{ "id": 1659768, "name": "JASON LAMONT HUNT, by and through his Guardian Ad Litem, DAVID H. HASTY v. NORTH CAROLINA DEPARTMENT OF LABOR", "name_abbreviation": "Hunt v. North Carolina Department of Labor", "decision_date": "1998-05-08", "docket_number": "No. 110PA97", "first_page": "192", "last_page": "203", "citations": [ { "type": "official", "cite": "348 N.C. 192" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "480 S.E.2d 413", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "opinion_index": -1 }, { "cite": "125 N.C. App. 293", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11867186 ], "year": 1997, "opinion_index": -1, "case_paths": [ "/nc-app/125/0293-01" ] }, { "cite": "959 S.W.2d 578", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 11874864 ], "year": 1997, "pin_cites": [ { "page": "582", "parenthetical": "stating that the \"special duty\" exception applies where there is a \"special relationship\" between plaintiff and the public employee that gives rise to a \"special duty\"" } ], "opinion_index": 0, "case_paths": [ "/sw2d/959/0578-01" ] }, { "cite": "198 W. Va. 609", "category": "reporters:state", "reporter": "W. Va.", "case_ids": [ 11987487 ], "weight": 2, "year": 1996, "pin_cites": [ { "page": "614", "parenthetical": "stating that the \"special relationship\" exception exists when there is direct contact between the governmental entity's agents and the injured party and the injured party justifiably relied on the entity's affirmative undertaking" }, { "page": "231", "parenthetical": "stating that the \"special relationship\" exception exists when there is direct contact between the governmental entity's agents and the injured party and the injured party justifiably relied on the entity's affirmative undertaking" } ], "opinion_index": 0, "case_paths": [ "/w-va/198/0609-01" ] }, { "cite": "930 P.2d 958", "category": "reporters:state_regional", "reporter": "P.2d", "year": 1997, "pin_cites": [ { "page": "961", "parenthetical": "labeling the situation when the governmental entity gives explicit assurances the \"special relationship\" exception" } ], "opinion_index": 0 }, { "cite": "85 Wash. App. 71", "category": "reporters:state", "reporter": "Wash. App.", "case_ids": [ 277793 ], "year": 1997, "pin_cites": [ { "page": "76-77", "parenthetical": "labeling the situation when the governmental entity gives explicit assurances the \"special relationship\" exception" } ], "opinion_index": 0, "case_paths": [ "/wash-app/85/0071-01" ] }, { "cite": "267 Ga. 655", "category": "reporters:state", "reporter": "Ga.", "case_ids": [ 70267 ], "weight": 2, "year": 1997, "pin_cites": [ { "page": "657", "parenthetical": "stating that the \"special relationship\" exception exists when the municipality makes promises of an affirmative undertaking" }, { "page": "373", "parenthetical": "stating that the \"special relationship\" exception exists when the municipality makes promises of an affirmative undertaking" } ], "opinion_index": 0, "case_paths": [ "/ga/267/0655-01" ] }, { "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": "910" } ], "opinion_index": 0 }, { "cite": "119 N.C. App. 44", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11913553 ], "pin_cites": [ { "page": "56" } ], "opinion_index": 0, "case_paths": [ "/nc-app/119/0044-01" ] }, { "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": 2, "year": 1995, "pin_cites": [ { "page": "74" }, { "page": "74" } ], "opinion_index": 0 }, { "cite": "119 N.C. App. 515", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11916250 ], "year": 1995, "pin_cites": [ { "page": "519" } ], "opinion_index": 0, "case_paths": [ "/nc-app/119/0515-01" ] }, { "cite": "371 S.E.2d 275", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "opinion_index": 0 }, { "cite": "322 N.C. 834", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2514028, 2518960, 2516821, 2517941, 2513435 ], "year": 1988, "opinion_index": 0, "case_paths": [ "/nc/322/0834-04", "/nc/322/0834-02", "/nc/322/0834-01", "/nc/322/0834-05", "/nc/322/0834-03" ] }, { "cite": "366 S.E.2d 2", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "opinion_index": 0 }, { "cite": "89 N.C. App. 188", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521115 ], "year": 1988, "opinion_index": 0, "case_paths": [ "/nc-app/89/0188-01" ] }, { "cite": "62 L. Ed. 2d 46", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1979, "opinion_index": 0 }, { "cite": "444 U.S. 835", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11325281, 11324888, 11324840, 11325226, 11325099, 11324940, 11325389, 11325331, 11324788, 11325174, 11325048, 11324990 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/us/444/0835-10", "/us/444/0835-03", "/us/444/0835-02", "/us/444/0835-09", "/us/444/0835-07", "/us/444/0835-04", "/us/444/0835-12", "/us/444/0835-11", "/us/444/0835-01", "/us/444/0835-08", "/us/444/0835-06", "/us/444/0835-05" ] }, { "cite": "577 S.W.2d 4", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 9924208 ], "pin_cites": [ { "page": "6" } ], "opinion_index": 0, "case_paths": [ "/sw2d/577/0004-01" ] }, { "cite": "58 S.E.2d 107", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1950, "pin_cites": [ { "page": "109" } ], "opinion_index": 0 }, { "cite": "231 N.C. 540", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8630957 ], "year": 1950, "pin_cites": [ { "page": "542" } ], "opinion_index": 0, "case_paths": [ "/nc/231/0540-01" ] }, { "cite": "192 S.E.2d 273", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "pin_cites": [ { "page": "277" } ], "opinion_index": 0 }, { "cite": "282 N.C. 278", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564321 ], "year": 1972, "pin_cites": [ { "page": "284-85" } ], "opinion_index": 0, "case_paths": [ "/nc/282/0278-01" ] }, { "cite": "85 S.E.2d 703", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1955, "pin_cites": [ { "page": "705" } ], "opinion_index": 0 }, { "cite": "241 N.C. 461", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8612253 ], "year": 1955, "pin_cites": [ { "page": "464" } ], "opinion_index": 0, "case_paths": [ "/nc/241/0461-01" ] }, { "cite": "495 S.E.2d 711", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 10, "year": 1998, "pin_cites": [ { "page": "714" }, { "page": "715" }, { "page": "713" }, { "page": "717" }, { "page": "716" }, { "page": "716" }, { "page": "717" } ], "opinion_index": 0 }, { "cite": "347 N.C. 473", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 551270 ], "weight": 4, "year": 1998, "pin_cites": [ { "page": "477-78" }, { "page": "477" }, { "page": "481" }, { "page": "483" } ], "opinion_index": 0, "case_paths": [ "/nc/347/0473-01" ] }, { "cite": "410 S.E.2d 897", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 6, "year": 1991, "pin_cites": [ { "page": "901-02" }, { "page": "901" }, { "page": "902" }, { "page": "902" } ], "opinion_index": 0 }, { "cite": "330 N.C. 363", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2509910 ], "weight": 4, "year": 1991, "pin_cites": [ { "page": "370-71" }, { "page": "370" }, { "page": "371" }, { "page": "371" } ], "opinion_index": 0, "case_paths": [ "/nc/330/0363-01" ] }, { "cite": "90 S.E.2d 717", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1956, "pin_cites": [ { "page": "721" } ], "opinion_index": 0 }, { "cite": "243 N.C. 292", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8624576 ], "year": 1956, "pin_cites": [ { "page": "298" } ], "opinion_index": 0, "case_paths": [ "/nc/243/0292-01" ] }, { "cite": "480 S.E.2d 677", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "pin_cites": [ { "page": "680" } ], "opinion_index": 0 }, { "cite": "345 N.C. 456", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 53997 ], "weight": 2, "year": 1997, "pin_cites": [ { "page": "460" }, { "page": "460" } ], "opinion_index": 0, "case_paths": [ "/nc/345/0456-01" ] }, { "cite": "448 S.E.2d 115", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "116" } ], "opinion_index": 0 }, { "cite": "337 N.C. 682", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2549225 ], "year": 1994, "pin_cites": [ { "page": "683" } ], "opinion_index": 0, "case_paths": [ "/nc/337/0682-01" ] }, { "cite": "480 S.E.2d 413", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1997, "pin_cites": [ { "page": "416" }, { "page": "415" } ], "opinion_index": 0 }, { "cite": "125 N.C. 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HASTY v. NORTH CAROLINA DEPARTMENT OF LABOR" ], "opinions": [ { "text": "PARKER, Justice.\nPlaintiff, by and through his guardian ad litem, commenced this negligence action against defendant, North Carolina Department of Labor, pursuant to the Tort Claims Act, N.C.G.S. \u00a7\u00a7 143-291 to -300.1 (1993) (amended 1994). Plaintiff sought damages for injuries resulting from an accident at an amusement park in Cumberland County, North Carolina. Defendant moved, pursuant to N.C.G.S. \u00a7 1A-1, Rules 12(b)(1) and (6), to dismiss plaintiffs claim. Deputy Commissioner John A. Hedrick denied the motion. The full Commission affirmed and adopted his decision.\nThe Court of Appeals affirmed. The Court of Appeals held that the North Carolina Administrative Code, specifically 13 NCAC 15 .0405, which describes the duties of inspectors for the Department of Labor, imposes a duty upon defendant to inspect amusement devices to ensure compliance with the Administrative Code and that breach of this duty could give rise to an action for negligence. Hunt v. N. C. Dep\u2019t of Labor, 125 N.C. App. 293, 297, 480 S.E.2d 413, 416 (1997). The lower court also held that the public duty doctrine does not apply to actions brought against the State under the Tort Claims Act. Id. at 296, 480 S.E.2d at 415. On 5 June 1997 this Court granted defendant\u2019s petition for discretionary review.\nThis appeal is before us based on defendant\u2019s motion to dismiss for lack of subject matter jurisdiction and failure to state a claim upon which relief can be granted, N.C. R. Civ. P. 12(b)(1), (6); thus, we treat plaintiff\u2019s factual allegations contained in his affidavit before the Industrial Commission as true. See Cage v. Colonial Bldg. Co., 337 N.C. 682, 683, 448 S.E.2d 115, 116 (1994). On 28 July 1993 plaintiff was operating a go-kart, owned by Ride \u2019N Slide, Inc., in Fayetteville, North Carolina, when the brakes failed, causing plaintiff to hit a pole. Plaintiff suffered severe injuries to his abdominal area when his seat belt tightened. Tony Brewer, an elevator and amusement ride inspector for defendant North Carolina Department of Labor, had previously inspected and passed the go-karts when the seat belts were not in compliance with the rules and regulations contained in section .0400 of the North Carolina Administrative Code.\nPlaintiff contends that defendant had a duty under the Amusement Device Safety Act, chapter 95, article 14B of the North Carolina General Statutes, and the rules and regulations promulgated thereunder in the Administrative Code; that defendant breached that duty by failing to inform the amusement park\u2019s manager that, pursuant to rule .0429(a)(3)(B) of the Administrative Code, shoulder straps, as well as seat belts, must be mounted on the go-karts; that defendant\u2019s breach caused plaintiff\u2019s injury; and that plaintiff\u2019s injury entitles him to damages in tort.\nPlaintiff has thus alleged a common law negligence action against the State under the Tort Claims Act. The Tort Claims Act provides, in pertinent part, that\n[t]he Industrial Commission shall determine whether or not each claim arose as a result of negligence of any officer, employee, involuntary servant or agent of the State while acting within the scope of office, employment, service, agency or authority under circumstances where the State of North Carolina, if a private person, would be liable to the claimant in accordance with the laws of North Carolina.\nN.C.G.S. \u00a7 143-291(a). To recover damages for common law negligence, a plaintiff must establish (i) a legal duty, (ii) a breach thereof, and (iii) injury proximately caused by such breach. Tise v. Yates Constr. Co., Inc., 345 N.C. 456, 460, 480 S.E.2d 677, 680 (1997); see also Petty v. Cranston Print Works Co., 243 N.C. 292, 298, 90 S.E.2d 717, 721 (1956).\nDefendant contends that the public duty doctrine bars this action against the State; that plaintiff has, therefore, failed to state a claim upon which relief may be granted; and that the claim is subject to dismissal pursuant to Rule 12(b)(6). The public duty doctrine was adopted by this Court in Braswell v. Braswell, 330 N.C. 363, 370-71, 410 S.E.2d 897, 901-02 (1991). The doctrine \u201cprovides that governmental entities and their agents owe duties only to the general public, not to individuals, absent a \u2018special relationship\u2019 or \u2018special duty\u2019 between the entity and the injured party.\u201d Stone v. N.C. Dep\u2019t of Labor, 347 N.C. 473, 477-78, 495 S.E.2d 711, 714 (1998). Defendant further contends that because plaintiff has failed to state a claim, the Industrial Commission lacks subject matter jurisdiction over defendant.\nWe recently examined the public duty doctrine and its applicability to claims brought under the Tort Claims Act. In Stone we held that \u201cthe Tort Claims Act... incorporates] the existing common law rules of negligence, including [the public duty] doctrine.\u201d Id. at 479, 495 S.E.2d at 715; see also Floyd v. N.C. State Highway & Pub. Works Comm\u2019n, 241 N.C. 461, 464, 85 S.E.2d 703, 705 (1955), overruled in part on other grounds by Barney v. N.C. State Highway Comm\u2019n, 282 N.C. 278, 284-85, 192 S.E.2d 273, 277 (1972); McKinney v. Deneen, 231 N.C. 540, 542, 58 S.E.2d 107, 109 (1950).\nIn Stone v. N.C. Dep\u2019t of Labor, plaintiffs brought a negligence claim against the Department of Labor and its Occupational Safety and Health Division for failure to inspect the Imperial Foods Products plant. Stone, 347 N.C. at 477, 495 S.E.2d at 713. A fire broke out at the plant, killing or injuring more than one hundred employees. Id. Plaintiffs brought suit under the Tort Claims Act arguing that defendants owed each employee a duty under N.C.G.S. \u00a7 95-4 to inspect the plant. Id. at 483, 495 S.E.2d at 717. In concluding that the public duty doctrine applied to plaintiffs\u2019 claims in Stone, we expressly found that N.C.G.S. \u00a7 95-4 imposed a duty upon defendants for the benefit of the general public, id., and that \u201c[t]he policies underlying recognition of the public duty in Braswell support its application here,\u201d id. at 481, 495 S.E.2d at 716. Accordingly, defendants did not owe a duty to each individual complainant in Stone; and, since the exceptions to the doctrine did not apply, defendants\u2019 motion to dismiss was improperly denied.\nThis Court having determined in Stone that the public duty doctrine can apply to actions against state agencies brought under the Tort Claims Act, we must determine applicability of the public duty doctrine to this case.\nThe general rule is that a governmental entity acts for the benefit of the general public, not for a specific individual, and, thus, cannot be held liable for a failure to carry out its duties to an individual. Braswell, 330 N.C. at 370, 410 S.E.2d at 901. Without any distinct duty to any specific individual, the entity cannot be held liable. Tise, 345 N.C. at 460, 480 S.E.2d at 680.\nA review of the Amusement Device Safety Act discloses that nowhere in the Act did the legislature impose a duty upon defendant to each go-kart customer. Pursuant to N.C.G.S. \u00a7 95-111.4, the Commissioner of Labor has promulgated rules governing the inspection of go-karts. 13 NCAC 15 .0400 (June 1992). These rules similarly do not impose any such duty. As this Court said in Stone, \u201c \u2018[A] government ought to be free to enact laws for the public protection without thereby exposing its supporting taxpayers ... to liability for failures of omission in its attempt to enforce them. It is better to have such laws, even haphazardly enforced, than not to have them at all.\u2019 \u201d Stone, 347 N.C. at 481, 495 S.E.2d at 716 (quoting Grogan v. Commonwealth, 577 S.W.2d 4, 6 (Ky.), cert, denied, 444 U.S. 835, 62 L. Ed. 2d 46 (1979)).\nThis Court has, however, recognized two exceptions to the public duty doctrine in order \u201cto prevent inevitable inequities to certain individuals.\u201d Braswell, 330 N.C. at 371, 410 S.E.2d at 902. The exceptions exist (i) where there is a special relationship between the injured party and the governmental entity (\u201cspecial relationship\u201d) and (ii) when the governmental entity 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 injury suffered (\u201cspecial duty\u201d). Id. These exceptions are narrowly applied. Id. at 372.\nPlaintiff argues that the \u201cspecial relationship\u201d exception applies because the Amusement Device Safety Act and the Administrative Code created a special duty to him. As support for his position, plaintiff cites Coleman v. Cooper, 89 N.C. App. 188, 366 S.E.2d 2, disc. rev. denied, 322 N.C. 834, 371 S.E.2d 275 (1988). We note first that the Court of Appeals did not apply the public duty doctrine in Coleman. Moreover, to the extent that Coleman is inconsistent with the holding in this case, it is hereby disapproved.\nTo determine whether the \u201cspecial relationship\u201d exception applies, we compare the regulatory language at issue in this case with the language at issue in Stone. In Stone we held that the applicable statute, N.C.G.S. \u00a7 95-4 (1989), \u201cimposes a duty upon defendants, [but] that duty is for the benefit of the public, not individual claimants as here.\u201d Stone, 347 N.C. at 483, 495 S.E.2d at 717. The statute \u201c \u2018charged [the Commissioner of Labor] with the duty\u2019 to visit and inspect \u2018at reasonable hours, as often as practicable,\u2019 all of the \u2018factories, mercantile establishments, mills, workshops, public eating places, and commercial institutions in the State.\u2019 \u201d Id. (quoting N.C.G.S. \u00a7 95-4(5)). We conclude that the language of the Administrative Code at issue in this case is analogous to that in Stone.\nRule 13 NCAC 15 .0405, entitled \u201cInspections,\u201d provides that \u201c[a]n inspector shall inspect each amusement device at each location to determine if the device: ... (3) has complied with the rules and regulations of this Section . . . .\u201d Rule 13 NCAC 15 .0429(a)(3), which governs go-karts, provides:\n(3) Seats, Seat Belts and Shoulder Straps. All karts shall meet one of the following requirements:\n(A) The seat, back rest, and leg area shall be designed to retain the driver/occupants inside the kart in the event of a rollover or a collision at the front, rear, or side of the kart; or\n(B) The Kart shall be equipped with seat belts and shoulder straps mounted in a manner that will restrain the occupant(s) in the vehicle in case of a collision or rollover. Properly mounted safety harnesses as effective as seat belts and shoulder straps may be substituted for seat belts and shoulder straps.\nThese rules do not explicitly prescribe a standard of conduct for this defendant as to individual go-kart customers. The Amusement Device Safety Act and the rules promulgated thereunder are for the \u201c[protection of the public from exposure to such unsafe conditions\u201d and do not create a duty to a specific individual. N.C.G.S. \u00a7 95-111.1(b) (1989).\nTo hold contrary to our holding in Stone, in which we held that the defendants\u2019 failure to inspect did not create liability, would be tantamount to imposing liability on defendant in this case solely for inspecting the go-karts and not discovering them to be in violation of the Code. \u201cA showing that a [governmental entity] 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.\u201d Sinning v. Clark, 119 N.C. App. 515, 519, 459 S.E.2d 71, 74, disc. rev. denied, 342 N.C. 194, 463 S.E.2d 242 (1995). If such a \u201cspecial relationship\u201d were to be found in this case, defendant would become a virtual guarantor of the safety of every go-kart subject to its inspection, thereby, \u201cexposing it to an overwhelming burden of liability for failure to detect every code violation or defect.\u201d Id. at 519-20, 459 S.E.2d at 74. Thus, we hold that in order to fall within the \u201cspecial relationship\u201d exception to the public duty doctrine, plaintiff must allege a special relationship, such as that between \u201ca state\u2019s witness or informant who has aided law enforcement officers,\u201d Braswell, 330 N.C. at 371, 410 S.E.2d at 902.\nAlthough plaintiff does not assert that his case falls within the \u201cspecial duty\u201d exception, nonetheless, we examine this exception. To come within the \u201cspecial duty\u201d exception, plaintiff must show that an actual promise was made by defendant to create the special duty, that this promise was reasonably relied upon by plaintiff, and that plaintiff\u2019s injury was causally related to plaintiff\u2019s reliance. Id. In this case plaintiff has not alleged an actual promise; thus, the \u201cspecial duty\u201d exception cannot be a basis for liability. Cf. Davis v. Messer, 119 N.C. App. 44, 56, 457 S.E.2d 902, 910 (holding the plaintiffs\u2019 allegations that \u201cthe Town . . . promised it would provide fire-fighting assistance and protection; [that] the promised protection never arrived; and [that] plaintiffs relied upon the promise to respond to the fire as their exclusive source of aid, resulting in the complete destruction of their home,\u201d stated a claim for relief under the \u201cspecial duty\u201d exception to the public duty doctrine), disc. rev. denied, 341 N.C. 647, 462 S.E.2d 508 (1995).\nSince the public duty doctrine applies to plaintiff\u2019s claim under the Tort Claims Act, the claim fails unless it fits into one of the two exceptions. We conclude that plaintiff\u2019s claim does not fit into either exception. For the reasons stated the Court of Appeals erred in affirming the Industrial Commission\u2019s denial of defendant\u2019s motion to dismiss. The decision of the Court of Appeals is, therefore, reversed; and the case is remanded to that court for further remand to the Industrial Commission for entry of an order of dismissal.\nREVERSED AND REMANDED.\n. Nothing in the record suggests that the Industrial Commission treated the motion as anything other than a motion under Rule 12(b)(1) and (6) or that the Commission considered depositions or other evidence in its deliberations. Accordingly, statements in any such materials are not properly before this Court and cannot be considered.\n. What our courts have labeled the \u201cspecial duty\u201d exception to the public duty doctrine, other jurisdictions call the \u201cspecial relationship\u201d exception. See Hamilton v. Cannon, 267 Ga. 655, 657, 482 S.E.2d 370, 373 (1997) (stating that the \u201cspecial relationship\u201d exception exists when the municipality makes promises of an affirmative undertaking); Yonker v. State Dep\u2019t of Social & Heath Services, 85 Wash. App. 71, 76-77, 930 P.2d 958, 961 (1997) (labeling the situation when the governmental entity gives explicit assurances the \u201cspecial relationship\u201d exception); Jeffrey v. W. Va. Dep\u2019t of Pub. Safety, 198 W. Va. 609, 614, 482 S.E.2d 226, 231 (1996) (stating that the \u201cspecial relationship\u201d exception exists when there is direct contact between the governmental entity\u2019s agents and the injured party and the injured party justifiably relied on the entity\u2019s affirmative undertaking). But see Hurd v. Woolfork, 959 S.W.2d 578, 582 (Tenn. Ct. App. 1997) (stating that the \u201cspecial duty\u201d exception applies where there is a \u201cspecial relationship\u201d between plaintiff and the public employee that gives rise to a \u201cspecial duty\u201d).", "type": "majority", "author": "PARKER, Justice." }, { "text": "Justice Orr\ndissenting.\nThe practical effect of the majority opinion in this case sends a chilling message regarding the State\u2019s lack of accountability for its negligent conduct and resulting injuries to innocent third parties. Regardless of the fact that the legislature has imposed a duty on the State either directly through legislation or indirectly through administrative rule, regardless of the evidence of negligence by the State in carrying out such duties, regardless of the severity of injury to an innocent third party or parties, and regardless of the fact that the legislature has removed state immunity from suit under the Tort Claims Act, the majority holds that the public duty doctrine allows the State to escape liability for its negligence, and injured parties are thus left with no means of recovery against the State. This was clearly not the law before Stone, nor should it be now. Stone v. N.C. Dep\u2019t of Labor, 347 N.C. 473, 495 S.E.2d 711 (1998).\nIn my dissent in Stone, I concluded that the majority had incorrectly extended the public duty doctrine to protect the State from lawsuits, with the result being that the Tort Claims Act\u2019s protection of the public was seriously eroded. Suffice it to say, I am still convinced of the correctness of my dissent in Stone, particularly in light of the petition for rehearing and accompanying affidavits filed by the plaintiffs in Stone. (The petition for rehearing was denied by this Court on 2 April 1998.) However, for purposes of this dissent, I will not repeat those earlier arguments against the majority\u2019s unwarranted extension of the public duty doctrine.\nThe majority, relying on Stone, has determined in this case that the public duty doctrine applies to the State and concludes that plaintiff\u2019s claim is barred. According to the record, plaintiff, an eleven-year-old child, was seriously injured in a collision that occurred while he was riding a go-kart at the Ride \u2019N Slide amusement park. Plaintiff was secured in the go-kart by an improper seat belt. Tony Brewer, a North Carolina Department of Labor elevator and amusement ride inspector, had inspected the go-karts in June of 1993 within the course and scope of his employment. Brewer negligently and incorrectly informed the manager of the Ride \u2019N Slide that only lap belts needed to be installed on each go-kart, when in fact a three-point shoulder-type harness was required on the go-karts under the North Carolina Administrative Code. 13 NCAC 15 .0429(a)(3)(B) (May 1992). Because of this failure to inform the manager about the seat-belt requirement, the proper belts were never installed, and the eleven-year-old rode a go-kart with only a lap belt, suffering severe internal injuries when the go-kart crashed.\nWhether this evidence was sufficient to establish negligence on the part of the State and what damages, if any, plaintiff would be entitled to recover should, according to the majority, never be reached. By applying the public duty doctrine, the majority concludes that the State owed only a general duty to the public and that the Amusement Safety Act did not impose a duty upon the State for the protection of individuals, in many cases minors, who operate go-karts at these facilities. The majority thus concludes that plaintiffs claim should be dismissed because of the protection now afforded the State under the public duty doctrine.\nIn addition to my disagreement with the application of the public duty doctrine to this case, I find no basis for the majority\u2019s conclusion that article 14B of chapter 95 of the General Statutes, the Amusement Device Safety Act of North Carolina, imposes no legislative duty upon those who inspect go-karts. This article begins with N.C.G.S. \u00a7 95-111.1, which provides in pertinent part: \u201cIt is the intent of this Article that amusement devices shall be designed, constructed, assembled or disassembled, maintained, and operated so as to prevent injuries.\u201d N.C.G.S. \u00a7 95-111.1(c) (1985). The article concludes some eight pages later with N.C.G.S. \u00a7 95-111.18, which provides in pertinent part: \u201cThis Article and the rules and regulations promulgated thereunder shall receive a liberal construction to the end that the welfare of the people may be protected.\u201d N.C.G.S. \u00a7 95-111.18 (1985). Contained within the article is a lengthy list of powers and duties of the Commissioner of Labor, which includes the power to adopt rules and regulations for enforcement of article 14B and authority to inspect and test devices subject to the article. N.C.G.S. \u00a7 95-111.4 (1985). As a result, the Commissioner of Labor adopted administrative rules, including:\n.0405 INSPECTIONS\nAn inspector shall inspect each amusement device at each location to determine if the device:\n(1) has been soundly constructed and properly erected,\n(2) has been modified to comply with any changes in safety requirements prescribed by the manufacturer,\n(3) has complied with the rules and regulations of this Section, and\n(4) has in existence a policy of insurance as required by G.S. 95-111.12.\n13 NCAC 15 .0405 (Aug. 1987) (emphasis added). This would certainly appear to impose a duty on the State for the specific protection of individuals operating go-karts.\nLet there be no misunderstanding of the breadth and logical extension of the holdings in Stone and now in Hunt. This is not limited just to inspections of the workplace as in Stone, or to inspections of go-karts as in the case before us. Every device regulated by the Department of Labor requiring inspection falls within the scope of these holdings. When the State Fair comes to Raleigh or when small, independent amusement operators set up rides in communities all across North Carolina, and the State agency required by law to inspect those amusement rides is negligent and injuries to innocent third parties occur, the State is now shielded from liability by the majority\u2019s holdings.\nIf, as in Stone, there can be no claim for failing to follow the law and inspect a workplace, and if, as in Hunt, there can be no claim for failing to follow the law and correctly inspect an amusement ride facility, then the myriad requirements throughout the General Statutes and Administrative Code requiring various types of inspections by State officials are meaningless to innocent third parties injured by the State\u2019s negligence. Without exhausting the possibilities, one need only contemplate some of the types of inspections provided by the State. For example, regulations are in place dealing with inspections involving day-care centers, hazardous-waste facilities, nuclear energy systems, mines and quarries, meat and poultry products, and milk production, as well as sanitary and health inspections involving epidemics and other communicable diseases. The list could go on and on, and if the State negligently performs its duties, then those injured must look elsewhere for relief. The doctrine of sovereign immunity \u2014 \u201cthe King can do no wrong\u201d \u2014 has been reimposed by judicial extension of the law. Steelman v. City of New Bern, 279 N.C. 589, 592, 184 S.E.2d 239, 241 (1971).\nAlthough the two cases now decided on this issue deal with questions of negligent inspection, I find no language in the decisions limiting the application of the public duty doctrine only to those cases involving inspections by state agents. The potential ramifications of these holdings to negligent acts of the State beyond the realm of inspections would appear to be without limit.\nThe underlying basis of the majority decision is: A duty to all is a duty to none. According to the majority, no duty was owed to the workers who perished or were injured in the Hamlet fire, and no duty was owed to eleven-year-old Jason Hunt when he sat down in a go-kart and put on an improper seat belt. The public duty doctrine should never have been extended to the State by this Court in Stone and further applied in this case. I dissented then, and I dissent now.\nJustice Frye joins in this dissenting opinion.", "type": "dissent", "author": "Justice Orr" } ], "attorneys": [ "MacRae, Perry, Pechmann, Williford, & MacRae, by James C. MacRae, Jr., for plaintiff-appellee.", "Michael F. Easley, Attorney General, by William H. Borden, Assistant Attorney General, for defendant-appellant." ], "corrections": "", "head_matter": "JASON LAMONT HUNT, by and through his Guardian Ad Litem, DAVID H. HASTY v. NORTH CAROLINA DEPARTMENT OF LABOR\nNo. 110PA97\n(Filed 8 May 1998)\n1. Public Officers and Employees \u00a7 35 (NCI4th); State \u00a7 24 (NCI4th)\u2014 tort claim against state agency \u2014 public duty doctrine\nThe public duty doctrine can apply to actions against state agencies brought under the Tort Claims Act.\n2. Public Officers and Employees \u00a7 35 (NCI4th)\u2014 exceptions to public duty doctrine\nThe two recognized exceptions to the public duty doctrine are (1) where there is a special relationship between the injured party and the governmental entity (special relationship), and (2) when the governmental entity 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 injury suffered (special duty).\n3. Games, Amusements, and Exhibitions \u00a7 6 (NCI4th); Public Officers and Employees \u00a7 35 (NCI4th)\u2014 injury to go-kart rider \u2014 negligent inspection by Department of Labor\u2014 public duty doctrine \u2014 special relationship exception inapplicable\nThe Amusement Safety Device Act and rules promulgated thereunder governing the inspection of go-karts by the Department of Labor are for the protection of the general public and do not create a duty to an individual go-kart customer. Therefore, the \u201cspecial relationship\u201d exception to the public duty doctrine was inapplicable as a basis for liability by the Department of Labor in plaintiff go-kart rider\u2019s action based upon allegations that the Department inspected and passed go-karts which did not have shoulder straps as well as seat belts as required by the Administrative Code, that plaintiff operated such a go-kart with only a seat belt, and that plaintiff suffered severe abdominal injuries when the brakes failed, the go-kart struck a pole, and the seat belt tightened.\n4. Games, Amusements, and Exhibitions \u00a7 6 (NCI4th); Public Officers and Employees \u00a7 35 (NCI4th)\u2014 injury to go-kart rider \u2014 negligent inspection by Department of Labor \u2014 public duty doctrine \u2014 special duty exception inapplicable\nThe \u201cspecial duty\u201d exception to the public duty doctrine cannot be the basis for liability by the Department of Labor for alleged negligent inspection of go-karts where plaintiff did not allege an actual promise by the Department of Labor to create the special duty.\nJustice Orr dissenting.\nJustice Frye joins in this dissenting opinion.\nOn discretionary review pursuant to N.C.G.S. \u00a7 7A-31 of a unanimous decision of the Court of Appeals, 125 N.C. App. 293, 480 S.E.2d 413 (1997), affirming a decision of the Industrial Commission denying defendant\u2019s motion pursuant to N.C.G.S. \u00a7 1A-1, Rules 12(b)(1) and (6) to dismiss plaintiff\u2019s claim. Heard in the Supreme Court 20 November 1997.\nMacRae, Perry, Pechmann, Williford, & MacRae, by James C. MacRae, Jr., for plaintiff-appellee.\nMichael F. Easley, Attorney General, by William H. Borden, Assistant Attorney General, for defendant-appellant." }, "file_name": "0192-01", "first_page_order": 240, "last_page_order": 251 }