Multiple v. North Carolina Department of Health & Human Services , 176 N.C. App. 278 ( 2006 )

GEER, Judge.

Defendant North Carolina Department of Health and Human Services (“DHHS”) appeals from an order of the North Carolina Industrial Commission denying its motion to dismiss based on the public duty doctrine. Plaintiffs’ claims under the State Tort Claims Act arose out of a fire on 3 May 2002 at the Mitchell County jail. The fire claimed the lives of inmates Jason Jack Boston, Mark Halen Thomas, Jesse Allen Davis, and Danny Mark Johnson and seriously injured inmate O.M. Ledford, Jr. Plaintiffs contend that the inspector for DHHS was negligent in his inspection of the Mitchell County jail and that DHHS failed to properly train the inspector to perform his duties as an inspector of county jails.

Our Supreme Court has held that the public duty doctrine applies “ ‘to state agencies required by statute to conduct inspections/or the public’s general protection.’ ” Wood v. Guilford County, 355 N.C. 161, 167, 558 S.E.2d 490, 495 (2002) (emphasis added) (quoting Lovelace v. City of Shelby, 351 N.C. 458, 461, 526 S.E.2d 652, 654 (2000)). Although DHHS acknowledges that the General Assembly has placed a duty on DHHS to perform inspections of local detention facilities to ensure the health and welfare of prisoners in such facilities, it argues that these inspections “benefit the public” because “[t]he inmates addressed in these statutes are members of the public . ...”

If we were to accept this facile argument, we would effectively eviscerate the Tort Claims Act, since State agencies would be able to argue that any duty that they owed was necessarily to a member of the public since all residents of North Carolina are members of the public. This Court must, however, be ever vigilant not to act as a super-legislature that imposes its notion of public policy in the face of statutory determinations otherwise. It is for the General Assembly, and not judges, to decide questions of public policy regarding how and when the State may be sued.

For 100 years, North Carolina’s courts have recognized that governments owe a private duty to inmates to maintain their health and safety. In connection with that duty, our General Assembly has specifically provided that DHHS has the duty to inspect local detention facilities, including jails, in order to ensure the protection of jail inmates. Since this duty is for the benefit of the inmates and not for the general public, the public duty doctrine does not apply. We, therefore, hold that the Industrial Commission properly denied DHHS’ motion to dismiss.

Following the fire at the Mitchell County jail, plaintiffs filed separate affidavits of claim in the Industrial Commission pursuant to the Tort Claims Act, N.C. Gen. Stat. Art. 31, §§ 143-291 et seq. (2005). The claims of all five plaintiffs were consolidated before the Industrial Commission on 27 August 2003. Because this appeal is before us on DHHS’ motion to dismiss, we treat the factual allegations in plaintiffs’ affidavits of claim as true. Hunt v. N.C. Dep’t of Labor, 348 N.C. 192, 194, 499 S.E.2d 747, 748 (1998).

Plaintiffs alleged that Ernest Dixon, a DHHS employee responsible for inspecting the Mitchell County jail, failed to adequately inspect the jail “to ensure compliance with certain regulations and to ensure that all fire safety devices and procedures were in good working order.” Plaintiffs also alleged that DHHS acted negligently in “failing] to properly train [Mr. Dixon] to perform the special duties of inspecting county jails for the protection of. . . inmates.”

DHHS filed a motion to dismiss pursuant to N.C.R. Civ. P. 12(b)(1), (2), and (6) on the grounds that plaintiffs’ claims were barred by the public duty doctrine under Braswell v. Braswell, 330 N.C. 363, 410 S.E.2d 897 (1991), and Stone v. N.C. Dep’t of Labor, 347 N.C. 473, 495 S.E.2d 711, cert. denied, 525 U.S. 1016, 142 L. Ed. 2d 449, 119 S. Ct. 540 (1998). In response to the motion, plaintiffs amended their affidavits of claim to expressly allege that a special relationship existed between the inmates and DHHS and that DHHS owed them a special duty.

Specifically, plaintiffs alleged that because the inmates were unable to protect themselves, “a special relationship arose between the aforementioned department and [the inmate] to fulfill the duties imposed under the law to ensure that the [inmate], as a confined individual, would be protected in the event of a fire.” Plaintiffs further alleged that “the State promised it would inspect county jails to ensure the protection of inmates in the event of fires.” Finally, plaintiffs asserted that “[t]he duties described hereinabove were not for the benefit of the public at large, but for the benefit of the specific individuals confined in the subject jail.”

Deputy Commissioner Edward Gamer, Jr. denied DHHS’ motion to dismiss. DHHS appealed to the Full Commission, which upheld the Deputy Commissioner’s decision. DHHS timely appealed that decision to this Court pursuant to N.C. Gen. Stat. § 143-293 (2005).

Discussion

As a preliminary matter, we note that ordinarily the denial of a motion to dismiss is an interlocutory order from which there may not be an immediate appeal. Block v. County of Person, 141 N.C. App. 273, 276, 540 S.E.2d 415, 418 (2000). Since, however, DHSS bases its appeal on the public duty doctrine, its appeal involves a substantial right warranting immediate appellate review. Smith v. Jackson County Bd. of Educ., 168 N.C. App. 452, 457-58, 608 S.E.2d 399, 405 (2005).

The sole question presented on this appeal by DHHS is whether the Commission erred when it failed to conclude that the public duty doctrine barred plaintiffs’ claims. A law review commentator has cogently explained the development of the general rule:

The public duty doctrine provides that, absent a special relationship between the governmental entity and the injured individual, the governmental entity will not be liable for injury to an individual where liability is alleged on the ground that the governmental entity owes a duty to the public in general. The doctrine has been commonly described by the oxymoron, “duty to all, duty to none.” ....

After the historic tort barrier of governmental immunity crumbled and states provided waiver mechanisms, state courts resurrected the [public duty doctrine] to provide limits to governmental tort liability when their legislatures had not done so. Thus, state courts embraced the public duty doctrine to confine liability to specific types of governmental actions, namely those not undertaken for the public in general.

Frank Swindell, Note, Municipal Liability for Negligent Inspections in Sinning v. Clark—A “Hollow” Victory for the Public Duty Doctrine, 18 Campbell L. Rev. 241, 247-49 (1996).

Our Supreme Court specifically adopted the public duty doctrine for the first time in 1991:

The general common law rule, known as the public duty doctrine, is that a 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. This rule recognizes the limited resources of law enforcement and refuses to judicially impose an overwhelming burden of liability for failure to prevent every criminal act.

Braswell, 330 N.C. at 370-71, 410 S.E.2d at 901 (internal citations omitted). In 1998, the Supreme Court extended this “common law rule” to certain conduct of State agencies challenged under the Tort Claims Act. Stone, 347 N.C. at 479, 495 S.E.2d at 715. In response to Justice Orr’s vigorous dissent, the majority emphasized that this extension involved a “limited new context, not heretofore confronted by this Court.” Id. at 483, 495 S.E.2d at 717.

Subsequently, the Supreme Court described this extension as limited to applying “the public duty doctrine to state agencies required by statute to conduct inspections for the public’s general protection.” Lovelace, 351 N.C. at 461, 526 S.E.2d at 654 (emphasis added). Two years later, the Court reemphasized this limitation on the application of the public duty doctrine with respect to State agencies. See Wood, 355 N.C. at 167, 558 S.E.2d at 495 (“[T]his Court has extended the public duty doctrine to state agencies required by statute to conduct inspections for the public’s general protection . . . .”). See also Isenhour v. Hutto, 350 N.C. 601, 608, 517 S.E.2d 121, 126 (1999) (noting that the public duty doctrine applies only to a violation of a “statutory duty of a state agency to inspect various facilities for the benefit of the public”).

The first question we must decide, therefore, is whether the duty of inspection relied upon by plaintiffs was one “to conduct inspections for the public’s general protection.” Lovelace, 351 N.C. at 461, 526 S.E.2d at 654. If we conclude that the duty to inspect set out by the General Assembly was not “intended to benefit the public at large,” Wood, 355 N.C. at 169, 558 S.E.2d at 496, then the public duty doctrine does not apply. If, on the other hand, we conclude that the public duty doctrine does apply, we must next determine whether plaintiffs fall within one of the two exceptions to that doctrine:

[Exceptions to the doctrine exist: (1) where there is a special relationship between the injured party and the governmental entity; and (2) when the governmental entity creates a special duty by promising protection to an individual, the protection is. not forthcoming, and the individual’s reliance on the promise of protection is causally related to the injury suffered.

Stone, 347 N.C. at 482, 495 S.E.2d at 717. We note that in addition to arguing that the public duty doctrine does not apply to DHHS’ duty to inspect, plaintiffs also specifically alleged in their amended affidavits that both a special relationship and a special duty exist.

DHHS and the dissent contend that Stone and Hunt establish the applicability of the public duty doctrine to this case. In Stone, the plaintiffs sought damages for injuries or deaths resulting from the fire at the Imperial Foods Products plant in Hamlet, North Carolina. The plaintiffs alleged that the North Carolina Department of Labor had negligently failed to inspect the plant. The Supreme Court first observed: “ ‘[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.’ ” Id. at 481, 495 S.E.2d at 716 (alteration and emphasis original) (quoting Grogan v. Commonwealth, 577 S.W.2d 4, 6 (Ky.), cert. denied, 444 U.S. 835, 62 L. Ed. 2d 46, 100 S. Ct. 69 (1979)).

The Court then turned to an assessment of the General Assembly’s intent in imposing a duty of inspection on the Department of Labor:

[T]he most the legislature intended was that the [Occupational Safety and Health] Division prescribe safety standards and secure some reasonable compliance through spot-check inspections made “as often as practicable.” N.C.G.S. § 95-4(5) (1996). “In this way the safety conditions for work[ers] in general would be improved.” Nerbun v. State, 8 Wash. App. 370, 376, 506 P.2d 873, 877 (holding that Washington Department of Labor did not owe an absolute duty to individual workers and concluding that the Washington legislature intended only that the Department act on behalf of workers in general), disc. rev. denied, 82 Wash. 2d 1005 (1973).

Id. at 482, 495 S.E.2d at 716. The Court concluded: “Although N.C.G.S. § 95-4 imposes a duty upon defendants, that duty is for the benefit of the public, not individual claimants as here.” Id. at 483, 495 S.E.2d at 717 (emphasis added).

In Hunt, the plaintiff alleged that the Department of Labor breached its duty to inspect amusement park rides with the result that the plaintiff was injured while riding in a go-kart with seat belts that were not in compliance with the Department’s regulations. In holding that the public duty doctrine precluded the claim, the Court relied upon the fact that “[t]he Amusement Device Safety Act and the rules promulgated thereunder are for the ‘protection of the public from exposure to such unsafe conditions’ and do not create a duty to a specific individual.” Hunt, 348 N.C. at 198, 499 S.E.2d at 751 (emphasis added) (quoting N.C. Gen. Stat. § 95-lll.l(b) (1989)).

Stone and Hunt thus direct us to look at the specific statutes and regulations providing for any duty to inspect in order to determine whether the General Assembly intended the inspection to be for the protection of the general public or for the protection of specified individuals. See Stone, 347 N.C. at 482, 495 S.E.2d at 716 (“[W]e do not believe the legislature, in establishing the Occupational Safety and Health Division of the Department of Labor in 1973, intended to impose a duty upon this agency to each individual worker in North Carolina.”); Hunt, 348 N.C. at 197, 499 S.E.2d at 750 (“[N]owhere in the [Amusement Device Safety] Act did the legislature impose a duty upon defendant to each go-kart customer.”).

With respect to the inspection of jails by the State, the General Assembly has provided:

The Department [of Health and Human Services] shall:

(3) Visit and inspect local confinement facilities; advise the sheriff, jailer, governing board, and other appropriate officials as to deficiencies and recommend improvements; and submit written reports on the inspections to appropriate local officials.

(6) Perform any other duties that may be necessary to carry out the State’s responsibilities concerning local confinement facilities.

N.C. Gen. Stat. § 153A-220 (2005). The General Assembly has more specifically provided in regards to this duty of inspection:

Department personnel shall visit and inspect each local confinement facility at least semiannually. The purpose of the inspections is to investigate the conditions of confinement, the treatment of prisoners, the maintenance of entry level employment standards for jailers and supervisory and administrative personnel of local confinement facilities as provided for in G.S. 153A-216(4), and to determine whether the facilities meet the minimum standards published pursuant to G.S. 153A-221. The inspector shall make a written report of each inspection and submit it within 30 days after the day the inspection is completed to the governing body and other local officials responsible for the facility. The report shall specify each way in which the facility does not meet the minimum standards.

N.C. Gen. Stat. § 153A-222 (2005) (emphases added).

The “minimum standards” against which the facilities must be measured “shall be developed with a view to providing secure custody of prisoners and to protecting their health and welfare and providing for their humane treatment." N.C. Gen. Stat. § 153A-221(a) (2005) (emphasis added). See also N.C. Gen. Stat. § 131D-11 (2005) (“The Department of Health and Human Services shall, as authorized by G.S. 153-51, inspect regularly all confinement facilities as defined by G.S. 153-50(4) to determine compliance with the minimum standards for local confinement facilities adopted by the Social Services Commission.” (emphasis added)). The importance of these inspections to the General Assembly is reflected by the fact that the legislature has made the failure to provide the information required by law to DHHS regarding local confinement facilities a Class 1 misdemeanor. N.C. Gen. Stat. § 131D-13 (2005).

DHHS’ regulations adopted pursuant to these statutes provide that “[a]ll jails shall be visited and inspected at least twice each year, but a jail shall be inspected more frequently if the Department considers it necessary or if it is required by an agreement of correction pursuant to 10ANCAC 14.1304.” 10AN.C.A.C. 14J.1301 (2003). DHHS requires that following the inspection, the inspector “shall forward a copy of the inspection report to the Secretary [of DHHS] within ten days after the inspection if there are findings of noncompliance” with any of certain specified standards, including the standards for “Fire Safety.” 10A N.C.A.C. 14J. 1302(b)(2) (2003). After receipt of the inspector’s report “[t]he Secretary shall determine whether conditions in the jail jeopardize the safe custody, safety, health or welfare of its inmates within 30 days after receipt of the inspection report and the supporting materials.” 10A N.C.A.C. 14J. 1303(a) (2003). If the noncompliance involves the fire plan or fire equipment, among other specified concerns, the Secretary “shall determine” that the noncompliance “jeopardizes the safe custody, safety, health or welfare of inmates confined in the jail.” 10A N.C.A.C. 14J. 1303(c). Once the Secretary determines that such jeopardy exists, “[t]he Secretary shall order corrective action, order the jail closed, or enter into an agreement of correction with local officials pursuant to 10A NCAC 14 J. 1304.” 10A N.C.A.C. 14J.1303(d).

These statutes and regulations are materially distinguishable from those in Stone and Hunt. The inspection of the jail conditions— expressly including those relating to fire safety — is for the purpose of ensuring the safety, health, and welfare of jail inmates. Neither the statutes nor the regulations can be reasonably construed as creating a duty to inspect for the benefit of the public or for the public’s general protection.¹

The dissent makes no attempt to explain in what way the duty of inspection under these statutes and regulations relates to the general public apart from flatly asserting so, despite the express language otherwise. Further, in arguing that the statutes establish no duty requiring that DHHS correct any jail conditions, the dissent disregards the nature of plaintiffs’ claim. Plaintiffs allege a negligent inspection of the jail and not a negligent failure to correct the conditions. There is no need to decide whether the public duty doctrine or any other theory would preclude liability for a failure to correct the conditions in the Mitchell County jail. Although not addressed by the dissent, the sole pertinent question under Stone, Hunt, and the subsequent Supreme Court decisions for such a negligent inspection claim is the purpose of the duty to inspect: whether it was for the protection of the general public or specific individuals. The General Assembly was specific in providing that the purpose of the inspection is to protect the inmates from harm, a purpose further reflected in DHHS’ regulations.²

DHHS’ suggestion that the statutes and regulations necessarily are for the benefit of the public because “[t]he inmates addressed in these statutes are members of the public” deserves little comment. Suffice it to say that inmates are in jail specifically so that they will be separate from the general public. See West v. Atkins, 487 U.S. 42, 56 n.15, 101 L. Ed. 2d 40, 54 n.15, 108 S. Ct. 2250, 2260 n.15 (1988) (noting that the correctional setting is “specifically designed to be removed from the community”). See also Wood, 355 N.C. at 169, 558 S.E.2d at 496 (holding that the public duty doctrine applied when the “protective services provided by Guilford County were intended to benefit the public at large” (emphasis added)).

The view that the duty of DHHS is a private one owed to the inmate and not the general public is also supported by prior decisions of our Supreme Court. In 1992, the Supreme Court noted that “North Carolina courts and lawmakers have long recognized the state’s duty to provide medical care to prisoners” and pointed out that the “legislature has codified this duty in a statute” that required the Department of Corrections to prescribe standards for health services to prisoners. Medley v. N.C. Dep’t of Corr., 330 N.C. 837, 842, 412 S.E.2d 654, 657-58 (1992). The statute in Medley is analogous to the statutes at issue in this case. As support for an additional common-law duty to inmates, the Court quoted from a 1926 decision relating to jail inmates: “ ‘The prisoner by his arrest is deprived of his liberty for the protection of the public; it is but just that the public be required to care for the prisoner, who cannot by reason of the deprivation of his liberty, care for himself.’ ” Id., 412 S.E.2d at 657 (quoting Spicer v. Williamson, 191 N.C. 487, 490, 132 S.E. 291, 293 (1926)). The Court concluded by also noting that “[i]n addition to common-law and statutory duties to provide adequate medical care for inmates, the state also bears this responsibility under our state Constitution and the federal Constitution.” Id., 412 S.E.2d at 658.

In Spicer, the Court held that the board of county commissioners, rather than the sheriff, was liable for payment to a doctor for a jail inmate’s medical care based on the “duty which the public owes to [the sheriff’s] prisoner.” Spicer, 191 N.C. at 490, 132 S.E. at 293. The Court observed, however, that the sheriff could “be required to answer in damages to the prisoner, or upon indictment to the public” for breach of his duty to obtain medical attention for a prisoner in his custody. Id. The Court thus recognized both a common law duty owed directly to the prisoner in addition to his general public duty to perform his public office.

In Levin v. Town of Burlington, 129 N.C. 184, 188-89, 39 S.E. 822, 824 (1901), the Court specifically distinguished between duties undertaken solely for the public good and those undertaken pursuant to a duty to individuals:

[Tjhese and such cases [against municipalities] are for the neglect in failing to perform some required duty — such as erecting and keeping in proper condition city prisons by reason whereof the health of prisoners has been seriously impaired[,] the failure to work and keep the public streets in repair and free from obstructions, whereby some person suffers injury. These are distinguishable from the case under consideration [involving a claim of malicious prosecution], where public officers are in the exercise of a public duty, and engaged in enforcing a public law for the public good.

(Emphasis added.) See also Shields v. Town of Durham, 118 N.C. 450, 456, 24 S.E. 794, 795-96 (1896) (holding that the Town of Durham could be held liable when the Commissioners had failed to inspect the town prison for five years because “[t]he law will not tolerate such gross negligence as this, without holding them responsible”).

The dissent dismisses the above precedent and argues that this opinion fails to apply controlling precedent of this Court. The cases cited by the dissent, however, either are entirely consistent with the conclusion we reach today or have been overruled by the Supreme Court.

The dissent first points to Myers v. McGrady, 170 N.C. App. 501, 613 S.E.2d 334, disc. review allowed, 359 N.C. 852, 619 S.E.2d 510 (2005). In Myers, however, this Court specifically pointed out that “[i]n 1998, our Supreme Court applied the public duty doctrine to state agencies required to conduct inspections for the public’s general protection," id. at 505, 613 S.E.2d at 338 (emphasis added) — precisely the standard we have applied in this case. Myers, which did not involve a failure to inspect, does not purport to alter the Supreme Court’s test. Instead, Myers appears to hold that even if a duty to inspect for the public’s general protection exists, the public duty doctrine will not apply unless the claim involves a “failure of state departments or agencies to detect and prevent misconduct of others through improper inspections.” Id. at 507, 613 S.E.2d at 339. In other words, under Myers, even if we concluded in this case — contrary to the pertinent statutes — that a duty was owed to the general public, the public duty doctrine would still not apply unless the claim alleged a failure to detect and prevent misconduct by third parties. There has been no allegation here that the fire was the result of “misconduct,” as opposed to negligence, by another person.

With respect to the dissent’s remaining cases, with a single exception, they all involve claims against local governments and not State agencies. Those cases addressing negligent inspection claims or conduct not involving law enforcement departments acting to protect the public have been overruled by Thompson v. Waters, 351 N.C. 462, 465, 526 S.E.2d 650, 652 (2000), and Lovelace, 351 N.C. at 461, 526 S.E.2d at 654.³ Specifically, in Thompson, the Court held: “This Court has not heretofore applied the public duty doctrine to a claim against a municipality or county in a situation involving any group or individual other than law enforcement. After careful review of appellate decisions on the public duty doctrine in this state and other jurisdictions, we conclude that the public duty doctrine does not bar this claim against Lee County for negligent inspection of plaintiffs’ private residence.” 351 N.C. at 465, 526 S.E.2d at 652. See also Lovelace, 351 N.C. at 461, 526 S.E.2d at 654 (“[W]e have never expanded the public duty doctrine to any local government agencies other than law enforcement departments when they are exercising their general duty to protect the public.”).

The remaining cases cited by the dissent address law enforcement’s exercise of its duty to protect the public generally and not a duty to a specified class of individuals.⁴ Indeed, this Court in Clark v. The Red Bird Cab Co., 114 N.C. App. 400, 406, 442 S.E.2d 75, 78, disc. review denied, 336 N.C. 603, 447 S.E.2d 387 (1994), stressed: “Here, a review of the applicable city code provisions reveals no specific identification of a particular class of persons being singled out for protection by the city. We find no language creating a special duty which the police officers would owe to taxicab customers over and above the duty owed to the general public.” By contrast, the statutes and regulations pertinent to DHHS’ duty in this case do specifically identify a particular class of persons for protection by DHHS: inmates of local detention facilities. Further, in Lassiter, this Court specifically recognized that Lovelace “sought to reign [sic] in the expansion of the public duty doctrine’s application to other government agencies and ensure it would be applied in the future only to law enforcement ágencies fulfilling their ‘general duty to protect the public,’ and thus reasserted the principles of Braswell.” 168 N.C. App. at 317, 607 S.E.2d at 692 (quoting Lovelace, 351 N.C. at 461, 526 S.E.2d at 654). In short, the cases cited by the dissent either support the analysis we have applied in this case or are inapplicable.

DHHS and the dissent urge alternatively that the public duty doctrine should nonetheless apply because any duty to the inmates belonged solely to the local officials. As the plain language of the statutes indicate, however, the General Assembly has chosen to impose a duty upon the State regarding jail inmates.⁶ Medley, Spicer, Levin, and Shields establish that when a governmental body has a duty regarding the care of an inmate, that duty is a private one owed to the inmate and not a public duty. By assuming a duty to jail inmates, the General Assembly assumed a private duty to those individuals, and the public duty doctrine does not apply. This holding is in accord with that of other states. See Roberts v. State, 159 Ind. App. 456, 462, 307 N.E.2d 501, 505 (1974) (“[A] public official, charged with the custody and care of a prisoner, owes a private duty to the prisoner to take reasonable precautions under the circumstances to preserve his life, health, and safety — a duty which is in addition to the duty of safekeeping owed to the public generally.”); Geiger v. Bowersox, 974 S.W.2d 513, 517 (Mo. Ct. App. 1998) (holding that a nurse at a prison “does not owe the general public” a duty, but rather her duty is “owed specifically to the inmates”).

While the Supreme Court in Stone stated that it “refuse[d] to judicially impose an overwhelming burden of liability on defendants for failure to prevent every employer’s negligence that results in injuries or deaths to employees,” 347 N.C. at 481, 495 S.E.2d at 716, the duty in this case is legislatively imposed. In contrast to Stone and Hunt, the statutes relied upon by plaintiffs in this case do not seek to secure only “reasonable compliance through spot-check inspections made ‘as often as practicable.’ ” Id. at 482, 495 S.E.2d at 716 (quoting N.C. Gen. Stat. § 95-4(5) (1996)). Instead, they specifically require two inspections a year of each local detention facility with the intent that total compliance will be achieved with respect to certain standards such as fire safety- — the very standards at issue here.

We are not free to employ a common law rule to reinstate sovereign immunity when the State has both waived that immunity and specifically assumed a duty to jail inmates. The dissent’s claim that this opinion “has far reaching implications” is misplaced. Each of the examples given by the dissent — -such as a restaurant patron, a patient, or a legal client — involves the general public. They do not involve the unique situation faced by inmates and the express assumption by the State of a duty to those inmates. Indeed, if we were to embrace the view of the dissents in this case and in Myers, it is difficult to identify any negligence claim asserted against the State that would fall outside the scope of the public duty doctrine. The result would be to judicially amend the State Tort Claims Act to require all plaintiffs to prove either a special relationship or a special duty as an element of their claim under the Tort Claims Act. To do so — based on a judicial assessment of the policy implications for the State and its taxpayers — would be to sit as a super-legislature.⁶

Even if we could conclude that the statutes and regulations imposed a duty to inspect for the benefit of the public, as required by Stone and Hunt, we would still hold that plaintiffs fall within the “special relationship” exception to the public duty doctrine. In Hunt, the Supreme Court explained that “in order to fall within the ‘special relationship’ exception to the public duty doctrine, plaintiff must allege a special relationship, such as that between ‘a state’s witness or informant who has aided law enforcement officers.’ ” 348 N.C. at 199, 499 S.E.2d at 751 (quoting Braswell, 330 N.C. at 371, 410 S.E.2d at 902).⁷

This Court has previously held that a “special relationship” exists when the plaintiff is in police custody. Hull v. Oldham, 104 N.C. App. 29, 38, 407 S.E.2d 611, 616 (“[T]here are exceptions to the general rule of no liability where a special relationship exists between the victim and law enforcement, such as where the victim is in police custody-”), disc, review denied, 330 N.C. 441, 412 S.E.2d 72 (1991). See also Stafford v. Barker, 129 N.C. App. 576, 582, 502 S.E.2d 1, 5 (utilizing same quotation from Hull as an illustration of the type of circumstances that give rise to a special relationship), disc. review denied, 348 N.C. 695, 511 S.E.2d 650 (1998). For the purpose of the public duty doctrine, there is no meaningful distinction between a person who is in police custody and a person who is in the custody of the jail because of the State’s decision to prosecute him.

In a context analogous to that of the public duty doctrine, our courts have held there is no duty to protect others against harm from third persons except “when a special relationship exists between parties.” King v. Durham County Mental Health Developmental Disabilities & Substance Abuse Auth., 113 N.C. App. 341, 345, 439 S.E.2d 771, 774, disc. review denied, 336 N.C. 316, 445 S.E.2d 396 (1994). In King, this Court observed that “recognized special relationships” include “custodian-prisoner.” Id. at 346, 439 S.E.2d at 774. See also Haworth v. State, 60 Haw. 557, 563, 592 P.2d 820, 824 (1979) (“It is well settled that a state, by reason of the special relationship created by its custody of a prisoner, is under a duty to the prisoner to take reasonable action to protect the prisoner against unreasonable risk of physical harm.”); Restatement (Second) of Torts § 314A(4) (1965) (“One who is required by law to take or who voluntarily takes the custody of another under circumstances such as to deprive the other of his normal opportunities for protection is under a similar duty to the other.”); id. cmt. b (“The duties stated in this Section arise out of special relations between the parties, which create a special responsibility, and take the case out of the general rule.”).

Similarly, in Davidson v. Univ. of N.C. at Chapel Hill, 142 N.C. App. 544, 554, 543 S.E.2d 920, 927, disc. review denied and cert. denied, 353 N.C. 724, 550 S.E.2d 771 (2001), this Court considered when a “special relationship” exists for purposes of imposing liability under the State Tort Claims Act for a negligent omission. The Court explained:

“During the last century, liability for [omissions] has been extended still further to a limited group of relations, in which custom, public sentiment and views of social policy have led the courts to find a duty of affirmative action. In such relationships the plaintiff is typically in some respect particularly vulnerable and dependant upon the defendant who, correspondingly, holds considerable power over the plaintiff’s welfare. In addition, such relations have often involved some existing or potential economic advantage to the defendant. Fairness in such cases thus may require the defendant to use his power to help the plaintiff, based upon the plaintiffs expectation of protection, which itself may be based upon the defendant’s expectation of financial gain. . . . There is now respectable authority imposing the same duty upon a shopkeeper to his business visitor, upon a host to his social guest, upon a jailor to his prisoner, and upon a school to its pupil.”

Id., 543 S.E.2d at 926-27 (quoting W. Page Keeton, et al., Prosser and Keeton on the Law of Torts § 56, at 373-74, 376-77 (5th ed. 1984) (emphasis added and omitted)).

The United States Supreme Court has also recognized the special relationship that arises by virtue of imprisonment: “prisons and jails are inherently coercive institutions that for security reasons must exercise nearly total control over their residents’ lives and the activities within their confines . ...” West, 487 U.S. at 56 n.15, 101 L. Ed. 2d at 54 n.15, 108 S. Ct. at 2260 n.15. Accordingly,

when the State takes a person into its custody and holds him there against his will, the Constitution imposes upon it a corresponding duty to assume some responsibility for his safety and general well-being. The rationale for this principle is simple enough: when the State by the affirmative exercise of its power so restrains an individual’s liberty that it renders him unable to care for himself, and at the same time fails to provide for his basic human needs — e.g., food, clothing, shelter, medical care, and reasonable safety — it transgresses the substantive limits on state action set by the Eighth Amendment and the Due Process Clause. The affirmative duty to protect arises not from the State’s knowledge of the individual’s predicament or from its expressions of intent to help him, but from the limitation which it has imposed on his freedom to act on his own behalf.

DeShaney v. Winnebago County Dep’t of Soc. Servs., 489 U.S. 189, 199-200, 103 L. Ed. 2d 249, 261-62, 109 S. Ct. 998, 1005-06 (1989) (internal citations omitted).

Although not disputing that inmates may fall within the “special relationship” exception, DHHS and the dissent argue that it had no “special relationship” with the inmates because any such relationship was between Mitchell County and the inmates. In doing so, DHHS and the dissent ignore the express responsibility mandated by the General Assembly and implemented in DHHS’ own regulations. Federal courts in other jurisdictions have held that a state’s duty to ensure that a jail meets prescribed standards is sufficient to support liability under the more stringent standards of 42 U.S.C. § 1983 despite primary responsibility for the jail resting with local officials. See, e.g., Nicholson v. Choctaw County, 498 F. Supp. 295, 311 (S.D. Ala. 1980) (“The Commissioner of the Department of Corrections has violated the rights of inmates held in Choctaw County Jail by failing to exercise his duty under Alabama law to insure that the jail meets the standards prescribed pursuant to Alabama Code § 14-6-8.1.”); Payne v. Rollings, 402 F. Supp. 1225, 1228 (E.D. Va. 1975) (holding, based on state statutes requiring the Director of the Department of Corrections to enforce regulations regarding jails, that the defendant Director “did owe a duty to plaintiff,” who was a jail inmate, that would support a claim under § 1983).

The district court and Fourth Circuit decisions in Reid v. Johnston County, 688 F. Supp. 200 (E.D.N.C. 1988), aff’d per curiam sub nom. Reid v. Kayye, 885 F.2d 129 (4th Cir. 1989), relied upon by DHHS, do not lead to a different conclusion. Neither court addressed state negligence claims, but rather only considered the liability of individual State officials under 42 U.S.C. § 1983 for “fail[ing] to take action to remedy the [constitutional] violations” arising out of conditions in the county jail. 885 F.2d at 131. The plaintiffs argued in Reid that the State officials “had not only the power but the duty to correct the conditions.” Id. Although the Fourth Circuit acknowledged that, by statute, the State had a duty toward the jail inmates, it concluded that the statutes did not vest the officials “with the mandatory duty to remedy substandard jail conditions” and, in the absence of such a duty, “their inaction cannot be seen as a cause of those conditions and a § 1983 suit cannot be maintained against them.” Id. See also Reid, 688 F. Supp. at 203 (granting the motion to dismiss the § 1983 action because “plaintiffs have not demonstrated that defendants’ actions, taken under color of state law, have in any way caused existing or past constitutionally deficient conditions”). Thus, neither case disputed the existence of a “special relationship” between jail inmates and DHHS, but rather only addressed the issue of causation under § 1983.

The issue of causation is not, however, before this Court.⁸ DHHS and the dissent have cited no cases suggesting in any manner that causation is relevant to a determination of the applicability of the public duty doctrine. Nor have we identified any. We, therefore, hold, based on the statutes discussed above, that plaintiffs have sufficiently demonstrated' that they fall within the “special relationship” exception to the public duty doctrine.

Conclusion

We hold that the public duty doctrine does not apply under Stone and Hunt because DHHS’ duty to inspect was for the purpose of protecting the inmates and not for protection of the public generally. Alternatively, we hold that, even if the public duty doctrine did apply, plaintiffs fall within the “special relationship” exception to that doctrine. Accordingly, we affirm the Industrial Commission’s denial of DHHS’ motion to dismiss.

Affirmed.

Judge McGEE concurs. Judge TYSON concurs in part and dissents in part in a separate opinion.

1 . While the inspections are also expected to assess the security of the jails— relating to the public’s protection — there is no allegation in this case that DHHS was in any way negligent with respect to security.

2 . We, in any event, disagree with the dissent’s construction of N.C. Gen. Stat. § 163A-223 (2006), which provides that “if the Secretary determines that conditions in the facility jeopardize the safe custody, safety, health, or welfare of persons confined in the facility, the Secretary may order corrective action or close the facility . . . .” The dissent suggests that this language means that the Secretary is not required to act. When, however, the entire statute — and not just this phrase — is considered, the plain language of the statute establishes that the Secretary is required to take action, but may choose between ordering corrective action or closing the facility. The Secretary “shall” give notice of his determination (including "the inspector’s report”) to the local governing body, each local official responsible for the facility and the senior resident superior court judge for the superior court district in which the facility is located. N.C. Gen. Stat. § 153A-223(1). The governing body, if it does not initiate corrective action or close the facility, may request a contested case hearing to address (1) whether the facility meets the minimum standards, (2) whether the conditions in the facility jeopardize the safe custody safety health, or welfare of the inmates, and (3) the appropriate corrective action to be taken and a reasonable time to complete the action. N.C. Gen. Stat. § 153A-223(3). On appeal to the superior court, “[t]he issue before the court shall be whether the facility continues to jeopardize the safe custody, safety health, or welfare of persons confined therein.” N.C. Gen. Stat. § 153A-223(6). Thus, the statute relied upon by the dissent underscores that the duty of inspection is for the benefit of the specific individuals confined in the jail.

3 . These cases include Simmons v. City of Hickory, 126 N.C. App. 821, 487 S.E.2d 583 (1997) (addressing a city’s negligent inspection of a home); Tise v. Yates Constr. Co., 122 N.C. App. 582, 471 S.E.2d 102 (1996) (involving a city’s failure to inform a construction company of potential tampering with equipment, resulting in the death of a police officer), modified and aff’d on other grounds, 345 N.C. 456, 460, 480 S.E.2d 677, 680 (1997) (“We have some doubt as to the applicability of the public duty doctrine to the circumstances of this case.”); Sinning v. Clark, 119 N.C. App. 515, 459 S.E.2d 71 (involving negligent inspection of a home), disc. review denied, 342 N.C. 194, 463 S.E.2d 242 (1995).

4 . See Lassiter v. Cohn, 168 N.C. App. 310, 607 S.E.2d 688 (applying public duty doctrine to the discretionary actions of a police officer responding to an accident scene), disc. review denied, 369 N.C. 633, 613 S.E.2d 686 (2006); Little v. Atkinson, 136 N.C. App. 430, 432, 524 S.E.2d 378, 380 (relying upon the principle that “there is no liability for failure to furnish police protection to specific individuals” when the police are exercising their general police powers), disc. review denied, 351 N.C. 474, 543 S.E.2d 492 (2000); Vanasek v. Duke Power Co., 132 N.C. App. 335, 337, 511 S.E.2d 41, 43 (involving police officers’ failure to provide warning to the public of a downed power line; to the extent the holding applied the public duty doctrine to claims against the City and fire department, it was overruled by Lovelace), cert. denied, 350 N.C. 851, 539 S.E.2d 13 (1999); Humphries v. N.C. Dep’t of Corr., 124 N.C. App. 545, 479 S.E.2d 27 (1996) (applying doctrine to probation officer’s negligent failure to prevent convict from committing criminal acts against members of the public), disc. review improvidently allowed, 346 N.C. 269, 485 S.E.2d 293 (1997).

6 . The federal case cited by DHHS and the dissent supports the existence of this duty. See Reid v. Johnston County, 688 F. Supp. 200, 202 (E.D.N.C. 1988) (“There is no question that the North Carolina legislature has contemplated some state participation in the maintenance and operation of local confinement facilities.”), aff’d per curiam sub nom. Reid v. Kayye, 885 F.2d 129, 131 (4th Cir. 1989) (noting that under North Carolina law, the Department “has the duty” both to develop minimum standards and to inspect each facility).

6 . Contrary to the dissent’s suggestion, the General Assembly had no need to respond to Braswell because it did not involve the State. Further, Stone and Hunt provide only narrow exceptions to State liability under the Tort Claims Act.

7 . As analyzed in Stone and Hunt, there appears, in the context of negligent inspection cases, to be considerable overlap between the first inquiry — whether the duty is for the protection of the public — and the “special relationship” exception.

8 . Nothing precludes DHHS from challenging below plaintiffs’ ability to prove the causation alleged in their affidavits of claim. We express no opinion regarding the conclusions reached by the federal courts in Reid as to the discretionary nature of DHHS’ ability to enforce its standards. We note, however, that the courts did not address DHHS’ regulations. See 10A N.C.A.C. 14J.1303(a) (“The Secretary shall determine whether conditions in the jail jeopardize the safe custody, safety, health or welfare of its inmates within 30 days after receipt of the inspection report and the supporting materials.”); 10A N.C.A.C. 14J. 1303(c) (mandating that the Secretary “shall determine” that noncompliance with certain standards, including those relating to fire safety, jeopardize the safe custody, safety, health, or welfare of inmates); 10A N.C.A.C. 14J.1303(d) (providing that “[t]he Secretary shall order corrective action, order the jail closed, or enter into an agreement of correction with local officials pursuant to 10A NCAC 14J.1304”).