Smith v. Jackson County Bd. of Educ.

608 S.E.2d 399

168 NC App. 452

Sybil SMITH, Individually and as Guardian Ad Litem for Brittany Smith, a minor, Plaintiff, v. JACKSON COUNTY BOARD OF EDUCATION, Elizabeth Balcerek, Individually and as an Employee of Jackson County Board of Education, Joseph Carroll Brooks, Individually and as an Employee of Jackson County Board of Education, James L. Cruzan, Individually and in his capacity as Sheriff of Jackson County, Charles R. Hess, III, Individually and as an Employee of the Sheriff of Jackson County, Jeremy Stewart, and Western Surety Company, Surety for James L. Cruzan, Sheriff of Jackson County, Defendants.

No. COA03-233.

Court of Appeals of North Carolina.

February 15, 2005.

McGuire, Wood & Bissette, P.A., by Joseph P. McGuire and Mary E. Euler, Asheville, for plaintiff-appellee.

Benjamin R. Olinger, Jr.; and Long, Parker, Warren & Jones, P.A., by Robert B. Long, Asheville, for defendant-appellant Charles R. Hess, III.

Lovejoy & Bolster, P.A., by Jeffrey S. Bolster, Charlotte, for defendant-appellant James L. Cruzan.

Roberts & Stevens, P.A., by Christopher Z. Campbell and K. Dean Shatley, II, Asheville, for defendant-appellee Jackson County Board of Education.

Cranfill, Sumner & Hartzog, L.L.P., by Ann S. Estridge, Raleigh, for defendant-appellee Elizabeth Balcerek.

Eric Ridenour, Bridgers & Ridenour, P.L.L.C., Sylva, for defendant-appellee Joseph Carroll Brooks.

Jeremy Stewart, Cullowhee, Pro Se.

No brief filed on behalf of defendant-appellee Western Surety Company. GEER, Judge.

In this case, plaintiff Sybil Smith, individually and as guardian ad litem for her minor daughter Brittany Smith, has alleged that defendant Joseph Brooks, a teacher at Brittany's school, manipulated her 14-year-old daughter into having a sexual relationship with an 18-year-old student, defendant Jeremy Stewart, and then attempted to videotape her having sex with the student. According to plaintiff, the school resource officer — defendant Charles R. Hess, III — knew of Brooks' conduct, but failed to report it. Plaintiff further alleges that Hess' employer, defendant Jackson County Sheriff James L. Cruzan, negligently supervised and retained Hess. The school defendants — defendant Jackson County Board of Education and Brittany's principal (defendant Elizabeth Balcerek) — asserted cross-claims against defendants Hess and Cruzan.

Hess and Cruzan appeal from the trial court's denial of their motion to dismiss plaintiff's complaint and the school defendants' cross-claims based on the public duty doctrine. Because we find that the claims are either beyond the scope of the public duty doctrine or fall within one of the doctrine's exceptions, we affirm.

Facts

In considering, as here, a motion to dismiss, we must treat as true the factual allegations of plaintiff, the Board of Education, and Balcerek. Lovelace v. City of Shelby, 351 N.C. 458, 459, 526 S.E.2d 652, 653 (2000). Plaintiff's amended complaint alleges the following facts.

During the 2000-2001 school year, Brittany was a ninth-grade student at the Blue Ridge School, a school operated by the Jackson County Board of Education. Brittany took a physical education class and a health class taught by Brooks. Jeremy was a twelfth-grade student and a member of one or more athletic teams coached by Brooks.

During the spring semester, Brooks encouraged Jeremy to develop a personal, dating, and sexual relationship with Brittany. Early in the semester, Brooks told Jeremy that he could use Brooks' school office, home, and automobile to facilitate the sexual relationship. By 1 March 2001, "with the prompting and arrangements of Brooks," Jeremy and Brittany had begun having a sexual relationship. They used Brooks' office during school hours and Brooks' home both during and after school hours. Brooks excused Jeremy from athletic practice and obtained Brittany's excused absence from class or study hall so that the students could engage in their sexual relationship.

Defendant Hess, a deputy sheriff with the Jackson County Sheriff's Department, was the school resource officer and a longtime friend of Brooks. The complaint alleges that Hess was aware that Brooks was promoting a sexual relationship between Brittany and Jeremy and was allowing Jeremy to use Brooks' office and home for that purpose. Hess did not report Brooks' actions to the students' parents, to school officials, to the Sheriff's Department, or to the county Department of Social Services.

On 25 May 2001, Brooks arranged for Jeremy to drive Brittany to Brooks' home during school hours for the purpose of engaging in sex. After arriving at Brooks' home, Jeremy discovered Brooks hiding in the closet of his bedroom. The complaint alleges that Brooks had intended to surreptitiously watch, listen, and videotape the students having sex. Jeremy and Brittany immediately left and drove to Brittany's home. Brooks followed them there, broke into the house, screamed at the two of them, and then offered them $500.00 if they would allow him to watch them have sex in the bedroom of Brittany's parents. Jeremy and Brittany refused and returned to school.

When they arrived at the school, Jeremy and Brittany encountered Hess in the hall. Hess chastised both students for leaving school, but did not investigate their absence, notify their parents of their absence, or take any other appropriate disciplinary or official action. Later that day, Hess found Brittany crying in a hall at the school. Hess escorted her to Brooks' office, where Brooks sought to obtain her silence about the incident earlier that day.

Brooks subsequently paid Jeremy money to remain silent and directed Jeremy to pay a part of the sum to Brittany so that she would remain silent as well. The complaint alleges that "Brooks had surreptitiously set up a hidden tape-recorder and camera to audiotape and videotape Stewart having sex with Brittany, and actually used the tape recorder and camera to audiotape and videotape students engaged in sex in his office and/or home."

Based on these allegations, plaintiff brought suit on 31 January 2002 against the Board of Education, the school's principal Balcerek (individually and as an employee of the Board), Brooks (individually and as an employee of the Board), Cruzan "in his capacity as Sheriff of Jackson County," Hess (individually and as an employee of the Sheriff of Jackson County), and Jeremy. With respect to the causes of action pertinent to this appeal, plaintiff asserted claims against Hess for negligent performance of law enforcement duties, breach of fiduciary duty, negligent infliction of emotional distress, intentional infliction of emotional distress, and civil conspiracy to deprive Brittany of her civil rights as a female, in violation of N.C. Gen.Stat. § 99D-1 (2003). Plaintiff asserted a claim against Cruzan for negligent supervision and retention of Hess.

Plaintiff subsequently filed an amended complaint on or about 28 March 2002. The defendant Board of Education and Balcerek each brought cross-claims for indemnification or contribution against Hess and Cruzan. Hess and Cruzan moved to dismiss the amended complaint and the cross-claims, arguing that the claims were barred by the public duty doctrine and immunity.

On 15 August 2002, plaintiff moved to amend the complaint a second time in order to (1) sue defendant Cruzan in his individual capacity as well as his official capacity and (2) to add Cruzan's surety as an additional party so as to assert a claim under N.C. Gen.Stat. § 58-76-5 (2003). Defendant Cruzan opposed the motion to amend.

On 7 November 2002, Judge J. Marlene Hyatt allowed plaintiff to amend her complaint and on 15 November 2002, Judge Hyatt denied Cruzan's and Hess' motions to dismiss the first amended complaint and the cross-claims. Defendants Hess and Cruzan filed timely notices of appeal from the denial of the motion to dismiss based on the public duty doctrine. Cruzan has also appealed from the order allowing the motion to amend on the ground that the added claims are barred by immunity. On 23 April 2003, this Court stayed the appeal pending resolution of defendant Balcerek's proceedings in bankruptcy court. The Court subsequently lifted the stay and appellants were ordered to file briefs.

Interlocutory Appeal

As a preliminary matter, we note that ordinarily the denial of a motion to dismiss is an interlocutory order from which there may be no immediate appeal. Block v. County of Person, 141 N.C.App. 273, 276, 540 S.E.2d 415, 418 (2000). Since, however, defendants base their appeal on the public duty doctrine and sovereign immunity, their appeal involves a substantial right warranting immediate appellate review. 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).

Motion to Dismiss

Defendants Hess and Cruzan contend that the trial court erred in denying their motions to dismiss plaintiff's amended complaint and the cross-claims of the Board of Education and Balcerek on the ground that the claims are barred by the public duty doctrine.¹ "A motion to dismiss pursuant to Rule 12(b)(6) should not be granted unless it appears to a certainty that plaintiff is entitled to no relief under any state of facts which could be proved in support of the claim." Isenhour v. Hutto, 350 N.C. 601, 604-05, 517 S.E.2d 121, 124 (1999) (internal quotation marks omitted).

The Supreme Court first adopted the public duty doctrine in Braswell v. Braswell, 330 N.C. 363, 370-71, 410 S.E.2d 897, 901 (1991) (internal citations omitted):

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

...