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Thelen Reid Brown Raysman & Steiner LLP
The
Thompsons hired Michael Waters to build a home in North
Carolina. After construction was complete and the Thompsons
moved in, they began seeing stress fractures, cracks, settling
of foundations and shifting of walls in the house. An inspection
uncovered substantial structural defects and numerous building
code violations. The Thompsons sued Waters for defective
construction. They also sued Lee County for its building
code inspector's negligent inspection and approval of the
defective work.
As
soon as the complaint was filed and before any facts had
been gathered, Lee County filed a motion to dismiss, arguing
that it was immune from liability under the "Public
Duty Doctrine." The doctrine holds that a public entity
cannot be held liable for negligent performance of obligations
on behalf of the public. Lee County argued that because
it was performing inspections as part of its public duty,
it could not be held liable for negligently performing that
duty. The trial court granted the motion to dismiss. The
Thompsons appealed, and the Court of Appeals affirmed. The
Thompsons appealed again to the North Carolina Supreme Court,
which accepted their view and reversed. Thompson v. Waters,
351 N.C. 462; 526 S.E.2d 650 (2000)
The
Supreme Court held that the Thompsons could state a claim
against Lee County for negligent inspection. The court noted
that the Public Duty Doctrine had been applied somewhat
inconsistently in North Carolina and that it had been abandoned
by other jurisdictions (e.g., Alaska, Iowa, and Wisconsin).
The North Carolina Supreme Court had declined to apply the
Public Duty Doctrine in a case in which a child was killed
as a result of a school guard's negligence. North Carolina
also recognizes exceptions to the Public Duty Doctrine when
a special relationship has been created between the injured
party and the government entity or when the government entity
specifically promises certain protection to an individual
and the individual relies on those promises. Other jurisdictions
view the Public Duty Doctrine simply as another form of
sovereign immunity that often is legislatively or judicially
abrogated.
After
reviewing past Public Duty Doctrine cases in North Carolina
and out of state, the North Carolina Supreme Court declined
to apply the doctrine as a bar to the Thompsons' claim.
The court's opinion did not discuss the public policy benefits
of the doctrine or analyze application of the doctrine to
the facts of the case. Thus, the opinion stands for the
proposition that in North Carolina the Public Duty Doctrine
does not bar a homeowner's claim against a public entity
for construction defects negligently overlooked by a government
inspector.
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For more information about the issues covered in this report, please contact Paul Berning in our San Francisco office at 415-369-7229 or at pwberning@thelen.com or contact your Thelen attorney. For more information about Thelen's Construction and Government Contracts Department, click here.
©2001 Thelen Reid Brown Raysman & Steiner LLP
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