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Clayton v. Branson6/7/2005
.E.2d 590 (2000). Regarding procedural due process, Dobrowolska correctly noted that "' nly after finding the deprivation of a protected interest dowe look to see if the State's procedures comport with due process.'" Dobrowolska, 138 N.C. App.at 11-12, 530 S.E.2d at 598 (quoting American Mfrs. Mut. Ins. v. Sullivan, 526 U.S. 40, 59, 143 L.Ed. 2d 130, 149 (1999)). The Court cited several rights whose source can easily be identified in the relevant enabling legislation (e.g., the right of a qualified applicant to welfare benefits, or the right of a criminal defendant to appeal from conviction). The Court also observed that the generalized right "implicated" by the case was the right "to recover damages," which is, of course, true of all tort claims. The Dobrowolska Court further held that, if plaintiff were able to show a constitutionally protected property right to recover damages from a municipality, the city's enumerated factors would not provide the structure and predictability required for procedural due process.
Significantly, however, Dobrowolska does not consider, analyze, or determinewhether the plaintiff (1) had produced evidence of a constitutionally protected right to recover damages from a North Carolina municipality; (2) had identified a statutory or other legal source of such a right; or (3) had offered evidence of an entitlement, as opposed to a "unilateral expectation," of a settlement offer from the city. Nor did Dobrowolska hold that the policies and factors that the city used to make settlement determinations were inherently irrational, that they had norelationship to a valid governmental goal, or that they otherwise violated plaintiff's right to substantive due process.
Finally, as regards the right to equal protection, we note that the list of other claims that plaintiff submitted in the instant case was also a part of the evidence offered by the plaintiff in Dobrowolska. However, the Dobrowolska Court did not hold that this list, without more, automatically constituted prima facie evidence that plaintiff's right to equal protection had been violated. Further, in Dobrowolska, the Court reviewed a different evidentiary record and assessed it in relation to a different claimant. The evidence found in this record does not demonstrate that this plaintiff was treated differently from similarly situated claimants. Given that a city can assert governmental immunity as an affirmative defense to tort claims, cities admittedly have greater bargaining power than claimants when negotiating a settlement. However, it is axiomatic that any change to the law in this area must come from the legislature, not the courts. "The plaintiff asks us either to abolish governmental immunity or to change the way it is applied. . . . ny change in this doctrine should come from the General Assembly." Blackwelder, 332 N.C. at 324, 420 S.E.2d at 435-36.
We conclude that the trial court erred by denying defendants' motion for JNOV, on both the claim of gross negligence and also theconstitutional claim. Our conclusion renders moot the issues pertaining to the trial court's award of a new trial. See, e.g., Snider v. Dickens, 293 N.C. 356, 359, 237 S.E.2d 832, 834 (1977) ("defendant's motion for judgment notwithstanding the verdict . . . should have been granted. Our decision on this issue renders it unnecessary for us to consider . . . [the trial court's] failure to grant new trial"). We remand for entry of JNOV on both claims, and dismiss plaintiff's appeal as moot.
Reversed in part and dismissed in part.
Judges TIMMONS-GOODSON and BRYANT concur.
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