{ "id": 11713656, "name": "MAX W. SIMMONS and wife, CANDACE L. SIMMONS, Plaintiffs v. CITY OF HICKORY; GARY B. McGEE; TOM CARR; GENE DAYTON FRYE; ROBERT \"BOB\" HUFFMAN; WARD LANEY; and CHARLES EDWARD HICKS, Defendants", "name_abbreviation": "Simmons v. City of Hickory", "decision_date": "1997-07-15", "docket_number": "No. COA96-1277", "first_page": "821", "last_page": "826", "citations": [ { "type": "official", "cite": "126 N.C. App. 821" } ], "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": "447 S.E.2d 387", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "opinion_index": 0 }, { "cite": "336 N.C. 603", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2534058, 2535023, 2535157, 2538871, 2539514 ], "year": 1994, "opinion_index": 0, "case_paths": [ "/nc/336/0603-05", "/nc/336/0603-04", "/nc/336/0603-02", "/nc/336/0603-03", "/nc/336/0603-01" ] }, { "cite": "442 S.E.2d 75", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1994, "pin_cites": [ { "page": "79" }, { "page": "79" } ], "opinion_index": 0 }, { "cite": "114 N.C. App. 400", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527625 ], "weight": 2, "year": 1994, "pin_cites": [ { "page": "406" }, { "page": "406" } ], "opinion_index": 0, "case_paths": [ "/nc-app/114/0400-01" ] }, { "cite": "472 S.E.2d 172", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1996, "pin_cites": [ { "page": "175" } ], "opinion_index": 0 }, { "cite": "123 N.C. App. 79", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11911715 ], "year": 1996, "opinion_index": 0, "case_paths": [ "/nc-app/123/0079-01" ] }, { "cite": "119 N.C. App. 515", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11916250 ], "year": 1995, "opinion_index": 0, "case_paths": [ "/nc-app/119/0515-01" ] }, { "cite": "413 S.E.2d 550", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "opinion_index": 0 }, { "cite": "330 N.C. 854", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2508528 ], "year": 1992, "opinion_index": 0, "case_paths": [ "/nc/330/0854-01" ] }, { "cite": "410 S.E.2d 897", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1991, "pin_cites": [ { "page": "902" } ], "opinion_index": 0 }, { "cite": "330 N.C. 363", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2509910 ], "weight": 2, "year": 1991, "pin_cites": [ { "page": "371" } ], "opinion_index": 0, "case_paths": [ "/nc/330/0363-01" ] }, { "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": 1990, "opinion_index": 0 }, { "cite": "98 N.C. App. 75", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522681 ], "year": 1990, "opinion_index": 0, "case_paths": [ "/nc-app/98/0075-01" ] }, { "cite": "463 S.E.2d 242", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "opinion_index": 0 }, { "cite": "342 N.C. 194", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 796110, 795921, 796084, 796057, 795899 ], "year": 1995, "opinion_index": 0, "case_paths": [ "/nc/342/0194-04", "/nc/342/0194-05", "/nc/342/0194-01", "/nc/342/0194-03", "/nc/342/0194-02" ] }, { "cite": "459 S.E.2d 71", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 9, "year": 1995, "pin_cites": [ { "page": "73-74" }, { "page": "72" }, { "page": "73" }, { "page": "74" } ], "opinion_index": 0 }, { "cite": "119 N.C. 515", "category": "reporters:state", "reporter": "N.C.", "year": 1995, "opinion_index": 0 }, { "cite": "355 S.E.2d 838", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "page": "840" } ], "opinion_index": 0 }, { "cite": "85 N.C. App. 669", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12170267 ], "year": 1987, "pin_cites": [ { "page": "670" } ], "opinion_index": 0, "case_paths": [ "/nc-app/85/0669-01" ] } ], "analysis": { "cardinality": 594, "char_count": 12034, "ocr_confidence": 0.761, "pagerank": { "raw": 1.1021275172424122e-07, "percentile": 0.5686410674908073 }, "sha256": "f291b08152a5d8e6ebe869ce18bc78281f8689702a149801fd93c007db362a9b", "simhash": "1:0d2974f7646e3f7f", "word_count": 1862 }, "last_updated": "2023-07-14T19:11:14.463583+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges GREENE and JOHN concur." ], "parties": [ "MAX W. SIMMONS and wife, CANDACE L. SIMMONS, Plaintiffs v. CITY OF HICKORY; GARY B. McGEE; TOM CARR; GENE DAYTON FRYE; ROBERT \u201cBOB\u201d HUFFMAN; WARD LANEY; and CHARLES EDWARD HICKS, Defendants" ], "opinions": [ { "text": "WALKER, Judge.\nPlaintiffs filed a complaint against defendants on 28 January 1992, alleging negligence, breach of applicable building codes, unfair and deceptive trade practices and intentional infliction of emotional distress. On 12 February 1993, the trial court granted defendants\u2019 motion to dismiss the cause of action alleging unfair and deceptive trade practice. Plaintiffs then took a voluntary dismissal without prejudice on 23 November 1993. Plaintiffs again filed this complaint on 18 November 1994, alleging the same causes of action. Defendants moved for dismissal and for summary judgment, both of which were granted. The trial court noted in its judgment that plaintiffs agreed that Count III, (unfair and deceptive trade practices) was inadvertently included in the complaint as this cause of action had been dismissed by the trial court prior to plaintiffs\u2019 taking a voluntary dismissal.\nPlaintiffs\u2019 causes of action stemmed from the construction and inspection of their residence located in Catawba County in the extraterritorial jurisdiction of the City of Hickory (the City). The City, in the exercise of this extraterritorial jurisdiction, required a building permit and inspection of plaintiffs\u2019 residence.\nPlaintiffs hired James Roy Hall, d/b/a Roy Hall Construction Company (Hall) to build their residence. Plaintiffs and Hall were subsequently involved in litigation over building defects and payment under the construction contract. In the present action, plaintiffs assert that defendants failed to detect certain building code violations in Hall\u2019s construction of their residence and as a result should be responsible to plaintiffs for damages.\nThe trial court granted defendants\u2019 motion to dismiss all claims based on the public duty doctrine. Further, the court granted summary judgment for defendants based on the governmental immunity doctrine and statute of limitations.\nWe will first examine the applicability of the public duty doctrine as a bar against plaintiffs\u2019 claims against the City and its agents. On a motion to dismiss, the standard of review is \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 under some legal theory. . . Harris v. NCNB, 85 N.C. App. 669, 670, 355 S.E.2d 838, 840 (1987).\nUnder the public duty doctrine as adopted by our Supreme Court, a municipality and its agents ordinarily act for the benefit of the general public and not for a specified 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. The public duty doctrine has been applied to a variety of statutory governmental duties, specifically including city building inspections. See Sinning v. Clark, 119 N.C. 515, 459 S.E.2d 71, disc. review denied, 342 N.C. 194, 463 S.E.2d 242 (1995); Lynn v. Overlook Development, 98 N.C. App. 75, 389 S.E.2d 609 (1990), aff\u2019d in part, rev\u2019d in part, 328 N.C. 689, 403 S.E.2d 469 (1991); Braswell v. Braswell, 330 N.C. 363, 410 S.E.2d 897 (1991), reh\u2019g denied, 330 N.C. 854, 413 S.E.2d 550 (1992).\nOur courts recognize two general exceptions to the public duty doctrine. Sinning, 119 N.C. App. at 519, 459 S.E.2d at 73-74. The first exception applies when a \u201cspecial relationship\u201d exists between the municipality and the victim, i.e. informant or State\u2019s witness. The second exception exists when \u201c \u2018the municipality . . . 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 injuries suffered.\u2019 \u201d Id. (quoting Braswell v. Braswell, 330 N.C. 363, 371, 410 S.E.2d 897, 902 (1991)).\nThe instant case is factually similar to Sinning v. Clark, 119 N.C. App. 515, 459 S.E.2d 71 (1995). In Sinning, the plaintiffs contracted with a building contractor to build their residence in New Bern. Id. at 516, 459 S.E.2d at 72. During construction, a City building inspector inspected the residence for building code violations and issued a temporary certificate of occupancy allowing plaintiffs to move in subject to the contractor doing some finishing work. After moving in, the plaintiffs discovered several major structural defects. Id.\nIn their complaint, plaintiffs asserted claims for negligence, gross negligence and negligent infliction of emotional distress against the City of New Bern and two of its employees in their official capacities. Defendants moved to dismiss under Rule 12 (b)(6) and this motion was granted. In addressing the plaintiffs\u2019 negligence claim, this Court first noted that \u201c[t]he City of New Bern cannot be held liable for simple negligence unless the individual defendants or either of them, in their official capacities, were negligent.\u201d Id. at 518, 459 S.E.2d at 73. After examining the public duty doctrine to determine whether a duty existed, our Court ruled that the duties imposed upon a municipality and its building inspector by our State\u2019s statutes and building code fall within a municipality\u2019s police powers and thus are duties owed to the general public rather than to individuals. Id. The Court also determined that \u201cno special relationship, as contemplated by Braswell, existed between plaintiffs and defendants.\u201d In support of this determination, the Court reasoned:\nA showing that a municipality has undertaken to perform its duties to enforce such statutes is not sufficient, by itself, to show the creation of a special relationship with particular individual citizens. If such a relationship was [sic] found to exist in an instance such as this, a municipality would become a virtual guarantor of the construction of every building subject to its inspection, exposing it to an overwhelming burden of liability for failure to detect every code violation or defect.\nId. at 519-20, 459 S.E.2d at 74. Therefore, the Court found that the trial court properly granted defendants\u2019 motion to dismiss as defendants could not be liable for negligence if plaintiffs were owed no duty.\nIn the instant case, plaintiffs argue that because the City had undertaken the responsibility of issuing building permits and conducting building inspections outside its municipal limits, it had created a \u201cspecial relationship\u201d with plaintiffs and others who live in this extraterritorial district. Plaintiffs further argue that this \u201cspecial relationship\u201d takes their claims for negligence outside the purview of the public duty doctrine and creates a duty on the part of the defendants. We disagree.\nIn Moseley v. L & L Construction, Inc., 123 N.C. App. 79, 472 S.E.2d 172 (1996), Burke County was performing inspection duties for the City of Valdese. This Court, in determining whether a \u201cspecial relationship\u201d existed as a result of this arrangement, noted that N.C. Gen. Stat. \u00a7 153A-353 and N.C. Gen. Stat. \u00a7 160A-413 allow cities and counties to contract with one another to maintain joint inspection departments and as such, the positions of city building inspector and county building inspector are virtually interchangeable. Consequently, no such \u201cspecial relationship\u201d is created by this fact alone. Id. at 84, 472 S.E.2d at 175. Thus, plaintiffs\u2019 contention of the existence of a \u201cspecial relationship\u201d between plaintiffs and the City, because the City is exercising its extraterritorial jurisdiction, is rejected. Plaintiffs have failed to allege facts to establish either exception to the public duty doctrine so as to allow their claim for negligence to go forward and the trial court properly dismissed plaintiffs\u2019 claim for negligence.\nPlaintiffs additionally contend that defendants Frye and Hicks, as building inspectors, engaged in conduct sufficient to constitute intentional infliction of emotional distress. Specifically, the complaint alleges that Frye and Hicks testified, in plaintiffs\u2019 action against Hall, that as a result of their inspections, they found no code violations nor defects, when in fact numerous code violations and defects did exist in plaintiffs\u2019 residence. Plaintiffs further alleged that this testimony was not true and played a significant role in the jury\u2019s determination in that action resulting in an unfavorable verdict for plaintiffs when the defendants knew or should have known that their testimony would cause emotional distress to the plaintiffs.\nIn Sinning, this Court quoted Clark v. Red Bird Cab Co., 114 N.C. App. 400, 406, 442 S.E.2d 75, 79, disc. review denied, 336 N.C. 603, 447 S.E.2d 387 (1994), in stating: \u201cOnly where the conduct complained of rises to the level of an intentional tort does the public duty doctrine cease to. apply.\u201d The Clark court further determined that where the same factual allegations are used to support both allegations of negligent conduct and conduct described as \u201cwanton,\u201d \u201cwilful,\u201d and \u201creckless,\u201d the public duty doctrine supports a dismissal of the complaint. Clark, 114 N.C. App. at 406, 442 S.E.2d at 79.\nAlthough the plaintiffs in this case allege a claim for intentional infliction of emotional distress, upon close examination, we conclude that plaintiffs are alleging substantially the same conduct used to support the claim of negligence against the defendants. Defendants Frye and Hicks allegedly testified that they did not find any building code violations in their inspection of the plaintiffs\u2019 residence. This testimony would be consistent with the actual findings reported by the defendants as a result of their inspection of the residence. We have already determined that defendants cannot be held liable under the public duty doctrine for their failure to discover code violations and other defects. As such, we conclude that defendants\u2019 testimony concerning their inspections does not rise to the level of an intentional tort and the trial court did not err in dismissing this claim.\nAs we find the trial court properly dismissed all claims on the basis of the public duty doctrine, we need not consider the issues of governmental immunity and statute of limitations.\nAffirmed.\nJudges GREENE and JOHN concur.", "type": "majority", "author": "WALKER, Judge." } ], "attorneys": [ "C. Gary Triggs, PA., by C. Gary Triggs, for plaintiffs-appellants.", "Tate, Young, Morphis, Bach & Taylor, L.L.P., by T. Dean Amos, for defendants-appellants." ], "corrections": "", "head_matter": "MAX W. SIMMONS and wife, CANDACE L. SIMMONS, Plaintiffs v. CITY OF HICKORY; GARY B. McGEE; TOM CARR; GENE DAYTON FRYE; ROBERT \u201cBOB\u201d HUFFMAN; WARD LANEY; and CHARLES EDWARD HICKS, Defendants\nNo. COA96-1277\n(Filed 15 July 1997)\n1. Municipal Corporations \u00a7 450 (NCI4th)\u2014 negligence by building inspectors \u2014 claim barred by public duty doctrine\nThe public duty doctrine barred plaintiff homeowners\u2019 claim against a city and its building inspectors for alleged negligence in inspecting a home built within the city\u2019s extraterritorial jurisdiction because the city\u2019s undertaking of the responsibility of issuing building permits and conducting building inspections outside its municipal limits was insufficient to create a \u201cspecial relationship\u201d exception to the public duty doctrine.\nAm Jur 2d, Municipal Corporations, Counties, and Other Political Subdivisions \u00a7 827.\n2. Municipal Corporations \u00a7 450 (NCI4th)\u2014 testimony by building inspectors \u2014 not intentional tort \u2014 claim barred by public duty doctrine\nTestimony by city building inspectors in plaintiff homeowners\u2019 action against a builder that they did not find any building code violations in their inspections of plaintiffs home during construction did not rise to the level of an intentional tort even if code violations and other defects existed in plaintiffs\u2019 home; therefore, plaintiffs\u2019 claim against the city and its building inspectors for intentional infliction of emotional distress based on this testimony was barred by the public duty doctrine.\nAm Jur 2d, Municipal Corporations, Counties, and Other Political Subdivisions \u00a7 827.\nAppeal by plaintiffs from judgment entered 6 June 1996 by Judge Ronald E. Bogle in Catawba County Superior Court. Heard in the Court of Appeals 21 May 1997.\nC. Gary Triggs, PA., by C. Gary Triggs, for plaintiffs-appellants.\nTate, Young, Morphis, Bach & Taylor, L.L.P., by T. Dean Amos, for defendants-appellants." }, "file_name": "0821-01", "first_page_order": 859, "last_page_order": 864 }