DocketNumber: I.C. NOS. TA-18290 TA-18291.
Judges: <center> ORDER for the Full Commission by BERNADINE S. BALLANCE, Commissioner, N.C. Industrial Commission.</center>
Filed Date: 9/10/2008
Status: Precedential
Modified Date: 7/6/2016
2. In February 2003, Ms. Hemphill was a probation/parole officer in McDowell County, North Carolina. On February 12, 2003, Ms. Hemphill was supervising Mr. James Oakes, who was on probation following convictions for indecent exposure and simple assault.
3. On February 14, 2003, Ms. Hemphill met with Mr. Oakes in her office and learned that he was staying at Gibbs Motel with a Mr. Ronald Rogers. When Ms. Hemphill learned that Mr. Rogers was also on probation, she drove Mr. Oakes to Gibbs Motel to retrieve his belongings.
4. Upon returning to her office, Ms. Hemphill undertook to assist Mr. Oakes in finding alternative living arrangements. She tried several times to call Mr. Oakes' mother, but she could not reach her. She also contacted a shelter, which refused to accept Mr. Oakes, due to previous violations of shelter rules.
5. When Mr. Oakes indicated that he could probably stay with Plaintiffs and Mr. David Ledford, Ms. Hemphill drove Mr. Oakes to Old Fort, North Carolina to find the Blaylock/Ledford home. When they arrived in Old Fort, Ms. Hemphill called Plaintiff Blaylock at work and asked her if Mr. Oakes could stay with her. Plaintiff Blaylock advised her that she would have to talk with Mr. Ledford.
6. Ms. Hemphill then drove to the Blaylock/Ledford house and spoke with Mr. Ledford. Ms. Hemphill told Mr. Ledford that if it was all right with him, it was all right with *Page 3 Plaintiff Blaylock to allow Mr. Oakes to reside in their home. Mr. Ledford agreed to allow Mr. Oakes to reside at their home.
7. Thereafter, Ms. Hemphill did nothing else to determine whether it was appropriate for Mr. Oakes to reside in the Blaylock/Ledford home.
8. On or about February 16, 2003, Mr. Oakes sexually assaulted Plaintiff Brittany Ledford, age three (3), and Plaintiff Heather Ledford, age five (5), in their bedroom at the Blaylock/Ledford home.
9. When Ms. Hemphill placed Mr. Oakes in the Blaylock/Ledford home, she knew that pre-school-aged children resided in the home. She also knew of Mr. Oakes' convictions for indecent exposure and assault on a minor, that he was bipolar and schizophrenic, and that he had a bad temper, as well as problems controlling his anger.
10. Following the sexual assaults, Ms. Barbara Braswell, who was investigating the case on behalf of the McDowell County Department of Social Services, interviewed Ms. Hemphill. Ms. Hemphill admitted to Ms. Braswell that she knew that Mr. Oakes "had a past."
11. In the mid 1990's, Mr. Oakes participated in a program at Foothills Mental Health, where the staff there identified him as a sexual offender. Mr. Oakes' status as a sexual offender was common knowledge amongst McDowell County agencies, including the McDowell County Department of Social Services, Foothills Mental Health, and the McDowell County Sheriff's Department.
12. Prior to February 14, 2003, in her capacity as a probation/parole officer, Ms. Hemphill placed another sex offender in a home with children. When the Department of Social Services learned of this placement, it took action to have the offender removed. *Page 4
13. Ms. Hemphill knew, or had reason to know, that the placement of Mr. Oakes in a home where pre-school-aged minor children resided created an environment injurious to the welfare of the minor children.
14. Plaintiffs contend that Defendant, through its agent and employee, Ms. Hemphill, failed to use reasonable care when it placed Mr. Oakes in the home of Plaintiffs, when it knew or should have known that Mr. Oakes posed a substantial risk of harm to the pre-school-aged minor children in the Blaylock/Ledford home.
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 v. Braswell,
330 N.C. 363 ,370-371 ,410 S.E.2d 897 ,901 (1991).
2. In Humphries v. N.C. Dep't of Corrections,
3. The North Carolina Supreme Court in Lovelace v. City ofShelby,
4. Consistent with the underlying public policy of the public duty doctrine, both Braswell and Humphries involve alleged liability based upon a failure to act which could have prevented harm. InBraswell, the plaintiff alleged that the Sheriff failed to protect a wife who received threats from her husband. Braswell at 367-370, 900-901. In Humphries, the plaintiff alleged that a probation/parole officer failed to properly supervise a probationer who subsequently escaped house arrest and violently assaulted two (2) victims.Humphries at 546-547, 27-28. The allegations of both cases implicate the allocation of agency resources and personnel; neither case involved an affirmative action on the part of the agency which resulted in harm and/or which created an environment for harm where one did not previously exist. Braswell involved a domestic situation where a husband previously harmed his wife, and threatened to do so again.Humphries involved violent assaults against two (2) victims previously unknown to the defendant agency. The common thread running through these cases, and the application of the public duty doctrine, is the right of the agency to exercise discretion in allocating its limited resources. *Page 6
5. In the present case, the affirmative actions of Defendant's agent and employee, Ms. Hemphill, directly resulted in the harm caused to the minor Plaintiffs. The facts of this case do not arise from Defendant's failure to make a discretionary allocation of agency resources or of agency personnel. See, Braswell,
6. Even if the public duty doctrine applies, Defendant is not entitled to judgment in its favor as a matter of law, because there is a genuine issue as to whether this case fits within the "special relationship" exception to the public duty doctrine. When Ms. Hemphill placed Mr. Oakes in the home with the minor children herein, she caused these children to be in an environment injurious to their welfare, thereby causing the minor children to immediately fit within the definition of neglected children under N.C. Gen. Stat. §
In the discretion of the Full Commission and in light of the recent decision of the Supreme Court in Multiple Claimants, Plaintiffs are granted leave to amend their Claim for Damages Under the Tort Claims Act (if they deem it necessary) to plead with more particularity the "special relationship" exception to the public duty doctrine.Id.
*Page 8Defendant shall pay the costs.
This __ day of August 2008.
S/___________________ BERNADINE S. BALLANCE COMMISSIONER
CONCURRING:
*Page 1S/___________________ BUCK LATTIMORE COMMISSIONER
S/___________________ DANNY LEE McDONALD COMMISSIONER
Hunt v. North Carolina Department of Labor , 348 N.C. 192 ( 1998 )
Stone v. North Carolina Department of Labor , 347 N.C. 473 ( 1998 )
Humphries v. North Carolina Department of Correction , 124 N.C. App. 545 ( 1996 )
Braswell v. Braswell , 330 N.C. 363 ( 1991 )