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Derwort v. Polk County

June 16, 1998


The opinion of the court was delivered by: John, Judge.

Appeal by defendants from order entered 7 November 1996 by Judge Zoro J. Guice, Jr. in Polk County Superior Court. Heard in the Court of Appeals 17 September 1997.

Defendant Polk County (the County) appeals denial of its motion to dismiss plaintiffs' claims pursuant to N.C.R. Civ. P. 12(b)(6) (Rule 12(b)(6)). We reverse the trial court.

Procedural history and pertinent facts as alleged by plaintiffs are as follows: Plaintiffs George H. Derwort and J. Ronald Padgett, principals in a partnership to develop property known as River's Rest located in Polk County, submitted a plan for development of Phase II (the Phase II plat) to defendant Polk County Planning Board (the Board). The submission was tendered in accordance with subdivision regulation provisions of the Polk County Code (the Code), which the County had enacted pursuant to N.C.G.S. § 153A-121 et seq. (1991).

The Board certified the Phase II plat on 10 November 1988, and on 21 November 1988 the County Clerk certified that defendant Polk County Board of Commissioners (the Commissioners) had approved the Phase II plat for recording. Plaintiffs thereupon proceeded with grading of the property, construction and placement of roads and installation of a water supply. Plaintiffs subsequently sold lots with guarantees that septic tank permits could be obtained as needed.

Beginning in August 1992 and through 1995, plaintiffs applied for septic tank permits. Plaintiffs were informed by the Polk County Health Department (the Department) that all Phase II lots were unsuitable for purposes of obtaining septic tank permits.

Plaintiffs filed the instant complaint 22 March 1996, alleging claims of negligence arising out of defendants' approval of the Phase II plat. Plaintiffs alleged defendants were negligent in failing to require "accurate certifications and approvals."

Defendants moved to dismiss the complaint pursuant to Rule 12(b)(6) for failure to state a claim upon which relief could be granted. In an order entered 7 November 1996, the trial court granted the motion as to all claims against the Commissioners and the Board, but denied the motion regarding plaintiffs' claims against the County. On appeal, defendants contend the trial court erred in denying the motion as applied to the County. We agree and reverse that portion of the trial court's order.

Although the instant order is interlocutory and thus not ordinarily subject to immediate appeal, we believe the County's appeal is properly before us. Appeals which present defenses of governmental or sovereign immunity have been held by this Court to be immediately appealable. See, e.g., Hedrick v. Rains, 121 N.C. App. 466, 468, 466 S.E.2d 281, 283 ("orders denying dispositive motions grounded on the defense of governmental immunity are immediately reviewable as affecting a substantial right"), aff'd per curiam, 344 N.C. 729, 477 S.E.2d 171 (1996). This principle has been applied in cases where, as here, "defendants have asserted governmental immunity from suit through the public duty doctrine." 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).

Turning then to the merits of the County's appeal, we note initially that a Rule 12(b)(6) motion tests the legal sufficiency of the pleading against which it is directed. Donovan v. Fiumara, 114 N.C. App. 524, 526, 442 S.E.2d 572, 574 (1994). Such motion is properly allowed when the factual allegations fail as a matter of law to state the substantive elements of some legally recognized claim. Id. We conclude plaintiffs' complaint herein failed to set forth the necessary elements of a negligence claim against the County.

"It is fundamental that actionable negligence is predicated on the existence of a legal duty owed by the defendant to the plaintiff." Lynn v. Overlook Development, 98 N.C. App. 75, 78, 389 S.E.2d 609, 611 (1990), aff'd in part, reversed in part, 328 N.C. 689, 403 S.E.2d 469 (1991). A municipality ordinarily acts for the benefit of the public, not a specific individual, in providing protection to the public pursuant to its statutory police powers. Id. at 78, 389 S.E.2d at 611- 12. If a defendant owes no duty to the plaintiff, there can be no liability for negligence. Sinning v. Clark, 119 N.C. App. 515, 518, 459 S.E.2d 71, 73, disc. review denied, 342 N.C. 194, 463 S.E.2d 242 (1995).

The County, relying on the public duty doctrine, contends plaintiffs' complaint failed to allege the existence of a special duty of the County to plaintiffs, and that it thus cannot be held liable to plaintiffs for negligence. See id. We agree.

The public duty doctrine is a common law rule based upon the general proposition that a municipality and its agents ordinarily act for the benefit of the general public and not for a specific individual when exercising its statutory police powers, and, therefore, cannot be held liable for a failure to carry out its statutory duties to an individual.

Sinning, 119 N.C. App. at 518, 459 S.E.2d at 73. The public duty doctrine and certain exceptions thereto were expressly adopted by our Supreme Court in Braswell v. Braswell, 330 N.C. 363, 371, 410 S.E.2d 897, 902 (1991), reh'g denied, 330 N.C. 854, 413 S.E.2d 550 (1992) and have been applied not only in Braswell, 330 N.C. App. at 370-71, 410 S.E.2d at 901-02 (police protection), but also in Sinning, 119 N.C. App. at 519-20, 459 S.E.2d at 74 (city building inspections for compliance with North Carolina State Building Code), and Prevette v. Forsyth County, 110 N.C. App. 754, 758, 431 S.E.2d 216, 218 (animal control services), disc. review denied, 334 N.C. 622, 435 S.E.2d 338 (1993).

Plaintiffs' complaint alleges the Code, including those portions relating to subdivision development, was enacted pursuant to authority granted by G.S. § 153A-121 et seq., the initial statutory provision subsumed within the heading "Delegation and Exercise of the General Police Power." Under the section, counties are authorized to enact ordinances to regulate "conditions detrimental to the health, safety, or welfare of its citizens." In addition, N.C.G.S. § 153A-331 (1991) provides that subdivision control ordinances may regulate "in a manner that . . . will create conditions essential to public health, safety, and the general welfare." See also Three Guys Real Estate v. Harnett County, 122 N.C. App. 362, 368, 469 S.E.2d 578, 582 (1996)("[i]n enacting legislation governing the control of ...

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