Judge Dismisses WPD Wrongful Death Complaint Related to Val D’Auvray Investigation

NEW HANOVER COUNTY – A Superior Court judge dismissed without prejudice a Hampstead man’s wrongful death lawsuit against Wilmington police, noting that the case could be reopened if filed appropriately.

READ MORE: Chief Judge Postpones Val D’Auvray Wrongful Death Hearing, WPD Requests Extension

ALSO: A wrongful death lawsuit has been filed against WPD, alleging negligence and improper handling of the Val D’Auvray investigation

Val D’Auvray filed a wrongful death lawsuit against WPD in February, alleging the agency failed to follow proper procedures in critical cases leading up to and investigating his son’s death.

Plaintiff’s son, Joseph Valentine Flor D’Auvray III, known as “Val,” was found dead in front of the former TRU Colors Brewery on Greenfield Street on April 18, 2022. Four months later, the WPD ruled the death an accident, saying Val fell from the roof of the building.

In his complaint, D’Auvray cites two internal WPD investigations and a report from an FBI investigator that accuses the agency of:

• Six days before his son’s death, he failed to file a missing persons report filed by D’Auvray
• An encounter with Val the night before failed to respond to the risk of injury
• In the investigation that followed, crucial evidence was neglected
• He repeatedly made false statements to the victim’s family

Superior Court Judge Frank Jones granted WPD’s motion to dismiss the complaint at a hearing Thursday, but noted that his decision was not based on the merits of the case. He said he granted a request from D’Auvray to release bodycam footage he had seen related to the incident two years ago.

D’auvray presented himself pro se. His complaint did not include monetary damages, but did request disclosure of additional information from WPD related to Val’s death.

Attorney Trey Ferguson of Sumrell Sugg, based in New Bern, served as legal counsel to WPD. The hearing was originally scheduled for April 3, but Judge Kent Harrell delayed the proceedings because the WPD had not yet filed a motion to respond.

After the hearing, Ferguson requested a 30-day extension to file a motion. He attributed this to confusion with “this type of complaint” and the need for further review. D’Auvray did not seek monetary damages, the traditional form of compensation included in a civil lawsuit.

At the hearing, Ferguson invoked governmental immunity, which protects government agencies from liability in lawsuits involving employees working in an official capacity. The doctrine recognizes exceptions, such as proof that an officer acted maliciously, but counsel argued that the complaint did not contain an argument to override the law.

“Based on the lawsuits filed, there are no allegations of weakening of immunity or anything related to immunity, and therefore it is appropriate to dismiss the lawsuit,” Ferguson said.

From his understanding, Ferguson said the factual basis of the complaint was the alleged mishandling of a missing persons report that made Val’s death possible. He said it was difficult to understand the type of compensation D’Auvray was seeking in the case and did not believe a civil lawsuit was the appropriate means to provide more information about WPD’s possible errors in the case.

“What he is trying to do here appears to us to be asking the court to intervene in an internal affairs investigation,” Ferguson said.

Ferguson also cited the “public duty doctrine” from Braswell v. Braswell of the North Carolina Supreme Court in 1991, which held that law enforcement agencies are not liable for failure to protect individuals. Ferguson noted that there are exceptions to the decision, such as special agreements to protect certain individuals, but argued that the complaint contains no evidence of this.

“A police officer does not have a general duty to protect the public, an actionable duty that could give rise to a claim for damages,” the attorney argued.

D’Auvray responded that his claims related to the missing person report were not “stated” because they were substantiated by an internal WPD investigation. He added that Ferguson’s argument did not mention a second internal WPD investigation that substantiated allegations of lapses related to the “service” of one of the case’s lead investigators, Jameson Hutchins.

D’Auvray argued that the evidence he presented was extensive enough to warrant WPD providing him with more documentation about his actions before and after his son’s death. He emphasized that he wanted answers as to why WPD was able to make false statements to his family during the investigation.

Jones agreed with WPD’s legal counsel that the filing was legally deficient, adding that D’Auvray did not use the appropriate avenue to advance the complaint. A future filing would need to include a more specific form of relief and address legal defenses related to government immunity.

“Colloquially, he argues that your plea is legally sufficient, while your arguments are on substance,” Jones said at the hearing.

The ruling allows D’Auvray to revise his legal approach to reopen a future case.

“The ‘without prejudice,’ sir, means that you can sue again in appropriate circumstances,” Jones told D’Auvray at the hearing. “Without providing you with legal counsel, please understand that failure to correct deficiencies may result in dismissal, which would be considered a final disposition.”

D’Auvray told PCD that he is in contact with an attorney and plans to eventually file an updated complaint.

Tips or comments? Email journalist Peter Castagno at [email protected].

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