Tise v. Yates Construction Co.2/10/1997
99, 305, 420 S.E.2d 174, 177-78 (1992). "'To recover damages for actionable negligence, a plaintiff must establish (1) a legal duty, (2) a breach thereof, and (3) injury proximately caused by such breach.'" Mozingo v. Pitt County Memorial Hosp., 331 N.C. 182, 187, 415 S.E.2d 341, 344 (1992) (quoting Waltz v. Wake County Bd. of Educ., 104 N.C. App. 302, 304-05, 409 S.E.2d 106, 107 (1991), disc. rev. denied, 330 N.C. 618, 412 S.E.2d 96 (1992)). With respect to the legal duty owed, in Braswell v. Braswell, 330 N.C. 363, 410 S.E.2d 897 (1991), we specifically adopted the general common law rule known as the public duty doctrine, which provides 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." Id. at 370-71, 410 S.E.2d at 901.
In the instant case, the City, in its notice of appearance and answer, asserted the public duty doctrine in its motion to dismiss for failure to state a claim upon which relief could be granted as a bar to Yates' attempt to cut off the City's subrogation rights under N.C.G.S. § 97-10.2(e). The trial court granted the City's motion to dismiss. On appeal, the Court of Appeals, in affirming the order of the trial court, held that "Yates has not sufficiently alleged facts disclosing that a duty was owed by the City to Lieutenant Tise, an essential element of actionable negligence," and that, therefore, its claims attempting to bar the City's subrogation rights pursuant to N.C.G.S. § 97-10.2(e) must fail. Tise v. Yates Construction Co., 122 N.C. App. 582, 589, 471 S.E.2d 102, 107 (1996).
We have some doubt as to the applicability of the public duty doctrine to the circumstances of this case. However, we decline to decide that issue. Assuming arguendo that the City owed its employee Tise a duty of care and that the City breached this duty in the manner alleged by Yates, we nevertheless conclude that the trial court did not err in granting the City's motion to dismiss.
The general rule is that the intervening or superseding criminal acts of another preclude liability of the initial negligent actor when the injury is caused by the criminal acts. As our Court of Appeals noted in Muse v. Charter Hosp. of Winston-Salem, 117 N.C. App. 468, 452 S.E.2d 589, aff'd, 342 N.C. 403, 464 S.E.2d 44 (1995),
the doctrine of superseding, or intervening, negligence is well established in our law. In order for an intervening cause to relieve the original wrongdoer of liability, the intervening cause must be a new cause, which intervenes between the original negligent act and the injury ultimately suffered, and which breaks the chain of causation set in motion by the original wrongdoer and becomes itself solely responsible for the injury. Hayes v. City of Wilmington, 243 N.C. 525, 540, 91 S.E.2d 673, 685 (1956).
Muse, 117 N.C. App. at 476, 452 S.E.2d at 595.
In discussing the doctrine of superseding, or intervening, negligence, we have said:
"An efficient intervening cause is a new proximate cause which breaks the connection with the original cause and becomes itself solely responsible for the result in question. It must be an independent force, entirely superseding the original action and rendering its effect in the causation remote."
Hairston v. Alexander Tank & Equip. Co., 310 N.C. 227, 236, 311 S.E.2d 559, 566 (1984) (quoting Harton v. Forest City Tel. Co., 141 N.C. 455, 462, 54 S.E. 299, 301-02 (1906)). We also said:
"'The test by which the negligent conduct of one is to be insulated as a matter of law by the independent negligent act of another is reasonable unforeseeab
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