{ "id": 8526406, "name": "HANNAH LOGAN PREVETTE, Administratrix of the Estate of HOKE LANE PREVETTE, JR., Deceased, Plaintiff v. FORSYTH COUNTY; FORSYTH COUNTY ANIMAL CONTROL DEPARTMENT; FORSYTH COUNTY ANIMAL CONTROL SHELTER; JERRY CANADY, as Director of the Forsyth County Animal Control Shelter; JERRY CANADY, Individually; and R. M. SWAFFORD, Individually, Defendants", "name_abbreviation": "Prevette v. Forsyth County", "decision_date": "1993-07-06", "docket_number": "No. 9221SC622", "first_page": "754", "last_page": "758", "citations": [ { "type": "official", "cite": "110 N.C. App. 754" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "412 S.E.2d 72", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "opinion_index": 0 }, { "cite": "330 N.C. 441", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2510175, 2511623, 2511756, 2510714, 2509663 ], "year": 1991, "opinion_index": 0, "case_paths": [ "/nc/330/0441-04", "/nc/330/0441-03", "/nc/330/0441-02", "/nc/330/0441-01", "/nc/330/0441-05" ] }, { "cite": "407 S.E.2d 611", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "opinion_index": 0 }, { "cite": "104 N.C. App. 29", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8519999 ], "year": 1991, "opinion_index": 0, "case_paths": [ "/nc-app/104/0029-01" ] }, { "cite": "403 S.E.2d 469", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "opinion_index": 0 }, { "cite": "328 N.C. 689", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2541726 ], "year": 1991, "opinion_index": 0, "case_paths": [ "/nc/328/0689-01" ] }, { "cite": "389 S.E.2d 609", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "opinion_index": 0 }, { "cite": "98 N.C. App. 75", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522681 ], "year": 1991, "opinion_index": 0, "case_paths": [ "/nc-app/98/0075-01" ] }, { "cite": "381 S.E.2d 481", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "pin_cites": [ { "page": "483" } ], "opinion_index": 0 }, { "cite": "94 N.C. App. 750", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527859 ], "year": 1989, "pin_cites": [ { "page": "752-53" } ], "opinion_index": 0, "case_paths": [ "/nc-app/94/0750-01" ] }, { "cite": "371 S.E.2d 275", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "opinion_index": 0 }, { "cite": "322 N.C. 834", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2514028, 2518960, 2516821, 2517941, 2513435 ], "year": 1988, "opinion_index": 0, "case_paths": [ "/nc/322/0834-04", "/nc/322/0834-02", "/nc/322/0834-01", "/nc/322/0834-05", "/nc/322/0834-03" ] }, { "cite": "366 S.E.2d 2", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1988, "pin_cites": [ { "page": "6" }, { "page": "6" } ], "opinion_index": 0 }, { "cite": "89 N.C. App. 188", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521115 ], "weight": 2, "year": 1988, "pin_cites": [ { "page": "193" }, { "page": "194" } ], "opinion_index": 0, "case_paths": [ "/nc-app/89/0188-01" ] }, { "cite": "413 S.E.2d 550", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "opinion_index": 0 }, { "cite": "330 N.C. 854", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2508528 ], "year": 1991, "opinion_index": 0, "case_paths": [ "/nc/330/0854-01" ] }, { "cite": "410 S.E.2d 897", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "opinion_index": 0 }, { "cite": "330 N.C. 363", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2509910 ], "year": 1991, "opinion_index": 0, "case_paths": [ "/nc/330/0363-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 67-4.1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "opinion_index": 0 }, { "cite": "352 S.E.2d 267", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "page": "270" } ], "opinion_index": 0 }, { "cite": "84 N.C. App. 178", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12167953 ], "year": 1987, "pin_cites": [ { "page": "181" } ], "opinion_index": 0, "case_paths": [ "/nc-app/84/0178-01" ] }, { "cite": "364 S.E.2d 918", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "opinion_index": 0 }, { "cite": "321 N.C. 471", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2568512, 2572119, 2572624, 2569747, 2566199 ], "year": 1988, "opinion_index": 0, "case_paths": [ "/nc/321/0471-05", "/nc/321/0471-02", "/nc/321/0471-01", "/nc/321/0471-04", "/nc/321/0471-03" ] }, { "cite": "361 S.E.2d 759", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "page": "763" } ], "opinion_index": 0 }, { "cite": "87 N.C. App. 545", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8358680 ], "year": 1987, "pin_cites": [ { "page": "552" } ], "opinion_index": 0, "case_paths": [ "/nc-app/87/0545-01" ] }, { "cite": "400 S.E.2d 767", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "opinion_index": 0 }, { "cite": "101 N.C. App. 636", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8528017 ], "year": 1991, "opinion_index": 0, "case_paths": [ "/nc-app/101/0636-01" ] }, { "cite": "333 S.E.2d 222", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "314 N.C. 276", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4691903 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/nc/314/0276-01" ] }, { "cite": "176 S.E.2d 161", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1970, "opinion_index": 0 }, { "cite": "277 N.C. 94", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561932 ], "year": 1970, "opinion_index": 0, "case_paths": [ "/nc/277/0094-01" ] }, { "cite": "347 S.E.2d 743", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "318 N.C. 172", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4732963 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/nc/318/0172-01" ] } ], "analysis": { "cardinality": 599, "char_count": 10305, "ocr_confidence": 0.751, "pagerank": { "raw": 3.1965170421092393e-07, "percentile": 0.8656008516326628 }, "sha256": "0e046d7c86baf5c044f0c88047c74c6b84a8890b3c654e1e138d759df6fbe009", "simhash": "1:552d943c6c392e76", "word_count": 1655 }, "last_updated": "2023-07-14T20:46:54.224272+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges COZORT and JOHN concur. \u2022" ], "parties": [ "HANNAH LOGAN PREVETTE, Administratrix of the Estate of HOKE LANE PREVETTE, JR., Deceased, Plaintiff v. FORSYTH COUNTY; FORSYTH COUNTY ANIMAL CONTROL DEPARTMENT; FORSYTH COUNTY ANIMAL CONTROL SHELTER; JERRY CANADY, as Director of the Forsyth County Animal Control Shelter; JERRY CANADY, Individually; and R. M. SWAFFORD, Individually, Defendants" ], "opinions": [ { "text": "WELLS, Judge.\nAs her sole assignment of error, plaintiff contends that the trial court improperly granted defendants\u2019 motion to dismiss for failure to state a claim upon which relief can be granted. In Jackson v. Bumgardner, 318 N.C. 172, 347 S.E.2d 743 (1986), our Supreme Court stated the standard of review applicable to the case now before us as follows:\nOn a motion to dismiss for failure to state a claim upon which relief can be granted, N.C. R. Civ. P. 12(b)(6), all allegations of fact are taken as true but conclusions of law are not. See Sutton v. Duke, 277 N.C. 94, 176 S.E.2d 161 (1970). Dismissal of a complaint under Rule 12(b)(6) is proper when one of the following three conditions is satisfied: (1) when the complaint on its face reveals that no law supports plaintiff\u2019s claim; (2) when the complaint on its face reveals the absence of fact sufficient to make a good claim; (3) when some fact disclosed in the complaint necessarily defeats plaintiff\u2019s claim. Oates v. JAG, Inc., 314 N.C. 276, 333 S.E.2d 222 (1985).\nMore recently, in Herndon v. Barrett, 101 N.C. App. 636, 400 S.E.2d 767 (1991), this Court reiterated the standard for review of a trial court\u2019s 12(b)(6) dismissal.\n\u201cA complaint should be dismissed for failure to state a claim where it is apparent that plaintiff ... is entitled to no relief under any statement of facts which could be proven, more specifically, when there is an absence of law to support the claim asserted', a want of facts sufficient to establish a good claim, or some defense which will necessarily defeat the claim.\u201d Brawley v. Brawley, 87 N.C. App. 545, 552, 361 S.E.2d 759, 763 (1987), disc. rev. denied, 321 N.C. 471, 364 S.E.2d 918 (1988).\nThe Herndon Court went on to add:\n\u201cStrictly speaking, the concept of negligence is composed of two elements: legal duty and a failure to exercise due care in the performance of that legal duty. ...\u201d O\u2019Connor v. Corbett Lumber Corp., 84 N.C. App. 178, 181, 352 S.E.2d 267, 270 (1987).\nIn the case now before us, the plaintiff\u2019s allegations may be summarized as follows: During all relevant times complained of, Thomas F. Powell owned and kept two rottweiler dogs. On or about 20 October 1989, Hoke Lane Prevette, Jr. was jogging around Mr. Powell\u2019s neighborhood, was attacked by Powell\u2019s rottweilers, and suffered injuries from which he ultimately died on 20 October 1989.\nDuring all relevant times, Forsyth County, through its departments, the Forsyth County Animal Control Department (FCACD) and the Forsyth County Animal Control Shelter (FCACS), and their agents, was charged with the responsibility of enforcing all state and county laws relating to the care, custody, and control of animals, including, inter alia, the confinement or leashing, of vicious dogs. At the time in question, Jerry Canady was the duly appointed director of the Forsyth County Animal Control Shelter, and R.M. Swafford was an agent and employee of the Forsyth County Animal Control Shelter.\nPrior to 20 October 1989, the two rottweilers, owned by Powell, were picked up by the FCACD and/or the FCACS for allegedly attacking or attempting to attack certain individuals in the area of 601 Banner Avenue, in Winston-Salem. On or about 16 August 1989, the rottweilers were again picked up by FCACD and/or FCACS and after making proper notice, the two dogs were placed for sale on or about 22 August 1989. On that same day, at 5:25 p.m., Powell redeemed the two dogs. Prior to 22 August 1989, agents of FCACD/FCACS had repeatedly picked up Powell\u2019s rottweilers and knew said dogs to be vicious, ferocious, and accustomed to threatening and/or attacking individuals around Powell\u2019s neighborhood. With knowledge of the rottweilers\u2019 dangerous tendencies, R.M. Swafford or some unknown animal control officer, allowed Powell to redeem his dogs. Such redemption was in violation of pertinent sections of the Forsyth County Code and constituted negligence per se. During all relevant times, Forsyth County\u2019s agents and/or employees were acting within the scope of their agency and employment.\nDefendants Forsyth County, FCACD and FCACS were negligent because they failed to adequately train and supervise their employees/agents in that its agents failed to follow provisions of the Forsyth County Code when they allowed Mr. Powell to redeem his dogs, its agents failed to notify the Forsyth County Health Director of the dangerous propensity of Powell\u2019s dogs, and its agents failed to determine that said rottweilers were \u201cpotentially dangerous dogs\u201d pursuant to N.C. Gen. Stat. \u00a7 67-4.1.\nAs a direct and proximate result of the defendants\u2019 negligence, Powell\u2019s rottweilers were in the neighborhood of 601 Banner Avenue on or about 20 October 1989, and attacked and killed Hoke Lane Prevette, Jr.\nThe factual allegations set forth in plaintiff\u2019s complaint operate to shield defendants from liability. In Braswell v. Braswell, 330 N.C. 363, 410 S.E.2d 897, rehearing denied, 330 N.C. 854, 413 S.E.2d 550 (1991), our Supreme Court discussed and applied the public duty doctrine.\nThe 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. Coleman v. Cooper, 89 N.C. App. 188, 193, 366 S.E.2d 2, 6, disc. rev. denied, 322 N.C. 834, 371 S.E.2d 275 (1988).\nWhile this policy is a necessary and reasonable limit on liability, exceptions exist to prevent inevitable inequities to certain individuals. There are two generally recognized exceptions to the public duty doctrine: (1) where there is a special relationship between the injured party and the police, for example, a state\u2019s witness or informant who has aided law enforcement officers; and (2) \u201cwhen a municipality, through its police officers, creates a special duty by promising protection to an individual, the protection is not forthcoming, and the individual\u2019s reliance on the promise of protection is causally related to the injury suffered.\u201d Coleman v. Cooper, 89 N.C. App. at 194, 366 S.E.2d at 6; see also Martin v. Mondie, 94 N.C. App. 750, 752-53, 381 S.E.2d 481, 483 (1989). Although we have not heretofore adopted the doctrine with its exceptions, we do so now. [See also, Lynn v. Overlook Development, 98 N.C. App. 75, 389 S.E.2d 609, aff\u2019d in part and reversed in part, 328 N.C. 689, 403 S.E.2d 469 (1991); and Hull v. Oldham, 104 N.C. App. 29, 407 S.E.2d 611, rev. denied, 330 N.C. 441, 412 S.E.2d 72 (1991)].\nThe defendants in the case at bar are being sued for their alleged failure to properly protect an individual from dogs which the defendants allegedly had reason to know were dangerous. Because this cause of action clearly arises out of Forsyth County\u2019s agents\u2019 alleged failure to provide sufficient protection to the individual decedent in this case, we must find that the public duty doctrine applies here and bars plaintiff\u2019s cause of action.\nPlaintiff next contends that even if the public duty doctrine applies under these facts, an exception to the public duty doctrine should also apply and save plaintiff\u2019s cause of action. Plaintiff concedes the defendants never made any explicit promise of protection to the decedent which might fulfill the \u201cpromise of protection\u201d exception to the public duty rule, but suggests that, by policing animal control in the neighborhood in which the intestate was attacked, defendants created a \u201cspecial relationship\u201d with the intestate. Plaintiff further contends that this alleged \u201cspecial relationship\u201d creates an exception to the public duty doctrine. Plaintiff cites no authority for such a broad application of the \u201cspecial relationship\u201d exception and we perceive that to do so would not be consistent with our Supreme Court\u2019s holding in Braswell, supra.\nAffirmed.\nJudges COZORT and JOHN concur. \u2022", "type": "majority", "author": "WELLS, Judge." } ], "attorneys": [ "White and Crumpler, by Dudley A. Witt and Teresa L. Hier, for plaintiff-appellant.", "Womble Carlyle Sandridge & Rice, by Allan R. Gitter and Ellen M. Gregg, for defendant-appellees." ], "corrections": "", "head_matter": "HANNAH LOGAN PREVETTE, Administratrix of the Estate of HOKE LANE PREVETTE, JR., Deceased, Plaintiff v. FORSYTH COUNTY; FORSYTH COUNTY ANIMAL CONTROL DEPARTMENT; FORSYTH COUNTY ANIMAL CONTROL SHELTER; JERRY CANADY, as Director of the Forsyth County Animal Control Shelter; JERRY CANADY, Individually; and R. M. SWAFFORD, Individually, Defendants\nNo. 9221SC622\n(Filed 6 July 1993)\nMunicipal Corporations \u00a7 450 (NCI4th) \u2014 intestate killed by dogs \u2014 action against animal control officers \u2014 action barred by public duty doctrine \u2014no \u201cspecial relationship\u201d exception\nThe public duty doctrine applied to bar plaintiffs claims against defendant animal control officers where plaintiff brought a wrongful death action against defendants for their alleged failure to properly protect an individual from dogs which de-' fendants allegedly had reason to know were dangerous; furr thermore, by policing animal control in the neighborhood in which intestate was attacked, defendants did not create a \u201cspecial relationship\u201d with intestate which created an exception- to the public duty doctrine.\nAm Jur 2d, Municipal, County, School, and State Tort Liability \u00a7\u00a7 184 et seq.\nAppeal by plaintiff from judgment entered 6 April 1992 in Forsyth County Superior Court by Judge Howard R. Greeson, Jr. Heard in the Court of Appeals 13 May 1993.\nOn 18 October 1991, plaintiff, Hannah Logan Prevette, ad-ministratrix of the estate of Hoke Lane Prevette, Jr., instituted a wrongful death action against Forsyth County; Forsyth County Animal Control Department; Forsyth County Animal Control Shelter; Jerry Canady, in his capacity as Director of the Forsyth County Animal Control Shelter and individually; and R.M. Swafford, a Forsyth County employee, individually.\nPrior to trial, all defendants filed motions to dismiss the complaint pursuant to North Carolina Rule of Civil Procedure 12(b)(6). Prior to the hearing on defendants\u2019 motions, plaintiff filed notice of voluntary dismissal as to defendants Forsyth County Animal Control Department and the Forsyth County Animal Control Shelter. On 6 April 1992, the trial court granted defendants\u2019 motion to dismiss pursuant to Rule 12(b)(6) as to all of the remaining defendants. On 5 May 1992, plaintiff filed notice of appeal.\nWhite and Crumpler, by Dudley A. Witt and Teresa L. Hier, for plaintiff-appellant.\nWomble Carlyle Sandridge & Rice, by Allan R. Gitter and Ellen M. Gregg, for defendant-appellees." }, "file_name": "0754-01", "first_page_order": 784, "last_page_order": 788 }