Kelly v. Polk Cnty.

257 N.C.App. 952

809 S.E.2d 408 (Table)

Ricky D. KELLY, Administrator of the Estate of Patrick Craig Kelly, Plaintiff,

v.POLK COUNTY North Carolina, The Polk County Sheriff's Department, The Honorable Donald J. Hill, in His Official Capacity as Sheriff of Polk County, North Carolina, Deputy Josh Kujawa, Individually and in His Official Capacity as Deputy of the Polk County Sheriff's Department, Defendants.

No. COA17-832

Court of Appeals of North Carolina.

Filed: February 6, 2018

Lovekin & Young, P.C., Hickory, by Gary F. Young, for plaintiff-appellant.

Womble Carlyle Sandridge & Rice, LLP, Charlotte, by Sean F. Perrin, for defendants-appellees.

ZACHARY, Judge.

Plaintiff Ricky D. Kelly, as Administrator of the Estate of Patrick Craig Kelly, appeals from the trial court's order granting defendants’ motion to dismiss plaintiff's wrongful death and negligence actions for failure to state a claim upon which relief can be granted. We affirm.

Factual and Procedural Background

On 10 February 2017, the Estate of Patrick Craig Kelly ("plaintiff") filed a complaint alleging claims for negligence and wrongful death against Polk County, the Polk County Sheriff's Office, Polk County Sheriff Donald J. Hill in his official capacity, and Polk County Deputy Josh Kujawa ("Deputy Kujawa"), both individually and in his official capacity ("defendants").

The complaint alleges, in relevant part, that on 2 April 2016, the Polk County Sheriff's Office Dispatch Center received a 911 call alerting them to a vehicle with a door open and the driver slumped over the steering wheel. Deputy Kujawa and EMS were dispatched to the scene. Deputy Kujawa was the first to arrive on scene, where he discovered Patrick Kelly inside the vehicle, unconscious and "in an obviously impaired state." It is alleged that Deputy Kujawa or another agent of the Polk County Sheriff's Office thereafter canceled the EMS call.

At some point after Deputy Kujawa arrived, Kelly requested that Deputy Kujawa call his friend, Erica Dawn Mills-Bowen, to come pick him up. Deputy Kujawa called Mills-Bowen, who agreed to retrieve Kelly, and Deputy Kujawa then left the scene.

When Mills-Bowen arrived, she found Kelly alone and unconscious. Mills-Bowen took Kelly to her home and called Deputy Kujawa to determine what Kelly had consumed. Deputy Kujawa advised Mills-Bowen that Kelly had apparently taken "Downers." Deputy Kujawa provided no further assistance, and Mills-Bowen put Kelly to bed. Kelly was found dead from an overdose the next morning.

Plaintiff filed negligence and wrongful death claims against defendants. The complaint alleges that defendants were negligent in (1) "[f]ailing to establish proper policies and procedures for dealing with drug related medical emergencies"; (2) "[f]ailing to allow paramedics ... to examine and/or treat" Kelly; (3) "[f]ailing to call for or provide reasonable medical assistance upon observing the obvious impairment of [Kelly]"; (4) "[f]ailing to take reasonable steps to provide assistance for [Kelly] when it was obvious ... that he could not obtain assistance for himself"; (5) "[c]alling a citizen unrelated by blood or marriage to come pick up [Kelly] rather than seeking proper medical assistance when it was obvious that [Kelly] was suffering from a drug overdose"; (6) "[f]ailing to properly supervise or train the officers assigned to act as deputies"; (7) "[f]ailing to properly supervise the acts and omissions of the [agents of the] Sheriff's Department"; (8) "[f]ailing to provide and train the agents of the [d]efendants in the proper use of substances or procedures designed to reverse the effects of a drug overdose"; and (9) "[l]eaving [Kelly] alone at the scene without proper supervision or care," [R p 9] among other acts of negligence.

On 3 March 2017, defendants filed a motion to dismiss plaintiff's complaint for failure to state a claim upon which relief may be granted pursuant to Rule 12(b)(6) of the North Carolina Rules of Civil Procedure. Defendants’ motion to dismiss asserted that (1) the claims against Polk County were barred because a county is not responsible for the actions of Sheriff's Office employees; (2) the claims against the Polk County Sheriff's Office were barred because the Sheriff's Office is a "nonsuable" entity under North Carolina law; (3) the complaint, in its entirety, is barred against all defendants under the public duty doctrine; and (4) the claims against Deputy Kujawa, in his individual capacity, were barred by public official immunity. The trial court granted defendants’ motion to dismiss plaintiff's complaint in its entirety on 17 April 2017. Plaintiff appeals.

Standard of Review

"On appeal of a 12(b)(6) motion to dismiss, this Court conducts a de novo review of the pleadings to determine their legal sufficiency and to determine whether the trial court's ruling on the motion to dismiss was correct." Burgin v. Owen , 181 N.C. App. 511, 512, 640 S.E.2d 427, 429 (2007) (citation and quotation marks omitted). The Court must examine "the legal sufficiency of the complaint, taking all of its factual allegations as true." Peacock v. Shinn , 139 N.C. App. 487, 492, 533 S.E.2d 842, 846 (2000), disc. review denied , 353 N.C. 267, 546 S.E.2d 110 (2000) (citing Stanback v. Stanback , 297 N.C. 181, 254 S.E.2d 611 (1979) ). "In ruling upon such a motion, the complaint is to be liberally construed, and the trial court should not dismiss the complaint ‘unless it appears beyond doubt that the plaintiff could prove no set of facts in support of his claim which would entitle him to relief.’ " Meyer v. Walls , 347 N.C. 97, 111-12, 489 S.E.2d 880, 888 (1997) (quoting Dixon v. Stuart , 85 N.C. App. 338, 340, 354 S.E.2d 757, 758 (1987) ) (alteration omitted). However, "where an insurmountable bar to recovery appears" on the face of a complaint, it will not withstand a motion to dismiss. Peacock , 139 N.C. App. at 492, 533 S.E.2d at 846. " ‘Such an insurmountable bar may consist of an absence of law to support a claim, an absence of facts sufficient to make a good claim, or the disclosure of some fact that necessarily defeats the claim.’ " Id. (quoting Al-Hourani v. Ashley , 126 N.C. App. 519, 521, 485 S.E.2d 887, 889 (1997) ).

Discussion

I. Public Duty Doctrine

Plaintiff argues that the claims against Polk County, the Polk County Sheriff's Office, Polk County Sheriff Donald J. Hill in his official capacity, and Polk County Deputy Josh Kujawa in his official capacity are not barred by the public duty doctrine. As no such "insurmountable bar to recovery" exists, plaintiff argues that the trial court erred in granting defendants’ motion to dismiss. We disagree, and hold that plaintiff's claims against these defendants are barred by the public duty doctrine.

The public duty doctrine arises wherever an exercise of police powers is the basis of a plaintiff's complaint. Lane v. City of Kinston , 142 N.C. App. 622, 624, 544 S.E.2d 810, 813 (2001) (citation omitted). The doctrine provides immunity for law enforcement decisions that are made while responding to a criminal offense. Lassiter v. Cohn , 168 N.C. App. 310, 317, 607 S.E.2d 688, 693, disc. rev. denied , 359 N.C. 633, 613 S.E.2d 686 (2005). Likewise, the public duty doctrine has been extended to grant immunity to claims that involve a "failure to furnish police protection ... or any other act of negligence proximately resulting in injury." Id. (quotation marks and citation omitted) (emphasis omitted). The doctrine " ‘shield[s] the state and its political subdivisions from tort liability arising out of discretionary governmental actions.’ " Moses v. Young , 149 N.C. App. 613, 618, 561 S.E.2d 332, 335 (2002) (quoting Stone v. N.C. Dept. of Labor , 347 N.C. 473, 482, 495 S.E.2d 711, 716, cert. denied , 525 U.S. 1016, 142 L.Ed. 2d 449 (1998) (internal quotation marks omitted) ) (alteration omitted). Accordingly, the public duty doctrine will apply when the allegedly tortious conduct involves a "discretionary determination made by the police officer." Lassiter , 168 N.C. App. at 318, 607 S.E.2d at 693.

The rationale behind the public duty doctrine is that the "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." Braswell v. Braswell , 330 N.C. 363, 370, 410 S.E.2d 897, 901 (1991) (citation omitted). "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. at 370-71, 410 S.E.2d at 901 (citation omitted).

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 developed. For the courts to proclaim a new and general duty of protection in the law of tort, even to those who may be the particular seekers of protection based on specific hazards, could and would inevitably determine how the limited police resources should be allocated and without predictable limits.

Id. (citation and quotation marks omitted).

There are two generally recognized exceptions to the public duty doctrine: "(1) where there is a special relationship between the injured party and the police, ... 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.’ " Id. at 371, 410 S.E.2d at 902 (quoting Coleman v. Cooper , 89 N.C. App. 188, 194, 366 S.E.2d 2, 6, disc. rev. denied , 322 N.C. 834, 371 S.E.2d 275 (1988) ).

In the instant case, plaintiff maintains that the public duty doctrine is inapplicable to his claims against defendants because Deputy Kujawa's actions "were neither discretionary in a legal sense nor appropriate under the circumstances." Therefore, we turn our attention to...