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Stafford v. Baker6/2/1998
As we have already discussed, in Hull, we held that the public duty doctrine barred plaintiffs from asserting a negligence claim against the Sheriff of Forsyth County. 104 N.C. App. at 35-39, 407 S.E.2d at 614- 17. However, in that case, plaintiffs also brought a claim under the sheriff's official bond against the Sheriff and his deputies, alleging that they had ignored repeated warnings by Michael Hayes' family and friends that Hayes was dangerous to himself and others. In considering that particular allegation, we held that it was sufficient to state a claim upon which relief could be granted because "under section 58-76-5 a cause of action available to plaintiffs for the 'neglect, misconduct or misbehavior' of defendants independent of their negligence claims." Id. at 40, 407 S.E.2d at 617 (emphasis added). Relying on the above holding, Mrs. Stafford contends that "although there may not be a common law duty to protect [individual] victims in case, there nevertheless a statutory duty pursuant to N.C.G.S. § 58-76-5." Therefore, she argues, the public duty doctrine is inapplicable in actions on a sheriff's bond. Such an argument, however, misapprehends our holding in Hull.
Contrary to Mrs. Stafford's assertion, we did not hold in that case that there was a "statutory duty" under N.C.G.S. § 58-76-5 which somehow attached to a municipality and its agents despite the immunity afforded them under the public duty doctrine. Rather, in Hull, we only affirmed the established principle that N.C.G.S. § 58-76-5 provides a plaintiff with a statutory cause of action in addition to a common law cause of action. See also Williams v. Adams, 288 N.C. 501, 219 S.E.2d 198 (1975); Dunn v. Swanson, 217 N.C. 279, 7 S.E.2d 63 (1940); and Smith v. Phillips, 117 N.C. App. 422, 429 S.E.2d 744 (1993). In other words, just as a plaintiff is required to prove every element of negligence in order to maintain a wrongful death claim, so too is he or she required to prove every element of a claim brought under N.C.G.S. § 58-76-5.
Accordingly, while N.C.G.S. § 58-76-5 gives Mrs. Stafford a right of action against Sheriff Baker, it does not relieve her of her burden of proving that the sheriff either intentionally engaged in misconduct and misbehavior while performing his custodial duties, or that he acted negligently in the performance of those duties, despite his duty to do otherwise. Because Mrs. Stafford makes no allegation that Sheriff Baker intentionally misbehaved in the performance of his duties, and we have already concluded that under the public duty doctrine, she cannot successfully assert that he acted negligently in the performance of his duties, we must hold that the trial court properly granted summary judgment on her claim under N.C.G.S. § 58-76-5.
In sum, the trial court's order granting summary judgment for defendants on Mrs. Stafford's wrongful death claim and her claim on the sheriff's bond is,
Affirmed.
Judges EAGLES and WALKER concur.
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