Ted H. MARTIN, Jr. and Anita C. Martin, Plaintiffs,
v.
Lisa Boger MONDIE; Dwayne Rex Flinchum; and the Town of Mount Airy, Defendants.
No. 8817SC1182.
Court of Appeals of North Carolina.
August 1, 1989.*482 Petree Stockton & Robinson by W. Thompson Comerford, Jr., Jane C. Jackson and Barbara E. Brady, Winston-Salem, for plaintiffs.
Womble Carlyle Sandridge & Rice by Allan R. Gitter and James R. Morgan, Jr., Winston-Salem, for defendants.
WELLS, Judge.
Plaintiffs assign error to the trial court's entry of summary judgment in favor of *483 defendant Town. Plaintiffs contend that the failure of the Town's police department to serve three outstanding arrest warrants on defendant Mondie over a period of approximately four months constituted negligent conduct on the part of the Town which was a proximate cause of plaintiff's injury. Plaintiffs contend that the issuance of the warrants created a duty on the part of the Town, through its police force, to promptly arrest defendant Mondie, and that its failure to do so constituted negligence or, at a minimum, presented a question for the jury on the issue of negligence, making an entry of summary judgment in favor of defendant Town improper.
"Summary judgment is appropriate only where the pleadings, affidavits and other evidentiary materials before the court disclose that there is no genuine issue of material fact and that a party is entitled to judgment as a matter of law." Rolling Fashion Mart, Inc. v. Mainor, 80 N.C.App. 213, 341 S.E.2d 61 (1986). "Summary judgment is rarely appropriate in negligence cases." White v. Hunsinger, 88 N.C.App. 382, 363 S.E.2d 203 (1988).
"Actionable negligence is the failure to exercise that degree of care which a reasonable and prudent man would exercise under similar conditions and which proximately causes injury or damage to another." Williams v. Trust Co., 292 N.C. 416, 233 S.E.2d 589 (1977). It "presupposes the existence of a legal relationship between the parties by which the injured party is owed a duty which either arises out of a contract or by operation of law." Vickery v. Construction Co., 47 N.C.App. 98, 266 S.E.2d 711, disc. rev. denied, 301 N.C. 106 (1980).
In the present case plaintiffs seek to recover damages from defendant Town on the theory that the Town's police department was negligent in not promptly serving the three outstanding warrants on defendant Mondie and that this negligence was a proximate cause of plaintiff's injuries. In Coleman v. Cooper, 89 N.C.App. 188, 366 S.E.2d 2, disc. rev. denied, 322 N.C. 834, 371 S.E.2d 275 (1988), we stated that, "Ordinarily, a municipality providing police services is engaged in a governmental function for which there is no liability." We went on to state that: "In furnishing police protection, a municipality ordinarily acts for the benefit of the public at large and not for a specific individual... As the duty is to the general public rather than to a specific individual, no liability exists for the failure to furnish police protection." Id. at 193, 366 S.E.2d at 6. (Citations omitted). We noted in Coleman, however, that there were two exceptions to the general rule set out above: (1) "when there is a special relationship between the injured party and the police;" and (2) "when a municipality, through its police officers, 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." Id. at 193-194, 366 S.E.2d at 6. See also Lynch v. North Carolina Department of Justice, 93 N.C.App. 57, 376 S.E.2d 247 (1989); DeShaney v. Winnebago County Department of Social Services, 489 U.S. ___, 109 S. Ct. 998, 103 L. Ed. 2d 249 (1989) (dictum).
In the present case there is no allegation by plaintiffs and no forecast of evidence that defendant Town, through its police officers, created a "special duty" toward plaintiffs by promising them protection which was then not given, nor that plaintitf's injury resulted from reliance on such a promise. There is also no forecast of evidence of the existence of any "special relationship" between plaintiffs and defendant Town's police department of the kind discussed in Coleman. Plaintiffs contend instead that the existence of the arrest warrants created a statutory duty to serve the warrants by arresting detendant Mondie, a duty which was owed to plaintifts among others, by defendant Town. Plaintitfs further contend that detendant breached this statutory duty by failing to promptly serve the warrants and defendant should be liable for the resulting injury to plaintiffs on the theory of negligence. This argument is untenable. The duty created by the issuance of arrest warrants is to the public at large rather than specific individuals. An individual cannot base a *484 claim of negligence on a breach of this statutory duty when law enforcement officials owe no duty to the specific individual, but owe it instead to the public at large.
"A defending party is entitled to summary judgment if he can show that the claimant cannot prove the existence of an essential element to his claim or cannot surmount an affirmative defense which would bar the claim." Little v. National Service industries, Inc., 79 N.C.App. 688, 340 S.E.2d 510 (1986). In the present case, defendant Town's forecast of evidence has shown that plaintiffs cannot establish an essential element of actionable negligencea duty owed by defendant Town to plaintiffs which defendant Town has breached. Consequently, plaintiffs' cause of action must fail. We hold that the trial court did not err in granting summary judgment for defendant Town. This assignment of error is overruled.
Plaintiffs also assign error to the trial court's reliance on affidavits offered in support of defendant Town's motion for summary judgment. Plaintiffs contend that the affidavits "contained hearsay, improper legal conclusions and statements otherwise inadmissible;" and that the trial court's reliance on these affidavits was improper. "Where the pleadings or proof of the plaintiff disclose that no claim exists, summary judgment for defendant is proper." Colonial Building Co. v. Justice, 83 N.C.App. 643, 351 S.E.2d 140 (1986), disc. rev. denied, 319 N.C. 402, 354 S.E.2d 711 (1987). While some of the materials before the trial court may have contained inadmissible evidence, the materials properly before the trial court established as a matter of law that plaintiffs cannot maintain their negligence claim against the Town. Summary judgment in favor of defendant Town was properly entered. The assignment of error is overruled.
Affirmed.
HEDRICK, C.J., and ARNOLD, J., concur.