Home / Courts / N.C. Court of Appeals Unpublished / Tort/Negligence – Wrongful Death – Drug Overdose – Police Response – Public Duty Doctrine – Public Official Immunity

Tort/Negligence – Wrongful Death – Drug Overdose – Police Response – Public Duty Doctrine – Public Official Immunity

Holding: After finding plaintiff’s impaired decedent, the defendant-deputy chose to do as the decedent asked – to call a friend to come get him – rather than arresting the decedent or getting medical help for him. This exercise of discretion in deciding how to use county resources is protected by the public duty doctrine.

We affirm the trial court’s grant of defendants’ motion to dismiss.


A 911 call came in about a vehicle with the door open and the driver slumped over the steering wheel. EMS and the defendant-deputy were dispatched to the scene.

The deputy was the first to arrive. He discovered plaintiff’s decedent in an obviously impaired state, and the EMS call was canceled.

The decedent asked the deputy to call his friend, Erica Mills-Bowen, to come pick him up. The deputy called Mills-Bowen, who agreed to retrieve the decedent, and the deputy left the scene.

Mills-Bowen found the decedent alone and unconscious. She got him to her home and put him to bed. The decedent was dead from an overdose the next morning.

Public Duty Doctrine

The public duty doctrine provides immunity for government actions when the allegedly tortious conduct involves a discretionary determination. Plaintiff contends that the deputy’s actions were neither discretionary nor appropriate.

While the decedent was “initially unconscious and severely impaired” when the deputy arrived, the deputy’s evaluation of the scene ultimately led him to make the deliberate, discretionary decision that emergency medical attention for the decedent was not necessary. That decision directly implicated the county’s allocation of resources.

Plaintiff cites no authority suggesting that law enforcement officers have a duty to summon medical attention any time they encounter an individual who is impaired. Indeed, the law dictates just the opposite.

Because the deputy made a deliberate decision, based on his personal observations at the time, his actions were discretionary. The deputy made the discretionary decision that he could adequately address the decedent’s situation by having the decedent’s friend retrieve him. While there were other measures the deputy might have taken in order to reduce the decedent’s risk of overdosing, we decline to impose an unreasonable hindsight-based standard of liability on law enforcement.

Public Official Immunity

Plaintiff argues that, because the deputy acted willfully and wantonly, public official immunity does not protect the deputy from plaintiff’s claims against the deputy in his individual capacity. The complaint alleges that the deputy did not want to deal with the paperwork or court date involved in an arrest because he was retiring soon.

However, this factual allegation would only support the claim that the deputy acted willfully and wantonly in not arresting the decedent. It does not suggest that the deputy acted willfully or wantonly in his decision not to seek medical attention for the decedent.

The complaint does not allege that seeking medical attention for the decedent would have had any bearing on the deputy’s upcoming retirement date. While the deputy may have indeed been negligent in canceling the EMS call, the complaint is devoid of any set of facts which would otherwise support plaintiff’s contention that such conduct was corrupt, malicious, outside of and beyond the scope of his duties, in bad faith, or willful and deliberate.


Kelly v. Polk County (Lawyers Weekly No. 012-020-18, 18 pp.) (Valerie Zachary, J.) Appealed from Polk County Superior Court (Alan Thornburg, J.) Gary Young for plaintiff; Sean Perrin for defendants. N.C. App. Unpub.


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