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[T] Hillifield v. City of Hickory2/4/2003
UNPUBLISHED
A decision without a published opinion is authority only in the case in which such decision is rendered and should not be cited in any other case in any court for any other purpose, nor should any court consider any such decision for any purpose except in the case in which such decision is rendered. See Rule of Appellate Procedure 30 (e)(3).
Plaintiffs are the personal representatives of Marie Self, Kathy Marie Styles and Toni Ruth Self ("decedents") who were killed in an automobile collision which occurred 17 February 1997 in Hickory, N.C. Plaintiffs brought this action against the City of Hickory and four law enforcement officers employed by the City seeking compensatory and punitive damages.
In their complaint, plaintiffs alleged that the collision in which decedents were killed occurred as a proximate result ofnegligence on the part of one Javior Uresti ("Uresti"). According to the allegations of the complaint, notwithstanding the existence of probable cause to arrest Uresti for driving while impaired and other violations, the defendant officers did not detain, arrest, or charge Uresti with any criminal offense in connection with the accident because he was an informant for the department and for the Catawba County Sheriff's Department. Plaintiffs alleged that defendant officers' failure to arrest, charge, or place Uresti under bond was "in direct violation of the policies and procedures of [the Hickory Police Department] and constituted negligence on their part" and that the City's failure to properly supervise the officers was also negligence.
Plaintiffs alleged that, as a proximate result of such negligence, Uresti was able to secret or dispose of sizable assets and flee from the jurisdiction "thereby limiting or preventing recovery on the part of the Plaintiffs." Plaintiffs also alleged that defendant City of Hickory, through the purchase of liability insurance or self-insurance covering all defendants "in their representative capacities," had waived governmental and quasi-governmental immunity to the extent of the coverage limits.
Defendants moved to dismiss the complaint for insufficiency of process, insufficiency of service of process, and failure to state a claim upon which relief may be granted. N.C. Gen. Stat. § 1A-1, Rule 12(b)(4), (b)(5), (b)(6) (2002). Deferring a hearing upon the other motions, the trial court heard only the Rule 12(b)(6) motion to dismiss for failure to state a claim upon which relief could begranted. The trial court granted the motion and plaintiffs appeal.
The sole issue presented by this appeal is whether the public duty doctrine prevents plaintiffs from recovering upon the allegations of their complaint. We hold that it does and affirm the trial court's order dismissing this action.
A motion to dismiss pursuant to G.S. § 1A-1, Rule 12(b)(6) challenges the legal sufficiency of the complaint. Isenhour v. Hutto, 350 N.C. 601, 604-05, 517 S.E.2d 121, 124 (1999). In evaluating the complaint, the trial court must accept the allegations as true and liberally construe the complaint to determine whether the plaintiff could recover under some recognized legal theory. Id. Dismissal is proper where the face of the complaint reveals (1) that no law supports the claim, (2) the absence of facts necessary to support the claim, or (3) the existence of facts which necessarily defeat the claim. Wood v. Guilford County, 355 N.C. 161, 166, 558 S.E.2d 490, 494 (2002) (citing Oates v. JAG, Inc., 314 N.C. 276, 333 S.E.2d 222 (1985)).
Plaintiffs' complaint is couched in negligence. "Actionable negligence occurs only where there is 'a failure to exercise proper care in the performanc
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