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    "judges": [
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    "parties": [
      "DANNY E. DAVIS and ANN H. DAVIS, Plaintiffs v. LEONARD MESSER, Individually, and in his official capacity as Chief of the Waynesville Fire Department, THE TOWN OF WAYNESVILLE, a North Carolina Municipal Corporation, THE WAYNESVILLE FIRE DEPARTMENT, and HAYWOOD COUNTY, Defendants"
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      {
        "text": "JOHN, Judge.\nIn this negligence action based upon destruction of plaintiffs\u2019 residence by fire, plaintiffs contend the trial court erred by (1) dismissing their action pursuant to N.C.R. Civ. P. 12(b)(6) (1990) as to defendants Fire Chief Leonard Messer (Messer), the Waynesville Fire Department (the Department) and the Town of Waynesville (the Town); and (2) granting the summary judgment motion of defendant Haywood County (the County). We hold the court erred regarding plaintiffs\u2019 claims against the Town and Messer.\nIn a complaint filed 22 January 1992, plaintiffs claimed their residence had been destroyed as the result of defendants\u2019 negligence in the establishment and operation of emergency fire control services. In particular, plaintiffs alleged that prior to 28 January 1989 the County authorized establishment of an \u201cenhanced\u201d 911 emergency response system. Thereafter, by use of \u201cmap overlays\u201d and relying in part on information provided by employees of defendant Town, agents of the County assigned each dwelling within the county to a specific fire district. Plaintiffs\u2019 residence on 841 Plott Creek Road was listed as being located within the Town\u2019s fire district. However, it is undisputed that plaintiffs\u2019 address was in actuality within the Saunook fire district. According to plaintiffs, the 911 system was thus negligently programmed by agents of the Town and the County.\nPlaintiffs further alleged that a fire at their residence on 28 January 1989 prompted plaintiff Ann Davis to place a telephone call to the new 911 system for assistance. The dispatcher reached by Ms. Davis confirmed the location of the fire as being 841 Plott Creek Road and notified the Department. The 911 dispatcher inquired of the Department whether plaintiffs\u2019 residence fell within the Town\u2019s fire district; the fire fighter answering the call \u201cindicated that the Waynesville Fire Department would respond to the fire.\u201d\nAccording to plaintiffs, the Department immediately sent trucks bearing appropriate equipment to the scene. As they approached plaintiffs\u2019 home, however, fire fighters saw a road sign on Plott Creek Road indicating they were entering the Saunook fire district. At that point, despite being within .4 mile and \u201cin sight of . . . [plaintiffs\u2019 burning residence,\u201d defendant Messer ordered his crew'to return the fire truck to the Department\u2019s fire station. Plaintiffs further alleged the Department was authorized to respond to a call outside the Town\u2019s district by virtue of a \u201cmutual aid agreement.\u201d\nIn addition, plaintiffs claimed that initial assumption of responsibility for their 911 call by the Department \u201ceffectively precluded\u201d any other agency from responding in time to extinguish the fire. More particularly, because they \u201crelied upon the acceptance of the fire call by the Town of Waynesville Fire Department,\u201d plaintiffs did not attempt to obtain other assistance. Acceptance of the distress call by the Department coupled with plaintiff\u2019s reliance thereon created, according to plaintiffs\u2019 complaint, a \u201cspecial duty\u201d of the Department to plaintiffs. This included continuation of the initial response so as to assure that greater harm did not come to plaintiffs and their property. Plaintiffs maintained that, as a direct and proximate result of the Department\u2019s action, the fire burned unimpeded for an additional 15 to 20 minutes and that ultimately their home was completely destroyed.\nPlaintiffs further characterized the conduct of defendant Messer as \u201creckless, willful, [and] wanton,\u201d amounting to \u201ca callous, malicious, willful and wrongful disregard for the property rights and safety of the Plaintiffs.\u201d\nPlaintiffs sought recovery against all defendants on negligence theories and against Messer (individually and in his official capacity as Fire Chief) on the additional grounds that his conduct was \u201creckless, willful, wanton, malicious, and without just cause.\u201d Regarding the Town, the Department and the County, plaintiffs specifically alleged each entity had \u201cwaived governmental or sovereign immunity by the procurement of liability insurance which provides coverage to each of them for the full dollar amount of the claims asserted . . . .\u201d\nIn their joint answer to the complaint, Messer and the Department moved to dismiss claims against them pursuant to Rule 12(b)(6) on grounds of immunity from liability as provided by N.C. Gen. Stat. \u00a7 160A-293 (1994). In its answer, the Town similarly moved to dismiss plaintiffs\u2019 action, and also asserted the affirmative defense of municipal immunity. The County likewise raised the affirmative defense of governmental immunity in its answer and specifically denied having waived immunity through the purchase of liability insurance. The County thereafter moved for summary judgment.\nHearing on defendants\u2019 various motions was held 19 October 1992. By order entered that same date, the trial court allowed the Rule 12(b)(6) motions of defendants Messer, the Department and the Town, and granted summary judgment in favor of the County. In pertinent part, the court\u2019s order provided as follows:\n1. The 12(b)(6) motions are allowed primarily on the basis of N.C.G.S. 160A-293;\n2. For purposes of this motion, the Court takes as true Plaintiffs\u2019 allegations that Defendants have applicable liability insurance.\nRegarding the County\u2019s Motion for Summary Judgment, the Court considered the record, including the applicable insurance policies and applicable statute, N.C.G.S. 153A-435.\nPlaintiffs appeal each of the court\u2019s rulings.\nI.\nPlaintiffs\u2019 first assignment of error is directed at the trial court\u2019s dismissal pursuant to Rule 12(b)(6) of their claims against defendants Messer, the Department and the Town.\nA Rule 12(b)(6) motion to dismiss presents the question of \u201cwhether, 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_\u201d Harris v. NCNB, 85 N.C. App. 669, 670, 355 S.E.2d 838, 840 (1987) (citation omitted). In order to survive dismissal under the Rule, a party must \u201cstate enough to satisfy the substantive elements of at least some legally recognized claim . . . . \u201d Orange County v. Dept. of Transportation, 46 N.C. App. 350, 378-79, 265 S.E.2d 890, 909 (citation omitted), disc, review denied, 301 N.C. 94 (1980). In ruling upon such motion, the complaint is to be liberally construed, Jenkins v. Wheeler, 69 N.C. App. 140, 142, 316 S.E.2d 354, 356, disc. review denied, 311 N.C. 758, 321 S.E.2d 136 (1984), and should not be dismissed unless it appears to a certainty that plaintiff is entitled to no relief under any state of facts which could be proved in support of the claim. Id. (citations omitted).\nIn the case sub judice, plaintiffs sought to recover based upon the alleged negligence of the various defendants. In order to plead a prima facie case of actionable negligence, a plaintiff\u2019s complaint must set out allegations indicating that: (1) defendant owed plaintiff a duty of reasonable care; (2) defendant breached that duty; (3) said breach was an actual and proximate cause of plaintiff\u2019s injury; and (4) plaintiff suffered damages as a result thereof. Winters v. Lee, 115 N.C. App. 692, 694, 446 S.E.2d 123 124 (citations omitted), disc. review denied, 338 N.C. 671, 453 S.E.2d 186 (1994). However, because different rules govern the potential liability of the several defendants herein, we examine separately the court\u2019s action as to each.\nA. Town of Waynesville.\nThe allegations of plaintiffs\u2019 complaint construed liberally, see, e.g., Dixon v. Stuart, 85 N.C. App. 338, 340, 354 S.E.2d 757, 758 (1987) (citation omitted), contained two distinct claims of negligence against the Town. First, plaintiffs alleged the Department, a \u201cdepartment of the Town of Waynesville, was negligent by initially responding to the emergency call and thereafter not fighting the fire at plaintiffs\u2019 residence. Second, plaintiffs asserted employees of the Town negligently provided incorrect information to the County which resulted in improper programming of the enhanced 911 system. The Town in response insisted it was immune from liability regarding both allegations of negligence.\n1. Refusal to Fight the Fire.\n(a.) Governmental Immunity.\nThe common law doctrine of governmental immunity protects a city or county from liability for injuries arising from governmental (as opposed to proprietary) activities. See, e.g., Wiggins v. City of Monroe, 73 N.C. App. 44, 49, 326 S.E.2d 39, 43 (1985) (citations omitted); see also Davis v. Town of Southern Pines, 116 N.C. App. 663, 673-74, 449 S.E.2d 240, 246 (1994), disc. review denied, 339 N.C. 737, 454 S.E.2d 648 (1995). Governmental activities have been described as those which promote the \u201chealth, safety, security or general welfare of its citizens.\u201d Clark v. Scheld, 253 N.C. 732, 735, 117 S.E.2d 838, 841 (1961) (citation omitted). The establishment of a 911 emergency system and provision of fire protection indisputably fall within this definition; thus, a municipality would not ordinarily be liable for the negligence of officers and employees undertaking or performing these activities. See Taylor v. Ashburn, 112 N.C. App. 604, 607, 436 S.E.2d 276, 278 (1993) (fire protection services) (citations omitted), disc. review denied, 336 N.C. 77, 445 S.E.2d 46 (1994); see also Valevais v. City of New Bern, 10 N.C. App. 215, 218, 178 S.E.2d 109, 112 (1970) (fire protection services) (citation omitted).\nHowever, a municipality may waive governmental immunity by the purchase of liability insurance, see, e.g., Gregory v. City of Kings Mountain, 117 N.C. App. 99, 103, 450 S.E.2d 349, 353 (1994) (citations omitted); but \u201c[ijmmunity is waived only to the extent that the city or town is indemnified by the insurance contract from liability for the acts alleged.\u201d Combs v. Town of Belhaven, 106 N.C. App. 71, 73, 415 S.E.2d 91, 92 (1992) (citations omitted); see also N.C. Gen. Stat. \u00a7 160A-485 (1994).\nIn the case sub judice, plaintiffs\u2019 complaint alleged that on 28 January 1989 the Town had valid and enforceable liability insurance covering the full dollar amount of claims asserted against it. Taking this factual allegation as true, as we are required to do in reviewing a Rule 12(b)(6) dismissal, see Lynn v. Overlook Development, 98 N.C. App. 75, 79, 389 S.E.2d 609, 612 (1990), aff\u2019d in part, rev\u2019d in part on other grounds, 328 N.C. 689, 403 S.E.2d 469 (1991), we hold its presence in the complaint is sufficient for purposes of the Town\u2019s motion to withstand the defense of governmental immunity.\n(b.) Immunity under G.S. \u00a7 160A-293.\nThe Town further argues plaintiffs\u2019 claims are in any event precluded under G.S. \u00a7 160A-293. Indeed, in its order dismissing plaintiffs\u2019 action, the trial court indicated its ruling was made \u201cprimarily on the basis of N.C.G.S. 160A-293.\u201d However, plaintiffs maintain the statute is inapplicable given the specific factual scenario alleged in the complaint. We agree with plaintiffs.\nThe statute provides in pertinent part as follows:\n[1] No city or any officer or employee thereof shall be held to answer in any civil action or proceeding for failure or delay in answering calls for fire protection outside the corporate limits, [2] nor shall any city be held to answer in any civil action or proceeding for the acts or omissions of its officers or employees in rendering fire protection services outside its corporate limits.\nG.S. \u00a7 160A-293(b) (emphasis added).\nAccording to plaintiffs\u2019 allegations, the Department promptly answered their emergency 911 call, proceeded without \u201cfurther inquiry,\u201d dispatched \u201cappropriate fire equipment\u201d to the indicated address, and continued en route to a location within sight of the fire until the response was terminated upon order of Messer. \u201cFailure\u201d is defined as \u201comission of performance of an action or task.\u201d Webster\u2019s Third New International Dictionary 815 (1968). Liberally construed, Dixon, 85 N.C. App. at 340, 354 S.E.2d at 758 (citation omitted), plaintiffs\u2019 complaint states the Department answered Ms. Davis\u2019 call and immediately directed fire trucks to the scene of the fire at her home. Thus, the complaint cannot be said to set forth facts which under the statute would constitute a \u201cfailure\u201d to answer plaintiffs\u2019 call.\nFurther, although assuring the 911 dispatcher it would respond, the municipality\u2019s fire department did not thereafter arrive at the scene of the fire. Indeed, according to plaintiffs\u2019 allegations, the Department made no attempt to reach 841 Plott Creek Road with firefighting aid once it ascertained that address fell within another fire district. Webster indicates that to \u201cdelay\u201d is to \u201cprolong the time of\u2019 or to \u201cdetain[] or hinder for a time,\u201d and points out that \u201cdelay implies a holding back, as by interference, esp. from completion or arrival.\u201d See Webster\u2019s at 595. Plaintiffs\u2019 complaint presents facts describing a conscious decision by the Department through Messer to turn its fire truck away from the fire as opposed to any prolongation of the time involved in answering plaintiffs\u2019 call. As such, the complaint does not allege \u201cdelay\u201d by the Department.\nTherefore, because the Department\u2019s alleged acts of negligence cannot fairly be characterized as either a \u201cfailure\u201d or a \u201cdelay\u201d under the statute in answering plaintiffs\u2019 911 call, the first clause of the section is inapplicable to the circumstances set forth in plaintiffs\u2019 complaint.\nDefendants also maintain that \u201can objective reading of [plaintiffs\u2019] complaint . . . shows that [they] seek to recover for alleged negligent acts or omissions of a municipal. . . fire department in rendering fire protection outside the [municipality\u2019s] corporate limits,\u201d and that plaintiffs\u2019 claim is therefore barred by the second clause of G.S. \u00a7 160A-293(b). We disagree.\nThe essence of plaintiffs\u2019 claim against the Town is that an agent of the Department made a decision within the municipality\u2019s corporate limits not to render fire protection to plaintiffs whose residence was located in the Saunook fire district. Plaintiffs\u2019 allegations against the Town thus are not related to any negligent \u201cact or omission\u201d of the Department and its employees in the course of \u201crendering fire protection services outside [the Town\u2019s] corporate limits.\u201d (Emphasis added).\nPlaintiffs\u2019 claim against the Town (based upon the acts of Messer and the Department) as contained in the complaint is therefore sufficiently stated under Rule 12(b)(6) so as to avoid preclusion by G.S. \u00a7 160A-293(b).\n(c.) The \u201cPublic Duty\u201d Doctrine.\nWe therefore proceed to a determination of whether the allegations of the complaint, construed liberally, are sufficient under Rule 12(b)(6) to set forth a claim for relief based upon the Town\u2019s negligence. See, e.g., Lyon v. Continental Trading Co., 76 N.C. App. 499, 502, 333 S.E.2d 774, 775-76 (1985).\nAs aforementioned, in order to set out a prima facie case of actionable negligence, plaintiffs must allege facts indicating that: (1) defendant Town owed plaintiffs a duty of reasonable care; (2) defendant breached that duty; (3) said breach was an actual and proximate cause of plaintiffs\u2019 injury; and (4) plaintiffs suffered damages as a result thereof. Winters, 115 N.C. App. at 694, 446 S.E.2d at 124 (citations omitted).\nIn the case sub judice, the Town maintains that because there is \u201can absence of law\u201d in support of the \u201cduty\u201d element of plaintiffs\u2019 negligence claim, the action was properly dismissed pursuant to Rule 12(b)(6). See, e.g., Home Electric Co. v. Hall and Underdown Heating & Air Cond. Co., 86 N.C. App. 540, 542, 358 S.E.2d 539, 540 (1987), aff\u2019d per curiam, 322 N.C. 107, 366 S.E.2d 441 (1988). Plaintiffs respond that the Town and its fire department owed them a \u201cspecial duty\u201d to provide assistance in fighting the fire at their residence.\nThe Town relies upon the \u201cpublic duty doctrine\u201d according to which a municipality \u201cordinarily acts for the benefit of the public at large and not for a specific individual.\u201d See, e.g., Coleman v. Cooper, 89 N.C. App. 188, 193, 366 S.E.2d 2, 6 (citations omitted), disc. review denied, 322 N.C. 834, 371 S.E.2d 275 (1988). More specifically, under this doctrine, \u201ca municipality and its agents act for the benefit of the public, and therefore, there is no liability for the failure to furnish . . . protection to specific individuals.\u201d Braswell v. Braswell, 330 N.C. 363, 370, 410 S.E.2d 897, 901 (1991) (citation omitted), reh\u2019g denied, 330 N.C. 854, 413 S.E.2d 550 (1992). Thus, if applicable, the public duty doctrine would indeed operate to negate the first element of plaintiffs\u2019 prima facie negligence case \u2014 i.e., that the Town owed a duty to plaintiffs to use reasonable care. See Clark v. Red Bird Cab Co., 114 N.C. App. 400, 403-04, 442 S.E.2d 75, 77-78, disc. review denied, 336 N.C. 603, 447 S.E.2d 387 (1994).\nAs defendant Town correctly observes, the \u201cdefense\u201d of public duty doctrine has been raised almost exclusively in cases involving allegations of negligence in the provision of police protection. See, e.g., Braswell, 330 N.C. at 370-71, 410 S.E.2d at 901-02; Clark, 114 N.C. App. at 404-05, 442 S.E.2d at 77-78; Hull v. Oldham, 104 N.C. App. 29, 36, 407 S.E.2d 611, 614-15, disc. review denied, 330 N.C. 441, 412 S.E.2d 72 (1991); Coleman, 89 N.C. App. at 192-93, 366 S.E.2d at 5-6. However, in a recent decision by this Court, the doctrine was applied where a plaintiff alleged the county animal shelter and its employees were negligent in the provision of animal control services. See Prevette v. Forsyth County, 110 N.C. App. 754, 757-58, 431 S.E.2d 216, 218, disc. review denied, 334 N.C. 622, 435 S.E.2d 338 (1993). Fire protection services provided by a municipality through its fire department are sufficiently similar to the protective services offered by a police department and an animal shelter to justify invocation of the public duty doctrine herein. Nonetheless, we hold the doctrine does not bar the Town\u2019s liability under the circumstances alleged in plaintiffs\u2019 complaint.\nAlthough a city\u2019s duty is generally understood to be to the public at large, two exceptions to the public duty prohibition against municipal liability have emerged in our common law. First, liability may arise when a \u201cspecial relationship\u201d has formed between the injured party and the protective agency or department. An example would be between \u201ca state\u2019s witness or informant who has aided law enforcement officers\u201d and the police department. Braswell, 330 N.C. at 371, 410 S.E.2d at 902. Second, liability exists when a municipality through its protective officers has created a \u201cspecial duty\u201d to a particular individual by \u201cpromising 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 Id. (quoting Coleman, 89 N.C. App. at 194, 366 S.E.2d at 6).\nIn the case sub judice, plaintiffs alleged that although the fire was outside the Town\u2019s fire district, the Department was authorized to respond by virtue of a mutual aid agreement. See N.C. Gen Stat. \u00a7 58-83-1 (1994). Moreover, when the 911 operator reported the fire in progress to the Department and specifically inquired whether 841 Plott Creek Road was within its district, a fire fighter indicated the Department would render assistance. According to plaintiffs\u2019 allegations, they thereafter relied upon the Department\u2019s promise of protection and hence did not attempt to contact any other fire department. However, although Messer and his crew promptly proceeded towards the fire, they never reached their destination because Messer ordered the fire truck returned to the station when only .4 mile from plaintiffs\u2019 address. Plaintiffs claimed the fire consequently burned unimpeded for an additional 15 to 20 minutes and ultimately consumed their home. More specifically, plaintiffs\u2019 allegations reflect that by accepting the 911 call and proceeding towards the scene of the fire, the Town (through the acts of its employee Messer and its Department) promised it would provide fire-fighting assistance and protection; the promised protection never arrived; and plaintiffs relied upon the promise to respond to the fire as their exclusive source of aid, resulting in the complete destruction of.their home. Again taking plaintiffs\u2019 allegations as admitted, see Warren v. Halifax County, 90 N.C. App. 271, 272, 368 S.E.2d 47, 49 (1988), we hold they \u201cstate enough to satisfy the substantive elements,\u201d Orange County, 46 N.C. App. at 378-79, 265 S.E.2d at 909 (citation omitted) of the \u201cspecial duty\u201d exception to the public duty doctrine.\nIn sum, because plaintiffs alleged facts sufficient to establish a prima facie case of negligence against the Town based upon its conduct on 28 January 1989, as well as sufficient for purposes of Rule 12(b)(6) to place plaintiffs\u2019 case within the \u201cspecial duty\u201d exception to the public duty doctrine and to withstand the Town\u2019s defenses, the trial court erred by granting the Town\u2019s motion to dismiss. See, e.g., Clouse v. Motors, Inc., 14 N.C. App. 117, 119, 187 S.E.2d 398, 400 (1972).\n2. Negligence in 911 Programming.\nIn their brief, plaintiffs present no argument concerning dismissal of their claim based upon the Town\u2019s alleged negligence in contributing to the erroneous programming of the County\u2019s enhanced 911 system by providing incorrect information. Consequently, this claim is abandoned. See N.C.R. App. P. 28(a); see also, e.g., Best v. Best, 81 N.C. App. 337, 341, 344 S.E.2d 363, 366 (1986) (questions not argued in appellant\u2019s brief are deemed abandoned) (citations omitted), disapproved on other grounds, Petersen v. Rogers, 337 N.C. 397, 445 S.E.2d 901 (1994).\nB. Fire Chief Messer.\nPlaintiffs instituted the instant action against Messer in both his individual and official capacities, alleging his conduct in initially responding to the 911 call and subsequently refusing to provide assistance to plaintiffs was negligent and \u201creckless, willful, wanton, malicious, and without just cause.\u201d In reply, Messer argues plaintiffs\u2019 claim is barred by: (1) G.S. \u00a7 160A-293; (2) public official immunity; and (3) the public duty doctrine. Because our consideration of plaintiffs\u2019 complaint above reveals they have otherwise stated a valid negligence claim against Messer, we turn to a discussion of his assertions that liability is precluded.\n1. G.S. \u00a7 160A-293.\nDetermination of Messer\u2019s liability under G.S. \u00a7 160A-293 involves interpretation and application of the same statutory subsection at issue in our discussion of defendant Town\u2019s municipal immunity. See supra section I. A. l.(b\u00a1).\nMesser contends plaintiffs\u2019 action is barred by the \u201cclear and unambiguous\u201d language of G.S. \u00a7 160A-293(b). However, as our earlier analysis determined Messer\u2019s alleged act of negligence was neither a \u201cfailure\u201d nor a \u201cdelay\u201d in answering an emergency call, the first clause of G.S. \u00a7 160A-293(b) is inapplicable. Moreover, while the second clause of the statute establishes immunity for a municipality in certain circumstances, its purview is limited only to the municipality and not to officers and employees thereof. Messer\u2019s reliance upon the statutory section is thus unfounded.\n2. Public Official Immunity.\nMesser next contends that because \u201c[a]t all times referred to in the complaint, [he] was Chief of the Waynesville Fire Department,\u201d he was therefore \u201ca public official immune from liability for negligence in the performance of his duties in such capacity.\u201d Conceding arguendo that a fire chief is a \u201cpublic official,\u201d and further agreeing that Messer accurately states the rule regarding \u201cpublic official immunity,\u201d see Mullins v. Friend, 116 N.C. App. 676, 681, 449 S.E.2d 227, 230 (1994) (\u201c[A] public official [as opposed to a \u201cpublic employee\u201d] is immune from personal liability for mere negligence in the performance of his duties ....\u201d), we nonetheless deem this doctrine unavailing to Messer in the case sub judice.\nFirst, it is well-established that public official immunity is an affirmative defense. See, e.g., Taylor, 112 N.C. App. at 605-06, 436 S.E.2d at 278; see also Burwell v. Giant Genie Corp., 115 N.C. App. 680, 684, 446 S.E.2d 126, 128-29 (1994). Moreover, the failure to plead an affirmative defense ordinarily results in waiver thereof. See, e.g., Burwell, 115 N.C. App. at 684, 446 S.E.2d at 129 (citation omitted).\nOur review of the record reveals no assertion by Messer of the affirmative defense of public official immunity, but rather those of the alleged contributory negligence of plaintiffs and the provisions of G.S. \u00a7 160A-293. Further, the trial court\u2019s decision to dismiss plaintiffs\u2019 action for failure to state a claim was expressly based \u201cprimarily\u201d upon the statutory defense of G.S. \u00a7 160A-293. In short, nothing of record indicates public official immunity was either raised in the pleadings or argued at the trial level; consequently, Messer may not raise this defense for the first time on appeal. Northwestern Financial Group v. County of Gaston, 110 N.C. App. 531, 534, 430 S.E.2d 689, 691, disc. review denied, 334 N.C. 621, 435 S.E.2d 337 (1993).\nSecond, in plaintiffs\u2019 complaint, Messer\u2019s conduct is not couched simply in terms of \u201cmere negligence.\u201d See, e.g., Messick v. Catawba County, 110 N.C. App. 707, 717, 431 S.E.2d 489, 495, disc. review denied, 334 N.C. 621, 435 S.E.2d 336 (1993). To the contrary, plaintiffs repeatedly refer to Messer\u2019s directive to turn the fire trucks around within sight of plaintiffs\u2019 burning home as being \u201cmalicious,\u201d \u201cwillful and wanton,\u201d \u201cwrongful,\u201d \u201creckless,\u201d and \u201cwithout just cause.\u201d\nOur courts have held that public officials sued in their individual capacities are \u201cshielded from liability\u201d unless their actions are \u201ccorrupt or malicious,\u201d or they \u201cacted outside of and beyond the scope of\u2019 their duties. See, e.g., Wiggins, 73 N.C. App. at 49, 326 S.E.2d at 43 (quoting Smith v. Hefner, 235 N.C. 1, 7, 68 S.E.2d 783, 787 (1952)); see also Mullins, 116 N.C. App. at 681, 449 S.E.2d at 230 (citations omitted); see also Slade v. Vernon, 110 N.C. App. 422, 428, 429 S.E.2d 744, 747 (1993) (citation omitted); see also Reid v. Roberts, 112 N.C. App. 222, 224, 435 S.E.2d 116, 119 (Court included terms \u201cin bad faith\u201d and \u201cwillful and deliberate.\u201d) (citations omitted), disc. review denied, 335 N.C. 559, 439 S.E.2d 151 (1993).\nConstruing the allegations of plaintiffs\u2019 complaint liberally, Dixon, 85 N.C. App. at 340, 354 S.E.2d at 758 (citation omitted), we believe Messer\u2019s conduct described therein extends beyond the realm of \u201cmere negligence.\u201d As such, even had Messer properly asserted the affirmative defense of \u201cpublic official immunity,\u201d plaintiffs\u2019 complaint would withstand his dismissal motion.\nIn the foregoing context, Messer argues the adjectives chosen by plaintiffs to describe his actions constitute \u201cconclusions of law\u201d or \u201cunwarranted deductions of fact,\u201d and are not to be taken as admitted for purposes of a Rule 12(b)(6) motion to dismiss. See Sutton v. Duke, 277 N.C. 94, 98, 176 S.E.2d 161, 163 (1970). He further maintains those conclusions are not supported by any facts pleaded in the complaint. Suffice it to observe that for purposes of Rule 12(b)(6), we consider the complaint\u2019s factual allegations [e.g., that at a point .4 mile from plaintiffs\u2019 burning house, Messer (who indisputably had authority to provide emergency assistance) decided to abandon plaintiffs\u2019 emergency call and instead ordered his crew to return to the fire station] adequate to support a conclusion that Messer\u2019s behavior was \u201cmalicious,\u201d \u201cwillful and wanton,\u201d or \u201coutside of and beyond the scope of\u2019 his official duties as Fire Chief.\n3. Public Duty Doctrine.\nMesser also relies upon the \u201cpublic duty doctrine.\u201d As aforementioned, under this doctrine, \u201ca municipality and its agents act for the benefit of the public, and therefore, there is no liability for the failure to furnish . . . protection to specific individuals.\u201d Braswell, 330 N.C. at 370, 410 S.E.2d at 901.\nAlthough the \u201cdefense\u201d of public duty doctrine has traditionally been raised almost exclusively in cases involving allegations of negligence in the provision of police protection, see, e.g., id. at 370-71, 410 S.E.2d at 901-02, we acknowledged above that the doctrine is properly invoked herein concerning the obligations of a municipal fire department. See supra section I. A. l.(c.). However, as with defendant Town, the doctrine does not operate to bar Messer\u2019s liability in the circumstances of the allegations sub judice.\nSimilar to our discussion in relation to the Town, we hold the allegations of plaintiffs\u2019 complaint liberally construed, see Jenkins, 69 N.C. App. at 142, 316 S.E.2d at 356, and taken as admitted, see Warren, 90 N.C. App. at 272, 368 S.E.2d at 49, are sufficient for purposes of Rule 12(b)(6) to establish the \u201cspecial duty\u201d exception to the public duty doctrine asserted by Messer. Specifically, plaintiffs\u2019 claim that by proceeding with his crew towards the scene of the fire immediately following acceptance of the 911 call, Messer (as Fire Chief and \u201cresponsible for the control and direction of the activities\u201d of the Department) promised he and the Department would provide firefighting assistance and protection; that the promised protection never arrived at plaintiffs\u2019 residence as a consequence of Messer\u2019s order promulgated within sight of the burning dwelling; and that plaintiffs relied upon the promise to respond as their exclusive source of aid, resulting in the complete destruction of their home. In sum, because plaintiffs have alleged facts adequate to establish a prima facie case of negligence as well as the \u201csubstantive elements,\u201d Orange County, 46 N.C. App. at 378-79, 265 S.E.2d at 909, of the \u201cspecial duty\u201d exception sufficient to avoid Messer\u2019s asserted statutory defense, the trial court erred in granting Messer\u2019s Rule 12(b)(6) motion. See, e.g., Clouse, 14 N.C. App. at 119, 187 S.E.2d at 400.\nC. The Waynesville Fire Department.\n\u201cUnless a statute provides to the contrary, only persons in being may be sued.\u201d Coleman, 89 N.C. App. at 192, 366 S.E.2d at 5 (citation omitted). Plaintiffs cite no statute providing for recovery against a municipal fire department and our research has discovered none. We hold the Department is a component part of defendant Town and, as such, lacks the capacity to be sued. See id. (no liability for a police department) (citations omitted). Accordingly, the Department\u2019s Rule 12(b)(6) motion was properly allowed.\nII.\nIn their second assignment of error, plaintiffs maintain the trial court erred by granting summary judgment in favor of defendant County. We disagree.\nPlaintiffs\u2019 claim against the County is based upon allegations that certain county agents negligently programmed the enhanced 911 system by incorrectly identifying plaintiffs\u2019 residence as being located in the Town\u2019s fire district.\nSummary judgment is properly granted only when \u201cthe pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law.\u201d See N.C.R. Civ. P. 56 (1990). The party moving for summary judgment (here, the County) bears the burden of establishing the lack of any triable factual issue. Roumillat v. Simplistic Enterprises, Inc., 331 N.C. 57, 62-63, 414 S.E.2d 339, 341-42 (1992) (citations omitted). It may meet this burden either by: (1) demonstrating that an essential element of plaintiffs\u2019 claim is nonexistent; (2) establishing through discovery that plaintiffs cannot produce evidence to support an essential element of their claim; or (3) showing that plaintiffs cannot survive an affirmative defense, such as governmental (or sovereign) immunity. Id. at 63, 414 S.E.2d at 342.\nThe County relied in the trial court upon the third of the above-mentioned approaches. In particular, it contended that governmental immunity barred plaintiffs\u2019 negligence action, and further that it had not waived immunity by purchasing liability insurance covering \u201cacts and losses as claimed by the Plaintiffs.\u201d\nIt is well-established that governmental immunity typically operates as a bar to negligence claims brought against a county, see, e.g., Messick, 110 N.C. App. at 714, 431 S.E.2d at 493-94 (citations omitted), but that such immunity may be waived by the purchase of liability insurance. See N.C. Gen. Stat. \u00a7 153A-435 (1991). Nonetheless, \u201c[i]mmunity is waived only to the extent that the [county] is indemnified by the insurance contract for the acts alleged.\u201d Combs, 106 N.C. App. at 73, 415 S.E.2d at 92 (citation omitted).\nThe record sub judice reveals but a single policy of insurance issued to the County arguably in effect either at the time the 911 system was programmed or on the date of the fire. We have reviewed that policy (issued by Clarendon National Insurance Company) and agree with the trial court that it did not provide coverage for plaintiffs\u2019 injuries. Accordingly, the County did not waive governmental immunity from this tort suit by procuring insurance, and the court properly allowed summary judgment in its favor.\nConclusion\nUpon our review of the record and applicable authorities, we hold the trial court erred in dismissing plaintiffs\u2019 action pursuant to Rule 12(b)(6) as to defendants Messer and the Town. The court\u2019s ruling with respect to said defendants is therefore reversed.. The order of dismissal as to defendant Department and the entry of summary judgment in favor' of defendant County are affirmed.\nAffirmed in part; reversed and remanded in part.\nJudges GREENE and MARTIN, John M. concur.",
        "type": "majority",
        "author": "JOHN, Judge."
      }
    ],
    "attorneys": [
      "Dean & Gibson, by Michael G. Gibson and Brien D. Stockman, for plaintiff-appellant.",
      "Van Winkle, Buck, Wall, Starnes and Davis, P.A., by W. Bradford Searson, for defendant-appellees Leonard Messer and the Waynesville Fire Department.",
      "Blue, Fellerath, Cloninger & Barbour, P.A., by Frederick S. Barbour, for defendant-appellee Town of Waynesville.",
      "Killian, Kersten, Patton & Ellis, P.A., by Stephen G. Ellis, for defendant-appellee Haywood County."
    ],
    "corrections": "",
    "head_matter": "DANNY E. DAVIS and ANN H. DAVIS, Plaintiffs v. LEONARD MESSER, Individually, and in his official capacity as Chief of the Waynesville Fire Department, THE TOWN OF WAYNESVILLE, a North Carolina Municipal Corporation, THE WAYNESVILLE FIRE DEPARTMENT, and HAYWOOD COUNTY, Defendants\nNo. 9230SC1336\n(Filed 6 June 1995)\n1. Municipal Corporations \u00a7 444 (NCI4th)\u2014 municipal fire department \u2014 refusal to fight fire \u2014 governmental immunity \u2014 purchase of insurance\nPlaintiffs\u2019 complaint was sufficient to withstand defendant Town\u2019s motion to dismiss under N.C.G.S. \u00a7 1A-1, Rule 12(b)(6) where plaintiffs alleged that they called 911 in response to a fire at their residence; the dispatcher confirmed their location and notified the fire department; the dispatcher inquired whether plaintiffs\u2019 residence fell within the Town\u2019s fire district; the fire fighter answering the call indicated that the Waynesville Fire Department would respond; the Department immediately sent trucks bearing appropriate equipment to the scene; as the firefighters approached plaintiffs\u2019 home, they saw a road sign indicating that they were entering another fire district; the fire chief, despite being within .4 mile and in sight of plaintiffs\u2019 burning residence, ordered his crew to return to the fire station; plaintiffs\u2019 home was ultimately completely destroyed; and the Town had valid and enforceable liability insurance covering the full dollar amount of claims asserted against it.\nAm Jur 2d, Municipal, County, School, and State Tort Liability \u00a7\u00a7 37 et seq.\n2. Fires and Firemen \u00a7 21 (NCI4th)\u2014 fire call outside fire district \u2014 initial response halted at district line \u2014 action against town \u2014 N.C.G.S. \u00a7 160A-293 not applicable\nPlaintiffs\u2019 claim against defendant town was sufficiently stated so as to avoid preclusion by N.C.G.S. \u00a7 160A-293(b) under defendant town\u2019s motion to dismiss under N.C.G.S. \u00a7 1A-1, Rule 12(b)(6) where plaintiffs alleged that they called 911 in response to a fire at their residence; the dispatcher confirmed their location and notified the fire department; the dispatcher inquired whether plaintiffs\u2019 residence fell within the Town\u2019s fire district; the fire fighter answering the call indicated that the Waynesville Fire Department would respond; the Department immediately sent trucks bearing appropriate equipment to the scene; as the firefighters approached plaintiffs\u2019 home, they saw a road sign indicating that they were entering another fire district; the fire chief, despite being within .4 mile and in sight of plaintiffs\u2019 burning residence, ordered his crew to return to the fire station; and plaintiffs\u2019 home was ultimately completely destroyed. The complaint cannot be said to set forth facts which under N.C.G.S. \u00a7 160A-293(b) would constitute a \u201cfailure\u201d to answer plaintiffs\u2019 call, does not allege \u201cdelay\u201d by the Department, and plaintiffs\u2019 allegations are not related to any negligent \u201cact or omission\u201d of the Department and its employees in the course of \u201crendering fire protection services outside the Town\u2019s corporate limits.\u201d\nAm Jur 2d, Municipal, County, School, and State Tort Liability \u00a7\u00a7 662 et seq.\n3. Fires and Firemen \u00a7 21 (NCI4th)\u2014 fire just outside municipal fire district \u2014 refusal to fight \u2014 liability of city \u2014 public duty doctrine\nThe trial court erred by granting the defendant Town\u2019s motion to dismiss under N.C.G.S. \u00a7 1A-1, Rule 12(b)(6) where plaintiffs alleged that they called 911 in response to a fire at their residence; the dispatcher confirmed their location and notified the fire department; the dispatcher inquired whether plaintiffs\u2019 residence fell within the Town\u2019s fire district; the fire fighter answering the call indicated that the Waynesville Fire Department would respond; the department immediately sent trucks bearing appropriate equipment to the scene; as the firefighters approached plaintiffs\u2019 home, they saw a road sign indicating that they were entering another fire district; the fire chief, despite being within .4 mile and in sight of plaintiffs\u2019 burning residence, ordered his crew to return to the fire station; and plaintiffs\u2019 home was ultimately completely destroyed. Plaintiffs alleged facts sufficient to establish a prima facie case of negligence against the Town based upon its conduct, as well as sufficient for purposes of Rule 12(b)(6) to place plaintiffs\u2019 case within the \u201cspecial duty\u201d exception to the public duty doctrine and to withstand the Town\u2019s defenses.\nAm Jur 2d, Municipal, County, School, and State Tort Liability \u00a7\u00a7 662 et seq.\n4. Appeal and Error \u00a7 418 (NCI4th)\u2014 refusal of fire department to fight fire \u2014 negligence in programming 911 system \u2014 argument omitted from brief \u2014 abandoned\nAn argument concerning dismissal of a claim based upon alleged negligence in programming a 911 system was abandoned where no argument was presented in the brief.\nAm Jur 2d, Appeal and Error \u00a7\u00a7 693-696.\n5. Fires and Firemen \u00a7 21 (NCI4th)\u2014 fire call outside fire district \u2014 initial response halted at district line \u2014 action against chief \u2014 N.C.G.S. \u00a7 160A-293 not applicable\nPlaintiffs\u2019 action against a fire chief for not fighting a fire just outside his fire district was not barred by the first clause of N.C.G.S. \u00a7 160A-293(b) because the alleged act of negligence was neither a failure nor a delay in answering an emergency call and the purview of the second clause is limited to the municipality and not to officers and employees thereof.\nAm Jur 2d, Municipal, County, School, and State Tort Liability \u00a7\u00a7 662 et seq.\n6. Public Officers and Employees \u00a7 35 (NCI4th)\u2014 fire chief\u2014 refusal to fight fire outside district \u2014 public official immunity \u2014 not applicable\nA fire chief was not immune from liability for negligence in the performance of his duties where plaintiffs alleged that they called 911 in response to a fire at their residence; the dispatcher confirmed their location and notified the fire department; the dispatcher inquired whether plaintiffs\u2019 residence fell within the Town\u2019s fire district; the fire fighter answering the call indicated that the Waynesville Fire Department would respond; the Department immediately sent trucks bearing appropriate equipment to the scene; as the firefighters approached plaintiffs\u2019 home, they saw a road sign indicating that they were entering another fire district; the fire chief, despite being within .4 mile and in sight of plaintiffs\u2019 burning residence, ordered his crew to return to the fire station; and plaintiffs\u2019 home was ultimately completely destroyed. The record reveals no assertion by defendant chief of the affirmative defense of public official immunity and plaintiffs\u2019 complaint would have withstood the chiefs dismissal motion even had defendant properly asserted the defense because the conduct described in the complaint extends beyond the realm of mere negligence.\nAm Jur 2d, Public Officers and Employees \u00a7\u00a7 358 et seq., 375.\n7. Fires and Firemen \u00a7 21 (NCI4th)\u2014 fire just outside municipal fire district \u2014 refusal to fight \u2014 liability of fire chief\u2014 public duty doctrine\nThe trial court erred in granting a fire chief\u2019s motion to dismiss under N.C.G.S. \u00a7 1A-1, Rule 12(b)(6) where plaintiffs alleged that they called 911 in response to a fire at their residence; the dispatcher confirmed their location and notified the fire department; the dispatcher inquired whether plaintiffs\u2019 residence fell within the Town\u2019s fire district; the fire fighter answering the call indicated that the Waynesville Fire Department would respond; the Department immediately sent trucks bearing appropriate equipment to the scene; as the firefighters approached plaintiffs\u2019 home, they saw a road sign indicating that they were entering another fire district; the fire chief, despite being within .4 mile and in sight of plaintiffs\u2019 burning residence, ordered his crew to return to the fire station; and plaintiffs\u2019 home was ultimately completely destroyed. Although the chief relied upon the public duty doctrine, plaintiffs have alleged facts adequate to establish a prima facie case of negligence as well as the substantive elements of the special duty exception sufficient to avoid the chief\u2019s defense.\nAm Jur 2d, Municipal, County, School, and State Tort Liability \u00a7\u00a7 662 et seq.\n8. Fires and Firemen \u00a7 21 (NCI4th)\u2014 fire department\u2014 capacity to be sued\nA fire department was a component part of a town and, as such, lacked the capacity to be sued. Only persons in being may be sued, and there is no statute providing for recovery against a municipal fire department.\nAm Jur 2d, Municipal, County, School, and State Tort Liability \u00a7\u00a7 662 et seq.\n9. Counties \u00a7 126 (NCI4th)\u2014 negligence in programming 911 system \u2014 immunity\u2014purchase of insurance\nSummary judgment was properly granted for defendant county on a claim for negligently programming a 911 system in an action arising from a municipal fire department\u2019s refusal to fight a fire just outside its fire district where the record reveals but a single policy of insurance issued to the county which did not provide coverage for plaintiffs\u2019 injuries. The county did not waive immunity from this suit.\nAm Jur 2d, Municipal, County, School, and State Tort Liability \u00a7\u00a7 37 et seq.\nLiability or indemnity insurance carried by governmental unit as affecting immunity from tort liability. 68 ALR2d 1437.\nAppeal by plaintiffs from order entered 19 October 1992 by Judge Forrest A. Ferrell in Haywood County Superior Court. Heard in the Court of Appeals 16 November 1993.\nDean & Gibson, by Michael G. Gibson and Brien D. Stockman, for plaintiff-appellant.\nVan Winkle, Buck, Wall, Starnes and Davis, P.A., by W. Bradford Searson, for defendant-appellees Leonard Messer and the Waynesville Fire Department.\nBlue, Fellerath, Cloninger & Barbour, P.A., by Frederick S. Barbour, for defendant-appellee Town of Waynesville.\nKillian, Kersten, Patton & Ellis, P.A., by Stephen G. Ellis, for defendant-appellee Haywood County."
  },
  "file_name": "0044-01",
  "first_page_order": 78,
  "last_page_order": 96
}
