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Lassiter v. Cohn2/1/2005
nority of jurisdictions to which there may be an issue of fact as to its applicability in the case at bar. Without adopting the "high risk" exception to the public duty doctrine, this Court recognized it in Vanasek, 132 N.C. App. at 339, 511 S.E.2d at 45:
" ocal government officials knew or should have known the plaintiff or members of his class would be exposed to an unusually high risk if care was not taken by local government personnel, even without proof of reliance by the plaintiff." (Citations omitted.) In Vanasek, a downed power line was reported to the local police. After being called to the scene, police officers had their dispatcher notify Duke Power and then left without providing any visible warning or barrier to the high risk condition. Id. at 336, 511 S.E.2d at 43. A cable worker coming near the line for unrelated work was later killed when brushing against it. Id. We note this exception to the public duty doctrine to acknowledge that situations akin to those of plaintiff have been provided for in the common law of some jurisdictions. However, as we determined in Vanasek, adoption of the exception is best left to the Supreme Court or the General Assembly. Id.
Therefore, upon these facts, we find no exceptions to the public duty doctrine apply.
V. Conclusion
When viewed in a light most favorable to plaintiff, we find the evidence as forecast fell completely within Durham's immunization of performing a public duty, without exception, and summary judgment in favor of defendants on this ground should have been rendered as a matter of law. Further, in light of this determination, we need not reach those constitutional questions raised by plaintiff concerning defendants' policy for asserting sovereign immunity as a defense. See Sellers, 149 N.C. App. at 623, 561 S.E.2d at 339 (the public duty doctrine is its own bar immunizing police in performance of the general duties, and thus even "a waiver of governmental liability will not create a cause of action where none previously existed").
Therefore, after thorough review of the record, briefs, and transcripts in this matter, we hereby
Reverse.
Judges ELMORE and LEVINSON concur.
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