The opinion of the court was delivered by: Wynn, Judge.
Appeal by defendants City of Charlotte and Robbie Faye Morrison from order entered 8 April 1997 by the Honorable John M. Gardner in Mecklenburg County Superior Court. Heard in the Court of Appeals 18 February 1998.
Under the "public duty doctrine," state and municipal governmental entities are deemed to act for the general public and thus have no tort duty to protect individuals from harm by third parties. See Braswell v. Braswell, 330 N.C. 363, 370-71, 410 S.E.2d 897, 901 (1991), reh'g denied, 330 N.C. 854, 413 S.E.2d 550 (1992). In this case, the City of Charlotte asserts that the public duty doctrine shields it from any liability for the alleged negligence of a school crossing guard that caused the death of a child. Because we find that a crossing guard's primary function is to ensure the safety of specific individuals -- children crossing the street -- rather than the public at large, we uphold the trial court's determination that the public duty doctrine does not shield the City of Charlotte from liability.
On 8 October 1991, Anthony Darrell Isenhour, Jr., a minor, walked home from elementary school. As he crossed a Charlotte street under the direction of a crossing guard, a driver struck him with her vehicle. Initially severely injured, Anthony later died as a result of the accident.
Anthony's mother, Anita Faye Isenhour, first brought a negligence action but later amended it to a wrongful death action against the driver and her husband. She also sued the crossing guard and her employer, the City of Charlotte.
The crossing guard and Charlotte responded to the complaint by moving to dismiss it under Rule 12(b)(6) for failure to state a claim. Following a denial of those motions, the crossing guard and Charlotte appealed to this Court.
When ruling on a Rule 12(b)(6) motion, the standard of review is "whether, as a matter of law, the allegations of the complaint, treated as true, are sufficient to state a claim upon which relief may be granted under some legal theory." Harris v. NCNB, 85 N.C. App. 669, 670, 355 S.E.2d 838, 840 (1987). In ruling upon such a motion, the complaint is to be liberally construed, and the 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." Dixon v. Stuart, 85 N.C. App. 338, 340, 354 S.E.2d 757, 758 (1987).
Ms. Isenhour asserted numerous negligent acts and omissions on the part of the City of Charlotte and the crossing guard that caused her son's injuries and subsequent death. On appeal, the City of Charlotte and the crossing guard argue that Ms. Isenhour failed to state a claim against them because they are shielded from liability by the public duty doctrine.
In essence, the public duty doctrine operates to defeat a negligence claim by establishing the lack of the "duty" element. Davis v. Messer, 119 N.C. App. 44, 55, 457 S.E.2d 902, 909 (1995), disc. review denied, 341 N.C. 647, 462 S.E.2d 508 (1995). An action for negligence requires "the existence of a legal relationship between the parties by which the injured party is owed a duty which either arises out of a contract or by operation of law." Vickery v. Construction Co., 47 N.C. App. 98, 103, 266 S.E.2d 711, 715, disc. review denied, 301 N.C. 106, ___ S.E.2d ___ (1980). If there is no duty, there can be no liability. Coleman v. Cooper, 89 N.C. App. 188, 192, 366 S.E.2d 2, 5, disc. review denied, 322 N.C. 834, 371 S.E.2d 275 (1988). Under the public duty doctrine, when exercising its statutory police powers a municipality and its agents cannot be held liable for a failure to carry out its statutory duties to an individual. Braswell v. Braswell, 330 N.C. 363, 410 S.E.2d 897 (1991), reh'g denied, 330 N.C. 854, 413 S.E.2d 550 (1992); see also Stone v. N.C. Dept. of Labor, 347 N.C. 473, 482, 495 S.E.2d 711, 717 (1998) ("governmental entities, when exercising their statutory powers, act for the benefit of the general public and . . . have no duty to protect specific individuals.")
Relatively recently, our Supreme Court expressly adopted the public duty doctrine in the case of Braswell v. Braswell, 330 N.C. 363, 410 S.E.2d 897. In that case, the Court considered a negligence claim brought by the administrator of Lillie Stancil Braswell's estate against Ralph L. Tyson, the Sheriff of Pitt County. Id. at 366, 410 S.E.2d at 899. Billy R. Braswell, Lillie's estranged husband and a Pitt County deputy sheriff, murdered her. Id. The plaintiff, Lillie and Billy's son, sued Sheriff Tyson for negligent failure to protect and for negligent supervision and retention of Billy. Id. at 366-67, 410 S.E.2d at 899. At the close of plaintiff's evidence, the trial court directed verdict in favor of Sheriff Tyson. Id. at 367, 410 S.E.2d at 899. The plaintiff appealed to this Court, and we found no error in the dismissal of the negligent supervision and hiring claim, but reversed on the dismissal of the claim for negligent failure to protect. Id.
In reversing the Court of Appeals on the issue involving the claim for negligent failure to protect, the Supreme Court held that the public duty doctrine protected the defendant Sheriff from liability. Id. at 370-72, 410 S.E.2d at 901-02. The Court noted that "[t]he 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." Id. at 370-71, 410 S.E.2d at 901 (citation omitted).
The language used in the holding of Braswell was specific to the facts before the Court -- a law enforcement officer sued for failing to protect a member of the public from harm. See id. at 370-71, 410 S.E.2d at 901. After Braswell, several opinions of this Court recognized the applicability of the public duty doctrine for non-police defendants. See Stone v. N.C. Dept. of Labor, 347 N.C. 473, 480-81, 495 S.E.2d 711, 715-16 (1998) (listing cases). However, it was not until the recent case of Stone v. N.C. Dept. of Labor that our Supreme Court recognized the applicability of the public duty doctrine to non-law enforcement defendants. See id. at 481, 495 S.E.2d at 716 ("While this Court has not heretofore applied the doctrine to a state agency or to a governmental function other than law enforcement, we do so now.")
In Stone, the plaintiffs sued the North Carolina Department of Labor and its Occupational Safety and Health Division under the Tort Claims Act. The plaintiffs asserted a negligence claim, alleging that defendants had, inter alia, negligently failed to ...