The opinion of the court was delivered by: Wynn, Judge.
Appeal by plaintiffs-appellants from order entered 13 January 1997 by Judge H. W. Zimmerman, Jr. in Forsyth County Superior Court. Heard in the Court of Appeals 6 January 1998.
In North Carolina, there are two exceptions to the "public duty doctrine" : (1) when 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, yet fails to provide such protection to the individual promised. Braswell v. Braswell, 330 N.C. 363, 371, 410 S.E.2d 897, 902 (1991). Because plaintiff in this case does not allege that her wrongful death claim against the Sheriff of Forsyth County falls within either of these two recognized exceptions, and we are not persuaded by her argument to adopt an additional exception for situations involving a special relationship between the alleged wrongdoer and the police, we uphold the trial court's grant of summary judgment as to her wrongful death claim. Furthermore, because the public duty doctrine also bars plaintiff's claim under the sheriff's official bond, we also affirm the trial court's grant of summary judgment as to that claim.
Viewing the evidence in the light most favorable to the non-moving party, the record shows that on 13 April 1993, police officers arrested Robbie Lyons for numerous counts of injury to real property. Lyons was placed under a $10,000 secured bond in the Guilford County Detention Facility in High Point. Two days later, while still in jail, he was served with warrants charging robbery with a dangerous weapon, larceny, and three counts of uttering forged checks. A $5,000 bond was set for these charges, but never posted.
The next day, 16 April 1993, Lyons was convicted in Guilford County District Court of nineteen (19) counts of injury to real property and one count of larceny. He was sentenced to an active term on seventeen (17) months and twenty-nine (29) days imprisonment for the injury to real property charges and a concurrent two (2) year sentence for the larceny charge. The trial Judge further recommended that he undergo a mental examination.
Five days later, 21 April 1993, Lyons was transported from the High Point Detention Center to the Forsyth County Detention Center. Although the evidence at trial presented conflicting accounts concerning the paperwork given to the receiving officer, the evidence most favorable to plaintiff indicates that the officer received the Judgment and Commitment documents showing Lyons' active time. In any event, the evidence conclusively shows that on 17 May 1993, Lyons was improperly released from the Forsyth County Detention Center.
About five weeks later, on 24 June 1993, Lyons, under the alias of Robby James Johnson, was again placed in the Forsyth County Detention Center -- this time for another armed robbery charge. The record shows that on the date of his second incarceration, a pre-screener interviewing inmates recognized that Robby Johnson was in fact Robby Lyons and reported her discovery to deputies at the Forsyth County Sheriff's Department. The record further reflects that over the next several weeks while incarcerated at the Forsyth County Detention Center, Lyons convincingly demonstrated violent propensities as a "problem inmate." Moreover, during this second incarceration, true bills of indictments were handed down against Lyons for armed robbery and other charges. Nonetheless, under a plea bargain for the charges leading to his second incarceration, Lyons pled guilty to common law robbery and received three (3) years probation. Apparently, despite the pre- screener's identification of Robby Johnson as Robby Lyons, the jail officials did not act on this information, thereby resulting in his second release on 10 August 1993.
However, Lyons' criminal pattern of conduct persisted such that on 18 September 1993, he, for the third time, entered the Forsyth County Detention Center -- this time for failing to appear on a shop lifting charge and another misdemeanor. He posted a $50.00 cash bond and was released on 21 September 1993.
Four days later, Lyons fatally shot Stephen W. Stafford while robbing a grocery store in Forsyth County. On 4 April 1996, the Supreme Court of North Carolina upheld his conviction for that crime (State v. Lyons, 343 N.C. 1, 468 S.E.2d 204 (1996)) and now Lyons awaits the execution of his death sentence in North Carolina Central Prison.
Mr. Stafford's wife, Ramona, acting as the Administratrix of his estate and in her individual capacity, sued the Sheriff of Forsyth County on his surety bond on 15 September 1995, alleging that her husband's death resulted from the negligent release of Lyons from the Forsyth County Detention Center. The sheriff answered and moved to dismiss Mrs. Stafford's complaint on the ground that the public duty doctrine barred her claim. Superior Court Judge William Z. Wood, Jr. denied that motion, however, on 5 December 1995.
Subsequent to the filing of the sheriff's answer, Mrs. Stafford amended her complaint as a matter of right to include a wrongful death claim that alleged that the sheriff negligently released Lyons from the Forsyth County Detention Center.
On 3 December 1996, the sheriff moved for summary judgment, contending that the public duty doctrine barred her claims. Thereafter, Superior Court Judge H. W. Zimmerman, Jr. granted summary judgment as to both claims. Mrs. Stafford now appeals to this Court.
Mrs. Stafford first contends that the trial court erred in applying the public duty doctrine to bar her wrongful death claim because, she argues, a "special relationship" existed between the Sheriff of Forsyth County and Lyons as contemplated by ...