of claim as true. Hunt v. N.C. Dep’t
of Labor, 348 N.C. 192, 194, 499 S.E.2d 747, 748 (1998).
Plaintiffs alleged that Ernest Dixon, a DHHS employee
responsible for inspecting the Mitchell County jail, failed to adequately
inspect the jail “to ensure compliance with certain regulations and to ensure
that all fire safety devices and procedures were in good working order.” Plaintiffs also alleged that DHHS acted
negligently in “fail[ing] to properly train [Mr. Dixon] to perform the special
duties of inspecting county jails for the protection of . . . inmates.”
DHHS filed a motion to dismiss pursuant to N.C.R. Civ. P.
12(b)(1), (2), and (6) on the grounds that plaintiffs’ claims were barred by
the public duty doctrine under Braswell v. Braswell, 330 N.C. 363, 410
S.E.2d 897 (1991), and Stone v. N.C. Dep’t of Labor, 347 N.C. 473, 495
S.E.2d 711, cert. denied, 525 U.S. 1016, 142 L. Ed. 2d 449, 119 S. Ct.
540 (1998). In response to the motion,
plaintiffs amended their affidavits of claim to expressly allege that a special
relationship existed between the inmates and DHHS and that DHHS owed them a special duty.
Specifically, plaintiffs alleged that because the inmates
were unable to protect themselves, “a special relationship arose between the
aforementioned department and [the inmate] to fulfill the duties imposed under
the law to ensure that the [inmate], as a confined individual, would be
protected in the event of a fire.”
Plaintiffs further alleged that “the State promised it would inspect
county jails to ensure the protection of inmates in the event of fires.” Finally, plaintiffs asserted that “[t]he
duties described hereinabove were not for the benefit of the public at large,
but for the benefit of the specific individuals confined in the subject jail.”
Deputy Commissioner Edward Garner, Jr. denied DHHS’ motion
to dismiss. DHHS appealed to the Full
Commission, which upheld the Deputy Commissioner’s decision. DHHS timely appealed that decision to this
Court pursuant to N.C. Gen. Stat. §143-293 (2005).
As a preliminary matter, we note that ordinarily the denial
of a motion to dismiss is an interlocutory order from which there may not be an
immediate appeal. Block v. County of
Person, 141 N.C. App. 273, 276, 540 S.E.2d 415, 418 (2000). Since, however, DHSS bases its appeal on the
public duty doctrine, its appeal involves a substantial right warranting
immediate appellate review. Smith v.
Jackson County Bd. of Educ., 168 N.C. App. 452, 457-58, 608 S.E.2d 399, 405
(2005).
The sole question presented on this appeal by DHHS is
whether the Commission erred when it failed to conclude that the public duty
doctrine barred plaintiffs’ claims. A
law review commentator has cogently explained the development of the general
rule:
The public duty doctrine provides that, absent a special
relationship between the governmental entity and the injured individual, the
governmental entity will not be liable for injury to an individual where
liability is alleged on the ground that the governmental entity owes a duty to
the public in general. The doctrine has
been commonly described by the oxymoron, “duty to all, duty to none.” . . . .
After the historic tort barrier of governmental immunity
crumbled and states provided waiver mechanisms, state courts resurrected the
[public duty doctrine] to provide limits to governmental tort liability when
their legislatures had not done so.
Thus, state courts embraced the public duty doctrine to confine
liability to specific types of governmental actions, namely those not
undertaken for the public in general.
Frank
Swindell, Note, Municipal Liability for Negligent Inspections in Sinning
v. Clark — A “Hollow” Victory for the Public Duty Doctrine, 18 Campbell
L. Rev. 241, 247-49 (1996).
Our Supreme Court specifically adopted the public duty
doctrine for the first time in 1991:
The general common law rule, known as the public duty
doctrine, is that a municipality and its agents act for the benefit of the
public, and therefore, there is no liability for the failure to furnish police
protection to specific individuals.
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.
Braswell, 330 N.C. at
370-71, 410 S.E.2d at 901 (internal citations omitted). In 1998, the Supreme Court extended this
“common law rule” to certain conduct of State agencies challenged under the
Tort Claims Act. Stone, 347 N.C.
at 479, 495 S.E.2d at 715. In response
to Justice Orr’s vigorous dissent, the majority emphasized that this extension
involved a “limited new context, not heretofore confronted by this Court.” Id. at 483, 495 S.E.2d at 717.
Subsequently, the Supreme Court described this extension as
limited to applying “the public duty doctrine to state agencies required by
statute to conduct inspections for the public’s general protection.” Lovelace, 351 N.C. at 461, 526 S.E.2d
at 654 (emphasis added). Two years
later, the Court reemphasized this limitation on the application of the public
duty doctrine with respect to State agencies.
See Wood, 355 N.C. at 167, 558 S.E.2d at 495 (“[T]his
Court has extended the public duty doctrine to state agencies required by
statute to conduct inspections for the public’s general protection . . .
.”). See also Isenhour v.
Hutto, 350 N.C. 601, 608, 517 S.E.2d 121, 126 (1999) (noting that the
public duty doctrine applies only to a violation of a “statutory duty of a
state agency to inspect various facilities for the benefit of the public”).
The first question we must decide, therefore, is whether the
duty of inspection relied upon by plaintiffs was one “to conduct inspections
for the public’s general protection.” Lovelace,
351 N.C. at 461, 526 S.E.2d at 654.
If we conclude that the duty to inspect set out by the General Assembly
was not “intended to benefit the public at large,” Wood, 355 N.C. at
169, 558 S.E.2d at 496, then the public duty doctrine does not apply. If, on the other hand, we conclude that the
public duty doctrine does apply, we must next determine whether plaintiffs fall
within one of the two exceptions to that doctrine:
[E]xceptions to
the doctrine exist: (1) where there is a special relationship between the
injured party and the governmental entity; and (2) when the governmental entity
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.
Stone, 347 N.C. at
482, 495 S.E.2d at 717. We note that in
addition to arguing that the public duty doctrine does not apply to DHHS’ duty
to inspect, plaintiffs also specifically alleged in their amended affidavits
that both a special relationship and a special duty exist.
DHHS and the dissent contend that Stone and Hunt
establish the applicability of the public duty doctrine to this case. In Stone, the plaintiffs sought
damages for injuries or deaths resulting from the fire at the Imperial Foods
Products plant in Hamlet, North Carolina.
The plaintiffs alleged that the North Carolina Department of Labor had negligently
failed to inspect the plant. The
Supreme Court first observed: “‘[A] government ought to be free to enact laws
for the public protection without thereby exposing its supporting
taxpayers . . . to liability for failures of omission in its attempt to enforce
them. It is better to have such laws,
even haphazardly enforced, than not to have them at all.’“ Id. at 481, 495 S.E.2d at 716
(alteration and emphasis original) (quoting Grogan v. Commonwealth, 577
S.W.2d 4, 6 (Ky.), cert. denied, 444 U.S. 835, 62 L. Ed. 2d 46, 100 S.
Ct. 69 (1979)).
The Court then turned to an assessment of the General
Assembly’s intent in imposing a duty of inspection on the Department of Labor:
[T]he most the
legislature intended was that the [Occupational Safety and Health] Division
prescribe safety standards and secure some reasonable compliance through
spot-check inspections made “as often as practicable.” N.C.G.S. §95-4(5) (1996). “In this way the safety conditions for
work[ers] in general would be improved.”
Nerbun v. State, 8 Wash. App. 370, 376, 506 P.2d 873, 877
(holding that Washington Department of Labor did not owe an absolute duty to
individual workers and concluding that the Washington legislature intended only
that the Department act on behalf of workers in general), disc. rev. denied,
82 Wash. 2d 1005 (1973).
Id. at 482, 495
S.E.2d at 716. The Court concluded:
“Although N.C.G.S. §95-4 imposes a duty upon defendants, that duty is for
the benefit of the public, not individual claimants as here.” Id. at 483, 495 S.E.2d at 717
(emphasis added).
In Hunt, the plaintiff alleged that the Department of
Labor breached its duty to inspect amusement park rides with the result that
the plaintiff was injured while riding in a go-kart with seat belts that were
not in compliance with the Department’s regulations. In holding that the public duty doctrine precluded the claim, the
Court relied upon the fact that “[t]he Amusement Device Safety Act and the
rules promulgated thereunder are for the ‘protection of the public from
exposure to such unsafe conditions’ and do not create a duty to a specific
individual.” Hunt, 348 N.C. at
198, 499 S.E.2d at 751 (emphasis added) (quoting N.C. Gen. Stat. §95-111.1(b)
(1989)).
Stone and Hunt thus direct us to look
at the specific statutes and regulations providing for any duty to inspect in
order to determine whether the General Assembly intended the inspection to be
for the protection of the general public or for the protection of specified
individuals. See Stone,
347 N.C. at 482, 495 S.E.2d at 716 (“[W]e do not believe the legislature, in
establishing the Occupational Safety and Health Division of the Department of
Labor in 1973, intended to impose a duty upon this agency to each individual
worker in North Carolina.”); Hunt, 348 N.C. at 197, 499 S.E.2d at 750
(“[N]owhere in the [Amusement Device Safety] Act did the legislature impose a
duty upon defendant to each go-kart customer.”).
With respect to the inspection of jails by the State, the
General Assembly has provided:
The Department
[of Health and Human Services] shall:
. . . .
(3) Visit and inspect
local confinement facilities; advise the sheriff, jailer, governing board, and
other appropriate officials as to deficiencies and recommend improvements; and
submit written reports on the inspections to appropriate local officials.
. . . .
(6) Perform any other
duties that may be necessary to carry out the State’s responsibilities
concerning local confinement facilities.
N.C.
Gen. Stat. §153A-220 (2005). The
General Assembly has more specifically provided in regards to this duty of
inspection:
Department personnel shall visit and inspect each
local confinement facility at least semiannually. The purpose of the inspections is to investigate the
conditions of confinement, the treatment of prisoners, the maintenance of
entry level employment standards for jailers and supervisory and administrative
personnel of local confinement facilities as provided for in G.S. 153A-216(4), and
to determine whether the facilities meet the minimum standards published
pursuant to G.S. 153A-221. The
inspector shall make a written report of each inspection and submit it
within 30 days after the day the inspection is completed to the governing body
and other local officials responsible for the facility. The report shall specify each way in
which the facility does not meet the minimum standards.
N.C.
Gen. Stat. §153A-222 (2005) (emphases added).
The “minimum standards” against which the facilities must be
measured “shall be developed with a view to providing secure custody of
prisoners and to protecting their health and welfare and providing for their
humane treatment.” N.C. Gen. Stat.
§153A-221(a) (2005) (emphasis added). See
also N.C. Gen. Stat. §131D-11 (2005) (“The Department of Health and Human
Services shall, as authorized by G.S. 153-51, inspect regularly all
confinement facilities as defined by G.S. 153-50(4) to determine compliance
with the minimum standards for local confinement facilities adopted by the
Social Services Commission.” (emphasis added)). The importance of these inspections to the General Assembly is
reflected by the fact that the legislature has made the failure to provide the
information required by law to DHHS regarding local confinement facilities a
Class 1 misdemeanor. N.C. Gen. Stat.
§131D-13 (2005).
DHHS’ regulations adopted pursuant to these statutes provide
that “[a]ll jails shall be visited and inspected at least twice each year, but
a jail shall be inspected more frequently if the Department considers it
necessary or if it is required by an agreement of correction pursuant to 10A
NCAC 14.1304.” 10A N.C.A.C. 14J.1301
(2003). DHHS requires that following
the inspection, the inspector “shall forward a copy of the inspection report to
the Secretary [of DHHS] within ten days after the inspection if there are
findings of noncompliance” with any of certain specified standards, including
the standards for “Fire Safety.” 10A
N.C.A.C. 14J.1302(b)(2) (2003). After
receipt of the inspector’s report “[t]he Secretary shall determine whether conditions
in the jail jeopardize the safe custody, safety, health or welfare of its
inmates within 30 days after receipt of the inspection report and the
supporting materials.” 10A N.C.A.C.
14J.1303(a) (2003). If the
noncompliance involves the fire plan or fire equipment, among other specified
concerns, the Secretary “shall determine” that the noncompliance “jeopardizes
the safe custody, safety, health or welfare of inmates confined in the
jail.” 10A N.C.A.C. 14J.1303(c). Once the Secretary determines that such
jeopardy exists, “[t]he Secretary shall order corrective action, order the jail
closed, or enter into an agreement of correction with local officials pursuant
to 10A NCAC 14J.1304.” 10A N.C.A.C.
14J.1303(d).
These statutes and regulations are materially
distinguishable from those in Stone and Hunt. The inspection of the jail conditions —
expressly including those relating to fire safety — is for the purpose of
ensuring the safety, health, and welfare of jail inmates. Neither the statutes nor the regulations can
be reasonably construed as creating a duty to inspect for the benefit of the
public or for the public’s general protection.[Note 1]
The dissent makes no attempt to explain in what way the duty
of inspection under theses statutes and regulations relates to the general
public apart from flatly asserting so, despite the express language
otherwise. Further, in arguing that the
statutes establish no duty requiring that DHHS correct any jail conditions, the
dissent disregards the nature of plaintiffs’ claim. Plaintiffs allege a negligent inspection of the jail and not a
negligent failure to correct the conditions.
There is no need to decide whether the public duty doctrine or any other
theory would preclude liability for a failure to correct the conditions in the
Mitchell County jail. Although not
addressed by the dissent, the sole pertinent question under Stone,
Hunt, and the subsequent Supreme Court decisions for such a negligent
inspection claim is the purpose of the duty to inspect: whether it was for the
protection of the general public or specific individuals. The General Assembly was specific in
providing that the purpose of the inspection is to protect the inmates from
harm, a purpose further reflected in DHHS’ regulations.[Note 2]
DHHS’ suggestion that the statutes and regulations
necessarily are for the benefit of the public because “[t]he inmates addressed
in these statutes are members of the public” deserves little comment. Suffice it to say that inmates are in jail
specifically so that they will be separate from the general public. See West v. Atkins, 487 U.S.
42, 56 n.15, 101 L. Ed. 2d 40, 54 n.15, 108 S. Ct. 2250, 2260 n.15 (1988)
(noting that the correctional setting is “specifically designed to be removed
from the community”). See also Wood,
355 N.C. at 169, 558 S.E.2d at 496 (holding that the public duty doctrine
applied when the “protective services provided by Guilford County were intended
to benefit the public at large” (emphasis added)).
The view that the duty of DHHS is a private one owed to the
inmate and not the general public is also supported by prior decisions of our
Supreme Court. In 1992, the Supreme
Court noted that “North Carolina courts and lawmakers have long recognized the
state’s duty to provide medical care to prisoners” and pointed out that the
“legislature has codified this duty in a statute” that required the Department
of Corrections to prescribe standards for health services to prisoners. Medley v. N.C. Dep’t of Corr., 330
N.C. 837, 842, 412 S.E.2d 654, 657-58 (1992).
The statute in Medley is analogous to the statutes at issue in
this case. As support for an additional
common-law duty to inmates, the Court quoted from a 1926 decision relating to
jail inmates: “‘The prisoner by his arrest is deprived of his liberty for the
protection of the public; it is but just that the public be required to care
for the prisoner, who cannot by reason of the deprivation of his liberty, care
for himself.’“ Id., 412 S.E.2d
at 657 (quoting Spicer v. Williamson, 191 N.C. 487, 490, 132 S.E. 291,
293 (1926)). The Court concluded by
also noting that “[i]n addition to common-law and statutory duties to provide
adequate medical care for inmates, the state also bears this responsibility under
our state Constitution and the federal Constitution.” Id., 412 S.E.2d at 658.
In Spicer, the Court held that the board of county
commissioners, rather than the sheriff, was liable for payment to a doctor for
a jail inmate’s medical care based on the “duty which the public owes to [the
sheriff’s] prisoner.” Spicer,
191 N.C. at 490, 132 S.E. at 293. The
Court observed, however, that the sheriff could “be required to answer in
damages to the prisoner, or upon indictment to the public” for breach of his
duty to obtain medical attention for a prisoner in his custody. Id.
The Court thus recognized both a common law duty owed directly to the
prisoner in addition to his general public duty to perform his public office.
In Levin v. Town of Burlington, 129 N.C. 184, 188-89,
39 S.E. 822, 824 (1901), the Court specifically distinguished between duties
undertaken solely for the public good and those undertaken pursuant to a duty
to individuals:
[T]hese and
such cases [against municipalities] are for the neglect in failing to perform
some required duty — such as erecting and keeping in proper condition city
prisons by reason whereof the health of prisoners has been seriously impaired
the failure to work and keep the public streets in repair and free from
obstructions, whereby some person suffers injury. These are distinguishable from the case under consideration
[involving a claim of malicious prosecution], where public officers are in the
exercise of a public duty, and engaged in enforcing a public law for the public
good.
(Emphasis
added.) See also Shields v.
Town of Durham, 118 N.C. 450, 456, 24 S.E. 794, 795-96 (1896) (holding that
the Town of Durham could be held liable when the Commissioners had failed to
inspect the town prison for five years because “[t]he law will not tolerate
such gross negligence as this, without holding them responsible”).
The dissent dismisses the above precedent and argues that
this opinion fails to apply controlling precedent of this Court. The cases cited by the dissent, however,
either are entirely consistent with the conclusion we reach today or have been
overruled by the Supreme Court.
The dissent first points to Myers v. McGrady, __ N.C.
App. __, 613 S.E.2d 334, disc. review allowed, 359 N.C. 852, 619 S.E.2d
510 (2005). In Myers, however, this Court specifically pointed out
that “[i]n 1998, our Supreme Court applied the public duty doctrine to state
agencies required to conduct inspections for the public’s general protection,”
id. at __, 613 S.E.2d at 338 (emphasis added) — precisely the standard
we have applied in this case. Myers,
which did not involve a failure to inspect, does not purport to alter the
Supreme Court’s test. Instead, Myers
appears to hold that even if a duty to inspect for the public’s general
protection exists, the public duty doctrine will not apply unless the claim
involves a “failure of state departments or agencies to detect and prevent
misconduct of others through improper inspections.” Id. at __, 613 S.E.2d at 339. In other words, under Myers, even if we concluded in this
case — contrary to the pertinent statutes — that a duty was owed to the general
public, the public duty doctrine would still not apply unless the claim alleged
a failure to detect and prevent misconduct by third parties. There has been no allegation here that the
fire was the result of “misconduct,” as opposed to negligence, by another
person.
With respect to the dissent’s remaining cases, with a single
exception, they all involve claims against local governments and not State
agencies. Those cases addressing
negligent inspection claims or conduct not involving law enforcement
departments acting to protect the public have been overruled by Thompson v.
Waters, 351 N.C. 462, 465, 526 S.E.2d 650, 652 (2000), and Lovelace,
351 N.C. at 461, 526 S.E.2d at 654.[Note 3] Specifically, in Thompson,
the Court held: “This Court has not heretofore applied the public duty doctrine
to a claim against a municipality or county in a situation involving any group
or individual other than law enforcement.
After careful review of appellate decisions on the public duty doctrine
in this state and other jurisdictions, we conclude that the public duty
doctrine does not bar this claim against Lee County for negligent inspection of
plaintiffs’ private residence.” 351
N.C. at 465, 526 S.E.2d at 652. See
also Lovelace, 351 N.C. at 461, 526 S.E.2d at 654 (“[W]e have never
expanded the public duty doctrine to any local government agencies other than
law enforcement departments when they are exercising their general duty to
protect the public.”).
The remaining cases cited by the dissent address law
enforcement’s exercise of its duty to protect the public generally and not a
duty to a specified class of individuals.[Note 4] Indeed, this Court in Clark
v. The Red Bird Cab Co., 114 N.C. App. 400, 406, 442 S.E.2d 75, 78, disc.
review denied, 336 N.C. 603, 447 S.E.2d 387 (1994), stressed: “Here, a
review of the applicable city code provisions reveals no specific
identification of a particular class of persons being singled out for
protection by the city. We find no
language creating a special duty which the police officers would owe to taxicab
customers over and above the duty owed to the general public.” By contrast, the statutes and regulations
pertinent to DHHS’ duty in this case do specifically identify a particular
class of persons for protection by DHHS:
inmates of local detention facilities.
Further, in Lassiter, this Court specifically recognized that Lovelace
“sought to reign in the expansion of the public duty doctrine’s application to
other government agencies and ensure it would be applied in the future only to
law enforcement agencies fulfilling their ‘general duty to protect the public,’
and thus reasserted the principles of Braswell.” 168 N.C. App. at 317, 607 S.E.2d at 692
(quoting Lovelace, 351 N.C. at 461, 526 S.E.2d at 654). In short, the cases cited by the dissent
either support the analysis we have applied in this case or are inapplicable.
DHHS and the dissent urge alternatively that the public duty
doctrine should nonetheless apply because any duty to the inmates belonged
solely to the local officials. As the
plain language of the statutes indicate, however, the General Assembly has
chosen to impose a duty upon the State regarding jail inmates.[Note 5] Medley, Spicer, Levin,
and Shields establish that when a governmental body has a duty regarding
the care of an inmate, that duty is a private one owed to the inmate and not a
public duty. By assuming a duty to jail
inmates, the General Assembly assumed a private duty to those individuals, and
the public duty doctrine does not apply.
This holding is in accord with that of other states. See Roberts v. State, 159 Ind.
App. 456, 462, 307 N.E.2d 501, 505 (1974) (“[A] public official, charged with
the custody and care of a prisoner, owes a private duty to the prisoner
to take reasonable precautions under the circumstances to preserve his life,
health, and safety — a duty which is in addition to the duty of safekeeping
owed to the public generally.”); Geiger v. Bowersox, 974 S.W.2d 513, 517
(Mo. Ct. App. 1998) (holding that a nurse at a prison “does not owe the general
public” a duty, but rather her duty is “owed specifically to the inmates”).
While the Supreme Court in Stone stated that it
“refuse[d] to judicially impose an overwhelming burden of liability on
defendants for failure to prevent every employer’s negligence that results in
injuries or deaths to employees,” 347 N.C. at 481, 495 S.E.2d at 716, the duty
in this case is legislatively imposed.
In contrast to Stone and Hunt, the statutes relied upon by
plaintiffs in this case do not seek to secure only “reasonable compliance
through spot-check inspections made ‘as often as practicable.’“ Id. at 482, 495 S.E.2d at 716
(quoting N.C. Gen. Stat. §95-4(5) (1996)).
Instead, they specifically require two inspections a year of each local
detention facility with the intent that total compliance will be
achieved with respect to certain standards such as fire safety — the very
standards at issue here.
We are not free to employ a common law rule to reinstate
sovereign immunity when the State has both waived that immunity and
specifically assumed a duty to jail inmates.
The dissent’s claim that this opinion “has far reaching implications” is
misplaced. Each of the examples given
by the dissent — such as a restaurant patron, a patient, or a legal client —
involves the general public. They do
not involve the unique situation faced by inmates and the express assumption by
the State of a duty to those inmates.
Indeed, if we were to embrace the view of the dissents in this case and
in Myers, it is difficult to identify any negligence claim asserted
against the State that would fall outside the scope of the public duty
doctrine. The result would be to
judicially amend the State Tort Claims Act to require all plaintiffs to prove
either a special relationship or a special duty as an element of their claim
under the Tort Claims Act. To do so —
based on a judicial assessment of the policy implications for the State and its
taxpayers — would be to sit as a super-legislature.[Note 6]
Even if we could conclude that the statutes and regulations
imposed a duty to inspect for the benefit of the public, as required by Stone
and Hunt, we would still hold that plaintiffs fall within the “special
relationship” exception to the public duty doctrine. In Hunt, the Supreme Court explained that “in order to
fall within the ‘special relationship’ exception to the public duty doctrine,
plaintiff must allege a special relationship, such as that between ‘a state’s
witness or informant who has aided law enforcement officers.’“ 348 N.C. at 199, 499 S.E.2d at 751 (quoting Braswell,
330 N.C. at 371, 410 S.E.2d at 902).[Note 7]
This Court has previously held that a “special relationship”
exists when the plaintiff is in police custody. Hull v. Oldham, 104 N.C. App. 29, 38, 407 S.E.2d 611, 616
(“[T]here are exceptions to the general rule of no liability where a special
relationship exists between the victim and law enforcement, such as where the
victim is in police custody . . . .”), disc. review denied, 330 N.C.
441, 412 S.E.2d 72 (1991). See also
Stafford v. Barker, 129 N.C. App. 576, 582, 502 S.E.2d 1, 5 (utilizing
same quotation from Hull as an illustration of the type of circumstances
that give rise to a special relationship), disc. review denied, 348 N.C.
695, 511 S.E.2d 650 (1998). For the
purpose of the public duty doctrine, there is no meaningful distinction between
a person who is in police custody and a person who is in the custody of the
jail because of the State’s decision to prosecute him.
In a context analogous to that of the public duty doctrine,
our courts have held there is no duty to protect others against harm from third
persons except “when a special relationship exists between parties.” King v. Durham County Mental Health
Developmental Disabilities & Substance Abuse Auth., 113 N.C. App. 341,
345, 439 S.E.2d 771, 774, disc. review denied, 336 N.C. 316, 445 S.E.2d
396 (1994). In King, this Court
observed that “recognized special relationships” include “custodian-prisoner.” Id. at 346, 439 S.E.2d at 774. See also Haworth v. State, 60
Haw. 557, 563, 592 P.2d 820, 824 (1979) (“It is well settled that a state, by
reason of the special relationship created by its custody of a prisoner, is
under a duty to the prisoner to take reasonable action to protect the prisoner
against unreasonable risk of physical harm.”); Restatement (Second) of Torts
§314A(4) (1965) (“One who is required by law to take or who voluntarily takes
the custody of another under circumstances such as to deprive the other of his
normal opportunities for protection is under a similar duty to the other.”); id.
cmt. b (“The duties stated in this Section arise out of special relations
between the parties, which create a special responsibility, and take the case
out of the general rule.”).
Similarly, in Davidson v. Univ. of N.C. at Chapel Hill,
142 N.C. App. 544, 554, 543 S.E.2d 920, 927, disc. review denied and cert.
denied, 353 N.C. 724, 550 S.E.2d 771 (2001), this Court considered when a
“special relationship” exists for purposes of imposing liability under the
State Tort Claims Act for a negligent omission. The Court explained:
“During the
last century, liability for [omissions] has been extended still further to a
limited group of relations, in which custom, public sentiment and views of
social policy have led the courts to find a duty of affirmative action. In such relationships the plaintiff is
typically in some respect particularly vulnerable and dependant upon the
defendant who, correspondingly, holds considerable power over the plaintiff’s
welfare. In addition, such relations
have often involved some existing or potential economic advantage to the
defendant. Fairness in such cases thus
may require the defendant to use his power to help the plaintiff, based upon
the plaintiff’s expectation of protection, which itself may be based upon the
defendant’s expectation of financial gain. . . . There is now respectable authority imposing the same duty upon a
shopkeeper to his business visitor, upon a host to his social guest, upon a
jailor to his prisoner, and upon a school to its pupil.”
Id., 543 S.E.2d at
926-27 (quoting W. Page Keeton, et al., Prosser and Keeton on the Law of
Torts §56, at 373-74, 376-77 (5th ed. 1984) (emphasis added and omitted)).
The United States Supreme Court has also recognized the
special relationship that arises by virtue of imprisonment: “prisons and jails
are inherently coercive institutions that for security reasons must exercise
nearly total control over their residents’ lives and the activities within
their confines . . . .” West,
487 U.S. at 56 n.15, 101 L. Ed. 2d at 54 n.15, 108 S. Ct. at 2260 n.15. Accordingly,
when the State
takes a person into its custody and holds him there against his will, the
Constitution imposes upon it a corresponding duty to assume some responsibility
for his safety and general well-being.
The rationale for this principle is simple enough: when the State by the
affirmative exercise of its power so restrains an individual’s liberty that it
renders him unable to care for himself, and at the same time fails to provide
for his basic human needs — e.g., food, clothing, shelter, medical care,
and reasonable safety — it transgresses the substantive limits on state action
set by the Eighth Amendment and the Due Process Clause. The affirmative duty to protect arises not
from the State’s knowledge of the individual’s predicament or from its
expressions of intent to help him, but from the limitation which it has imposed
on his freedom to act on his own behalf.
DeShaney
v. Winnebago County Dep’t of Soc. Servs., 489 U.S. 189, 199-200, 103 L. Ed. 2d
249, 261-62, 109 S. Ct. 998, 1005-06 (1989) (internal citations omitted).
Although not
disputing that inmates may fall within the “special relationship” exception,
DHHS and the dissent argue that it had no “special relationship” with the
inmates because any such relationship was between Mitchell County and the
inmates. In doing so, DHHS and the
dissent ignore the express responsibility mandated by the General Assembly and
implemented in DHHS’ own regulations.
Federal courts in other jurisdictions have held that a state’s duty to
ensure that a jail meets prescribed standards is sufficient to support
liability under the more stringent standards of 42 U.S.C. §1983 despite primary
responsibility for the jail resting with local officials. See, e.g., Nicholson v. Choctaw
County, 498 F. Supp. 295, 311 (S.D. Ala. 1980) (“The Commissioner of the
Department of Corrections has violated the rights of inmates held in Choctaw
County Jail by failing to exercise his duty under Alabama law to insure that
the jail meets the standards prescribed pursuant to Alabama Code §14-6-81.”); Payne
v. Rollings, 402 F. Supp. 1225, 1228 (E.D. Va. 1975) (holding, based on
state statutes requiring the Director of the Department of Corrections to
enforce regulations regarding jails, that the defendant Director “did owe a
duty to plaintiff,” who was a jail inmate, that would support a claim under
§1983).
The district
court and Fourth Circuit decisions in Reid v. Johnston County, 688 F.
Supp. 200 (E.D.N.C. 1988), aff’d per curiam sub nom. Reid v. Kayye, 885
F.2d 129 (4th Cir. 1989), relied upon by DHHS, do not lead to a different
conclusion. Neither court addressed
state negligence claims, but rather only considered the liability of individual
State officials under 42 U.S.C. §1983 for “fail[ing] to take action to remedy
the [constitutional] violations” arising out of conditions in the county
jail. 885 F.2d at 131. The plaintiffs argued in Reid that
the State officials “had not only the power but the duty to correct the
conditions.” Id. Although the Fourth Circuit acknowledged
that, by statute, the State had a duty toward the jail inmates, it concluded
that the statutes did not vest the officials “with the mandatory duty to remedy
substandard jail conditions” and, in the absence of such a duty, “their
inaction cannot be seen as a cause of those conditions and a §1983 suit cannot
be maintained against them.” Id. See also Reid, 688 F. Supp. at
203 (granting the motion to dismiss the §1983 action because “plaintiffs have
not demonstrated that defendants’ actions, taken under color of state law, have
in any way caused existing or past constitutionally deficient
conditions”). Thus, neither case
disputed the existence of a “special relationship” between jail inmates and
DHHS, but rather only addressed the issue of causation under §1983.
The issue of
causation is not, however, before this Court.[Note 8] DHHS and the dissent have cited no cases
suggesting in any manner that causation is relevant to a determination of the
applicability of the public duty doctrine.
Nor have we identified any. We,
therefore, hold, based on the statutes discussed above, that plaintiffs have
sufficiently demonstrated that they fall within the “special relationship”
exception to the public duty doctrine.
We hold that
the public duty doctrine does not apply under Stone and Hunt
because DHHS’ duty to inspect was for the purpose of protecting the inmates and
not for protection of the public generally.
Alternatively, we hold that, even if the public duty doctrine did apply,
plaintiffs fall within the “special relationship” exception to that
doctrine. Accordingly, we affirm the
Industrial Commission’s denial of DHHS’ motion to dismiss.
Affirmed.
Judge McGEE
concurs.
Judge TYSON
concurs in part and dissents in part in a separate opinion.
1. While the inspections are also
expected to assess the security of the jails — relating to the public’s
protection — there is no allegation in this case that DHHS was in any way
negligent with respect to security.
2. We, in any event, disagree with the
dissent’s construction of N.C. Gen. Stat. §153A-223 (2005), which provides that
“if the Secretary determines that conditions in the facility jeopardize the
safe custody, safety, health, or welfare of persons confined in the facility,
the Secretary may order corrective action or close the facility . . . .” The dissent suggests that this language
means that the Secretary is not required to act. When, however, the entire statute — and not just this phrase — is
considered, the plain language of the statute establishes that the Secretary is
required to take action, but may choose between ordering corrective action or
closing the facility. The Secretary
“shall” give notice of his determination (including “the inspector’s report”)
to the local governing body, each local official responsible for the facility,
and the senior resident superior court judge for the superior court district in
which the facility is located. N.C.
Gen. Stat. §153A-223(1). The governing
body, if it does not initiate corrective action or close the facility, may
request a contested case hearing to address (1) whether the facility meets the
minimum standards, (2) whether the conditions in the facility jeopardize the
safe custody, safety, health, or welfare of the inmates, and (3) the
appropriate corrective action to be taken and a reasonable time to complete the
action. N.C. Gen. Stat. §153A-223(3). On appeal to the superior court, “[t]he
issue before the court shall be whether the facility continues to jeopardize
the safe custody, safety, health, or welfare of persons confined therein.” N.C. Gen. Stat. §153A-223(6). Thus, the statute relied upon by the dissent
underscores that the duty of inspection is for the benefit of the specific
individuals confined in the jail.
3. These cases include Simmons v.
City of Hickory, 126 N.C. App. 821, 487 S.E.2d 583 (1997) (addressing a
city’s negligent inspection of a home); Tise v. Yates Constr. Co., 122
N.C. App. 582, 471 S.E.2d 102 (1996) (involving a city’s failure to inform a
construction company of potential tampering with equipment, resulting in the
death of a police officer), modified and aff’d on other grounds, 345
N.C. 456, 460, 480 S.E.2d 677, 680 (1997) (“We have some doubt as to the
applicability of the public duty doctrine to the circumstances of this case.”);
Sinning v. Clark, 119 N.C. App. 515, 459 S.E.2d 71 (involving negligent
inspection of a home), disc. review denied, 342 N.C. 194, 463 S.E.2d 242
(1995).
4. See Lassiter v. Cohn,
168 N.C. App. 310, 607 S.E.2d 688 (applying public duty doctrine to the
discretionary actions of a police officer responding to an accident scene), disc.
review denied, 359 N.C. 633, 613 S.E.2d 686 (2005); Little v. Atkinson,
136 N.C. App. 430, 432, 524 S.E.2d 378, 380 (relying upon the principle that
“there is no liability for failure to furnish police protection to specific
individuals” when the police are exercising their general police powers), disc.
review denied, 351 N.C. 474, 543 S.E.2d 492 (2000); Vanasek v. Duke
Power Co., 132 N.C. App. 335, 337, 511 S.E.2d 41, 43 (involving police
officers’ failure to provide warning to the public of a downed power line; to
the extent the holding applied the public duty doctrine to claims against the
City and fire department, it was overruled by Lovelace), cert. denied,
350 N.C. 851, 539 S.E.2d 13 (1999); Humphries v. N.C. Dep’t of Corr.,
124 N.C. App. 545, 479 S.E.2d 27 (1996) (applying doctrine to probation
officer’s negligent failure to prevent convict from committing criminal acts
against members of the public), disc. review improvidently allowed, 346
N.C. 269, 485 S.E.2d 293 (1997).
5. The federal case cited by DHHS and
the dissent supports the existence of this duty. See Reid v. Johnston County, 688 F. Supp. 200, 202
(E.D.N.C. 1988) (“There is no question that the North Carolina legislature has
contemplated some state participation in the maintenance and operation of local
confinement facilities.”), aff’d per curiam sub nom. Reid v. Kayye, 885
F.2d 129 (4th Cir. 1989) (noting that under North Carolina law, the Department
“has the duty” both to develop minimum standards and to inspect each facility).
6. Contrary to the dissent’s
suggestion, the General Assembly had no need to respond to Braswell
because it did not involve the State.
Further, Stone and Hunt provide only narrow exceptions to
State liability under the Tort Claims Act.
7. As analyzed in Stone and Hunt,
there appears, in the context of negligent inspection cases, to be considerable
overlap between the first inquiry — whether the duty is for the protection of
the public — and the “special relationship” exception.
8. Nothing precludes DHHS from
challenging below plaintiffs’ ability to prove the causation alleged in their
affidavits of claim. We express no
opinion regarding the conclusions reached by the federal courts in Reid
as to the discretionary nature of DHHS’ ability to enforce its standards. We note, however, that the courts did not
address DHHS’ regulations. See 10A N.C.A.C. 14J.1303(a) (“The
Secretary shall determine whether conditions in the jail jeopardize the safe
custody, safety, health or welfare of its inmates within 30 days after receipt
of the inspection report and the supporting materials.”); 10A N.C.A.C.
14J.1303(c) (mandating that the Secretary “shall determine” that noncompliance
with certain standards, including those relating to fire safety, jeopardize the
safe custody, safety, health, or welfare of inmates); 10A N.C.A.C. 14J.1303(d)
(providing that “[t]he Secretary shall order corrective action, order the jail
closed, or enter into an agreement of correction with local officials pursuant
to 10A NCAC 14J.1304”).
NO. COA04-808
NORTH CAROLINA COURT OF APPEALS
Filed:
7 March 2006
MULTIPLE CLAIMANTS,
Plaintiffs,
v. North Carolina Industrial Commission
I.C.
File Nos. TA-17881, TA-17882,
TA-17913,
TA-18069, & TA-18125
NORTH CAROLINA
DEPARTMENT OF
HEALTH AND HUMAN SERVICES,
DIVISION OF
FACILITY SERVICES,
JAILS AND
DETENTION SERVICES,
Defendant.
TYSON, Judge, concurring in part and dissenting in part.
I agree that defendant’s appeal, although interlocutory,
asserts a substantial right and is properly before this Court. Smith v. Jackson County Bd. of
Educ., 168 N.C. App. 452, 608 S.E.2d 398 (2005).
The majority’s opinion then affirms the Industrial
Commission’s denial of DHHS’ motion to dismiss and holds the public duty
doctrine does not apply to the facts at bar.
In the alternative, the majority’s opinion holds DHHS had a “special
relationship” to plaintiffs to except plaintiff’s claims from the public duty
doctrine. Precedents construing and
applying the public duty doctrine clearly control and require dismissal of this
case. No “special relationship” exists
between plaintiffs and DHHS to except DHHS from the public duty doctrine. I respectfully dissent.
I.
Public Duty Doctrine
The public duty doctrine “provides that governmental
entities and their agents owe duties only to the general public, not to
individuals, absent a ‘special relationship’ or ‘special duty’ between the
entity and the injured party.” Stone
v. N.C. Dept. of Labor, 347 N.C. 473, 477-78, 495 S.E.2d 711, 714 (1998)
(emphasis supplied); see also Wood v. Guilford Cty.,
355 N.C. 161, 167, 558 S.E.2d 490, 495 (2002) (“. . . this Court has extended
the public duty doctrine to state agencies required by statute to conduct
inspections for the public’s general protection . . .”).
Our Supreme Court recognized the common law public duty
doctrine as an exception to the Tort Claims Act for municipalities, political
subdivisions, and their agents in Braswell v. Braswell, 330 N.C. 363,
370-71, 410 S.E.2d 897, 901 (1991) (involving a county sheriff’s alleged
negligence in protecting a citizen). In
Stone, our Supreme Court extended the scope of the public duty doctrine
to “state agencies” and “governmental functions other than law
enforcement.” 347 N.C. at 481, 495
S.E.2d at 716.
Our Supreme Court also stated exceptions to the application
of the public duty doctrine: (1) where
the plaintiff shows a “special relationship” between the injured party and the
governmental entity; or, (2) when the governmental entity 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.
These exceptions are to be narrowly applied. Id. at 372, 410 S.E.2d at 902.
In Braswell, our Supreme Court held the public duty
doctrine was necessary to prevent “an overwhelming burden of liability” on
governmental agencies with “limited resources.” Id. at 370-71, 410 S.E.2d at 901. The Court stated:
The amount of
protection that may be provided is limited by the resources of the community
and by a considered legislative-executive decision as to how those resources
may be deployed. For the courts to
proclaim a new and general duty of protection in the law of tort . . . would
inevitably determine how the limited [public] resources . . . should be
allocated and without predictable limits.
Id. at 371, 410
S.E.2d at 901-902 (quoting Riss v. City of New York, 22 N.Y.2d 579,
581-82, 240 N.E.2d 860, 860-61, 293 N.Y.S.2d 897, 898 (1968)).
In Myers v. McGrady, __ N.C. App. __, __, 613
S.E.2d 334, 339 (2005), this Court recently held “that the public duty doctrine
applies where plaintiffs allege negligence through (a) failure of law
enforcement to provide protection from the misconduct of others, and (b) failure
of state departments or agencies to detect and prevent misconduct of others
through improper inspections.”
(Emphasis supplied). The facts
before us clearly fall into the second category.
II.
Controlling Precedents
This case cannot be distinguished from controlling Supreme
Court decisions in Stone and Hunt v. N.C. Dept.
of Labor, 348 N.C. 192, 499 S.E.2d 747 (1998). We are bound by the decisions of our Supreme Court. Eaves v. Universal Underwriters
Group, 107 N.C. App. 595, 600, 421 S.E.2d 191, 194 (1992), disc. review
denied, 333 N.C. 167, 424 S.E.2d 908 (1992).
The result here is also controlled by this Court’s prior
precedents in Myers; Lassiter v. Cohn, 168 N.C. App. 310, 607
S.E.2d 688 (2005) (the public duty doctrine barred the plaintiff’s claims
against the city when, after a traffic accident, a city police officer asked
the plaintiff to walk to the rear of his vehicle and the plaintiff was
struck by a car); Little v. Atkinson, 136 N.C. App. 430, 433-34, 524
S.E.2d 378, 381 (the public duty doctrine barred claims against the city and
its police officers who failed to adequately inspect a crime scene before
allowing relatives of the victim to visit the site), disc. review denied,
351 N.C. 474, 543 S.E.2d 492 (2000); Vanasek v. Duke Power Co., 132 N.C.
App. 335, 340-41, 511 S.E.2d 41, 45 (the public duty doctrine barred claims
against the city and its police officers who failed to warn the public of
broken power lines that caused decedent’s death), cert. denied, 350 N.C.
851, 539 S.E.2d 13 (1999); Simmons v. City of Hickory, 126 N.C. App.
821, 823-25, 487 S.E.2d 583, 586 (1997) (the public duty doctrine barred a
claim against the city for negligently inspecting homes and issuing building
permits); Humphries v. N.C. Dept. of Correction, 124 N.C. App. 545,
547-48, 479 S.E.2d 27, 28 (1996) (the public duty doctrine barred claim against
the Department of Correction for alleged negligence in the supervision of a
probationer), disc. review improvidently allowed, 346 N.C. 269, 485
S.E.2d 293 (1997); Tise v. Yates Construction Co., 122 N.C. App. 582,
588-89, 471 S.E.2d 102, 107 (1996) (the public duty doctrine shielded city from
liability for its failure to inform construction company of potential tampering
of construction equipment by trespassers where decedent died after construction
equipment crushed him); Sinning v.
Clark, 119 N.C. App. 515, 518-20, 459 S.E.2d 71, 73-74 ( the public duty
doctrine applied to bar a claim against the city, the city building inspector,
and the city code administrator for gross negligence in an inspection of a
home), disc. review denied, 342 N.C. 194, 463 S.E.2d 242 (1995); Clark
v. Red Bird Cab Co., 114 N.C. App. 400, 406, 442 S.E.2d 75, 78 (1994) (the
public duty doctrine protected the municipality and its police officers who
negligently issued a taxicab permit to a driver who subsequently murdered a
customer); Prevette v. Forsyth County, 110 N.C. App. 754, 758, 431
S.E.2d 216, 218 (the public duty doctrine barred a wrongful death claim against
the county and against the director and an employee of the county animal
control shelter for failing to protect plaintiff from dogs which defendants
knew were dangerous), disc. review denied, 334 N.C. 622, 435 S.E.2d 338
(1993). We are also bound by this
Court’s prior precedents. In re
Civil Penalty, 324 N.C. 373, 384, 379 S.E.2d 30, 37 (1989). Nothing in Thompson or Lovelace,
cited in the majority’s opinion, expressly overrules the precedents cited
above.
A. Stone
v. N.C. Dept. of Labor
In Stone, the plaintiffs sued the North Carolina
Department of Labor and its Occupational Safety and Health Division (“DOL”)
under the Tort Claims Act seeking damages for injuries or deaths resulting from
a fire at the Imperial Foods Products plant in Hamlet, North Carolina. 347 N.C. at 476, 495 S.E.2d at 713. Subsequent to the fire, DOL conducted an
inspection of the plant. This was the
only inspection DOL had conducted during the plant’s eleven-year history of
operation. Id. at 477, 495
S.E.2d at 713. As a result of the
inspection, DOL discovered inadequate and blocked exits and an inadequate fire
suppression system. Id.
As here, the Industrial Commission in Stone denied
the State’s Rule 12(b)(1) and 12(b)(6) motions. The Court of Appeals in Stone unanimously affirmed the
Commission. Id. at 476, 495
S.E.2d at 713. Our Supreme Court
granted discretionary review and reversed and remanded. Justice Whichard wrote:
Just as we
recognized the limited resources of law enforcement in Braswell, we
recognize the limited resources of defendants here. Just as we there refused to
judicially impose an overwhelming burden of liability on law enforcement for
failure to prevent every criminal act, we now refuse to judicially impose an
overwhelming burden of liability on defendants for failure to prevent every employer’s
negligence that results in injuries or deaths to employees. A government ought to be free to enact laws
for the public protection without thereby exposing its supporting
taxpayers . . . to liability for failures of omission in its attempt to enforce
them. It is better to have such laws,
even haphazardly enforced, than not to have them at all.
Stone, 347 N.C. at
481, 495 S.E.2d at 716 (internal citations and quotation marks omitted)
(emphasis in original).
Similar to plaintiffs’ claims here, the plaintiffs in Stone
argued the state agency owed them an individualized duty under N.C. Gen. Stat.
§95-4(5) to inspect the plant. Id.
at 483, 495 S.E.2d at 717. “This
statute provides that the Commissioner of Labor is ‘charged with the duty’ to
visit and inspect ‘at reasonable hours, as often as practicable,’ all of the
‘factories, mercantile establishments, mills, workshops, public eating places,
and commercial institutions in the State.’
Id. (quoting N.C. Gen. Stat. §95-4(5)). The Court held the individual claimants could not recover against
the State because the duty imposed by this statute is for the benefit of the
general public and not for the benefit of an individual. Id.
The Court stated:
[W]e do not
believe the legislature, in establishing the Occupational Safety and Health
Division of the Department of Labor in 1973, intended to impose a duty upon
this agency to each individual worker in North Carolina. Nowhere in chapter 95 of our General
Statutes does the legislature authorize a private, individual right of action
against the State to assure compliance with OSHANC standards. Rather, the most the legislature intended
was that the Division prescribe safety standards and secure some reasonable
compliance through spot-check inspections made “as often as practicable.” N.C.G.S. §95-4(5) (1996). “In this way the safety conditions for
workers in general would be improved.” Nerbun v. State, 8 Wash. App.
370, 376, 506 P.2d 873, 877.
Id. at 482, 495
S.E.2d at 716 (internal citations and quotation marks omitted).
B. Hunt
v. N.C. Dept. of Labor
In Hunt, decided a year after Stone, the
plaintiff also sued DOL under the Tort Claims Act for injuries resulting from
an accident at an amusement park. Id. The plaintiff argued DOL “had a duty under
the Amusement Device Safety Act, chapter 95, article 14B of the North Carolina
General Statutes, and the rules and regulations promulgated thereunder in the
Administrative Code,” and the DOL breached this duty by failing to inform the
amusement park’s manager that, pursuant to rule .0429(a)(3)(B) of the
Administrative Code, shoulder straps and seat belts must be mounted on
go-karts. Id. at 195, 499 S.E.2d
at 748-49. The Commission again denied
the State’s Rule 12(b)(1) and 12(b)(6) motions and the Court of Appeals
affirmed. 348 N.C. at 194, 499 S.E.2d
at 748.
Our Supreme court reviewed the Amusement Device Safety Act
and again reversed the Court of Appeal’s affirmance and remanded. Justice (now Chief Justice) Parker wrote,
“nowhere in the Act did the legislature impose a duty upon defendant to each
go-kart customer.” Id. at 197,
499 S.E.2d at 750. The Court further
stated, “Pursuant to N.C.G.S. §95-111.4, the Commissioner of Labor has
promulgated rules governing the inspection of go-karts. 13 NCAC 15 .0400 (June
1992). These rules similarly do not
impose any such duty.” Id. The Court held that the rules promulgated
under the Amusement Device Safety Act “are for the ‘[p]rotection of the public
from exposure to such unsafe conditions’ and do not create a duty to a specific
individual.” Id. at 198, 499
S.E.2d at 751. “To hold contrary to our
holding in Stone, in which we held that the defendants’ failure to
inspect did not create liability, would be tantamount to imposing liability on
defendant in this case solely for inspecting the go-karts and not discovering
them to be in violation of the Code.” Id.
at 198-99, 499 S.E.2d at 751.
III. Analysis
The facts at bar fit squarely within the law set forth in Stone
and Hunt and other binding precedents cited above. Stone and Hunt mandate that
the public duty doctrine bars negligence claims against the State where the
State legislatively imposes a duty to inspect to protect the public
generally. Here, none of the applicable
statutes before us impose any duty on or require the State to protect any
individual claimant, nor do the statutes establish any special relationship
between plaintiffs and DHHS.
A.
Public, Not Private, Duty
The North Carolina General Assembly authorized Mitchell
County to establish and maintain a county confinement facility. N.C. Gen. Stat. §153A-218 (2003) (“A county
may establish, acquire, erect, repair, maintain, and operate local confinement
facilities and may for these purposes appropriate funds not otherwise limited
as to use by law.”). The General
Assembly also recognized the Sheriff of Mitchell County bears the
responsibility for the care and custody of the jail and its inmates. N.C. Gen. Stat. §162-22 (2003) (“The sheriff
shall have the care and custody of the jail in his county; and shall be, or
appoint, the keeper thereof.”) These
statutes clearly show the Legislature’s intent to place the responsibility of and liability for the
care and custody of detainees housed in local jails on Mitchell County and its
sheriff, not the State. Id.
Further, under N.C. Gen. Stat. §153A-216, “Legislative
Policy”, the General Assembly provided:
The policy of
the General Assembly with respect to local confinement facilities is:
(1) Local
confinement facilities should provide secure custody of persons confined
therein in order to protect the community and should be operated so as to
protect the health and welfare of prisoners and provide for their humane
treatment.
(2) Minimum
statewide standards should be provided to guide and assist local governments
in planning, constructing, and maintaining confinement facilities and in
developing programs that provide for humane treatment of prisoners and
contribute to the rehabilitation of offenders.
(3) The State
should provide services to local governments to help improve
the quality of administration and local confinement facilities. These services should include inspection,
consultation, technical assistance, and other appropriate services.
(4) Adequate
qualifications and training of the personnel of local confinement facilities
are essential to improving the quality of these facilities. The State shall establish entry level
employment standards for jailers and supervisory and administrative personnel
of local confinement facilities to include training as a condition of
employment in a local confinement facility pursuant to the provisions of
Chapter 17C and Chapter 17E and the rules promulgated thereunder.
N.C.
Gen. Stat. §153A-216 (2003) (emphasis supplied).
Under this statute, the General Assembly’s expressed intent
is that defendant’s public duty is clearly for the benefit of the public. Id. (“Local confinement facilities
should provide secure custody of persons confined therein in order to protect
the community”). Also, under this
statute, the State “should provide services to local governments to help
improve the quality of administration and local confinement facilities. These
services should include inspection, consultation, technical assistance, and
other appropriate services.” This
language reinforces the legislative intent that defendant’s role in providing
statewide minimum standards and bi-annual inspections of local jails is for the
benefit of the public and not for these individual claimants. This statute clearly does not impose either
the categorical or derivative responsibility on the State to ensure county jail
facilities comply with certain regulations or to create any liability to any
individual for its failure to do so.
N.C. Gen. Stat. §153A-221 required DHHS to “develop and publish minimum
standards for the operation of local confinement facilities.” The standards must provide:
(1) Secure and safe physical facilities;
(2) Jail design;
(3) Adequacy of space per prisoner;
(4) Heat, light, and ventilation;
(5) Supervision of prisoners;
(6) Personal hygiene and comfort of prisoners;
(7) Medical care for
prisoners, including mental health, mental
retardation, and substance abuse services;
(8) Sanitation;
(9) Food allowances,
food preparation, and food handling;
(10) Any other provisions that may be necessary for the safekeeping, privacy, care, protection, and welfare of prisoners.
N.C.
Gen. Stat. §153A-221(a) (2003). This
statute imposes no affirmative duty on the State to ensure the safety of
individual detainees housed in county jails.
N.C. Gen. Stat. §153A-222, “Inspections of local confinement facilities” provides in pertinent part:
Department
personnel shall visit and inspect each local confinement facility at least
semiannually. The purpose of the
inspections is to investigate the conditions of confinement, the treatment of
prisoners, the maintenance of entry level employment standards for jailers and
supervisory and administrative personnel of local confinement facilities
as provided for in G.S. 153A-216(4), and to determine whether the facilities
meet the minimum standards published pursuant to G.S. 153A-221. The inspector shall make a written report of
each inspection and submit it within 30 days after the day the inspection is
completed to the governing body and other local officials responsible
for the facility. The report shall
specify each way in which the facility does not meet the minimum standards. The
governing body shall consider the report at its first regular meeting after receipt of the report and shall promptly
initiate any action necessary to bring the facility into conformity with the
standards.
N.C.
Gen. Stat. §153A-222 (2003) (emphasis supplied). In the Tort Claims Act, the legislature clearly did not intend to
impose liability on the State for injuries or deaths sustained by detainees in
local confinement facilities with allegedly inadequate safety measures. Under the statute, the local governing body,
and not the State, is charged with the
duty to bring the facility into conformity with and maintain the
standards. This statute also
demonstrates the Legislature’s intent that the State’s role in county jails is
limited to inspect and report on county correctional facilities to the county
governing authorities for the benefit of the public generally. Id.
Further, N.C. Gen. Stat. §153A-223 (2003), “Enforcement of
Minimum Standards,” shows the State is not liable for claims of detainees in
local jails. The statute provides:
If an
inspection conducted pursuant to G.S. 153A-222 discloses . . . that a local confinement
facility does not meet the minimum standards published pursuant to G.S.
153A-221 and, in addition, if the Secretary determines that conditions in the
facility jeopardize the safe custody, safety, health, or welfare of persons
confined in the facility, the Secretary may order corrective action or
close the facility, as provided in this section . . . [.]
Id. (emphasis
supplied). The United States Court of
Appeals for the Fourth Circuit considered this statute in Reid v. Kayye,
885 F. 2d 129, 131 (4th Cir. 1989). The
Court stated, “We must conclude . . . that use of the word ‘may’ in §153A-223
is purposeful and that DHR officials are not vested with the mandatory duty to
remedy substandard jail conditions.”
Any enforcement action by defendant is couched in the discretionary
language of “may” or “should.” The
statute and the decisions interpreting the statute show the Legislature’s clear
intent for the State and its agencies to have a limited role inspecting and
reporting on local jail facilities to prompt remedial action by the local
governing body Id.
In Braswell and reiterated in Stone and Hunt,
our Supreme Court recognized the limited resources and duty of the State. “For the courts to proclaim a new and
general duty of protection in the law of tort . . . would inevitably determine
how the limited [public] resources . . . should be allocated and without
predictable limits.” Braswell,
330 N.C. at 371, 410 S.E.2d at 901-902.
Past precedents bind us to “refuse to judicially impose an overwhelming
burden of liability on defendants” for DHHS’s alleged failure to prevent
Mitchell County and its sheriff’s alleged negligence in the care, custody, and
maintenance of its confinement facility.
Stone, 347 N.C. at 481, 495 S.E.2d at 716. Mitchell County and its sheriff, not the
State, bore the duty and responsibility to ensure the safety of the detainees
in the county jail. N.C. Gen. Stat.
§162-22. Mitchell County recognized
that duty and settled all of plaintiffs’ claims.
Clear and controlling precedents show the state is not
liable for the tragic injuries or deaths that occurred in the Mitchell County
jail. The public duty doctrine shields
the State from liability for negligence claims from “the alleged failure of a
state agency to detect and prevent misconduct of a third party through improper
inspections.” Myers, __ N.C.
App. at __, 613 S.E.2d at 337.
The regulatory powers of the state government are extensive
and, in one way or another, reach virtually every aspect of our lives. The natural extension of the majority’s
unprecedented and unwarranted interpretation has far reaching
implications. Under the majority’s
holding, a citizen who becomes ill from eating spoiled food at a restaurant
could hold the State liable because DHHS has a statutory duty to inspect food
establishments. N.C. Gen. Stat.
§130A-249 (2003) (“The Secretary may enter any establishment that is subject to
the provisions of G.S. 130A-248 for the purpose of making inspections. The
Secretary shall inspect each restaurant at least quarterly . . .”). These inspections are twice as frequent than
what the statute requires of defendants here.
N.C. Gen. Stat. §153A-222 (“Department personnel shall visit and inspect
each local confinement facility at least semiannually”).
Similarly, a patient who receives negligent medical care or
a client who receives faulty legal advice or whose lawyer stole the client’s
money could hold the State liable for negligent inspection, testing, and
licensing of applicants. The State of
North Carolina, through the North Carolina Medical Board, the North Carolina
Board of Law Examiners, and the North Carolina State Bar licenses and regulates
the practices of medicine and law, including theft of a client’s funds by an
attorney. N.C. Gen. Stat. §90-4 (2003);
N.C. Gen. Stat. §84-24 (2003); N.C. Gen. Stat. 84-23 (2003). State boards and agencies license and
regulate a host of other professions and occupations. See e.g., real estate appraisers (N.C. Gen.
Stat. Chapter 93E); cosmetic art (N.C. Gen. Stat. Chapter 88B); teachers (N.C.
Gen. Stat. Chapter 115C).
Not content with their substantial settlements from Mitchell
County, plaintiffs now seek to also cash out from the taxpayers of this
State. Braswell and its progeny,
Stone and Hunt, have stood as binding precedents under these
facts for over fifteen years without any affecting amendment of the Tort Claims
Act by the General Assembly. Blackmon
v. N.C. Dept. of Correction, 118 N.C. App. 666, 673, 457 S.E.2d 306, 310
(1995) (“[I]t is appropriate to assume the legislature is aware of any judicial
construction of a statute.”) The
holdings in Spicer, Levin, and Shields, cited in the
majority’s opinion, all reinforce the legislature’s intent that any individual
duty owed to plaintiffs rests with the officials of the local governmental unit
that own, operate, and maintain the jail, not the State.
B.
“Special Relationship”
After having cited no controlling precedents or binding
authority to support its broad interpretation, the majority’s opinion states,
“Even if we could conclude that the statutes and regulations imposed a duty to
inspect for the benefit of the public, we would still hold that plaintiffs fall
within the ‘special relationship’ exception to the public duty doctrine.”
For the “special relationship” exception to apply, it “must
be specifically alleged, and is not created merely by a showing that the state
undertook to perform certain duties.” Lane
v. Kinston, 142 N.C. App. 622, 625, 544 S.E.2d 810, 813 (2001) (citation
omitted). “In sum, the ‘special duty’
exception to the general rule against liability . . . is a very narrow one; it
should be applied only when the promise, reliance, and causation are manifestly
present.” Braswell, 330 N.C.
372, 410 S.E.2d at 902. A “special
relationship” may exist when plaintiffs are held in police custody. However, if that “special relationship”
exists, it is between the detainees and Mitchell County and its sheriff, not
the State.
The applicable statutes noted above clearly indicate that
the Legislature intended the responsibility for the care and custody of local
jails to be borne by the county and the sheriff. The State did not waive its sovereign immunity or place such
activities outside the public duty doctrine.
Mitchell County and the Sheriff of Mitchell County bore the
responsibility to ensure the county’s confinement facilities were maintained in
a safe condition for the detainees.
Liability arising out of a “special relationship” is the liability of
Mitchell County, which settled plaintiff’s claims.
IV.
Conclusion
The Industrial Commission failed to follow clearly
controlling precedents and erred as a matter of law in denying the State’s
motions to dismiss plaintiff’s claims due to the public duty doctrine. The Commission and this Court are bound by
clear Supreme Court precedents. None of
the statutes before us expressly impose liability on the State to an individual
for the negligence of a third party.
For over fifteen years after the Supreme Court’s decisions
in Braswell and its progeny, the General Assembly has not amended the
Tort Claims Act to alter or abolish the application of the public duty doctrine
for alleged negligent inspections by state agencies to allow recovery for an
individual’s alleged injury as a result of actions by a third party.
I completely agree with the statement in the majority’s
opinion that “[t]his Court must . . . be ever vigilant not to act as a
super-legislature that imposes its notion of public policy in the face of
statutory determinations otherwise. It
is for the General Assembly, and not judges, to decide questions of public
policy regarding how and when the State may be sued.” The General Assembly has spoken through the absence of
legislation to reduce, alter, or abolish the public duty doctrine in North
Carolina. Its intent should control the
result here.
Detainees in the Mitchell County jail were killed or injured
as a result of a tragic fire. “This
Court should not, however, permit these ‘bad facts’ to lure it into making ‘bad
law.’” N.C. Baptist Hospitals, Inc.
v. Mitchell, 323 N.C. 528, 539, 374 S.E.2d 844, 850 (1988). I respectfully dissent.