{ "id": 11653071, "name": "GEORGE H. DERWORT and J. RONALD PADGETT, Copartners d/b/a RIVER'S REST, Plaintiffs v. POLK COUNTY, POLK COUNTY BOARD OF COMMISSIONERS, and POLK COUNTY PLANNING BOARD, Defendants", "name_abbreviation": "Derwort v. Polk County", "decision_date": "1998-06-16", "docket_number": "No. COA97-77", "first_page": "789", "last_page": "794", "citations": [ { "type": "official", "cite": "129 N.C. App. 789" } ], "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": "472 S.E.2d 172", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "pin_cites": [ { "page": "175", "parenthetical": "plaintiff's negligence claim properly dismissed against defendant county building inspector because neither special relationship nor special duty exception to public duty doctrine was shown" } ], "opinion_index": 0 }, { "cite": "123 N.C. App. 79", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11911715 ], "year": 1996, "pin_cites": [ { "page": "84", "parenthetical": "plaintiff's negligence claim properly dismissed against defendant county building inspector because neither special relationship nor special duty exception to public duty doctrine was shown" } ], "opinion_index": 0, "case_paths": [ "/nc-app/123/0079-01" ] }, { "cite": "480 S.E.2d 681", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "opinion_index": 0 }, { "cite": "345 N.C. 468", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 53883 ], "year": 1997, "opinion_index": 0, "case_paths": [ "/nc/345/0468-01" ] }, { "cite": "469 S.E.2d 578", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "pin_cites": [ { "page": "582", "parenthetical": "\"[i]n enacting legislation governing the control of subdivisions by counties, our General Assembly has sought to empower such local governments to promote the health, safety and welfare of communities\"" } ], "opinion_index": 0 }, { "cite": "122 N.C. 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App.", "case_ids": [ 11917864 ], "pin_cites": [ { "page": "468" } ], "opinion_index": 0, "case_paths": [ "/nc-app/121/0466-01" ] } ], "analysis": { "cardinality": 664, "char_count": 12470, "ocr_confidence": 0.765, "pagerank": { "raw": 2.715362323245888e-07, "percentile": 0.829686595627776 }, "sha256": "52252d98a61c4c58886d6428ce197444813c9603289125868a9989c5a4a1e4fa", "simhash": "1:07e934f45c7b2c46", "word_count": 1989 }, "last_updated": "2023-07-14T18:14:06.814789+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges GREENE and TIMMONS-GOODSON concur." ], "parties": [ "GEORGE H. DERWORT and J. RONALD PADGETT, Copartners d/b/a RIVER\u2019S REST, Plaintiffs v. POLK COUNTY, POLK COUNTY BOARD OF COMMISSIONERS, and POLK COUNTY PLANNING BOARD, Defendants" ], "opinions": [ { "text": "JOHN, Judge.\nDefendant Polk County (the County) appeals denial of its motion to dismiss plaintiffs\u2019 claims pursuant to N.C.R. Civ. P. 12(b)(6) (Rule 12(b)(6)). We reverse the trial court.\nProcedural 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\u2019s 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. \u00a7 153A-121 et seq. (1991).\nThe 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.\nBeginning 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 sfeptic tank permits.\nPlaintiffs filed the instant complaint 22 March 1996, alleging claims of negligence arising out of defendants\u2019 approval of the Phase II plat. Plaintiffs alleged defendants were negligent in failing to require \u201caccurate certifications and approvals.\u201d\nDefendants 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\u2019 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\u2019s order.\nAlthough the instant order is interlocutory and thus not ordinarily subject to immediate appeal, we believe the County\u2019s 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 (\u201corders denying dispositive motions grounded on the defense of governmental immunity are immediately reviewable as affecting a substantial right\u201d), aff\u2019d per curiam, 344 N.C. 729, 477 S.E.2d 171 (1996). This principle has been applied in cases where, as here, \u201cdefendants have asserted governmental immunity from suit through the public duty doctrine.\u201d Clark v. Red Bird Cab Co., 114 N.C. App. 400, 403, 442 S.E.2d 76, 77, disc. review denied, 336 N.C. 603, 447 S.E.2d 387 (1994).\nTurning then to the merits of the County\u2019s 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\u2019 complaint herein failed to set forth the necessary elements of a negligence claim against the County.\n\u201cIt is fundamental that actionable negligence is predicated on the existence of a legal duty owed by the defendant to the plaintiff.\u201d Lynn v. Overlook Development, 98 N.C. App. 75, 78, 389 S.E.2d 609, 611 (1990), aff\u2019d 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).\nThe County, relying on the public duty doctrine, contends plaintiffs\u2019 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.\nThe public duty doctrine is a common law rule based upon\nthe 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.\nSinning, 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\u2019g 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).\nPlaintiffs\u2019 complaint alleges the Code, including those portions relating to subdivision development, was enacted pursuant to authority granted by G.S. \u00a7 153A-121 et seq., the initial statutory provision subsumed within the heading \u201cDelegation and Exercise of the General Police Power.\u201d Under the section, counties are authorized to enact ordinances to regulate \u201cconditions detrimental to the health, safety, or welfare of its citizens.\u201d In addition, N.C.G.S. \u00a7 153A-331 (1991) provides that subdivision control ordinances may regulate \u201cin a manner that . . . will create conditions essential to public health, safety, and the general welfare.\u201d See also Three Guys Real Estate v. Harnett County, 122 N.C. App. 362, 368, 469 S.E.2d 578, 582 (1996) (\u201c[i]n enacting legislation governing the control of subdivisions by counties, our General Assembly has sought to empower such local governments to promote the health, safety and welfare of communities\u201d), rev\u2019d on other grounds, 345 N.C. 468, 480 S.E.2d 681 (1997).\nThe plain language of the statute and our case law thus indicate that subdivision control is a duty owed to the general public, not a specific individual. Further, plaintiffs do not dispute application of the public duty doctrine to the County\u2019s supervision of compliance with provisions of its subdivision control ordinance. Indeed, plaintiffs correctly state that the Code \u201cwas promulgated and is enforced for the protection of the general public.\u201d Nothing else appearing, then, the County was immune from suit under the circumstances sub judice by virtue of application of the public duty doctrine.\nPlaintiffs, however, rely upon the recognized exceptions to the public duty doctrine. Enforcement of the doctrine\u2019s general prohibition against municipal liability may be withheld in this jurisdiction in two instances: (1) where there exists a \u201cspecial relationship\u201d between the injured party and the municipality, and (2) where the municipality creates a \u201cspecial duty\u201d by a) promising protection to the individual, b) the protection thereafter does not occur, and c) the individual\u2019s reliance on the promise is causally related to the injury. Sinning, 119 N.C. App. at 519, 459 S.E.2d at 73-74. Nonetheless, the \u201cspecial relationship\u201d and \u201cspecial duty\u201d exceptions are to be applied very narrowly, Red Bird Cab Co., 114 N.C. App. at 404, 442 S.E.2d at 78, and, in the case sub judice, neither was adequately alleged by plaintiffs.\nIn advancing their reliance on the foregoing exceptions to the public duty doctrine, plaintiffs point to allegations that the County, through the Commissioner and the Board\nowed a duty to . . . the citizens of the County, and Plaintiffs, to require that the reports they rely on, in approving preliminary plat and final plats, be valid, accurate reports that reflect the actual, true physical conditions and qualities of the land proposed for development\nand contend the complaint sufficiently asserted a negligence claim against the County. Plaintiffs further argue that, because of the County\u2019s\nabsolute and total control over the ability of land developers to market their property, the County established a standard of care to all land developers, creating a special duty to them.\nWe disagree.\nAs to the special relationship exception, we note plaintiffs\u2019 complaint alleged nothing more than that defendants undertook their duty to enforce the Code. In a recent case holding the public duty doctrine protected the city of New Bern from liability for negligent inspection of a residence for compliance with the North Carolina State Building Code, this Court stated\n[a] showing that a municipality has undertaken to perform its duties to enforce [the building code] is not sufficient, by itself, to show the creation of a special relationship with particular individual citizens.\nSinning, 119 N.C. App. at 519, 459 S.E.2d at 74. See also Moseley v. L & L Construction, Inc., 123 N.C. App. 79, 84, 472 S.E.2d 172, 175 (1996) (plaintiff\u2019s negligence claim properly dismissed against defendant county building inspector because neither special relationship nor special duty exception to public duty doctrine was shown). We perceive no distinction between the instant allegations of a \u201cspecial\u201d relationship between plaintiffs and the County and the circumstances of the plaintiffs in Sinning vis-a-vis the city of New Bern.\nMoreover, to set forth the special duty exception, a plaintiff must allege: (1) an actual promise was made to create the special duty, (2) the promise was reasonably relied upon by the plaintiff and (3) the latter\u2019s reliance was causally related to the injury complained of. Braswell, 330 N.C. at 371, 410 S.E.2d at 902. Plaintiffs\u2019 complaint contained no allegation defendants made any \u201covert promise\u201d to plaintiffs to protect the latters\u2019 interests, giving rise to a special duty, see Red Bird Cab Co., 114 N.C. App. at 405, 442 S.E.2d at 78, and thus failed to allege the existence of the type of promise from defendants to benefit plaintiffs contemplated by the public duty doctrine.\nBecause we hold the trial court erred in failing to dismiss plaintiffs\u2019 claims against the County, we decline to address the County\u2019s further argument that plaintiffs\u2019 claims were barred by the statute of limitations.\nReversed.\nJudges GREENE and TIMMONS-GOODSON concur.", "type": "majority", "author": "JOHN, Judge." } ], "attorneys": [ "Baiba Bourbeau for plaintiffs-appellees.", "Womble Carlyle Sandridge & Rice, by G. Michael Barnhill and W. Clark Goodman, for defendants-appellants." ], "corrections": "", "head_matter": "GEORGE H. DERWORT and J. RONALD PADGETT, Copartners d/b/a RIVER\u2019S REST, Plaintiffs v. POLK COUNTY, POLK COUNTY BOARD OF COMMISSIONERS, and POLK COUNTY PLANNING BOARD, Defendants\nNo. COA97-77\n(Filed 16 June 1998)\n1. Appeal and Error \u00a7 146.2 (NCI4th)\u2014 Rule 12(b)(6) motion \u2014 governmental immunity defense \u2014 public duty doctrine \u2014 immediately appealable\nThe denial of a motion to dismiss under N.C.G.S. \u00a7 1A-1, Rule 12(b)(6) was properly appealed even though interlocutory in an action against a county arising from septic tank permits not being available for a subdivision.\n2. Counties \u00a7 124 (NCI4th)\u2014 denial of septic tank permits for subdivision \u2014 negligence\u2014public duty doctrine\nThe trial court erred in a negligence action against the county for approving a subdivision plan and not granting septic tank permits by failing to dismiss the claims against the county under N.C.G.S. \u00a7 1A-1, Rule 12(b)(6) where the county was immune from suit under the circumstances of the case by virtue of the public duty doctrine. As to the special relationship exception, plaintiffs allege nothing more than that defendants undertook their duty to enforce the Code. As to the special duty exception, the complaint contained no allegation that defendants made any overt promise to plaintiffs to protect their interests.\nAppeal 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.\nBaiba Bourbeau for plaintiffs-appellees.\nWomble Carlyle Sandridge & Rice, by G. Michael Barnhill and W. Clark Goodman, for defendants-appellants." }, "file_name": "0789-01", "first_page_order": 829, "last_page_order": 834 }