Blaylock v. N.C. Dept. of Correction

685 S.E.2d 140

Sherri B. BLAYLOCK, as Guardian Ad Litem for H.L., Minor, and B.L., Minor, Plaintiffs, v. NORTH CAROLINA DEPARTMENT OF CORRECTION-DIVISION OF COMMUNITY CORRECTIONS, Defendant.

No. COA09-65.

Court of Appeals of North Carolina.

November 3, 2009.

Appeal by defendant from order entered 10 September 2008 by the North Carolina Industrial Commission. Heard in the Court of Appeals 31 August 2009.

Janet, Jenner & Suggs, LLC, by John C. Hensley, Jr., Asheville, for plaintiffs-appellees.

Roy Cooper, Attorney General, by Amar Majmundar, Special Deputy Attorney General, and Tina Lloyd Hlabse, Assistant Attorney General, for defendant-appellant.

MARTIN, Chief Judge.

Defendant appeals an order of the North Carolina Industrial Commission denying its Motion for Summary Judgment. We affirm the Commission's order.

In February 2003, Kim Hemphill ("Ms. Hemphill") was employed by defendant as a probation officer in McDowell County, North Carolina. As part of her duties, she was assigned to supervise James Oakes ("Mr. Oakes"), who was on probation for convictions of indecent exposure and two counts of simple assault. Mr. Oakes's problems extended beyond his involvement with the North Carolina court system; not only was he diagnosed as bi-polar and schizophrenic, but he had also been identified as a sexual offender in the mid-1990's by the staff at Foothills Mental Health. As a result, multiple McDowell County agencies were familiar with Mr. Oakes and were aware of his label as a sexual offender.

At a meeting with Mr. Oakes on 14 February 2003, Ms. Hemphill learned he was living in a motel with another probationer, which Ms. Hemphill's supervisor determined was an inappropriate living arrangement. In order to correct the situation, Ms. Hemphill began making phone calls to assist Mr. Oakes in finding suitable living arrangements. After unsuccessfully calling Mr. Oakes's mother and a homeless shelter, Mr. Oakes suggested that he might be able to stay with David Ledford ("Mr. Ledford") and Sherri Blaylock ("Ms. Blaylock"), a married couple related to Mr. Oakes through marriage. Ms. Hemphill contacted Ms. Blaylock at work to ask if Mr. Oakes could stay with her family. Ms. Blaylock indicated that she would have to speak with Mr. Ledford before she would allow Mr. Oakes to move into their home.

With this information, Ms. Hemphill drove to the home of Ms. Blaylock and Mr. Ledford ("Blaylock/Ledford home") to discuss the issue with Mr. Ledford. When she arrived at the home, Mr. Ledford was there with his four children, including H.L. and B.L. ("the minor children-plaintiffs"), and two other acquaintances. Ms. Hemphill informed Mr. Ledford of her conversation with Ms. Blaylock and indicated that it was all right with Ms. Blaylock for Mr. Oakes to stay at their home if it was all right with Mr. Ledford. Mr. Ledford agreed to the arrangement, and Ms. Hemphill left Mr. Oakes in his care. Before she left, Ms. Hemphill gave Mr. Ledford her business card and told him to give her a call if they had any problems. Shortly thereafter, on or about 16 February 2003, Mr. Oakes sexually assaulted the minor children-plaintiffs in their bedroom at the Blaylock/Ledford home.

Ms. Blaylock, on behalf of the minor children-plaintiffs, initiated this action before the North Carolina Industrial Commission on 30 December 2003 alleging that defendant's agent, Ms. Hemphill, failed to exercise reasonable care in placing Mr. Oakes in the Blaylock/Ledford home, as she knew or should have known he posed a substantial risk of harm to the minor children-plaintiffs. Defendant moved for summary judgment on 8 January 2007 on the grounds that the public duty doctrine applied as a bar to the minor children-plaintiffs' claim. The Deputy Commissioner granted defendant's motion on 12 December 2007, holding that the public duty doctrine applied absent any evidence of an exception. The minor children-plaintiffs appealed to the Full Commission on 27 December 2007. On 10 September 2008, the Full Commission reversed the Deputy Commissioner's order granting defendant's summary judgment motion. In doing so, the Full Commission held that the public duty doctrine does not apply to the present case, or, in the alternative, a genuine issue of material fact exists as to whether the present facts fit within the special relationship exception to the public duty doctrine. Defendant appeals.

The sole issue on appeal is whether defendant is shielded from liability by the public duty doctrine. For the reasons stated below, we conclude that there is a genuine issue of material fact as to whether, upon the evidence before the Commission considered in the light most favorable to the minor children-plaintiffs, their claim is barred by the public duty doctrine, as the facts presented establish the existence of a special relationship.

As an initial matter, defendant's appeal is interlocutory. Veazey v. City of Durham, 231 N.C. 357, 362, 57 S.E.2d 377, 381 ("An interlocutory order is one made during the pendency of an action, which does not dispose of the case, but leaves it for further action by the trial court in order to settle and determine the entire controversy"), reh'g denied, 232 N.C. 744, 59 S.E.2d 429 (1950). Generally, an interlocutory order is not immediately appealable to this Court. Clark v. Red Bird Cab Co., 114 N.C.App. 400, 403, 442 S.E.2d 75, 77, disc. review denied, 336 N.C. 603, 447 S.E.2d 387 (1994). However, where a substantial right is affected, a party may appeal immediately from an interlocutory order. N.C. Gen.Stat. § 1-277(a) (2007); see id. This Court has held that the defense of governmental immunity through the public duty doctrine affects a substantial right and is, therefore, immediately appealable. Clark, 114 N.C.App. at 403, 442 S.E.2d at 77. Accordingly, defendant's appeal is properly before this Court.

"On appeal, an order [denying] summary judgment is reviewed de novo." Tiber Holding Corp. v. DiLoreto, 170 N.C.App. 662, 665, 613 S.E.2d 346, 349, disc. review denied, 360 N.C. 78, 623 S.E.2d 263 (2005). Thus, in viewing the evidence in the light most favorable to the non-moving party, this Court must determine "whether the pleadings, interrogatory answers, affidavits or other materials contained a genuine question of material fact, and whether at least one party was entitled to a judgment as a matter of law." Medley v. N.C. Dep't of Corr., 99 N.C.App. 296, 298, 393 S.E.2d 288, 289 (1990), aff'd, 330 N.C. 837, 412 S.E.2d 654 (1992); accord Bruce-Terminix Co. v. Zurich Ins. Co., 130 N.C.App. 729, 733, 504 S.E.2d 574, 577 (1998). Summary judgment is proper where "there are no genuine issues of material fact, and the plaintiff fails to demonstrate one of the essential elements of the claim." Parish v. Hill, 350 N.C. 231, 236, 513 S.E.2d 547, 550 (citing Lavelle v. Schultz, 120 N.C.App. 857, 859, 463 S.E.2d 567, 569 (1995), disc. rev. denied, 342 N.C. 656, 467 S.E.2d 715 (1996); Rorrer v. Cooke, 313 N.C. 338, 355, 329 S.E.2d 355, 366 (1985)), reh'g denied, 350 N.C. 600, 537 S.E.2d 215 (1999).

The minor children-plaintiffs have based their claim against defendant in negligence. In a claim for negligence, there must exist a "legal duty owed by a defendant to a plaintiff." Hedrick v. Rains, 121 N.C.App. 466, 469, 466 S.E.2d 281, 283, aff'd per curiam, 344 N.C. 729, 477 S.E.2d 171 (1996). However, when the public duty doctrine applies, the government entity, as the defendant, owes no legal duty to the plaintiff. See Myers v. McGrady, 360 N.C. 460, 463, 628 S.E.2d 761, 764 (2006). In essence, "[i]f the plaintiff alleges negligence by failure to carry out a recognized public duty, and the State does not owe a corresponding special duty of care to the plaintiff individually, then the plaintiff has failed to state a claim in negligence." Id. (citing Hunt v. N.C. Dep't of Labor, 348 N.C. 192, 196, 499 S.E.2d 747, 749-50 (1998); Stone v. N.C. Dep't of Labor, 347 N.C. 473, 482, 495 S.E.2d 711, 716, reh'g denied, 502 S.E.2d 836, cert. denied, 525 U.S. 1016, 119 S.Ct. 540, 142 L.Ed.2d 449 (1998)). Therefore, if the public duty doctrine applies, summary judgment in favor of the defendant is appropriate. Id.

The public duty doctrine was officially recognized in this State in Braswell v. Braswell as a shield from liability for a municipality for its law enforcement officials' failure to provide protection to individual citizens from the criminal acts of a third party. 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." Id. In recognizing the general doctrine, our Supreme Court additionally acknowledged two exceptions to the public duty doctrine:

(1) where there is a special relationship between the injured party and the police, for example, a state's witness or informant who has aided law enforcement officers; and (2) when a municipality, through its police officers, 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 (internal quotation marks omitted). Accordingly, if either exception applies, the public duty doctrine no longer operates as a shield against liability. See id.

In Humphries v. North Carolina Department of Correction, this Court extended the application of the public duty doctrine to probation officers for their failure to protect the public by appropriately supervising their probationers. 124 N.C.App. 545, 547, 479 S.E.2d 27, 28 (1996), disc. review improvidently allowed, 346 N.C. 269, 485 S.E.2d 293 (1997). In that case, Kenneth Miller ("Miller"), while on probation and under electronic house arrest, assaulted Tyrone...