Moseley v. L & L Construction, Inc.

472 S.E.2d 172, 123 N.C. App. 79, 1996 N.C. App. LEXIS 568
CourtCourt of Appeals of North Carolina
DecidedJuly 2, 1996
DocketNo. COA95-1117
StatusPublished
Cited by5 cases

This text of 472 S.E.2d 172 (Moseley v. L & L Construction, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Moseley v. L & L Construction, Inc., 472 S.E.2d 172, 123 N.C. App. 79, 1996 N.C. App. LEXIS 568 (N.C. Ct. App. 1996).

Opinion

ARNOLD, Chief Judge.

Plaintiffs first argue that the trial court erred in granting defendants Ollis and Burke Comity’s motion to dismiss for failure to state a claim upon which relief could be granted. We disagree.

The applicable standard of review of a Rule 12(b)(6) ruling is “whether, as a matter of law, the allegations of the complaint, treated as true, are sufficient to state a claim upon which relief may be granted under some legal theory. . . .” Harris v. NCNB, 85 N.C. App. 669, 670, 355 S.E.2d 838, 840 (1987). In ruling upon such a motion, the complaint is to be liberally construed, and the court should not dismiss the complaint “unless it appears beyond doubt that plaintiff could prove no set of facts in support of his claim which would entitle him to relief.” Dixon v. Stuart, 85 N.C. App. 338, 340, 354 S.E.2d 757, 758 (1987).

Plaintiffs’ primary claim against defendants Ollis and Burke County is negligence. Plaintiffs sought relief upon the negligence of Ollis and the imputed negligence of his employer, Burke County. Plaintiffs alleged that Ollis undertook to perform inspections on the dwelling in question for the purpose of insuring the safety and security of potential owners of the dwelling and did so without using due care.

Plaintiffs cited the following statutes to support their negligence theory:

N.C. Gen. Stat. § 153A-352 (1991). Duties and responsibilities [of the inspection department and of inspectors within each county as they relate to the construction of buildings, the installation of facilities, and the maintenance of buildings in a safe sanitary and healthful condition]
N.C. Gen. Stat. § 153A-360 (1991). Inspections of work in progress. As the work pursuant to permit progresses, local [82]*82inspectors shall make as many inspections of the work as may be necessary to satisfy them that it is being done according to the provisions of the applicable State and local laws and local ordinances and regulations and of the terms of the permit.
N.C. Gen. Stat. § 153A-363 (1991). Certificates of Compliance. At the conclusion of all work done under a permit, the appropriate inspector shall make a final inspection. If he finds that the completed work complies with all applicable State and local laws and local ordinances and regulations and with the terms of the permit, he shall issue a certificate of compliance.
N.C. Gen. Stat. § 153A-356 (1991). If a member of an inspection department willfully fails to perform the duties required of him by law, or willfully improperly issues a permit, or gives a certificate of compliance without first making the inspections required by law, or willfully improperly gives a certificate of compliance, he is guilty of a misdemeanor.

This Court recently addressed whether N. C. Gen. Stat. § 160A-411 (1994) et seq. and the North Carolina Building Code were safety statutes, intended to promote the safety of the general public. Sinning v. Clark, 119 N.C. App. 515, 519, 459 S.E.2d 71, 74, disc. review denied, 342 N.C. 194, 463 S.E.2d 242 (1995). The plaintiffs in Sinning sought compensatory and punitive damages against the City of New Bern and two of its employees in their official capacities as Administrator for the City’s Inspection Department, and a building inspector holding a Level III standard inspection certificate in building, electrical, mechanical and plumbing. Id. at 516, 459 S.E.2d at 72.

Plaintiffs were constructing a home in New Bern, North Carolina. Id. On several occasions while construction was in progress, the building inspector inspected the residence for building code violations. Id. On 20 December 1990, he issued plaintiffs a thirty day temporary certificate of occupancy, permitting plaintiffs to move into their house subject to a number of “small jobs” being completed. Id. After moving into the house, plaintiffs discovered several major structural defects in its construction including, but not limited to, sagging and shifting floors, doors failing to close, windows out of plumb, cracked sheetrock and other wall materials, unlevel staircases, cracking brick veneer, leaking roof, and rotting front porch columns. Id. Plaintiffs sought to assert claims of negligence, gross negligence and negligent infliction of emotional distress against the City of New Bern and its employees. Id.

[83]*83The plaintiffs’ primary claim against the defendants was premised on the theory of ordinary common law negligence. Plaintiffs alleged that defendants were negligent in various respects in the inspection of their residence during construction, including their failure to locate and require correction of numerous building code violations and structural defects and their failure to advise plaintiffs that the house was structurally unsound and unfit for occupation. Id. at 517-518, 459 S.E.2d at 73.

This Court stated,
[t]he public duty doctrine is a common law rule providing for the general proposition that a municipality and its agents ordinarily act for the benefit of the general public and not for a specific individual when exercising its statutory police powers, and, therefore, cannot be held liable for a failure to carry out its statutory duties to an individual.

Id. at 518, 459 S.E.2d at 73 (1995) (citing Braswell v. Braswell, 330 N.C. 363, 410 S.E.2d 897 (1991), reh’g denied, 330 N.C. 854, 413 S.E.2d 550 (1992); Lynn v. Overlook Development, 98 N.C. App. 75, 389 S.E.2d 609 (1990), review allowed by 327 N.C. 140, 394 S.E.2d 176 (1990), affirmed in part, reversed in part, 328 N.C. 689, 403 S.E.2d 469 (1991)). Two exceptions to the public duty doctrine are (1) “where there is a special relationship between the injured party and the municipality” and (2) “ ‘where the municipality . . . creates a special duty by promising protection to an individual, the protection is not forthcoming, and the individual’s reliance on the promise of protection is causally related to the injury suffered.’ ” Braswell, 330 N.C. at 371, 410 S.E.2d at 902, (quoting Coleman v. Cooper, 89 N.C. App. 188, 194, 366 S.E.2d 2, 6, disc. review denied, 322 N.C. 834, 371 S.E.2d 275 (1988)).

A showing that a municipality has undertaken to perform its duties to enforce safety statutes like the North Carolina State Building Code is not sufficient, by itself, to show the creation of a special relationship with particular individual citizens. Sinning at 519, 459 S.E.2d at 74.

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Bluebook (online)
472 S.E.2d 172, 123 N.C. App. 79, 1996 N.C. App. LEXIS 568, Counsel Stack Legal Research, https://law.counselstack.com/opinion/moseley-v-l-l-construction-inc-ncctapp-1996.