{ "id": 4174736, "name": "HAYLURI BECKLES-PALOMARES, Administrator of the Estate of Joshua Franklin Beckles-Palomares, Plaintiff v. MICHAEL ANDREW LOGAN, JR., CITY OF WINSTON-SALEM, FLOW 425 SILAS CREEK PARKWAY, LLC, FLOW COMPANIES, INC., NORMAN L. MOORE, Defendants", "name_abbreviation": "Beckles-Palomares v. Logan", "decision_date": "2010-02-02", "docket_number": "No. COA09-567", "first_page": "235", "last_page": "247", "citations": [ { "type": "official", "cite": "202 N.C. App. 235" } ], "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": "650 S.E.2d 812", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12639467, 12639468 ], "year": 2007, "opinion_index": 0, "case_paths": [ "/se2d/650/0812-01", "/se2d/650/0812-02" ] }, { "cite": "645 S.E.2d 176", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12638452 ], "year": 2007, "pin_cites": [ { "page": "179" } ], "opinion_index": 0, "case_paths": [ "/se2d/645/0176-01" ] }, { "cite": "628 S.E.2d 761", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12635611, 12635612 ], "year": 2006, "pin_cites": [ { "page": "766" } ], "opinion_index": 0, "case_paths": [ "/se2d/628/0761-01", "/se2d/628/0761-02" ] }, { "cite": "672 S.E.2d 768", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12642793 ], "year": 2009, "pin_cites": [ { "page": "769" } ], "opinion_index": 0, "case_paths": [ "/se2d/672/0768-01" ] }, { "cite": "147 S.E.2d 558", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1966, "pin_cites": [ { "page": "562", "parenthetical": "emphasis added" } ], "opinion_index": 0 }, { "cite": "267 N.C. 104", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8558546 ], "year": 1966, "pin_cites": [ { "page": "108-09", "parenthetical": "emphasis added" } ], "opinion_index": 0, "case_paths": [ "/nc/267/0104-01" ] }, { "cite": "403 S.E.2d 510", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1991, "opinion_index": 0 }, { "cite": "328 N.C. 570", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2543651, 2542578, 2538195, 2545749, 2538303 ], "year": 1991, "opinion_index": 0, "case_paths": [ "/nc/328/0570-05", "/nc/328/0570-02", "/nc/328/0570-04", "/nc/328/0570-03", "/nc/328/0570-01" ] }, { "cite": "399 S.E.2d 411", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "414" } ], "opinion_index": 0 }, { "cite": "101 N.C. App. 329", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527680 ], "pin_cites": [ { "page": "333" } ], "opinion_index": 0, "case_paths": [ "/nc-app/101/0329-01" ] }, { "cite": "176 S.E.2d 161", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1970, "pin_cites": [ { "page": "169", "parenthetical": "citations and internal quotation marks omitted" } ], "opinion_index": 0 }, { "cite": "277 N.C. 94", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561932 ], "year": 1970, "pin_cites": [ { "page": "107", "parenthetical": "citations and internal quotation marks omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/277/0094-01" ] }, { "cite": "52 S.E. 309", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1905, "pin_cites": [ { "page": "310", "parenthetical": "holding \"when observable defects in a highway have existed for a time so long that they ought to have been observed, notice of them is implied, and is imputed to those whose duty it is to repair them\"" } ], "opinion_index": 0 }, { "cite": "140 N.C. 110", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8651567 ], "year": 1905, "pin_cites": [ { "page": "113", "parenthetical": "holding \"when observable defects in a highway have existed for a time so long that they ought to have been observed, notice of them is implied, and is imputed to those whose duty it is to repair them\"" } ], "opinion_index": 0, "case_paths": [ "/nc/140/0110-01" ] }, { "cite": "204 S.E.2d 239", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1974, "pin_cites": [ { "page": "240-41", "parenthetical": "holding \"notice of the defect, actual or constructive, and a failure to act on the part of the municipality to remedy the situation are prerequisites to recovery in an action involving a municipality\"" } ], "opinion_index": 0 }, { "cite": "21 N.C. App. 333", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8555910 ], "year": 1974, "pin_cites": [ { "page": "334-35", "parenthetical": "holding \"notice of the defect, actual or constructive, and a failure to act on the part of the municipality to remedy the situation are prerequisites to recovery in an action involving a municipality\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/21/0333-01" ] }, { "cite": "293 S.E.2d 235", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1982, "pin_cites": [ { "page": "237" } ], "opinion_index": 0 }, { "cite": "58 N.C. App. 170", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523871 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/nc-app/58/0170-01" ] }, { "cite": "372 S.E.2d 733", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "734" } ], "opinion_index": 0 }, { "cite": "91 N.C. App. 633", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526390 ], "year": 1988, "pin_cites": [ { "page": "635" } ], "opinion_index": 0, "case_paths": [ "/nc-app/91/0633-01" ] }, { "cite": "361 N.C. 569", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3735681, 3741259, 3742865, 3744569, 3742523 ], "year": 2007, "opinion_index": 0, "case_paths": [ "/nc/361/0569-02", "/nc/361/0569-04", "/nc/361/0569-01", "/nc/361/0569-05", "/nc/361/0569-03" ] }, { "cite": "183 N.C. App. 657", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8205335 ], "year": 2007, "pin_cites": [ { "page": "659" } ], "opinion_index": 0, "case_paths": [ "/nc-app/183/0657-01" ] }, { "cite": "225 S.E.2d 834", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "pin_cites": [ { "page": "836" } ], "opinion_index": 0 }, { "cite": "29 N.C. App. 707", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8557073 ], "year": 1976, "pin_cites": [ { "page": "710" } ], "opinion_index": 0, "case_paths": [ "/nc-app/29/0707-01" ] }, { "cite": "360 N.C. 460", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3796760 ], "year": 2006, "pin_cites": [ { "page": "465-66" } ], "opinion_index": 0, "case_paths": [ "/nc/360/0460-01" ] }, { "cite": "666 S.E.2d 752", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2008, "pin_cites": [ { "page": "753", "parenthetical": "quoting Myers v. McGrady, 360 N.C. 460, 465-66, 628 S.E.2d 761, 766 (2006)" } ], "opinion_index": 0 }, { "cite": "362 N.C. 497", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4150613 ], "year": 2008, "pin_cites": [ { "page": "498", "parenthetical": "quoting Myers v. McGrady, 360 N.C. 460, 465-66, 628 S.E.2d 761, 766 (2006)" } ], "opinion_index": 0, "case_paths": [ "/nc/362/0497-01" ] }, { "cite": "517 S.E.2d 121", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1999, "pin_cites": [ { "page": "126" } ], "opinion_index": 0 }, { "cite": "350 N.C. 601", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 132031 ], "year": 1999, "opinion_index": 0, "case_paths": [ "/nc/350/0601-01" ] }, { "cite": "544 S.E.2d 225", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "opinion_index": 0 }, { "cite": "352 N.C. 157", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 684901, 684939, 685036, 685017, 685018 ], "year": 2000, "opinion_index": 0, "case_paths": [ "/nc/352/0157-03", "/nc/352/0157-05", "/nc/352/0157-04", "/nc/352/0157-01", "/nc/352/0157-02" ] }, { "cite": "526 S.E.2d 652", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2000, "pin_cites": [ { "page": "654" }, { "page": "654", "parenthetical": "emphasis added" } ], "opinion_index": 0 }, { "cite": "351 N.C. 458", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1155962 ], "weight": 2, "year": 2000, "pin_cites": [ { "page": "461" }, { "page": "461" } ], "opinion_index": 0, "case_paths": [ "/nc/351/0458-01" ] }, { "cite": "142 L. Ed. 2d 449", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1998, "opinion_index": 0 }, { "cite": "525 U.S. 1016", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11156739, 11157155, 11156710, 11157000, 11156777, 11156840, 11157035, 11156877, 11157106, 11157075, 11156922, 11156799 ], "year": 1998, "opinion_index": 0, "case_paths": [ "/us/525/1016-02", "/us/525/1016-12", "/us/525/1016-01", "/us/525/1016-08", "/us/525/1016-03", "/us/525/1016-05", "/us/525/1016-09", "/us/525/1016-06", "/us/525/1016-11", "/us/525/1016-10", "/us/525/1016-07", "/us/525/1016-04" ] }, { "cite": "502 S.E.2d 837", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "opinion_index": 0 }, { "cite": "348 N.C. 79", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1659814 ], "year": 1998, "opinion_index": 0, "case_paths": [ "/nc/348/0079-01" ] }, { "cite": "495 S.E.2d 711", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "pin_cites": [ { "page": "716" } ], "opinion_index": 0 }, { "cite": "347 N.C. 473", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 551270 ], "year": 1998, "pin_cites": [ { "page": "482" } ], "opinion_index": 0, "case_paths": [ "/nc/347/0473-01" ] }, { "cite": "435 S.E.2d 338", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "opinion_index": 0 }, { "cite": "334 N.C. 622", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2529413, 2532650, 2532305, 2530161, 2530298 ], "year": 1993, "opinion_index": 0, "case_paths": [ "/nc/334/0622-02", "/nc/334/0622-04", "/nc/334/0622-05", "/nc/334/0622-01", "/nc/334/0622-03" ] }, { "cite": "431 S.E.2d 216", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "218" } ], "opinion_index": 0 }, { "cite": "110 N.C. App. 754", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526406 ], "pin_cites": [ { "page": "757-58" } ], "opinion_index": 0, "case_paths": [ "/nc-app/110/0754-01" ] }, { "cite": "462 S.E.2d 508", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "opinion_index": 0 }, { "cite": "341 N.C. 647", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 793231, 793236, 793046, 793239, 793240 ], "year": 1995, "opinion_index": 0, "case_paths": [ "/nc/341/0647-03", "/nc/341/0647-01", "/nc/341/0647-02", "/nc/341/0647-05", "/nc/341/0647-04" ] }, { "cite": "457 S.E.2d 902", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "908-12" } ], "opinion_index": 0 }, { "cite": "119 N.C. App. 44", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11913553 ], "pin_cites": [ { "page": "54-57, 60" } ], "opinion_index": 0, "case_paths": [ "/nc-app/119/0044-01" ] }, { "cite": "487 S.E.2d 583", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "pin_cites": [ { "page": "587", "parenthetical": "holding that the public duty doctrine applied to bar claim against city for negligence in housing inspections" } ], "opinion_index": 0 }, { "cite": "126 N.C. App. 821", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11713656 ], "year": 1997, "pin_cites": [ { "page": "826", "parenthetical": "holding that the public duty doctrine applied to bar claim against city for negligence in housing inspections" } ], "opinion_index": 0, "case_paths": [ "/nc-app/126/0821-01" ] }, { "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": 5, "year": 1991, "pin_cites": [ { "page": "902" }, { "page": "899" }, { "page": "901" }, { "page": "901" }, { "page": "902" } ], "opinion_index": 0 }, { "cite": "330 N.C. 363", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2509910 ], "year": 1991, "pin_cites": [ { "page": "371" } ], "opinion_index": 0, "case_paths": [ "/nc/330/0363-01" ] }, { "cite": "678 S.E.2d 351", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2009, "pin_cites": [ { "page": "354" } ], "opinion_index": 0 }, { "cite": "363 N.C. 334", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4151090 ], "year": 2009, "pin_cites": [ { "page": "337" } ], "opinion_index": 0, "case_paths": [ "/nc/363/0334-01" ] }, { "cite": "477 S.E.2d 171", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "opinion_index": 0 }, { "cite": "344 N.C. 729", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 867594 ], "year": 1996, "opinion_index": 0, "case_paths": [ "/nc/344/0729-01" ] }, { "cite": "466 S.E.2d 281", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "pin_cites": [ { "page": "283" } ], "opinion_index": 0 }, { "cite": "121 N.C. App. 466", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11917864 ], "year": 1996, "pin_cites": [ { "page": "468" } ], "opinion_index": 0, "case_paths": [ "/nc-app/121/0466-01" ] }, { "cite": "681 S.E.2d 531", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2009, "pin_cites": [ { "page": "533" } ], "opinion_index": 0 } ], "analysis": { "cardinality": 1166, "char_count": 29469, "ocr_confidence": 0.761, "pagerank": { "raw": 5.3142160502278175e-08, "percentile": 0.3352875013176444 }, "sha256": "26e3d71b45006625c0378f83e068177c6e278cdef5fe3c5aa8574458dae35560", "simhash": "1:43cc45720cf90c5a", "word_count": 4797 }, "last_updated": "2023-07-14T21:18:34.741992+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges ELMORE and GEER concur." ], "parties": [ "HAYLURI BECKLES-PALOMARES, Administrator of the Estate of Joshua Franklin Beckles-Palomares, Plaintiff v. MICHAEL ANDREW LOGAN, JR., CITY OF WINSTON-SALEM, FLOW 425 SILAS CREEK PARKWAY, LLC, FLOW COMPANIES, INC., NORMAN L. MOORE, Defendants" ], "opinions": [ { "text": "MARTIN, Chief Judge.\nOn 20 May 2006, seven-year-old Joshua Beckles-Palomares (\u201cJoshua\u201d) was riding his bicycle south on Freeman Street in Winston-Salem, down a slight grade and approaching a \u201cT\u201d intersection with Wells Street. The intersection is controlled by a stop sign requiring vehicles on Freeman Street to stop before entering Wells Street. Michael Logan (\u201cdefendant Logan\u201d) was driving his sport utility vehicle east on Wells Street toward the intersection with Freeman Street, and was driving left of the center of Wells Street. Joshua entered the intersection, turning right onto Wells Street possibly without stopping, and was struck and killed by defendant Logan\u2019s vehicle. Defendant Logan\u2019s blood alcohol level shortly after the collision was above the legal limit. Defendant Logan pled guilty to involuntary manslaughter.\nNorman L. Moore (\u201cdefendant Moore\u201d) owns the property located on the northwest comer of the intersection of Freeman Street and Wells Street. On this corner, there is a retaining wall, a bank, and evergreen ground cover.\nFlow 425 Silas Creek Parkway, LLC, and Flow Companies, Inc., (collectively \u201cthe Flow defendants\u201d) own property located at 455 Wells Street, on the south side of Wells Street, and operate an automobile body repair business. At his deposition, defendant Logan stated that he was driving down the center of the road because the vehicles belonging to the Flow defendants were parked \u201con down into the side of\u2019 Wells Street.\nPlaintiff, who is Joshua\u2019s mother and the administrator of his estate, brought suit against: defendant Logan for his alleged negligence in driving under the influence and on the wrong side of the road; defendant Moore for his alleged negligence in failing to keep his property free from vegetation that could obstruct the view of persons using the intersection of Wells Street and Freeman Street; the Flow defendants for their alleged negligence in parking their cars in such a way as to obstruct the flow of traffic on Wells Street; and the City of Winston-Salem (\u201cdefendant City\u201d) for its alleged negligence in violating various safety statutes and municipal ordinances regulating the maintenance of its streets, obstructions to vision and traffic, and parking regulations. All defendants except defendant Moore pled the affirmative defense of contributory negligence on Joshua\u2019s part for failing to stop at the stop sign and on the part of plaintiff for failing to supervise her minor child. The record contains no answer from defendant Moore.\nDefendants Flow, Moore, and City moved for summary judgment. In its motion, defendant City asserted, among other things, that plaintiff\u2019s suit was barred by governmental immunity and the public duty doctrine. Plaintiff moved for summary judgment against all defendants with respect to their defenses of contributory negligence. The trial court denied plaintiff\u2019s motions for summary judgment and defendant City\u2019s motion for summary judgment. Plaintiff submitted to voluntary dismissals with prejudice with respect to her claims against defendant Moore and the Flow defendants. Defendant City of Winston-Salem appeals from the order denying its motion for summary judgment.\nAn appeal from the denial of a motion for summary judgment is interlocutory. Estate of Hewett v. County of Brunswick, \u2014 N.C. App. -, \u2014, 681 S.E.2d 531, 533 (2009). However, defendant City asserts the denial of its motion affects its substantial rights, so that the order is immediately appealable pursuant to N.C.G.S. \u00a7 l-277(a) under the doctrine of both governmental immunity and the public duty doctrine. This Court has recognized that the denial of dispositive motions based upon both doctrines affect a defendant\u2019s substantial right and are immediately appealable. Estate of McKendall v. Webster,-N.C. App.-,-, 672 S.E.2d 768, 769 (2009); Hedrick v. Rains, 121 N.C. App. 466, 468, 466 S.E.2d 281, 283, aff\u2019d per curiam, 344 N.C. 729, 477 S.E.2d 171 (1996).\nStandard of Review\nSummary judgment is appropriate \u201cif the 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 N.C. Gen. Stat. \u00a7 1A-1, Rule 56(c) (2009). The standard of review of an order granting or denying a motion for summary judgment is de novo. Craig v. New Hanover Cty. Bd. of Educ., 363 N.C. 334, 337, 678 S.E.2d 351, 354 (2009).\nI.\nDefendant City first contends it is entitled to summary judgment because the alleged negligent acts relied upon by plaintiff in her claim against it involved defendant City\u2019s failure \u201cto protect [Joshua] from the wrongful, criminal acts of others\u201d and such claims are barred by the public duty doctrine.\nThe North Carolina Supreme Court first adopted the public duty doctrine in North Carolina 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). In Braswell, the plaintiff sought to recover damages from the sheriff of Pitt County, alleging that he negligently failed to protect plaintiff\u2019s mother from being murdered by her estranged husband, who was a deputy sheriff. Id. at 366, 410 S.E.2d at 899. The Court affirmed a directed verdict for the defendant sheriff, and in so doing, adopted the public duty doctrine, which is a common law rule providing that \u201ca municipality and its agents act for the benefit of the public, and therefore, there is no liability for the failure to furnish police protection to specific individuals.\u201d Id. at 370, 410 S.E.2d at 901. The rationale for the rule is a recognition of \u201cthe limited resources of law enforcement\u201d and a refusal \u201cto judicially impose an overwhelming burden of liability for failure to prevent every criminal act.\u201d Id. at 370-71, 410 S.E.2d at 901. The Court also adopted two recognized exceptions to the public duty doctrine, generally called the \u201cspecial duty\u201d exception and the \u201cspecial relationship\u201d exception. Id. at 371, 410 S.E.2d at 902. Neither exception is applicable to the facts of this case and we do not discuss them.\nAlthough the holding in Braswell was explicitly limited to the facts of that case, application of the doctrine was subsequently expanded to bar liability of municipalities for negligent performance of public duties beyond those related to law enforcement departments. See Simmons v. City of Hickory, 126 N.C. App. 821, 826, 487 S.E.2d 583, 587 (1997) (holding that the public duty doctrine applied to bar claim against city for negligence in housing inspections); Davis v. Messer, 119 N.C. App. 44, 54-57, 60, 457 S.E.2d 902, 908-12 (holding that the public duty doctrine applied to claims against the town and fire chief for negligence in responding to a fire call, although plaintiff presented sufficient evidence to show the \u201cspecial duty\u201d exception applied), disc. reviews denied, 341 N.C. 647, 462 S.E.2d 508 (1995); Prevette v. Forsyth Cty., 110 N.C. App. 754, 757-58, 431 S.E.2d 216, 218 (holding that the public duty doctrine applied to the county\u2019s animal control departments) disc. review denied, 334 N.C. 622, 435 S.E.2d 338 (1993). In addition, the North Carolina Supreme Court has applied the doctrine to bar claims against State agencies under the Tort Claims Act, Stone v. N.C. Dep\u2019t of Labor, 347 N.C. 473, 482, 495 S.E.2d 711, 716, reh\u2019g denied, 348 N.C. 79, 502 S.E.2d 837, cert. denied, 525 U.S. 1016, 142 L. Ed. 2d 449 (1998), and \u201cto state agencies required by statute to conduct inspections for the public\u2019s general protection.\u201d Lovelace v. City of Shelby, 351 N.C. 458, 461, 526 S.E.2d 652, 654, reh\u2019g denied, 352 N.C. 157, 544 S.E.2d 225 (2000). However, in Isenhour v. Hutto, 350 N.C. 601, 517 S.E.2d 121 (1999), the Supreme Court declined to apply the doctrine to a claim against the City of Charlotte for the negligence of a school crossing guard, noting a very real distinction between the provision of law enforcement protection to the general public and the duties of a crossing guard. Id. at 608, 517 S.E.2d at 126. And, in Lovelace, the Court reiterated that its holding in Braswell was limited to the facts of that case and specifically noted that it had never expanded \u201cthe public duty doctrine to any local government agencies other than law enforcement departments when they are exercising their general duty to protect the public . .. .\u201d Lovelace, 351 N.C. at 461, 526 S.E.2d at 654 (emphasis added).\nMore recently, the Supreme Court stated, \u201cThe public duty doctrine is a rule grounded in common law negligence and provides that \u2018when a governmental entity owes a duty to the general public, particularly a statutory duty, individual plaintiffs may not enforce the duty in tort.\u2019 \u201d Watts v. N.C. Dep\u2019t of Env\u2019t & Natural Res., 362 N.C. 497, 498, 666 S.E.2d 752, 753 (2008) (quoting Myers v. McGrady, 360 N.C. 460, 465-66, 628 S.E.2d 761, 766 (2006)). Although the Court used the broad term \u201cgovernmental entity,\u201d we do not believe the Court intended by its language to sub silentio overrule Lovelace and expand the application of the public duty doctrine with respect to local government entities beyond law enforcement.\nWith those principles in mind, we turn to defendant City\u2019s argument with respect to the application of the public duty doctrine to the allegations of plaintiff\u2019s complaint, i.e., that plaintiffs claims were that \u201cthe City failed to prevent the criminal acts of Logan, Flow, and Moore and/or failed to protect [Joshua] from the criminal acts of Logan, Flow, and Moore.\u201d Our examination of the plaintiff\u2019s allegations with respect to the negligence of defendant City, however, reveals that plaintiff has asserted no claims based upon defendant City\u2019s negligent failure to prevent the criminal acts of Logan, Flow or Moore, or protect Joshua from such acts. With respect to defendant City, plaintiff alleged:\n19. The defendant City of Winston-Salem breached this duty of care on May 20, 2006, and was negligent in that:\na. The defendant failed to keep the public streets of Freeman and Wells Streets in proper repair in violation of safety statute N.C. Gen. Stat. \u00a7 160A-296(a)(l), constituting negligence per se.\nb. The defendant failed to establish an appropriate policy and procedure to inspect and to keep its streets in a safe and proper condition, free from unnecessary obstruction due to overgrown vegetation and to vehicles parked in prohibited areas, in violation of safety statute N.C. Gen. Stat. \u00a7 160A-296(a)(l) and (2); constituting negligence per se.\nb. The defendant failed to keep the public streets of Freeman and Wells Streets free from unnecessary obstructions, including untrimmed vegetation, shrubs and,bushes within the right-of-way, that obstruct the vision of motorists, pedestrians and bicyclists in violation of safety statute N.C. Gen. Stat. \u00a7 160A-296(a)(2) and Section 74-19 of the Winston-Salem Municipal Code, constituting negligence per se.\nc. The defendant failed to enforce the safety statutes of the Municipal Code in that the defendant failed to require the property owner, defendant Moore, to remove or trim the vegetation, shrubs and bushes located on his property within the right-of-way that could obstruct the view of motorists, pedestrians and bicyclists in violation of safety statute N.C. Gen. Stat. \u00a7 160A-296(a)(2) and Section 74-19 of the Winston-Salem Municipal Code, constituting negligence per se.\nd. The defendant failed to keep the public streets of Freeman and Wells Streets free from unnecessary obstructions, including cars parked within an intersection, cars parked within 25 feet of intersecting curb lines, and cars parked within a lane designated for moving traffic in such a way as to obstruct the movement of traffic in that lane, in violation of safety statute N.C. Gen. Stat. \u00a7 160A-296(a)(2) and Section 42-153(a) of the Winston-Salem Municipal Code, constituting negligence per se.\ne. The defendant failed to erect and maintain appropriate signs on Wells Street giving proper notice to motorists of the parking limitations and prohibitions on Wells Street, in violation of safety statute N.C. Gen. Stat. \u00a7 160A-296(a)(5) and Section 42-160(b) of the Winston-Salem Municipal Code, constituting negligence per se.\nf. The defendant failed to insure that cars parked along Wells Street were parked facing the appropriate direction in violation of safety statute N.C. Gen. Stat. \u00a7 160A-296(a)(5) and Sections 42-152 and 42-162 of the Winston-Salem Municipal Code, constituting negligence per se.\ng. The defendant knew or should have known that the vegetation at the intersection of Wells and Freeman Streets caused a \u201cblind intersection,\u201d creating a dangerous and hazardous condition for the public, including Joshua. The defendant failed to take any action to warn the public, including Joshua, of the existence of the dangerous condition caused by the overgrowth of vegetation on the property in violation of safety statute N.C. Gen. Stat. \u00a7 160A-296(a)(5), constituting negligence per se.\nh. Upon information and belief, the defendant failed to require the issuance of a permit for the construction of a parking area in the right-of-way of Wells Street by the defendants Flow and failed to review properly the existing connections to the street as a result of said construction in violation of safety statute N.C. Gen. Stat. \u00a7 160A-296(a)(5) and Section 74-213 of the Winston-Salem Municipal Code, constituting negligence per se.\ni. The defendant was otherwise negligent in such other ways as will be shown at trial.\nOnly one of these allegations, paragraph 19(c), implicates a negligent failure by defendant City to enforce its municipal code by failing to require defendant Moore to remove or trim the vegetation on his property. The Winston-Salem Municipal Code Section 74-19 places the burden of removing vegetation on the owner, tenant or occupant of the lot bordering the street and if the owner, tenant, or occupant fails to remove the vegetation, the burden falls on the \u201cassistant city manager/public works or his designee.\u201d Winston-Salem, N.C., Code of Ordinances \u00a7 74-19 (2006). Thus, the allegation does not allege a negligent failure on the part of a law enforcement agency exercising its general duty to protect the public and, under Lovelace, the public duty doctrine does not apply to shield defendant City from liability for this claim. The remaining allegations of paragraph 19 of plaintiff\u2019s complaint allege defendant City\u2019s negligent failure to comply with its own municipal safety ordinances and various provisions of N.C.G.S. \u00a7 160A-296(a) and the public duty doctrine is inapplicable to these allegations as well. The trial court correctly denied defendant City\u2019s summary judgment motion grounded on the public duty doctrine.\nII.\nDefendant City next contends that it is immune from suit under the doctrine of governmental immunity for the claims brought by plaintiff, and that it has not waived its governmental immunity pursuant to N.C.G.S. 160A-485 because it has not purchased liability insurance covering the claims. However, plaintiff has alleged defendant City was negligent in violating N.C.G.S. \u00a7 160A-296, which gives a municipality the authority to regulate the use of its streets and sidewalks and, in addition, imposes a positive duty upon the municipality to keep them in proper repair, in a reasonably safe condition, and free from unnecessary obstructions. N.C. Gen. Stat. \u00a7 160A-296(a)(l),(2), and (5) (2009); Stancill v. City of Washington, 29 N.C. App. 707, 710, 225 S.E.2d 834, 836 (1976). The statute creates an exception to the doctrine that a municipality will have immunity from liability for negligence in the performance of a governmental function, Sisk v. City of Greensboro, 183 N.C. App. 657, 659, 645 S.E.2d 176, 179, disc. reviews denied and dismissed, 361 N.C. 569, 650 S.E.2d 812 (2007), and, by reason thereof, the doctrine of governmental immunity has no application to protect a city from liability for a negligent breach of the statutory duties so imposed. McDonald v. Village of Pinehurst, 91 N.C. App. 633, 635, 372 S.E.2d 733, 734 (1988).\nDefendant City argues that it is entitled to summary judgment because, as a matter of law, there were no genuine issues of fact as to (1) the existence of any obstruction, (2) that defendant City had any notice of a dangerous condition at the intersection of Wells and Freeman Streets, or (3) that any obstruction was a proximate cause of the collision and Joshua\u2019s death. Therefore, defendant City argues, there was no genuine issue of fact with respect to any negligent breach of any of the duties imposed upon it by N.C.G.S. \u00a7 160A-296 and it is immune from suit.\nDefendant City first contends plaintiff presented no evidence to create an issue of fact with respect to its breach of the statutory requirement to keep its streets and sidewalks clear of obstructions because there were no obstructions. Defendant City argues the vegetation could not be considered an obstruction because it is \u201cundisputed\u201d that a driver traveling down Freeman Street who obeyed the traffic laws would have nothing obstructing his view of the traffic on Wells Street. However, plaintiff\u2019s expert witness, Sean Dennis, stated \u201cthat comer,\u201d which includes the retaining wall, the bushes, and the ground underneath, \u201cpresented a sight obstmction both for traffic ... on Wells looking to the right of Freeman [and] .. . on Freeman looking to the right of Wells and same for traffic traveling east on Freeman looking left to look up Wells.\u201d In Cooper v. Town of Southern Pines, 58 N.C. App. 170, 293 S.E.2d 235 (1982), this Court defined an obstmction as \u201canything, including vegetation, which renders the public passageway less convenient or safe for use.\u201d Id. at 174, 293 S.E.2d at 237. Plaintiff\u2019s expert stated that the vegetation was an obstruction and defendant Logan in his deposition stated that the position of the parked cars caused him to drive down the center of the road. Under the Cooper definition, both the vegetation and parked cars could constitute obstructions which might violate the requirements of N.C.G.S. \u00a7 160A-296.\nDefendant City further argues that it is entitled to summary judgment because there was no evidence that it had notice of the alleged obstructions. See Bowman v. Town of Granite Falls, 21 N.C. App. 333, 334-35, 204 S.E.2d 239, 240-41 (1974) (holding \u201cnotice of the defect, actual or constructive, and a failure to act on the part of the municipality to remedy the situation are prerequisites to recovery in an action involving a municipality\u201d). Plaintiff counters there are genuine issues of fact as to whether defendant City had actual or implied notice of the obstructions. First, plaintiff argues that defendant City had actual notice of the vegetation because it had planted the vegetation in the 1970s. Plaintiff also directs us to a curb usage study performed by defendant City\u2019s Traffic Engineering Division in 1987 which indicated that parking on both sides of Wells Street obstructed the travel lanes to a point such that emergency vehicles would not be able to use the road. Moreover, plaintiff also claims that if defendant City did not have actual notice, the evidence gives rise to an inference that it had implied notice based on the length of time the alleged obstructions had been present. See Fitzgerald v. Concord, 140 N.C. 110, 113, 52 S.E. 309, 310 (1905) (holding \u201cwhen observable defects in a highway have existed for a time so long that they ought to have been observed, notice of them is implied, and is imputed to those whose duty it is to repair them\u201d). We agree with plaintiff and conclude there are genuine issues of material fact as to whether or not defendant City had actual or implied notice of the obstructions.\nDefendant City also argues that it is entitled to summary judgment because there is no genuine issue of fact that the alleged obstructions were a proximate cause of Joshua\u2019s death and that such a conclusion would, at most, be purely speculative. We disagree. In defendant Logan\u2019s deposition, he stated that he was driving down the center of Wells Street because of the cars parked illegally in the street. Sean Dennis, plaintiff\u2019s expert witness, testified in his deposition that the position of defendant Logan\u2019s vehicle, left of the center of the street, was a contributing factor to the accident. With regard to the vegetation, defendant Logan stated that he could only see the top of Joshua\u2019s helmet over the bushes and that by the time he saw Joshua it was only a split second before he was in front of the vehicle. He also stated, \u201cIf [the shrubbery] wasn\u2019t there, you know, maybe I could of seen him before he got \u2014 got through the stop sign or whatever.\u201d Sean Dennis also testified that the vegetation would have been a sight obstruction for both Joshua and defendant Logan.\nDefendant City also argues that any negligence on its part in failing to keep the roads clear of obstructions was not a proximate cause of the accident and Joshua\u2019s death because such consequences were not reasonably foreseeable. With regard to reasonable foreseeability, our Supreme Court has stated,\nIt is not necessary that a defendant anticipate the particular consequences which ultimately result from his negligence. It is required only that a person of ordinary prudence could have reasonably foreseen that such a result, or some similar injurious result, was probable under the facts as they existed. However, we have also said that a defendant is liable for the consequences of his negligence if he might have foreseen that some injury would result from his act or omission or that consequences of a generally injurious nature might have been expected.\nSutton v. Duke, 277 N.C. 94, 107, 176 S.E.2d 161, 169 (1970) (citations and internal quotation marks omitted). We conclude that a genuine issue of fact exists as to whether it was reasonably foreseeable that obstructions to defendant Logan\u2019s and Joshua\u2019s vision, as well as obstructions necessitating a driver to drive in other than the intended travel lane, could cause a traffic accident of some sort.\nIII.\nDefendant City also argues that the criminal acts of defendant Logan in driving while under the influence and on the wrong side of the road were intervening causes which severed the causal chain between its negligence and the accident, thus relieving it of responsibility. It points to the Traffic Fatality Accident Reconstruction created by the Winston-Salem Police Department, which concluded \u201cthat the primary causative factor in this crash is Mr. Logan\u2019s alcohol concentration level and the fact that he was on the wrong side of the road when he was approaching the intersection.\u201d However, defendant Logan testified at his deposition, \u201cThey [sic] was nothing I could do to avoiding [sic] that accident. If I would of not [sic] any alcohol in me, that accident would of still happened .... In other words, there is no way that it was not going to happen, alcohol-related or not.\u201d He also testified that he did not think the alcohol slowed his reflexes of reaction time. From the evidence, there is a genuine issue of fact as to what a reasonable person would have done under the circumstances. Federal Paper Bd. Co. v. Kamyr, Inc., 101 N.C. App. 329, 333, 399 S.E.2d 411, 414 (\u201cSummary judgment may not be used to resolve factual disputes which are material to the disposition of the action.\u201d), disc. review denied, 328 N.C. 570, 403 S.E.2d 510 (1991). If a reasonable and sober person would have moved left of center to avoid the parked cars and could not have stopped in time to avoid the accident, then Mr. Logan\u2019s actions in driving while intoxicated and driving left of center would not be an intervening cause. See id. (holding that with regard to intervening causes, except when reasonable minds could not differ, \u201cthe question should be left for the jury to determine whether the intervening act and the resultant injury were such that the author of the original wrong could reasonably have expected them to occur as a result of his own negligent act\u201d). Therefore, we conclude there is a genuine issue of material fact as to whether defendant City\u2019s actions were the proximate cause of plaintiff\u2019s injury or whether defendant Logan\u2019s acts were an intervening cause.\nIV.\nFinally, in its Reply Brief, defendant City asserts that plaintiff\u2019s claim is barred by the six-year statute of repose provided by N.C.G.S. \u00a7 l-50(a)(5). Although defendant City pleaded the bar of the \u201capplicable statute of limitations and/or statutes of repose,\u201d and assigned error to the denial of its motion for summary judgment on the ground of N.C.G.S. \u00a7 l-50(a)(5), it did not raise the issue in its principal brief, but raised it only in its reply brief, filed pursuant to Appellate Rule 28(h)(3). The rule limits the reply brief \u201cto a concise rebuttal to arguments set out in the brief of the appellee which were not addressed in the appellant\u2019s principal brief.\u201d N.C.R. App. P. 28(h)(3) (amended Oct. 1, 2009). Thus, we hold defendant City, by its failure to advance the issue in its principal brief, has abandoned its assignment of error relating to the denial of its motion for summary judgment on the ground of N.C.G.S. \u00a7 l-50(a)(5). See N.C.R. App. P. 28(b)(6) (amended Oct. 1, 2009) (\u201cAssignments of error not set out in the appellant\u2019s brief, or in support of which no reason or argument is stated or authority cited, will be taken as abandoned.\u201d). Even so, we observe that the contention has no merit in that, as our Supreme Court has noted, \u201cIt is the duty of the city to exercise a reasonable and continuing supervision over its streets in order that it may know their condition and it is held to have knowledge of a defect which such inspection would have disclosed to it.\u201d Mosseller v. Asheville, 267 N.C. 104, 108-09, 147 S.E.2d 558, 562 (1966) (emphasis added). Because of this continuing duty, the statute of repose is not a bar to plaintiffs action.\nIn summary, we hold that, because neither the public duty doctrine nor governmental immunity bars plaintiff\u2019s claims and there are genuine issues of material fact, the trial court correctly denied defendant City\u2019s motion for summary judgment.\nAffirmed.\nJudges ELMORE and GEER concur.\n. The decedent is referred to alternatively in the record and pleadings as Joshua Franklin Beckles-Palomares and Joshua Franklin Palomares-Beckles.\n. Duplicative numbering is consistent with that of plaintiffs original complaint.", "type": "majority", "author": "MARTIN, Chief Judge." } ], "attorneys": [ "Walter C. Holton, Jr., PLLC, by Walter C. Holton Jr., for plaintiff-appellee.", "Womble Carlyle Sandridge & Rice, PLLC, by James R. Morgan, Jr., for defendant-appellant." ], "corrections": "", "head_matter": "HAYLURI BECKLES-PALOMARES, Administrator of the Estate of Joshua Franklin Beckles-Palomares, Plaintiff v. MICHAEL ANDREW LOGAN, JR., CITY OF WINSTON-SALEM, FLOW 425 SILAS CREEK PARKWAY, LLC, FLOW COMPANIES, INC., NORMAN L. MOORE, Defendants\nNo. COA09-567\n(Filed 2 February 2010)\n1. Appeal and Error\u2014 interlocutory orders \u2014 governmental immunity \u2014 public duty doctrine\nThe denial of summary judgment for a city affected a substantial right and was immediately appealable under the doctrine of governmental immunity and the public duty doctrine.\n2. Immunity\u2014 governmental \u2014 ordinances requiring vegetation to be trimmed\nThe trial court correctly denied the City\u2019s motion for summary judgment in an automobile accident case where the motion was grounded on the public duty doctrine. That doctrine was not applicable to a negligence allegation involving the failure to require a resident to trim vegetation next to a street, which was not a negligent failure on the part of a law enforcement agency exercising its general duty to protect the public. The public duty doctrine was also not applicable to allegations concerning the City\u2019s failure to comply with its own ordinances.\n3. Immunity\u2014 governmental \u2014 roadside vegetation \u2014 issues of fact\nIn an action arising from an automobile collision on City\u2019s street in which the City claimed it was immune because there was no genuine issue of fact about breach of the City\u2019s statutory duties, there were material issues of fact about whether vegetation and parked cars constituted obstructions, whether the City had actual or implied notice of the obstructions, and whether the obstructions were the proximate cause of the accident and of decedent\u2019s death.\n4. Negligence\u2014 auto accident \u2014 roadside vegetation \u2014 intervening cause \u2014 drunken driving \u2014 issue of fact\nA genuine issue of fact existed in an automobile accident case as to whether a city\u2019s failure to control roadside vegetation was the proximate cause of plaintiff\u2019s injury or whether defendant Logan\u2019s driving after drinking and being on the wrong side of the road were intervening causes.\n5. Appeal and Error\u2014 preservation of issues \u2014 abandonment of argument\nIn an automobile accident case where it was alleged that the City had allowed vegetation to become overgrown, a statute of repose argument was abandoned on appeal where it was pled, assigned as error, and raised in the reply brief, but not in the principal brief. Even if the argument had been properly raised, it had no merit as the City has a duty to exercise continuing supervision of its streets.\nAppeal by defendant City of Winston-Salem from order entered 9 December 2008 by Judge Jerry Cash Martin in Forsyth County Superior Court. Heard in the Court of Appeals 16 November 2009.\nWalter C. Holton, Jr., PLLC, by Walter C. Holton Jr., for plaintiff-appellee.\nWomble Carlyle Sandridge & Rice, PLLC, by James R. Morgan, Jr., for defendant-appellant." }, "file_name": "0235-01", "first_page_order": 263, "last_page_order": 275 }