Stone v. North Carolina Department of Labor

473 v. N.C. OF STONE DEPT. LABOR (1998)] N.C. 473

[347 emphasized immediately this Court that after defendant’s senseless murder, act of defendant exhibited a concern for the victim’s life remorse his seeking for action assistance for the victim. Bondurant, 694, N.C. Here, 309 at 309 S.E.2d at 182-83. defendant demonstrated no such Apartments concern remorse. He saw Grace department. Further, in flames but never called fire he admitted setting foregoing reasons, additional For the fires. we conclude each that case where this Court found a has sentence of death dis- proportionate is distinguishable from this case. proper

It is “compare also Court to this case with the penalty cases in which we proportionate.” have found the death McCollum, N.C. Although 334 at 433 S.E.2d at 164. this Court pool reviews all of the proportionality cases in when engaging review, repeatedly we have stated that “we will not undertake to dis- carry cuss or cite all of duty.” those cases each time we that Id. It out say present suffices to here that we conclude case more is pro- similar to cases which we have found sentence of death portionate than to those which we have found the of sentence disproportionate juries consistently death or those in which imprisonment. returned recommendations of life Finally, Daniels, we noted in State v. 446 S.E.2d (1994), denied, cert. 513 U.S. 130L. 2d (1995), Ed. similarity of cases subject proportion is not the last word on the ality. Similarity “merely Id. at at S.E.2d 325. serves ini as an point inquiry.” Id.; Green, tial see also at N.C.

at 46-47. issue of penalty proportionate whether the death in a particular ultimately experienced case rests judgment “on the of the Court, simply members of this comparison on mere numerical ag'gravators, mitigators, Daniels, and other circumstances.” S.E.2d at 325. We cannot law conclude as matter of that the sentence death disproportionate. was excessive or We hold that the defendant charge received a fair trial on the first-degree murder and fair capital sentencing prejudicial proceeding, free from error.

NO ERROR. B. JANET ANNIE B. MARY BARBARA STONE; CARRIE LOCKLEAR; WASHINGTON; M. E. GALLOPS WILLIAM Co-Administrators JR., Estate PEELE, COURT THE SUPREME IN v. N.C. DEPT. OF LABOR PEELE; BROADY, JIMMIE of the Estate of GIBSON Administrator ROSE DAWKINS; DAVIS; E. THOMPSON; SHARON LILLIE B. JOHNNY MINNIE QUICK; POOL; TOWNSEND; RONALD WAYNE ALFORENCE GEORGIA ANN ANDERSON; ANDERSON, of PEGGY JEAN Administrator of Estate ALBRIGHT, of DAVID MICHAEL of the Estate DAVID MACK Administrator BARRINGTON; BARRINGTON, ALBRIGHT; ERNEST SR. and NELSON FRED BARRINGTON, JOSEPHINE PEARLIE of the Estate of Co-Administrators FAIRLEY; GAGNON; GAGNON, R. MATTIE of the Estate of JOHN Administratrix WHITE; WILLIAMS; WALL; WATERS; KENNETH CONESTER MARTHA EVELYN SANDERS; BELLAMY, of LARRY of JOHN Administrator Estate WILLIAMS; BELLAMY; BARRINGTON NELSON ELIZABETH ANN SARAH JR.; BARRINGTON, OWENS, FRED of LINDA of the Estate Co-Administrators TERRY; GRIFFIN; SCOTT; BLANCHARD; SUE LETHA ELAINE ADA AUDREY MARTIN; MALACHI; MCRAE; MANGUS; ALBERTA SYLVIA GLORIA KIM MCPHAUL; LYNCH, the Estate of JANICE EVANDER SANDRA Administrator of ODOM; OATES, III; NICHOLSON; LYNCH; KATIE PAMELA BERNETTA THOMAS COBLE; MOORE; MURPHY; BUSH; MURPHY; NORA THOMAS PRISCILLA SALLY CHAMBERS; CHAMBERS, ANN ROSIE of BRENDA Administratrix of Estate NELSON, CAMPBELL; CHAPPELL; MARTHA of BERNARD ROSE Administratrix RATLIFF; PITTMAN; PIERCE; ANNETTE of MARTHA DEBORAH the Estate PAUNCY; ROBERTS; ROBERTS; REDDICK; CLEO DELORES ZELDA RICHARD QUICK; QUICK; SMITH, LULA the Estate of BOBBY DELORES Administratrix of DAVIS; QUICK; BRYANT; RATLIFF; DONNA BRANCH WILLIE MARY CYNTHIA LIPFORD; WEBB, BOSTIC; INGRAM; S. RICHARD M. ALICE DORIS RACHEL WEBB; SHAW;FLORA C. of the Estate of JEFFREY A. BARBARA Administratrix BANKS; BANKS, MARGARET TERESA JAMES of Estate Administratrix of BANKS; ELLISON; SAUNDERS, Administrator THOMAS LINDA CAROL PAUL of WALL; PAGE, MARY LILLIAN JOANNE Administratrix of the Estate of FUNDERBURK; BUTLER; CAMPBELL; VELMA ROY of GAIL VIVIAN Estate RICH, RICH; BRUCE DONALD of MARY SUE Administratrix of the Estate BROWN, QUICK; of MARY ALICE PEGGY Administratrix of the Estate RAINWATER; MORRISON, M. MARGIE CAROLYN Administratrix of Estate MCDONALD; MORRISON; HAMILTON A. SHERMAN WILLIAM G. of MICHAEL CAFFERATA; BAILEY; HAMILTON; BRENDA F. ELTON RAY

and MARIE A. JR., COOPER; KELLY, PAMELA S. WILLIAM of the Estate of Administrator KELLY; DAWKINS, CATHERINE of BRENDA GAIL Administratrix of Estate SMITH; SELLERS; DAWKINS; L. BULLARD REGGIE PHILIP R. JEANETTE RUBY GRAHAM; SR.; SMITH; SMITH, WILLIAM FAYE WILLIAM WINSTON CYNTHIA EUBANKS, JR.; SMITH, BETTY NOCONDA Administratrix of the Estate WHITE; WILKINS, WALL; LEONARD S. BETTY B. DARRELL CYNTHIA WILKINS; LYNETTE JACOBS ANGELA ROSE Administrator the Estate COULTER; COULTER, MAE JOSIE LYNN Administratrix the Estate HATCHER; HATCHER; W. MILDRED LASSITER FELTON ALBERT PATRICIA MOATES; NOLAN; MOATES; RONNIE CARROL DELLANO GLADYS FAYE OLIN NOLAN; JARRELL, of BERTHA HOMER F. Administrator the Estate GOODWIN; INGRAM; JARRELL; SCOTT; BENITA MATTIE LORETTA LORETTA McDOUGALD; NICHOLSON; DAIREN; ALLISON MARY ANN MONICA P. MORRISON, GRIFFIN; MCDOUGALD; v. AND ROY S. JR. NORTH BRENDA CAROLINA DEPARTMENT DEPARTMENT OF LABOR and NORTH CAROLINA LABOR, AND HEALTH DIVISION OCCUPATIONAL SAFETY OF THE SUPREME COURT IN LABOR OF N.C. DEPT.

No. 81PA97 February (Filed 1998) (NCI4th)—

1. State 24§ Tort Claims action —failure inspect plant public applicability chicken — doctrine — arising

The Industrial Commission erred in an from action injuries plant in a deaths fire at a chicken which had never safety inspection received a denying state defendants’ Rule 12 plaintiffs’ motions to dismiss Claims Tort only action. Under the Tort Claims the State is liable circumstances which private person liable, private persons would pos- do not sess doctrine, barring negli- duties. gence against entity “special a governmental actions absent a relationship” “special duty” particular individual, a or serves express liability legislature’s permit against intention only private Any person State would be change when liable. in permit sovereign immunity the State’s be the State to liable in private person situation in which a could not should made the legislature. Employees

2. Public and (NCI4th)— § Officers Tort Claims inspect plant public duty Act —failure chicken doc- — applied trine — Braswell Although plaintiffs arising in an action a fire in a from plant processing safety chicken had which never received a inspection argued doctrine bars claims governments prevent crimes, poli- local for failure to public duty underlying recognition cies of the doctrine in 363, apply Braswell v. here. as the limited Just recognized Braswell, resources of law enforcement were in recognized limited the defendants in this resources case are imposed judicially overwhelming and a burden of for fail- every prevent employer’s negligence injuries ure to resulting or employees deaths to is refused. (NCI4th)—

3. State Tort in chicken § Claims Act —fire plant public duty sufficiency pleadings — doctrine — specific arising

Plaintiffs’ claims under the Tort Claims Act injuries from plant and deaths in a fire at a chicken fail be- inspect upon imposed cause the defendants public, N.C.G.S. 95-4 is for the benefit of the not individual § claimants, plaintiffs’ fall so that claims within the COURT IN THE SUPREME LABOR v. N.C. DEPT. OF N.C. within allege placing the must facts claims doctrine. Plaintiffs they no doctrine, but make exceptions one of duty” Nothing relationship” “special allegations. “special such myriad unreported opinion reported overrules recovery against under the Tort Claims allowing the State cases Act. dissenting. Orr

Justice Frye joins opinion. dissenting in this Justice discretionary pursuant of a unani- § review to N.C.G.S. 7A-31 On App. 288, Appeals, mous of the decision Court denying affirming a Commission (1997), decision Industrial 1A-1, (2), pursuant 12(b)(1), motions to N.C.G.S. Rules defendants’ Supreme plaintiffs’ claims. Heard Court (6), to dismiss November 1997. Fonts, P.L.L.C., by

Adams, Kleemeier, Hagan, Hannah & Barrett; Neal, Futrell, by Kitchin, J. S. Webb & Alexander Bell, Kitchin; Becton, L. Henry Fuller, & Charles L. Slifkin II, Jr., Gunter, W. Becton; Bleynat, Edward L. and Woodrow plaintiff-appellees. Blackwell, Attorney General, by Roy David Easley, F. Michael Haskell, Deputy Jr., Special Bunting, H. F. Elisha Ralf Attorneys defendant-appellants. General, for WHICHARD,Justice. against this action defend- negligence

Plaintiffs commenced Occupational ants, Department Labor and its the North Carolina of Safety pursuant Division, to the Tort Claims N.C.G.S. and Health 1994). sought dam- (1993) (amended to -300.1 Plaintiffs §§ Imperial Foods injuries resulting or a fire at ages for deaths from pur- moved, plant Hamlet, in North Carolina. Defendants Products plain- (2), (6), and dismiss 1A-1, 12(b)(1), suant to N.C.G.S. Rules § Deputy D. Bernard Alston denied tiffs’ claims. Commissioner adopted The full Commission affirmed and his decision. motions. 95-4, Appeals It that N.C.G.S. which Court of affirmed. held of power, and of the Commissioner authority, describes the duties inspect workplaces of Labor, imposed upon a defendants plaintiffs’ gave North and that the breach rise Carolina 288, Labor, App. 125 Dep’t N.C. N.C. negligence. action for Stone v. THE IN SUPREME COURT 477 . STONE v. OF N.C. DEPT. LABOR 291-92, 410, S.E.2d It further held that the brought did against doctrine not actions the State under the Claims at 412. Tort Act. Id. On 5 June 1997 this granted petition discretionary Court defendants’ review. upon dismiss,

Because these claims arise defendants’ motions plaintiffs’ allegations, follow, we treat factual which as true. See Hospitality Asheville, Sorrells M.Y.B. Ventures N.C. September S.E.2d On 3 1991a fire started in a hydraulic deep fryer Imperial line a near fat in the Foods Products plant plant) Hamlet, (the grew chicken North Carolina. The fire intensity spread rapidly plant. through the interior employees Imperial Plaintiffs are former either Foods who suf- injury personal representatives fered in the fire or of the estates of employees They who died in the fire. or their (plaintiffs) decedents lawfully plant were inside the at the time fire. Plaintiffs could easily escape plant plant or the fire because the in the exits unmarked, blocked, were and inaccessible. After the fire the North Department Safety Occupational Carolina of Labor and its and Health (defendants) only inspection Division first and conducted their in the plant’s eleven-year history operation. As a inspection, result of this Occupational defendants discovered violations of numerous Safety and Health Act of North (OSHANC),including Carolina plant’s inadequate inadequate suppression and blocked exits and fire system. Imperial eighty-three against Defendants issued citations Foods Products for violations of OSHANC standards. Plaintiffs alleged, alia, inter defendants had under OSHANCto inspect plant, duty by inspect failing defendants breached that fire, plaintiffs’ injuries until after the defendants’ breach caused deaths, plaintiffs’ injuries damages or deaths entitle them to tort.

Plaintiffs negligence have asserted common law action the State under Tort To damages Claims Act. recover under the private parties common law of negligence, (1) legal “must establish duty, (2) thereof, (3) injury proximately a breach caused such Carlton, 236, breach.” Kientz v. 17 (1957). S.E.2d plaintiffs argue upon Defendants have failed to a claim state granted which relief can be because defendants did not owe to plaintiffs public the individual due to doctrine, the doctrine. This 370-71, articulated Braswell v. S.E.2d provides (1991), governmental and entities their OF v. N.C. DEPT. LABOR individuals, only public, not to general to the agents owe duties entity relationship” “special duty” “special between the absent plaintiffs injured party. also contend that because and the Defendants personal claim, the Industrial Commission lacks not stated a jurisdiction subject over defendants. and matter issue, Appeals affirming the the Court of erred whether dismiss, motions to Commission’s denial of defendants’ Industrial public First, does the requires resolution of three sub-issues. Second, apply brought under the Claims Act? claims Tort doctrine Finally, if apply agencies defendants? does, if does it to state like applies, exception apply an to it as well? the does doctrine ^[1] The Tort Claims Act provides that the State is liable “under cir private person, the [it], if a would be liable to cumstances where with the laws North Carolina.” N.C.G.S. claimant accordance private person, recognize State, that the like a 143-291.Defendants § subject liability leg terms may negligence under the They they plaintiffs contend, however, that are not liable to islation. duty doctrine, they legal duty public no to the because under the owe plaintiffs. obligation under Defendants assert that their individual inspect workplaces in Carolina N.C.G.S. 95-4 to North serves § large, employees. N.C. at not individual See assert, Appeals 370-71, at 901. and the Court of 410 S.E.2d Plaintiffs apply plaintiffs’ held, that the doctrine does not bar private person, not of a claims because it does private person State is liable if a and under the Tort Claims Appeals. disagree, We and we reverse the Court of would be. Tort Claims Act to determine whether it incor- construing In porates public duty doctrine, primary is to the common law “our task intent, is purpose legislature, legislative ensure that Co., accomplished.” Supply Electric Co. Durham v. Swain Elec. (1991). “Legislative purpose is plain Id. from the words of the statute.” Under first ascertained private circumstances in which a Act the State liable person would be. N.C.G.S. 143-291. possess Only governmental persons

Private do duties. authority protec- possess laws for entities enact enforce Grogan Commonwealth, 4, 6 public. 577 S.W.2d tion of the See if the were held liable for a failure (Ky.) (recognizing that State establishing safety for con- regulations laws standards enforce governmental as a buildings, the State’s status struction use 479 v. DEPT. STONE N.C. OF LABOR (1998)] N.C. 473

[347 entity only holding city liable, “would be the basis or state only governmental entity possesses authority because to enact protection public”), denied, and enforce laws for the 444 cert. 835, (1979). U.S. 62 L. Ed. 2d 46 If the State were held liable for performing failing perform obligation large, an to the at liability private person the State would have when a could not. The public duty doctrine, by barring negligence against govern actions entity “special relationship” “special duty” mental absent a or a to a particular individual, express per legislature’s serves the intention to private person mit the State when a could be 370-71, liable. See 330 N.C. at Thus, 410 S.E.2d at 901-02. plain apply words of the statute indicate an intent that the doctrine brought claims under the Tort Claims Act.

Our legislative “guided by determination of intent is also . . . cer statutory Co., tain canons of construction.” Swain Elec. 328 N.C. at 656, Acts, Act, 403 S.E.2d at 294. permit such as the Tort Claims that derogation immunity strictly suit in sovereign should be construed. Floyd Highway Comm’n, 461, v. N.C. State & Pub. 241 Works 464, 703, (1955), part grounds by 85 S.E.2d 705 overruled in on other Barney Highway Comm’n, 278, 284-85, v. N.C. State 282 N.C. derogation S.E.2d Statutes in of the common law strictly McKinney Deneen, likewise should be construed. 231 N.C. 540, 542,

In passing legislature incorporated the Tort Claims negligence. common law of MacFarlane v. N.C. Resources Wildlife Comm’n, 385, 387, (1956), S.E.2d overruled in part grounds by Barney, 284-85, on other 282 N.C. at 192 S.E.2d at public duty integral part 277. The doctrine forms an of that common law. 330 N.C. at 410 S.E.2d at 901. Plaintiffs ask us broadly construe the Tort Claims Act so as to erase a fundamental common law legislature doctrine. We decline to do so. Until the clearly expresses immunity is to be waived even in situations in public duty apply which the common law doctrine would otherwise negligence claim, to bar a we construe the Tort Claims as incor- Act porating existing negligence, including common law rules of Floyd, 705;McKinney, doctrine. See 241 N.C. at S.E.2d Any change sovereign N.C. at immunity 58 S.E.2d at 109. in the State’s permit pri- the State to be liable in a situation in which a person legislature, vate could not be made should not guise Court under the of construction. COURT IN THE SUPREME DEPT. v. N.C. OF LABOR

[2] Plaintiffs argue that even if the doctrine applies Act, in this brought under the Tort Claims does claims gov They applies against it claims local contend that to case. prevent for failure crimes.1 to ernments duty recognized public doctrine, this Court the it dis- When first of the facts it. See 330 the doctrine in terms before cussed duty 370, public doctrine as (addressing 410 S.E.2d at 901 the N.C. County applied plaintiffs against a of Pitt for claims the Sheriff of provide protection). with In the context a claim failure to her sheriff, doctrine, “a explained that, we against a under the munici- agents public, therefore, benefit pality and its act for the of the police protection spe- is no the failure to furnish there for added). Id. (emphasis cific individuals.” doctrine, however, our recognized Once this Court Court of variety operations. Appeals applied governmental See, it to a of local Hickory, App. 821, 823, e.g., City Simmons v. 126N.C. 487 S.E.2d of 583, public duty applied (1997) (holding 585 that the doctrine to bar city against negligently inspecting for homes and issuing claim build public duty permits and doctrine ing stating that has been “[t]he variety statutory applied governmental duties”); Sinning to a v. App. Clark, 515, 518, 71, (holding pub 119N.C. 459 S.E.2d 73 that the duty applied municipality, city against lic doctrine to bar a claim inspector, city gross building negli and the code administrator for inspection stating in an a home and that this gence doctrine “has statutory applied governmental our been various [c]ourts denied, 194, rev. N.C. 242 duties”), (1995); disc. 342 463 S.E.2d Davis Messer, 44, 55-56, 902, App. (holding 119 N.C. 457 909 v. S.E.2d duty public applied to a a fire against chief, doctrine claim a fire town, county department, negligence and a in their failure to complete plaintiff’s extinguish home), their effort to fire in disc. denied, Forsyth 341 N.C. 508 v. (1995); rev. 462 S.E.2d Prevette County, App. 754, 758, (holding 110 N.C. 218 S.E.2d that the argue Jones, (1985) also 1. Plaintiffs that Jordan v. 314 N.C. 331 S.E.2d 662 plaintiff against Department (permitting bring Transportation), a tort action position duty supports public bar their their that the doctrine does not claim and that they may negligent recover from State for its failure to take action that could public duty protected recognized its citizens. decided before Jordan was this Court doctrine N.C. at at 902. The Court Jordan did not plaintiffs duty public Thus, barred consider whether claims were doctrine. inapplicable question public applies to the of whether doctrine Jordan argument against holding reasoning the State. make no claims Plaintiffs that the exceptions fall within one to the doctrine. Jordan v. N.C. DEPT. OF LABOR applied doctrine to bar wrongful against death claim county against employee county director and of the animal con failing protect plaintiff trol shelter for from dogs which defendants dangerous), denied, knew were disc. rev. 622, 435 N.C. S.E.2d 338 Appeals applied The Court of has also the doctrine to a state agency. Humphries Dep’t See N.C. Correction, App. 545, 547, (1996) (holding S.E.2d that the doctrine barred Department claim of Correction for alleged negligence in the supervision of a probationer), improvidently allowed, disc. rev. 485 S.E.2d 293 While this Court has not heretofore applied agency the doctrine to a a governmental state or to function enforcement, other than law we do so now. policies underlying recognition doc- support

trine in Braswell application its here. In Braswell we explained necessary prevent that the doctrine was to “an over- liability” whelming governmental burden of agencies on with “lim- Braswell, ited 370-71, resources.” 330 N.C. at 410 S.E.2d at 901. We stated: protection may provided

“The amount by of that be is limited community the resources of legislative- a considered executive decision to how may deployed. as those resources proclaim For the courts to a new general duty protection inevitably in the law of tort. . . would determine how the limited police . . predictable resources . should be allocated and without limits.” 371, (quoting City York,

Id. at 901 at Riss v. 22 Newof 579, 581-82, 860, 860-61, N.Y.2d 240 N.E.2d 293 N.Y.S.2d (1968)). recognized Just as we the limited resources of law enforce- recognize ment in we the limited resources defendants as judicially impose here. Just we there an overwhelm- “refuse[d] liability ing prevent burden law for failure to [on enforcement] every act,” 370-71, criminal id. at 410 S.E.2d at we now refuse to judicially impose overwhelming liability an on burden of defendants prevent every employer’s for failure to negligence that results in injuries employees. government or deaths to ought to be free to “[A] public protection thereby exposing enact laws for the without its liability supporting taxpayers ... in failures omission its attempt laws, It haphaz- enforce them. is better to have such even ardly enforced, than not Grogan, them at all.” at 577 S.W.2d 6 (emphasis added). COURT THE SUPREME IN OF LABOR v. N.C. DEPT. establishing the legislature, in believe the

Further, we do not Department of Labor Safety Health Division Occupational agency to each individ- impose duty upon intended chapter General 95 of our Nowhere in North Carolina. worker ual private, right individual legislature authorize does the Statutes compliance with OSHANC stand- against State to assure action intended was that Division Rather, legislature the most ards. compliance reasonable prescribe safety and secure some standards practicable.” “as as spot-check inspections made often through way safety conditions for 95-4(5) “In this N.C.G.S. State, improved.” 8 Wash. Nerbun general would be work[ers] Washington Department 370, 376, (holding P.2d that App. duty to individual workers and con- an absolute of Labor did not owe Washington legislature intended that cluding denied, general), rev. on of workers in disc. Department act behalf Wash. 2d 1005

[3] Because we hold that the legislature intended the under the Tort Claims apply to claims the State doctrine to general to the facts of this case. Act, we now the doctrine provides entities, when exercis governmental common law rule statutory general benefit of the powers, act for the ing their protect specific See individuals. and therefore have no 901; DeFusco v. 410 S.E.2d at see also Forte, (R.I. 1996) (recognizing that Inc., 683 A.2d Todesca shields the state exceptions, “[tjhe public doctrine with certain political arising out discre and its subdivisions from tort ordinarily nature are not tionary governmental actions that their entity governmental the performed private persons”). Because any claimant, it particular duty cannot be held individual owes no statutory carry a out its duties. negligence for for failure to liable duty, a can Braswell, 370, 410 S.E.2d at 901. Absent there 330 N.C. at liability. Kientz, S.E.2d at 17. no 245 N.C. at exceptions two to the recognized this Court In Braswell inequities duty prevent to certain individuals.” doctrine “to inevitable explained excep- that 371, 410 S.E.2d at 902. It 330 N.C. at relationship special a (1) exist: where there is tions to the doctrine entity; injured party governmental (2) the and when and between duty entity special by promising protec- governmental a creates protection forthcoming, and the indi- individual, an is not tion to causally promise protection is related on the vidual’s reliance exceptions narrowly and are construed injury Id. These suffered. STONE v. N.C. DEPT. OF LABOR N.C. applied. 902; Sinning, App. Id. at 410 S.E.2d at see also 459 S.E.2d at 74. duty

Plaintiffs assert that defendants owed each claimant a inspect Imperial plant. § N.C.G.S. 95-4 to Foods Products This provides statute that the Commissioner of is “charged Labor with duty” inspect hours, practi- visit and “at reasonable as often as cable,” “factories, establishments, all mills, of the mercantile work- shops, public eating places, and commercial in institutions the State.” 95-4(5). imposes N.C.G.S. It § also on the Commissioner a inspection request prosecution any enforce these laws and viola- 95-4(6). private tions found. N.C.G.S. § It creates no cause of action for individual claimants for violations of OSHANC.

Although imposes upon N.C.G.S. defendants, for public, the benefit not individual as claimants here. 330 N.C. at 410 S.E.2d at 901. Plaintiffs’ claims thus fall within the doctrine, and to state claims for actionable negligence, plaintiffs allege placing must facts the claims within one exceptions They “special the doctrine. make no such rela- duty” tionship” “special or allegations. The claims must therefore fail. See id. at 410 S.E.2d at 902.

The dissent asserts that we have eviscerated the Tort Claims it, nullified obsolete, purposeless, rendered it left absolved liability, all negligence State of and barred all claims the State. hyperbolic overwrought. myriad These assertions are A reported unreported cases, covering great variety of fact situa- tions, recovery against have allowed the State under the Tort Claims opinion Act. Nothing overruling this even hints at the of those legislative change, cases. Absent the Act functions and will continue century. simply hold, to function as it has for almost half We with grounding sound reason and substantial in the law of both this and jurisdictions, context, other this limited new not heretofore Court, confronted the Act was not intended to does special relationship special duty. absent a stated, Appeals affirming For the reasons the Court of erred the Industrial Commission’s denial defendant’s motions to dismiss. Appeals reversed, decision the Court of is therefore and the Appeals case is remanded to the Court of remand to further entry Industrial Commission for of an order dismissal.

REVERSED AND REMANDED. THE SUPREME COURT IN LABOR v. N.C. DEPT. OF (1998)]' dissenting. Orr

Justice erroneously opinion a limited and obscure majority takes The public duty doctrine, which has tradi- concept, law the common law enforcement tionally only municipalities and their applied effectively expands application doctrine’s responsibilities, and the result, right of individuals to Act. As a the the Tort Claims eviscerate State, right the a negligent acts committed the State for sue the conveyed by Assembly, is nullified without the General expressly authority indulgence. any permitting such an support precedential which follow. Therefore, I dissent for the reasons country doctrine in this is recognition The of the Supreme South the United States Court. an 1855decision of traced to L. Ed. The case involved a Maryland, U.S. by plaintiffs sheriff and brought against to recover a negligence suit keep peace pro- for failure to the on an official bond his sureties stated: plaintiffs. The Court tect against for a breach of his ministerial duties

Actions the sheriff every process are in almost book of found execution has reports. no instance can be found where civil action But him for his default or misbehavior as been sustained injury peace, by those who suffered conservator mobs, riots, persons through property or the violence their insurrections. several ear- 403, 15 L. Ed. at 435. The Court went on examine

Id. at special right because no was and concluded that lier British decisions alleged, cause of action failed. authorities, and other I can reviewing

In this seminal decision majority taking public duty no law for the doc- find common basis beyond South, law In original bounds of local enforcement. trine public duty originated, doctrine was where the doctrine first only municipalities applied and law enforcement. This was to address Braswell, 330 N.C. 410 S.E.2d 897 the case in Braswell v. also adopted doctrine. In (1991), where this Court first only applied involving again to factors Braswell, the doctrine was Meyer, There, writing for a municipality Justice and law enforcement. Court, explained: unanimous general rule, law known as the doc- common municipality its

trine, agents act for benefit therefore, to furnish public, is no for the failure there police protection specific individuals. 485 v. N.C. DEPT. OF LABOR (1998)] N.C. 473

[347 370, Id. at justify 410 S.E.2d at 901. Neither South nor Braswell majority’s expansion enlargement sudden or of the doctrine to situa- beyond tions local law enforcement. No is or mention made reference majority cited extension, which authorizes this and no com- authority mon law judicial therefore, is offered. This amplification, justified, jurisdictions and to the extent that other state have bent doctrine, expand cannot, the common law to skewed we not, should follow such an ill-advised course.

Prior to the Tort Claims the State agencies and its were liability immune from immunity. tort under the doctrine sovereign Dep’t Resources, Gammons v. N.C. Human 51, 54, 344 N.C. S.E.2d immunity This common law doctrine of protection extended government liability injuries entities for by government caused acts no matter how wanton or reckless the government’s Messer, App. conduct. v. 44, 52, Davis 119 N.C. 902, 907, S.E.2d denied, disc. rev. (1995); 341 N.C. 462 S.E.2d 508 Wiggins City Monroe, App. v. 44, 49, 73 N.C. Assembly When the General enacted the Tort in Claims Act partially immunity waived or sovereign eliminated the State’s by allowing brought against actions to be in State eases where negligence was employees committed its in the course of their employment. Gammons, 344 N.C. at 472 S.E.2d at 723-24. The purpose immunity and effect of the Act was to remove the blanket traditionally enjoyed by the State English under the common law and permit persons injured against negligent acts, to recover the State for Lyon Sons, & Educ., 24, 27, Inc. v. N.C. State Bd. 238 N.C. (1953), omissions, Phillips Dep’t S.E.2d Transp., App. 135, (1977 (1986) S.E.2d 339 amendment to the Act negligent omisisons). extended State’s to include To this, legislature expressly ensure provide made the Act private State is liable “under [it], person, circumstances where if a would be liable to the claimant accordance with the laws of North Carolina.” 143-291(a)(1996). N.C.G.S. plaintiffs

In judice, negligence against the case sub assert claims alleged inspect the State for Imperial its failure to Foods Products plant. public duty doctrine, as enunciated in does not apply (1) State, in this case because here: the suit is not a municipality Braswell; (2) as in the suit involves failure to inspect, provide protection police not failure to as in Braswell. majority Enlarging the doctrine as the does this case means that it beyond protecting will be extended its traditional realm of local law SUPREME COURT IN THE OF LABOR

STONE v. N.C. DEPT. outside those identified will to circumstances enforcement and doctrine, moreover, not be should in Braswell. The brought was because, this suit applied here unlike should not be used doctrine Tort Claims Act. The the express of the Tort Claims immunity the intent when grant the State its liable for immunity and make the State was to Act remove duty public doc- Granting immunity to under the the State wrongs. Thus, virtually obsolete. makes the Tort Claims Act trine specific justify extending immunity, but lan- the does Braswell not precludes such an Claims Act underlying policy of the Tort guage expansion. attempts justify on the majority, however, to its decision

The applies (1) because: The Tort public doctrine grounds that the person requires private like a Act the State to be treated Claims public duties; (2) The Tort Claims Act private persons do not have incorporates the incorporates law and therefore the common policies support application of the duty doctrine; (3) The Braswell Assembly OSHANC, General never doctrine; (4) Under the arguments are imposed. All of these intended for a to be untenable. patently interpret require- to the Act’s

First, it unreasonable is private person absolving a as ment State be treated like that the liability. very language is eliminate of all The reason State immunity. is to sovereign The intent the common law doctrine State, suit an a suit the same allow an individual assert entity. against private person legisla- The individual could assert right away, especially was not to take this since tive intent of the Act away language take when this was chosen there was no pri- adopted. concerning treatment like a language and the Act If the majority says person to mean what the vate had been intended immunity, no means, i.e., receives the Act would have that the State just case, left purpose. legislature If that had been the could have sovereign immunity place. majority’s clashing with the intent of the

In addition to approves oblique reading of interpretation language also an of this major- reasoning. Act which a kind of acrobatic The the ity necessitates private request to as a legislative asserts that the treat the State really immunity. person This does not make means that the State has ostensibly so legislature The did not intend to be obtuse as sense. yet by requir- immunity away State, including language take from the N.C. DEPT. OF LABOR ing private person, grant very treatment like it back that same immunity public duty reasoning doctrine. Such would require the Court read between the lines and discover a whole line reasoning innocuously in the one sentence treatment addressing private person. like a the legislature grant If had intended State immunity by requiring private person that it be treated like it could simply said such. majority’s argument, incorporates second that the Act incorporates doctrine because it law, common also noted, previously public duty erroneous. As originated doctrine Supreme Maryland, the United States Court case South v. 59 U.S. Thereafter, 15 L. Ed. 433 “the doctrine was widely accepted by most state v. Cockrell, courts.” Ezell 902 S.W.2d (Term. 1995). sovereign When most states abolished immu- nity by statute, the doctrine came under attack. Id. 398. Some state doctrine, courts arguing simply sovereign abolished the it that was immunity guise another and to it with was inconsistent immunity. statutes that eliminated states, Georgia, Id. Other such as application duty limited public apply only the the doctrine to in sit- involving police protection. uations Cannon, Hamilton v. Ga. 482 S.E.2d 370 In Carolina, duty North the common law tradition of the by beyond doctrine was never appli- extended this Court its limited municipalities cation to law Second, enforcement. the North legislature adopted recognized Carolina has never or the fact, In recognized doctrine. this Court the doctrine for the first only then, time in recognized the Court defense in the the most argue, majority does, by narrow of terms. To as the enact- ing incorpo- the Tort in Legislature Claims Act the somehow expansive public duty by majority rated the doctrine enunciated the best, simply wrong. is at argument, majority

In its third the asserts that the Braswell liability of preventing agencies rationale enormous on with limited applies misplaced. First, damages resources here as well. is are This capped Assembly under the Tort Act. The amended Claims “General 143-291(a) capped $150,000 N.C.G.S. so for damages § are at arising County causes on or after 1 1994.” October Parham Iredell Dept. Services, App. 144, -, Social S.E.2d Thus, majority’s “overwhelming the of an of lia fear burden bility” already directly Assembly has been addressed the General THE SUPREME COURT IN DEPT. OF LABOR v. N.C. liability as capacity, to limit it chosen, legislative in its

which has necessary. deemed liability Braswell and potential for and circumstances

Also, Braswell, potential very was In there case are different. liability was plaintiff claim- overwhelming unlimited because unpredictable police protect from an crimi- failed to her ing that the city failures, such would police could be liable for nal act. If the allegedly failed to for all criminal acts endure enormous inspections which are prevent. case, dealing we are with In this predictable Here, regular, basis. required to be carried out on accomplished. perform clearly It is fea- is set out and can be may protect the State Also, although the inclination to sible. there police determining how “limited suit, this not involve from case does allocated,” as was the issue in Braswell. should be resources Instead, this case is more 410 S.E.2d at 901. 330 N.C. at where we stated that we similar to what differentiated pre- “quite police was different from dealing with resources public hospitals, of resources and liabilities when dictable allocation provided.” are rapid systems, highways or even Id. transit Thus, policies articulated in Braswell are also S.E.2d at 901-02. inapplicable. majority is that argument offered

The fourth and final investigations. This impose is OSHANCdid not conduct provides that the Commissioner incorrect because N.C.G.S. inspect duty” the factories for “charged is to visit and Labor with unlikely inspections only legislature It that the intended violations. majority asserts, practicable,” when it used such often as as “as requirements list express language and included an extended required in order to fulfill Commissioner was to take actions that the duty. this mandated sovereign emphasized legislature, removing

It must be that the policy immunity, negligence decision to allow suits made imposed by limitations the Tort the state under circumstances and legislature to limit law- Likewise, to the extent the wants Claims Act. us, it can cer- suits in the future which are similar to one before reimpose tainly altogether and sover- amend the Act—or abolish immunity. unnecessary inappropriate for It is this Court eign protector treasury by legislative undoing what the become the of the accomplish. representatives of the voted recog- have Finally, it be noted that other commentators should been made many valid, cogent arguments which have nized the COURT IN THE SUPREME STATE T.D.R. this one.

against extending doctrine to cases such as critique As one author noted in his of the doctrine: [f]irst, application governmental of the doctrine allows enti- immunity sovereign legislature when the ties to use shield immunity. Second, application longer no mandates such requires plaintiffs injured by negligent the doctrine official solely governmental suffer because of the status of the tortfeasor. application promotes incompetence by Third, the of the doctrine entity providing meaningful governmental no incentive for the provide optimal quality. Fourth, the services of even with doctrine, plaintiffs prove elimination of the must still breach just any duty, causation, damages; vigorous task like in availability negligence Finally, action. the wide other entity pecuniary governmental insurance allows a limited to exposure injured compensating while still individual. Inspections Swindell, Municipal Liability Negligent Frank for Duty Doctrine, Sinning Victory v. Clark—A “Hollow” the Public Campbell Moreover, L. Rev. other writers many “jurisdictions abrogated the doctrine of sov- noted that [have] immunity degree injustice it caused.” John ereign because of the McMillan,Jr., Note, Liability and the Public Cameron Government By Duty resurrecting sover- Doctrine, 32 Vill.L. Rev. duty doctrine, majority immunity guise eign injustice the Tort perpetuates disregards the mandate of protect injured negligence. government Act to citizens from Claims Frye joins opinion. dissenting in this Justice v. T.D.R.

STATE OF NORTH CAROLINA 172PA97 No. February

(Filed 1998) (NCI4th) jurisdiction juve- over 1. Infants or Minors — superior for trial as adult —order nile —transfer court immediately appealable Appeals an order entered holding erred Court juvenile transferring jurisdiction over a the district court

superior pursuant an adult to N.C.G.S. 7A-608 court for trial as

Case Details

Case Name: Stone v. North Carolina Department of Labor

Court Name: Supreme Court of North Carolina

Date Published: Feb 6, 1998

Citation: 495 S.E.2d 711

Docket Number: 81PA97

Court Abbreviation: N.C.