The Estate Of Harry Kay Burgess v. Hamrick

698 S.E.2d 697

The ESTATE OF Harry Kay BURGESS, Jr., by the Executrix of his Estate Frances Louise BURGESS, and Frances Louise Burgess, in her individual capacity, Plaintiffs,v.Raymond HAMRICK, in his official capacity as Cleveland County Sheriff, Paul Leigh, in his individual and official capacity as a Sheriff's Deputy of Cleveland County, Liberty Mutual Group d/b/a Liberty Mutual Insurance Company, Defendants.

No. COA09-1690.

Court of Appeals of North Carolina.

Aug. 3, 2010.

COPYRIGHT MATERIAL OMITTED

Appeal by defendants from order entered 18 November 2009 by Judge Nathaniel J. Poovey in Cleveland County Superior Court. Heard in the Court of Appeals 12 May 2010.

The Bumgardner Law Firm, by Thomas D. Bumgardner, for plaintiffs-appellees.

Womble Carlyle Sandridge & Rice, PLLC, by Sean F. Perrin, for defendants-appellants.

HUNTER, ROBERT C., Judge.

Defendants appeal from the trial court's order denying their motion for summary judgment. After careful review, we reverse and remand.

Background

On the evening of 12 October 2007, Cleveland County Sheriff's Deputy Paul Leigh (“Deputy Leigh”) responded to an alleged incident of domestic violence at 210 Cedar Street in Shelby, North Carolina. When Deputy Leigh arrived at the scene, he spoke with Frances Burgess (“plaintiff”) in her driveway concerning her call to the police. Plaintiff claimed that her husband, Harry Burgess (“Mr. Burgess”), was intoxicated and had hit her. In her deposition, plaintiff stated: “I told [Deputy Leigh] that [Mr. Burgess] was drunk, highly drunk. I said, he's drunk, he's crazy, he's seeing things....” Upon visual inspection, Deputy Leigh did not see any evidence of physical violence perpetrated against plaintiff. Plaintiff asked Deputy Leigh to arrest her husband, but he responded that he could not do so since there was no evidence that a crime had been committed. Deputy Leigh offered to drive plaintiff to the magistrate's office so that she could “swear out a warrant” against her husband. Plaintiff declined the offer but asked Deputy Leigh to come in the house and speak with Mr. Burgess.

Deputy Leigh entered the living room of the house and observed that Mr. Burgess was calmly sitting on the couch. Deputy Leigh engaged in a conversation with Mr. Burgess and, according to his deposition testimony, Mr. Burgess “spoke to [him] in a respectful manner about the situation.” Deputy Leigh further testified that Mr. Burgess' “speech seemed fine” and he made no inconsistent responses to questions asked. Plaintiff claimed in her deposition that there was a bottle of liquor in plain site and that at one point Mr. Burgess fell down the stairs in the garage.

According to Deputy Leigh, plaintiff told Mr. Burgess that he had to “go somewhere for the night.” Deputy Leigh then offered to give Mr. Burgess a ride “to a motel or wherever he needed to go.” Mr. Burgess stated that he did not have any relatives close by and agreed to go to a motel. As they left the house, Mr. Burgess asked Deputy Leigh, “ ‘do I drive or do you drive?’ ” Deputy Leigh responded, “no, you ride with me. I'll take care of you.” Mr. Burgess walked out of the house without assistance and sat in the back of the police car. Deputy Leigh claimed that he told plaintiff that he was giving Mr. Burgess a ride to the Days Inn located on Highway 74, but plaintiff claimed in her deposition that she did not know where Deputy Leigh was taking her husband she assumed he was being taken to jail or to a hospital due to his inebriated condition.

Deputy Leigh transported Mr. Burgess to the Days Inn, which was approximately three miles from Mr. Burgess' house. A motel clerk, who was standing outside the Days Inn, asked Deputy Leigh if he needed assistance, and Deputy Leigh stated “[t]hat Mr. Burgess was possibly going to get a room at the hotel.” At that point, Mr. Burgess asked Deputy Leigh to give him a ride back home, to which Deputy Leigh responded: “I am not a taxi service.” Mr. Burgess then asked Deputy Leigh to let him out of the back seat. Mr. Burgess exited the vehicle and Deputy Leigh drove away from the Days Inn. Shortly thereafter, Deputy Leigh received a dispatch requesting his presence at another location. Approximately two hours later, Deputy Leigh was notified that Mr. Burgess had been struck by a car while attempting to cross Highway 74. Mr. Burgess died on 31 October 2007. The coroner's report indicated that Mr. Burgess' blood alcohol level was .37.

On 20 January 2009, plaintiff was appointed as executrix of her husband's estate. On 20 July 2009, plaintiff filed a Second Amended Complaint ¹ against Cleveland County Sheriff Raymond Hamrick in his official capacity, Deputy Leigh in his official and individual capacity, and Liberty Mutual Group d/b/a Liberty Mutual Insurance Company (collectively “defendants”). Plaintiff asserted a negligence cause of action as well as a claim for wrongful death on behalf of the estate of Mr. Burgess. Plaintiff also sued defendants for negligent infliction of emotional distress. On 21 October 2009, defendants filed a motion for summary judgment claiming inter alia, that the public duty doctrine and sovereign immunity barred plaintiff's claims. On 30 October 2009, plaintiff filed a response to defendants' motion for summary judgment as well as a cross-motion for summary judgment. On 18 November 2009, Judge Nathaniel J. Poovey issued an order denying the parties' motions for summary judgment. Defendants timely appealed to this Court.

Interlocutory Nature of Appeal

Defendants in this case moved for summary judgment on the basis of the public duty doctrine and sovereign immunity. An order denying a motion for summary judgment is interlocutory because it “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.” Veazey v. Durham, 231 N.C. 357, 362, 57 S.E.2d 377, 381 (1950). As a general rule this Court does not review interlocutory orders; “[h]owever, an appeal based on the public duty doctrine ‘involves a substantial right warranting immediate appellate review.’ ” Estate of McKendall v. Webster, 195 N.C.App. 570, 572, 672 S.E.2d 768, 770 (2009) (quoting Cockerham-Ellerbee v. Town of Jonesville, 176 N.C.App. 372, 374, 626 S.E.2d 685, 687 (2006)). Additionally, “this Court has repeatedly held that appeals raising issues of governmental or sovereign immunity affect a substantial right sufficient to warrant immediate appellate review” pursuant to N.C. Gen.Stat. § 1-277(a). Price v. Davis, 132 N.C.App. 556, 558-59, 512 S.E.2d 783, 785 (1999). Accordingly, we address the merits of defendants' appeal despite its interlocutory nature.

Standard of Review

A party is entitled to summary judgment “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law.” N.C. Gen.Stat. § 1A-1, Rule 56(c) (2009). A grant of summary judgment is reviewed de novo by this Court. Falk Integrated Technologies, Inc. v. Stack, 132 N.C.App. 807, 809-10, 513 S.E.2d 572, 574 (1999). On appeal, this Court must determine: “ ‘(1) whether there is a genuine issue of material fact and (2) whether the movant is entitled to judgment as a matter of law.’ ” McCoy v. Coker, 174 N.C.App. 311, 313, 620 S.E.2d 691, 693 (2005) (quoting NationsBank v. Parker, 140 N.C.App. 106, 109, 535 S.E.2d 597, 599 (2000)). All inferences of fact are made in favor of the nonmoving party. Id. “For the case at bar, we must discern whether, upon review of the evidence in a light most favorable to plaintiff's claims, judgment as a matter of law should have been entered in favor of defendants upon the assertion of the defense[ ] of the public duty doctrine....” Lassiter v. Cohn, 168 N.C.App. 310, 315, 607 S.E.2d 688, 691 disc. review denied, 359 N.C. 633, 613 S.E.2d 686 (2005).

Discussion

I. Application of the Public Duty Doctrine

In a claim for negligence, there must exist a “legal duty owed by a defendant to a plaintiff, and in the absence of any such duty owed the injured party by the defendant, there can be no liability.” Hedrick v. Rains, 121 N.C.App. 466, 469, 466 S.E.2d 281, 283 (internal citation omitted) aff'd per curiam, 344 N.C. 729, 477 S.E.2d 171 (1996). “[W]hen the public duty doctrine applies, the government entity, as the defendant, owes no legal duty to the plaintiff.” Blaylock v. N.C. Dep't of Correction, ---N.C.App. ----, ----, 685 S.E.2d 140, 143 (2009) disc. review denied, 363 N.C. 853, 693 S.E.2d 916 (2010).

Our 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 citation omitted), stating:

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.

In Braswell, a woman was killed by her estranged husband and her son, as administrator of his deceased mother's estate, filed suit against the county sheriff, alleging that the sheriff had negligently failed to protect the plaintiff's mother from foreseeable harm. Id. at 366, 410 S.E.2d at 899. The Supreme Court rejected the plaintiff's argument and concluded that the public duty doctrine shielded the sheriff from liability. Id. at 371-72, 410 S.E.2d at 901-02.

After Braswell, the application of the public duty doctrine in this State expanded and was “interpreted to apply to public duties beyond those related to law enforcement protection.” Lassiter, 168 N.C.App. at 316, 607 S.E.2d at 692; see generally Moses v. Young, 149 N.C.App. 613, 616-17, 561 S.E.2d...