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Stafford v. Baker6/2/1998
t "such a broad application of the 'special relationship' exception ... would not be consistent with our Supreme Court's holding in Braswell." Id. at 758, 431 S.E.2d at 219.
The rationale set forth in Prevette applies equally here. Not only would an adoption by this Court of Section 319 be inconsistent with the public duty doctrine and its exceptions as set forth by our Supreme Court in Braswell, but it would also be wholly inconsistent with this Court's holdings in Hedrick, Humphries, Hull and a line of other North Carolina cases involving the applicability of the public duty doctrine. See Sinning v. Clark, supra; Lynn v. Overlook Development, 98 N.C. App. 75, 389 S.E.2d 609 (1990), affirmed in part, reversed in part, 328 N.C. 689, 403 S.E.2d 469 (1991); Clark v. Red Bird Cab Co., 114 N.C. App. 400, 442 S.E.2d 75, disc. review denied, 336 N.C. 603, 447 S.E.2d 387 (1994); Martin v. Mondie, 94 N.C. App. 750, 381 S.E.2d 481 (1989); and Davis v. Messer, 119 N.C. App. 44, 457 S.E.2d 902 (1995). Accordingly, we decline to adopt Section 319 of the Restatement as an additional exception to the public duty doctrine.
However, notwithstanding our refusal to create a third exception to the public duty doctrine, Mrs. Stafford argues that the public duty doctrine still should not be applied in this case because the sheriff purchased liability insurance. She argues that since a county may waive governmental immunity by purchasing liability insurance, see N.C. Gen. Stat. § 160A-485, it therefore follows that Sheriff Baker, upon the purchase of liability insurance, waived his immunity under the public duty doctrine. Again, we disagree.
While it is true, as Mrs. Stafford asserts, that a municipality in this State waives the defense of governmental immunity by purchasing liability insurance, it is also true that a waiver of governmental immunity does not create a cause of action where none previously existed. Coleman v. Cooper, 89 N.C. App. 188, 192, 366 S.E.2d 2, 5, disc. review denied, 322 N.C. 834, 371 S.E.2d 275 (1988) (citing Riddock v. State, 68 Wash. 329, 123 P. 450 (1912); 57 Am. Jur.2d Municipal, School, and State Tort Liability, Sec. 72.) Accordingly, in Coleman, we applied the public duty doctrine to bar plaintiff's claims against the City of Raleigh and its police department for failing to protect her children from her estranged husband, despite the fact that the City had purchased liability insurance. Noting first that " waiver of governmental immunity ... not create a cause of action where none previously existed," we held that the plaintiff had no cause of action against the city because there was no evidence that plaintiff's case fell within any of the two exceptions to the public duty doctrine. Id. at 192-95, 366 S.E.2d at 5-7.
Similarly, in this case, defendant's purchase of liability insurance cannot create for Mrs. Stafford a negligence cause of action where, as here, we have already concluded that the public duty doctrine precludes a finding that Sheriff Baker owed any duty to Mr. Stafford other than the duty generally owed him as a member of the public at large. Accordingly, because Mrs. Stafford in this case admits that neither of the two recognized exceptions to the public duty doctrine apply to the facts of this case, we hold that she has no basis in the law for holding Sheriff Baker liable for the wrongful death of her husband.
II.
Sheriff's Bond Claim
Citing again to Hull v. Oldham, supra, Mrs. Stafford next contends that the trial court erred in granting summary judgment as to her claim under N.C. Gen. State § 58-76-5 -- the statute which provides a right of action on a sheriff's official bond. We disagree.
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