{ "id": 11435587, "name": "SHELLEY AUSTIN WOOD, Plaintiff v. GUILFORD COUNTY, BURNS INTERNATIONAL SECURITY SERVICES CORPORATION, f/k/a BORG-WARNER PROTECTIVE SERVICES CORPORATION and BURNS INTERNATIONAL SECURITY SERVICES, Defendants", "name_abbreviation": "Wood v. Guilford County", "decision_date": "2001-05-15", "docket_number": "No. COA00-592", "first_page": "507", "last_page": "514", "citations": [ { "type": "official", "cite": "143 N.C. App. 507" } ], "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": "483 S.E.2d 164", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1997, "opinion_index": 0 }, { "cite": "345 N.C. 341", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 54149, 54182, 53866, 54030, 54069 ], "year": 1997, "opinion_index": 0, "case_paths": [ "/nc/345/0341-05", "/nc/345/0341-04", "/nc/345/0341-01", "/nc/345/0341-02", "/nc/345/0341-03" ] }, { "cite": "473 S.E.2d 676", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "pin_cites": [ { "page": "678" } ], "opinion_index": 0 }, { "cite": "123 N.C. App. 616", "category": "reporters:state", "reporter": "N.C. 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App. 335", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11237763 ], "year": 1999, "pin_cites": [ { "page": "337" } ], "opinion_index": 0, "case_paths": [ "/nc-app/132/0335-01" ] }, { "cite": "351 S.E.2d 746", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "opinion_index": 0 }, { "cite": "318 N.C. 694", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4738404, 4737929, 4740404, 4738486, 4734713 ], "year": 1987, "opinion_index": 0, "case_paths": [ "/nc/318/0694-03", "/nc/318/0694-02", "/nc/318/0694-05", "/nc/318/0694-01", "/nc/318/0694-04" ] }, { "cite": "349 S.E.2d 82", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "83" } ], "opinion_index": 0 }, { "cite": "83 N.C. App. 155", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8358214 ], "year": 1986, "pin_cites": [ { "page": "156" } ], "opinion_index": 0, "case_paths": [ "/nc-app/83/0155-01" ] }, { "cite": "489 S.E.2d 880", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1997, "pin_cites": [ { "page": "885-86" }, { "page": "886" }, { "page": "886", "parenthetical": "affirmatively overruling any cases holding a county agency is a state agency subject to suit under the Tort Claims Act" } ], "opinion_index": 0 }, { "cite": "347 N.C. 97", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 551301 ], "weight": 2, "year": 1997, "pin_cites": [ { "page": "107" }, { "page": "108" } ], "opinion_index": 0, "case_paths": [ "/nc/347/0097-01" ] } ], "analysis": { "cardinality": 686, "char_count": 16667, "ocr_confidence": 0.759, "pagerank": { "raw": 2.5327658203414013e-07, "percentile": 0.812639655825494 }, "sha256": "53b3ec58c389eddcd8755b59b1bf545ef38aef6314c5d1ac2e61d94c072a7d6a", "simhash": "1:030f144a56bab8f0", "word_count": 2642 }, "last_updated": "2023-07-14T21:26:47.079244+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges McGEE and CAMPBELL concur." ], "parties": [ "SHELLEY AUSTIN WOOD, Plaintiff v. GUILFORD COUNTY, BURNS INTERNATIONAL SECURITY SERVICES CORPORATION, f/k/a BORG-WARNER PROTECTIVE SERVICES CORPORATION and BURNS INTERNATIONAL SECURITY SERVICES, Defendants" ], "opinions": [ { "text": "GREENE, Judge.\nGuilford County (Defendant) appeals an order dated 29 March 2000 (the Order) in favor of Shelley Austin Wood (Plaintiff) denying Defendant\u2019s Rule 12(b)(6) motion to dismiss the first, second, and fourth claims for relief of Plaintiffs complaint.\nOn 30 July 1999, Plaintiff filed a complaint against Defendant and Burns International Security (Burns), f/k/a Borg-Warner Protective Services Corporation and Burns International Security Services. Plaintiffs complaint alleges she was employed in the Office of the Clerk of Superior Court, Guilford County, by the Administrative Office of the Courts (the AOC) at all times relevant to the complaint. Plaintiff was stationed in the Guilford County Courthouse located in High Point (the Courthouse). On 31 March 1998 at approximately 10:00 a.m., Plaintiff was attacked in a restroom located on the second floor of the Courthouse. \u201cPlaintiffs assailant grabbed her by the shoulders, threw her to the floor, and repeatedly punched her about the face and head, demanding that she roll over on her back.\u201d Plaintiffs assailant was later convicted of attempted first-degree rape and assault with a deadly weapon inflicting serious injury.\nAs a result of her attack, Plaintiff alleges she: \u201csuffered trauma to the left eye, severe facial bruising, a bruised coccyx, as well as great pain, terror and mental anguish\u201d; \u201csuffered from depression and sleeplessness\u201d; \u201cmissed several weeks of work and lost wages\u201d; and \u201cincurred expenses for medical treatment and psychological counseling.\u201d\nDefendant and Burns entered into a contract (the Contract) on 10 October 1996 for Burns to provide security to the Courthouse. Plaintiff alleges Defendant has waived its governmental immunity by requiring Bums to obtain a liability insurance policy and name Defendant as an additional insured in the insurance policy. Plaintiff alleges the following claims for relief: 1) Defendant breached its duty by failing to provide adequate security to the Courthouse (the first claim); 2) Burns breached its duty to provide adequate security to the Courthouse (the second claim); 3) as a result of Defendant\u2019s willful and wanton conduct, Plaintiff was entitled to punitive damages (the third claim); and 4) Plaintiff, as an employee of the AOC stationed at the Courthouse, was \u201can intended third party beneficiary of the Contract\u201d and Defendant and Bums \u201cbreached the Contract as well as their duty to . . . Plaintiff as an intended third party beneficiary by failing to provide reasonable and adequate security\u201d to the Courthouse (the fourth claim).\nDefendant filed its answer to Plaintiff\u2019s complaint on 2 September 1999. In its answer, Defendant denied all of Plaintiff\u2019s claims for relief and specifically pleaded \u201cthe unavailability of punitive damages against a local government under North Carolina law.\u201d Defendant also asserted: Plaintiff\u2019s complaint failed to state a claim against Defendant \u201cupon which relief may be granted and the Complaint should be dismissed\u201d with respect to Defendant pursuant to Rule 12(b)(6) of the North Carolina Rules of Civil Procedure; Defendant\u2019s governmental immunity as a complete bar to Plaintiff\u2019s action; and the public duty doctrine as a complete bar to Plaintiff\u2019s action.\nThe trial court, after reviewing the pleadings and hearing the arguments of Plaintiff and Defendant, granted Defendant\u2019s motion to dismiss the third claim. The trial court, however, denied Defendant\u2019s motion to dismiss the first claim, the second claim, and the fourth claim. The trial court did not dismiss any of Plaintiff\u2019s claims against Burns.\nThe issues are whether: (I) a negligence action against a county is an action against the State and, thus, requires the action be brought before the North Carolina Industrial Commission; (II) Defendant was exercising its police powers in the operation of the Courthouse, and, thus, the public duty doctrine bars Plaintiff\u2019s claims against Defendant; (III) Defendant waived its governmental immunity by requiring Burns to purchase insurance and name Defendant as an additional insured; and (IV) the complaint sufficiently alleges the Contract was entered into for Plaintiff\u2019s direct benefit.\nI\nDefendant argues because the AOC \u201chas the primary duty to protect its own employees,\u201d Plaintiff\u2019s claim against Defendant is a claim against an agent of the State, and, thus, the North Carolina Industrial Commission has exclusive subject matter jurisdiction. We disagree.\nThe North Carolina Industrial Commission has jurisdiction to hear and pass upon tort claims against \u201cdepartments, institutions, and agencies of the State\u201d arising from \u201cthe negligence of any officer, employee, involuntary servant or agent of the State while acting within the scope of his office, employment, service, agency or authority.\u201d N.C.G.S. \u00a7 143-291(a) (1999). The Tort Claims Act, however, \u201capplies only to actions against state departments, institutions, and agencies and does not apply to claims against... agents of the State.\u201d Meyer v. Walls, 347 N.C. 97, 107, 489 S.E.2d 880, 885-86 (1997). Consequently, the Tort Claims Act does not apply to county agencies, regardless of whether the county agencies are acting as an agent of the State. Id. at 108, 489 S.E.2d at 886.\nIn this case, Plaintiff brought suit against Defendant, a county. Plaintiff did not bring suit against any agency of the State and, thus, it is immaterial whether Defendant is an agent of the AOC. As such, the Tort Claims Act does not apply to Plaintiffs claim against Defendant. Accordingly, the trial court had subject matter jurisdiction over Plaintiffs claims against Defendant.\nII\nDefendant next argues the trial court erred in failing to dismiss Plaintiffs claims because Plaintiffs claims are barred by the public duty doctrine. We disagree.\n\u201cA motion to dismiss for failure to state a claim upon which relief may be granted under [N.C. Gen. Stat. \u00a7 1A-1, Rule 12(b)(6)] is addressed to whether the facts alleged in the complaint, when viewed in the light most favorable to the plaintiff[], give rise to a claim for relief on any theory.\u201d Ford v. Peaches Entertainment Corp., 83 N.C. App. 155, 156, 349 S.E.2d 82, 83 (1986), disc. review denied, 318 N.C. 694, 351 S.E.2d 746 (1987).\nGenerally, a municipality and its agents \u201cact[] for the benefit of the general public when exercising [their] police powers, and therefore cannot be held liable for negligence or gross negligence\u201d in failing to furnish police protection to specific individuals. Vanasek v. Duke Power Co., 132 N.C. App. 335, 337, 511 S.E.2d 41, 43, cert. denied, 350 N.C. 851, 539 S.E.2d 13 (1999). The public duty doctrine, as it applies to local government, is limited to \u201claw enforcement departments when they are exercising their general duty to protect the public.\u201d Lovelace v. City of Shelby, 351 N.C. 458, 461, 526 S.E.2d 652, 654 (2000); see Thompson v. Waters, 351 N.C. 462, 465, 526 S.E.2d 650, 652 (2000).\nIn this case, viewing Plaintiffs allegations in the light most favorable to Plaintiff, Defendant is not protected by the public duty doctrine. Defendant, as a local government, was not acting in a law enforcement capacity or exercising its general duty to protect the public by providing security to the Courthouse, but was acting as owner and operator of the Courthouse. Defendant was statutorily required to provide \u201ccourtrooms, office space,... and related judicial facilities.\u201d N.C.G.S. \u00a7 7A-302 (1999) (\u201ceach county in which a district court has been established\u201d is required to provide \u201ccourtrooms, office space, . . . and related judicial facilities\u201d). In this capacity, Defendant was not acting to provide police protection to the general public, and, thus, the public duty doctrine is not applicable. Accordingly, the trial court did not err in failing to dismiss Plaintiffs claims due to the public duty doctrine.\nIll\nDefendant next argues that \u201cthe common law doctrine of sovereign immunity provides\u201d a basis for the dismissal of Plaintiffs claims. We disagree.\nThe doctrine of sovereign immunity provides counties and its officials with immunity from suits against them in their official capacity. Messick v. Catawba County, 110 N.C. App. 707, 714, 431 S.E.2d 489, 493, disc. review denied, 334 N.C. 621, 435 S.E.2d 336 (1993). A county, however, \u201cmay contract to insure itself and any of its officers, agents, or employees against liability\u201d for torts. N.C.G.S. \u00a7 153A-435(a) (1999). The \u201c[p]urchase of insurance pursuant to [section 153A-435(a)] waives the county\u2019s governmental immunity, to the extent of insurance coverage.\u201d Id. \u201cPurchase\u201d means to acquire, buy, obtain, procure or secure. Burton\u2019s Legal Thesaurus 440 (3d ed. 1998). If a plaintiff fails to allege a waiver of immunity by the purchase of insurance in her complaint, the plaintiff has failed to state a claim against the county. Mullins v. Friend, 116 N.C. App. 676, 681, 449 S.E.2d 227, 230 (1994).\nIn this case, viewing Plaintiffs allegations in the light most favorable to Plaintiff, Defendant waived its governmental immunity. Plaintiff alleges Defendant entered into the Contract with Bums requiring Bums to obtain a liability insurance policy and name Defendant as an additional insured. Although Defendant did not \u201cpurchase\u201d a liability insurance policy from an insurance company, we do not read section 153A-435(a) as requiring the purchase of insurance from an insurance company in order to waive governmental immunity. By requiring Burns to obtain an insurance policy and name Defendant as an additional insured, Defendant contracted, within the meaning of section 153A-435(a), to have itself insured and, thus, waived its governmental immunity. Accordingly, the trial court did not err in denying Defendant\u2019s motion to dismiss Plaintiff\u2019s complaint based on governmental immunity.\nIV\nDefendant finally argues the trial court erred in failing to dismiss Plaintiff\u2019s fourth claim because Plaintiff was not an intended beneficiary of the Contract. We agree.\nA plaintiff who alleges a claim based on third-party beneficiary contract doctrine must establish in her complaint: \u201c(1) the existence of a contract between two other persons; (2) that the contract was valid and enforceable; and (3) that the contract was entered into for [her] direct, and not incidental, benefit.\u201d Leasing Corp. v. Miller, 45 N.C. App. 400, 405-06, 263 S.E.2d 313, 317, disc. review denied, 300 N.C. 374, 267 S.E.2d 685 (1980).\u2019As to the third element, an allegation in a complaint that a plaintiff is \u201ca member of a class of persons \u2018intended\u2019 by the contracting parties to be benefi[t]ted falls far short of alleging that the contract was entered into for the direct, not incidental, benefit of [the] plaintiff.\u201d Hoots v. Pryor, 106 N.C. App. 397, 409, 417 S.E.2d 269, 277, disc. review denied, 332 N.C. 345, 421 S.E.2d 148 (1992). It is not enough that the contract benefits the plaintiff \u201c \u2018if in fact it was not intended for [her] direct benefit.\u2019 \u201d Snyder v. Freeman, 300 N.C. 204, 220, 266 S.E.2d 593, 603-04 (1980) (citation omitted). A complaint failing to allege any of the required elements of the third-party beneficiary doctrine is subject to dismissal under Rule 12(b)(6). Hoots, 106 N.C. at 408, 417 S.E.2d at 276.\nIn this case, Plaintiff\u2019s complaint fails to allege the Contract was entered into for her direct benefit. Plaintiff alleges nothing more than as an employee of the AOC and a user of the Courthouse, the parties intended to benefit Plaintiff. The Contract provides that it is entered into for the security of the Courthouse. It does not evidence the parties\u2019 intention, other than incidental, to provide a benefit to Plaintiff or other users of the Courthouse. Accordingly, the trial court erred in failing to dismiss the fourth claim for failure to state a claim upon which relief can be granted.\nIn summary, the trial court: has subject matter jurisdiction over Plaintiff\u2019s claims against Defendant; did not err in failing to dismiss Plaintiff\u2019s negligence claim against Defendant based on the public duty doctrine or governmental immunity; and did err in failing to dismiss Plaintiff\u2019s claim to enforce the Contract based on the third party beneficiary doctrine.\nAffirmed in part, and reversed in part.\nJudges McGEE and CAMPBELL concur.\n. We note Plaintiff did not appeal the trial court\u2019s dismissal of the third claim.\n. In its brief to this Court, Defendant relies on Vaughn v. N.C. Dept. of Human Resources, 296 N.C. 683, 252 S.E.2d 792 (1979) to support its argument that Defendant is an agent of the State and, thus, the Tort Claims Act applies. In Vaughn, the plaintiff sued the Department of Human Resources, which was a State agency, alleging the Durham County DSS was acting as an agent of the Department of Human Resources. Vaughn, 296 N.C. at 684, 252 S.E.2d at 793-94. Vaughn, while determining that a county agency was an agent of the State, did not hold the county agency could be sued under the Tort Claims Act. Meyer, 347 N.C. at 108, 489 S.E.2d at 886 (affirmatively overruling any cases holding a county agency is a state agency subject to suit under the Tort Claims Act).\n. We note in Cross v. Residential Support Services, this Court held \u201c[assuming arguendo that the Area Authority\u2019s requirement, in the contract, that [a service provider] purchase insurance, is a waiver of immunity by the Authority..., it does not necessarily follow that the County has thereby waived immunity.\u201d Cross v. Residential Support Services, 123 N.C. App. 616, 619, 473 S.E.2d 676, 678 (1996), remanded on other grounds, 345 N.C. 341, 483 S.E.2d 164 (1997). In Cross, it was \u201cthe Area Authority, not the County, that [was] indemnified by a decision to purchase insurance.\u201d Id. Thus, Cross left unanswered the question, now present in the case sub judice, of whether a county requiring a service provider to purchase insurance waives the county\u2019s governmental immunity.", "type": "majority", "author": "GREENE, Judge." } ], "attorneys": [ "Fisher, Clinard & Craig, PLLC, by John O. Craig, III and Shane T. Stutts, for plaintiff-appellee.", "Guilford County Attorney Jonathan V. Maxwell, by Assistant County Attorney Mercedes O. Chut, for defendant-appellant Guilford County.", "Kilpatrick Stockton LLP, by James H. Kelly, Jr. for defendant-appellee Bums International Security Services Corporation." ], "corrections": "", "head_matter": "SHELLEY AUSTIN WOOD, Plaintiff v. GUILFORD COUNTY, BURNS INTERNATIONAL SECURITY SERVICES CORPORATION, f/k/a BORG-WARNER PROTECTIVE SERVICES CORPORATION and BURNS INTERNATIONAL SECURITY SERVICES, Defendants\nNo. COA00-592\n(Filed 15 May 2001)\n1. Tort Claims Act; Counties\u2014 assault in courthouse\u2014 AOC employee \u2014 action against county \u2014 Tort Claims Act inapplicable\nThe Tort Claims Act did not apply and the trial court thus had jurisdiction of an action against a county brought by a plaintiff employed in the clerk of court\u2019s office by the Administrative Office of the Courts for failure to provide adequate security to protect her from a sexual assault in the county courthouse because the Tort Claims Act does not apply to county agencies regardless of whether the county agencies are acting as an agent of the State.\n2. Cities and Towns; Counties\u2014 public duty doctrine \u2014 private security company-assault in courthouse\nClaims against a county arising from an assault in a courthouse were not barred by the public duty doctrine where defendant had hired a private company to provide security. Defendant was acting as the owner and operator of the courthouse, not in a law enforcement capacity or exercising its general duty to protect the public, and the public duty doctrine is not applicable.\n3. Immunity\u2014 governmental \u2014 contractor required to purchase insurance\nThe trial court did not err in an action arising from an assault in a courthouse by denying defendant county\u2019s motion to dismiss based upon governmental immunity where defendant did not purchase a liability insurance policy but required its private security company to obtain a policy and name defendant as an additional insured.\n4. Contracts\u2014 security service \u2014 third-party beneficiary\u2014 only incidental benefit\nThe trial court did not err in an action arising from an assault in a courthouse by not dismissing plaintiffs fourth claim, which was based upon her being an intended beneficiary of defendant county\u2019s contract with a private security company. The contract provides that it is entered into for the security of the courthouse and does not evidence the parties\u2019 intention to provide other than an incidental benefit to plaintiff or other users of the courthouse.\nAppeal by defendant Guilford County from order dated 29 March 2000 by Judge W. Douglas Albright in Guilford County Superior Court. Heard in the Court of Appeals 27 March 2001.\nFisher, Clinard & Craig, PLLC, by John O. Craig, III and Shane T. Stutts, for plaintiff-appellee.\nGuilford County Attorney Jonathan V. Maxwell, by Assistant County Attorney Mercedes O. Chut, for defendant-appellant Guilford County.\nKilpatrick Stockton LLP, by James H. Kelly, Jr. for defendant-appellee Bums International Security Services Corporation." }, "file_name": "0507-01", "first_page_order": 537, "last_page_order": 544 }