Opinion
No. COA96-207
Filed 4 February 1997
1. Appeal and Error § 112 (NCI4th) — denial of motion to dismiss — sovereign immunity — immediate appeal The denial of a motion to dismiss based on sovereign immunity is immediately appealable.
Am Jur 2d, Appellate Review § 164.
2. State § 31 (NCI4th) — Tort Claims Act — public duty doctrine inapplicable
Am Jur 2d, Municipal, County, School, and State Tort Liability § 114; States, Territories, and Dependencies § 104.
3. Labor and Employment § 31 (NCI4th) — Department of Labor — violation of inspection duties — negligence action
95-4
Am Jur 2d, Labor and Labor Relations § 3174; Plant and Job Safety — OSHA and State Laws §§ 62, 137.
Municipal liability for negligent performance of building inspector's duties. 69 ALR4th 739.
4. Labor and Employment § 31 (NCI4th); State § 46 (NCI4th) — workplace fire — failure to inspect — statement of claim against Department of Labor
Am Jur 2d, Municipal, County, School, and State Tort Liability §§ 221-223.
Municipal liability for negligent performance of building inspector's duties. 69 ALR4th 739.
Appeal by defendants from order entered 19 December 1995 by the North Carolina Industrial Commission. Heard in the Court of Appeals 23 October 1996.
Fuller Becton Billings Slifkin, P.A., by Charles L. Becton, Russell King, P.A., by Edward L. Bleynat, Jr., Law Offices of Woodrow Gunter, by Woodrow W. Gunter, II, Adams Kleemeier Hagan Hannah Fouts, by J. Alexander S. Barrett, and Kitchin, Neal, Webb Futrell, by Henry L. Kitchin, for plaintiffs-appellees.
Attorney General Michael F. Easley, by Senior Deputy Attorney General Reginald L. Watkins, Special Deputy Attorney General David Roy Blackwell, Special Deputy Attorney General Elisha H. Bunting, Jr., and Special Deputy Attorney General Ralf F. Haskell, for the State.
Plaintiffs commenced this action under the Tort Claims Act, N.C. Gen. Stat. section 143-291 et. seq., for damages incurred as a result of a 3 September 1991 fire at the Imperial Food Products plant ("the plant") in Hamlet. Plaintiffs allege that defendants negligently failed to inspect the plant for workplace safety violations and failed to enforce workplace safety laws. Defendants moved to dismiss the claims under N.C.R. Civ. P. 12(b)(6) for failure to state a claim and under N.C.R. Civ. P. 12(b)(1) and (2) on the basis of sovereign immunity. Deputy Commissioner D. Bernard Alston denied defendants' motions. The full Commission affirmed and adopted the Deputy Commissioner's decision. Defendants appeal.
Since we are reviewing a ruling on a motion to dismiss, we treat plaintiffs' allegations as true. See Harris v. NCNB, 85 N.C. App. 669, 670, 355 S.E.2d 838, 840 (1987). Plaintiffs allege that on 3 September 1991, a hydraulic fuel line near a deep fat fryer in the processing section of the plant ruptured, igniting hydraulic fuel from a natural gas fume cooker. The fire spread rapidly through the plant, killing twenty-five (25) people and injuring fifty-six (56). Defendants had never inspected the plant, despite the occurrence of two other fires at the plant, one in 1980 and another in 1983. When it was inspected subsequent to the fire in September 1991, the plant was issued eighty-three (83) citations for various violations of the Occupational Safety and Health Act of North Carolina. Plaintiffs allege, inter alia, that defendants' failure to inspect the plant was negligent.
As a preliminary matter, we note that ordinarily, the denial of a motion to dismiss is not immediately appealable. E.g. Godwin v. Walls, 118 N.C. App. 341, 344, 455 S.E.2d 473, 477 (1995). However, since defendants' motion is based on sovereign immunity, its denial is properly before us. See Hawkins v. State of North Carolina, 117 N.C. App. 615, 622, 453 S.E.2d 233, 237 (1995).
Defendants argue that because they owed no duty to plaintiffs, they cannot be held liable to them under the Tort Claims Act. The first reason they cite for lack of duty is the public duty doctrine. However, in an opinion filed contemporaneously herewith, Hunt v. North Carolina Department of Labor, 96COA-312, we reject this argument and hold that the public duty doctrine does not apply in actions brought against State agencies under the Tort Claims Act. Accordingly, this argument has no merit.
Defendants next argue that no duty is imposed by Chapter 95 of the North Carolina General Statutes, entitled "Department of Labor and Labor Regulations." They argue that if Chapter 95 establishes a duty, it is a duty owed by the employer not the government. We disagree.
Plaintiffs allege that a duty is imposed by N.C. Gen. Stat. section 95-4. This statute states that the Commissioner of Labor is " charged with the duty":
(4) To secure the enforcement of all laws relating to the inspection of factories, mercantile establishments, mills, workshops, public eating places, and commercial institutions in the State. . . .
(5) To visit and inspect, personally or through his assistants and factory inspectors, at reasonable hours, as often as practicable, the factories, mercantile establishments, mills, workshops, public eating places, and commercial institutions in the State, where goods, wares, or merchandise are manufactured, purchased, or sold, at wholesale or retail.
(6) To enforce the provisions of this section and to prosecute all violations of laws relating to the inspection of factories, mercantile establishments, mills, workshops, public eating houses, and commercial institutions in this State before any court of competent jurisdiction. . . .
N.C. Gen. Stat. § 95-4 (1993) (emphasis added).
This statute clearly imposes specific duties upon the Commissioner of Labor to enforce inspection laws, to inspect the workplaces of North Carolina and to prosecute violations. One obvious purpose of this statute is to provide for the safety of the people who work in commercial establishments and to protect them from injuries in the workplace arising from unsafe conditions. Therefore, we hold that a violation of these duties to inspect and enforce can give rise to an action for negligence. See Hunt v. North Carolina Department of Labor, 96COA-312; see also Coleman v. Cooper, 89 N.C. App. 188, 195-97, 366 S.E.2d 2, 7-8 (1988).
In the present case, plaintiffs have alleged that defendants have never inspected the plant. They further allege that, as a result of this breach of defendants' duty to inspect, they suffered injury. We hold that these allegations are sufficient to enable plaintiffs' negligence claim to withstand a motion to dismiss. Accordingly, the Industrial Commission did not err in denying defendants' motions.
Affirmed.
Judges WALKER and MARTIN, MARK D. concur.