|||North Carolina Supreme Court
|||489 S.E.2d 880, 347 N.C. 97, 1997.nc.5 <http://www.versuslaw.com>
|||September 5, 1997
|||PATRICIA M. MEYER, ADMINISTRATRIX FOR THE ESTATE OF CLEARMAN I. FRISBEE
JO ANN WALLS, INDIVIDUALLY AND IN HER OFFICIAL CAPACITY AS LICENSE HOLDER AND ADMINISTRATOR OF COMMUNITY CARE OF HAYWOOD, NO. 3; GEORGE ANDREW BROWN, III, INDIVIDUALLY AND AS GEORGE ANDREW BROWN D/B/A A & B EXCAVATING, INC.; A & B EXCAVATING, INC.; COUNTY OF BUNCOMBE, BUNCOMBE COUNTY DEPARTMENT OF SOCIAL SERVICES; CALVIN E. UNDERWOOD, JR., INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS DIRECTOR OF THE BUNCOMBE COUNTY DEPARTMENT OF SOCIAL SERVICES; KAY BARROW, INDIVIDUALLY AND IN HER OFFICIAL CAPACITY AS SUPERVISOR AT THE BUNCOMBE COUNTY DEPARTMENT OF SOCIAL SERVICES; MACKEY MILLER, INDIVIDUALLY, AND IN HIS OFFICIAL CAPACITY AS A SOCIAL WORKER AT THE BUNCOMBE COUNTY DEPARTMENT OF SOCIAL SERVICES
|||On discretionary review pursuant to N.C.G.S. § 7A-31 of a unanimous decision
of the Court of Appeals, 122 N.C. App. 507, 471 S.E.2d 422 (1996), affirming
in part, reversing in part, and remanding an order on defendants' motions
to dismiss entered 2 November 1994 by Downs, J., in Superior Court, Haywood
|||Hyler & Lopez, Pa, by George B. Hyler, Jr., and Robert J. Lopez, for
|||Charlotte A. Wade for defendant-appellants Buncombe County Dss, Underwood,
Miller, and Barrow.
|||Michael F. Easley, Attorney General, by D. Sigsbee Miller, Assistant Attorney
General, for the State, amicus curiae.
|||James B. Blackburn and Womble Carlyle Sandridge & Rice, P.l.l.c.,
by Robert H. Sasser, III, on behalf of The North Carolina Association of
County Commissioners, amicus curiae.
|||The opinion of the court was delivered by: Orr
|||On 9 February 1992, decedent Clearman I. Frisbee committed suicide by
placing an explosive blasting cap in his mouth and detonating it with a
battery. More than two years prior to Mr. Frisbee's death, the Buncombe
County Department of Social Services ("DSS" or "Buncombe
County DSS") petitioned the Buncombe County Clerk of Superior Court
to declare Mr. Frisbee legally incompetent because his multiple medical
and psychological problems rendered him "unable to manage his own affairs."
On 28 November 1989, Mr. Frisbee was adjudicated legally incompetent, and
defendant DSS was appointed as Mr. Frisbee's legal guardian. While under
DSS' care, Mr. Frisbee was placed in and removed from several community
care facilities because of his behavior. On 11 February 1991, Mr. Frisbee
was admitted to Community Care of Haywood No. 3 ("Community Care #
3") by defendant Jo Ann Walls, the administrator of Community Care
# 3. At that time, defendant Mackey Miller was the DSS social worker handling
Mr. Frisbee's case, defendant Calvin E. Underwood was the director of the
Buncombe County DSS, and defendant Kay Barrow was the supervisor of the
Adult Protective Services Unit at the Buncombe County DSS. Because of their
respective positions with DSS, both defendants Underwood and Barrow had
general guardianship authority over Mr. Frisbee.
|||On 9 November 1993, plaintiff Patricia M. Meyer, as administratrix for
the estate of Clearman I. Frisbee, filed a wrongful death action alleging
that Mr. Frisbee's death was proximately caused by the negligence of the
named defendants. Plaintiff alleged, among other things, that defendants
Underwood, Barrow, and Miller, individually and in their official capacities
as agents of defendant Buncombe County DSS, (1) failed to make proper provisions
for Mr. Frisbee's care, comfort, and maintenance; (2) failed to act in his
best interest; and (3) failed to adequately respond to information provided
by family members regarding Mr. Frisbee's condition and conditions at Community
Care # 3. Plaintiff also asserted multiple negligence claims against defendant
Buncombe County DSS. Defendants Underwood, Barrow, Miller, and Buncombe
County DSS filed motions to dismiss pursuant to Rule 12(b)(1) and Rule 12(b)(6).
After a hearing, the trial court dismissed plaintiff's claim against defendant
Buncombe County DSS for lack of subject matter jurisdiction, concluding
that exclusive jurisdiction over the claim against DSS is in the Industrial
Commission, and dismissed plaintiff's claim against defendants Underwood,
Barrow, and Miller for failure to state a claim upon which relief can be
granted. This appeal pertains solely to these motions to dismiss filed by
defendants Underwood, Barrow, Miller, and DSS.
|||Plaintiff appealed to the Court of Appeals, which held: (1) jurisdiction
depends on the statutory authority for waiver of immunity, the jurisdictional
provisions of N.C.G.S. § 153-435(b) control over those of N.C.G.S. § 143-291(a)
where there is a conflict, and a remand is necessary for a determination
as to whether the amount of insurance coverage exceeded the $100,000 cap
on recovery under the Tort Claims Act; (2) a suit against Underwood in his
official capacity must proceed in the same forum as a suit against DSS and
must therefore be remanded along with the suit against DSS; (3) the trial
court properly dismissed plaintiff's claim against Underwood in his individual
capacity for mere negligence in the performance of his duties and improperly
dismissed the claim against Underwood in his individual capacity for allegations
of willful and wanton conduct; and (4) the trial court improperly dismissed
plaintiff's claims against Barrow and Miller in their individual capacities
for mere negligence. We reverse the Court of Appeals' decision as it pertains
to the claim against DSS because we hold that since DSS is not a state agency,
the Tort Claims Act does not apply to the claim against DSS, and we affirm
the Court of Appeals' decision as it pertains to the claims against Underwood,
Barrow, and Miller in their official and individual capacities.
|||DEFENDANT BUNCOMBE COUNTY DEPARTMENT OF SOCIAL SERVICES
|||The trial court dismissed the claim against DSS based on lack of subject
matter jurisdiction on the grounds that the action must be brought in the
Industrial Commission. The Court of Appeals, however, concluded that jurisdiction
depends on the statutory authority for waiver of immunity, that the jurisdictional
provisions of N.C.G.S. § 153-435(b) control over those of N.C.G.S. § 143-291(a)
where there is a conflict, and that a remand is necessary for a determination
as to whether the amount of insurance coverage exceeded the $100,000 cap
on recovery under the Tort Claims Act. We disagree with the Court of Appeals'
interpretation of the law governing this issue.
|||The issue before us is whether jurisdiction for the suit against DSS lies
before the Industrial Commission pursuant to the Tort Claims Act or before
the Superior Court as originally filed by plaintiff. We conclude that jurisdiction
resides in the Superior Court. Under the doctrine of sovereign immunity,
the State is immune from suit absent waiver of immunity. E.g., Gammons v.
N.C. Dep't of Human Resources, 344 N.C. 51, 54, 472 S.E.2d 722, 723 (1996).
Under the doctrine of governmental immunity, a county is immune from suit
for the negligence of its employees in the exercise of governmental functions
absent waiver of immunity. E.g., State ex rel. Hayes v. Billings, 240 N.C.
78, 80, 81 S.E.2d 150, 152 (1954). An action against a commission or board
created by statute as an agency of the State where the interest or rights
of the State are directly affected is in fact an action against the State.
Prudential Ins. Co. of America v. Powell, 217 N.C. 495, 8 S.E.2d 619 (1940).
Likewise, an action against a county agency which directly affects the rights
of the county is in fact an action against the county.
|||N.C.G.S. § 143-291(a) of the Tort Claims Act provides a limited waiver
of immunity for negligence claims against all departments, institutions,
and agencies of the State. N.C.G.S. § 153A-435 provides that a county's
governmental immunity may be waived by the purchase of liability insurance.
"Waiver of sovereign immunity may not be lightly inferred and State
statutes waiving this immunity, being in derogation of the sovereign right
to immunity, must be strictly construed." Guthrie v. N.C. State Ports
Auth., 307 N.C. 522, 537-38, 299 S.E.2d 618, 627 (1983). We hold that because
Buncombe County DSS is not a state agency, the Tort Claims Act does not
|||The Tort Claims Act provides in pertinent part:
|||(a) The North Carolina Industrial Commission is hereby constituted a court
for the purpose of hearing and passing upon tort claims against the State
Board of Education, the Board of Transportation, and all other departments,
institutions and agencies of the State. The Industrial Commission shall
determine whether or not each individual claim arose as a result of the
negligence of any officer, employee, involuntary servant or agent of the
State while acting within the scope of his office, employment, service,
agency or authority, under circumstances where the State of North Carolina,
if a private person, would be liable to the claimant in accordance with
the laws of North Carolina.
|||N.C.G.S. § 143-291(a) (1996) (emphasis added).
|||This Court has held that the Tort Claims Act does not confer jurisdiction
in the Industrial Commission over a claim against an employee of a state
agency. We addressed this issue in Wirth v. Bracey, 258 N.C. 505, 507-08,
128 S.E.2d 810, 813 (1963):
|||The only claim authorized by the Tort Claims Act is a claim against the
State agency. True, recovery, if any, must be based upon the actionable
negligence of an employee of such agency while acting within the scope of
his employment. However, recovery, if any, against the alleged negligent
employee must be by common law action.
|||Likewise, the Tort Claims Act does not confer jurisdiction in the Industrial
Commission over a claim against a county department that is an alleged involuntary
servant or agent of the State. See Turner v. Gastonia City Bd. of Educ.,
250 N.C. 456, 109 S.E.2d 211 (1959). In Turner v. Board of Education, the
plaintiff sued the Gastonia City Board of Education in the Industrial Commission
based on the negligence of an employee of the City Board. This Court held
that because the City Board was not a state agency, the Tort Claims Act
did not constitute a waiver of immunity as to the City Board.
|||The General Assembly created the State Board of Education and fixed its
duties. It is an agency of the State with statewide application. The General
Assembly likewise created the county and city boards and fixed their duties
which are altogether local. The Tort Claims Act, applicable to the State
Board of Education and to the State departments and agencies, does not include
local units such as county and city boards of education.
|||Tort claims may be filed before the Industrial Commission against "the
State Board of Education, State Highway & Public Works Commission, and
all other departments, institutions, and agencies of the State." Claims
for tort liability are allowed only by virtue of the waiver of the State's
immunity. Under the ordinary rules of construction, "departments, institutions,
and agencies of the State" must be interpreted in connection with the
preceding designation, "State Board of Education and State Highway
& Public Works Commission." Where words of general enumeration
follow those of specific classification, the general words will be interpreted
to fall within the same category as those previously designated. The maxim
ejusdem generis applies especially to the construction of legislative enactments.
It is founded upon the obvious reason that if the legislative body had intended
the general words to be used in their unrestricted sense the specific words
would have been omitted. In no sense may we consider the Gastonia City Board
of Education in the same category as the State Board of Education and the
State Highway & Public Works Commission. For example, we may well consider
the State Board of Agriculture, G.S. 106-2, the Board of Conservation and
Development, G.S. 113-4, and the State Board of Public Welfare, G.S. 108-1,
in the same general category as the State Board of Education and the State
Highway & Public Works Commission. The Gastonia City Board of Education
does not meet the classification. County and city boards of education serve
very important, though purely local functions. The State contributes to
the school fund, but the local boards select and hire the teachers, other
employees and operating personnel. The local boards run the schools.
|||Turner v. Board of Education, 250 N.C. at 462-63, 109 S.E.2d at 216 (citations
|||The Court of Appeals stated that Buncombe County DSS "is an agent
of the Department of Human Resources and a subordinate division of the State
and therefore within the purview of G.S. 143-291(a)." Meyer v. Walls,
122 N.C. App. 507, 514, 471 S.E.2d 422, 427 (1996). In support of this statement,
the Court of Appeals cited Vaughn v. N.C. Dep't of Human Resources, 296
N.C. 683, 690, 252 S.E.2d 792, 797 (1979); EEE-ZZZ Lay Drain Co. v. N.C.
Dep't of Human Resources, 108 N.C. App. 24, 28, 422 S.E.2d 338, 341 (1992);
and Coleman v. Cooper, 102 N.C. App. 650, 657-58, 403 S.E.2d 577, 581-82,
disc. rev. denied, 329 N.C. 786, 408 S.E.2d 517 (1991).
|||In Vaughn and Gammons, the plaintiffs sued the Department of Human Resources
("DHR") in the Industrial Commission under the Tort Claims Act.
The issue in Vaughn and Gammons was whether DHR could be held vicariously
liable as principal for the acts of a county DSS as agent. In the case at
bar, plaintiff is seeking recovery directly against a county DSS, the alleged
agent, rather than DHR, the alleged principal. Thus, Vaughn and Gammons
do not support a holding that the Tort Claims Act applies to a suit against
the alleged agent. In fact, in Vaughn and Gammons, this Court held that
the county departments of social services were agents of DHR. The Tort Claims
Act lists agents in a category with officers, employees, and involuntary
servants, rather than with state departments, institutions, and agencies.
An agent of the State and a state agency are fundamentally different and
are treated differently by the Tort Claims Act.
|||As we stated above, a statutory waiver of sovereign immunity must be strictly
construed. Therefore, the Tort Claims Act applies only to actions against
state departments, institutions, and agencies and does not apply to claims
against officers, employees, involuntary servants, and agents of the State.
To the extent that any cases are inconsistent with this holding, they are
overruled. See Robinette v. Barriger, 116 N.C. App. 197, 447 S.E.2d 498
(1994) (holding that the Alexander County Health Department is a state agency,
rather than a county agency, and that because the Industrial Commission
has exclusive jurisdiction of negligence actions against the State, the
trial court did not err in granting summary judgment for the county based
on a lack of subject matter jurisdiction), aff'd per curiam without precedential
value, 342 N.C. 181, 463 S.E.2d 78 (1995); EEE-ZZZ Lay Drain Co. v. N.C.
Dep't of Human Resources, 108 N.C. App. 24, 422 S.E.2d 338 (holding that
because the Transylvania County Health Department acted as an agent of the
North Carolina Department of Environment, Health, and Natural Resources
("DEHNR"), the county health department was, like DEHNR, immune
from suit); Coleman v. Cooper, 102 N.C. App. 650, 658, 403 S.E.2d 577, 582
(holding that a cause of action against Wake County as a subordinate division
of the State must be brought before the Industrial Commission under the
Tort Claims Act). We note that in Gammons, this Court stated that in Coleman,
the Court of Appeals correctly applied Vaughn in determining that Wake County
DSS was acting as an agent of DHR; however, we made no reference to whether
Wake County could be sued under the Tort Claims Act.
|||For the foregoing reasons, the Tort Claims Act does not apply to the claim
against Buncombe County DSS, regardless of whether Buncombe County DSS was
acting as an agent of DHR. However, under the doctrine of governmental immunity,
the claim would still be subject to dismissal unless Buncombe County waived
immunity. In the complaint, plaintiff alleged that Buncombe County waived
immunity pursuant to N.C.G.S. § 153A-435(a) through the purchase of liability
insurance. N.C.G.S. § 153A-435(a) provides in pertinent part that the "purchase
of insurance pursuant to this subsection waives the county's immunity, to
the extent of insurance coverage, for any act or omission occurring in the
exercise of a governmental function." We conclude that plaintiff sufficiently
alleged a waiver of immunity by Buncombe County through the purchase of
liability insurance. Therefore, the trial court improperly dismissed the
claim against Buncombe County DSS for lack of subject matter jurisdiction.
|||Defendants DSS, Underwood, Barrow, and Miller argue that this claim may
be brought against only DHR, as principal, and not defendants, as agents.
This argument is contrary to clearly established law. Although a plaintiff
may not receive a double recovery, he may seek a judgment against the agent
or the principal or both. See Bowen v. Iowa Nat'l Mut. Ins. Co., 270 N.C.
486, 155 S.E.2d 238 (1967); Wirth v. Bracey, 258 N.C. 505, 128 S.E.2d 810;
Palomino Mills v. Davidson Mills Corp., 230 N.C. 286, 52 S.E.2d 915 (1949).
Therefore, the fact that defendants may have been acting as agents of the
State does not preclude a claim against defendants.
|||Furthermore, the fact that the Tort Claims Act provides for subject matter
jurisdiction in the Industrial Commission over a negligence claim against
the State does not preclude a claim against defendants in Superior Court.
A plaintiff may maintain both a suit against a state agency in the Industrial
Commission under the Tort Claims Act and a suit against the negligent agent
or employee in the General Court of Justice for common-law negligence. See
Wirth v. Bracey, 258 N.C. at 507-08, 128 S.E.2d at 813 (holding that plaintiff's
suit against a state employee was not barred by the doctrine of election).
As this Court explained in Wirth v. Bracey :
|||"The decisions generally are to the effect that in an action ex delicto,
where the doctrine of respondeat superior is, or may be, invoked, the injured
party may sue the servant alone or the master alone, or may bring a single
action against both." Bullock v. Crouch, 243 N.C. 40, 42, 89 S.E.2d
749[, 751 (1955)].
|||Prior to the enactment of the Tort Claims Act the Highway Commission,
as an agency or instrumentality of the State, enjoyed immunity to liability
for injury or loss caused by the negligence of its employees. Even so, then
as now, an employee of such agency was personally liable for his own actionable
negligence. The Tort Claims Act, waiving governmental immunity to that extent,
permitted recovery against the State agency as therein provided. The obvious
intention of the General Assembly in enacting the Tort Claims Act was to
enlarge the rights and remedies of a person injured by the actionable negligence
of an employee of a State agency while acting in the course of his employment.
|||Wirth v. Bracey, 258 N.C. at 507-08, 128 S.E.2d at 813 (citations omitted).
We note that the State may be joined as a third-party defendant in the state
courts in an action for contribution or in an action for indemnification.
See N.C.G.S. § 1A-1, Rule 14(c) (1990); N.C.G.S. § 1B-1(h) (1983); Guthrie
v. N.C. State Ports Auth., 307 N.C. at 540, n.5, 299 S.E.2d at 628, n.5;
Teachy v. Coble Dairies, Inc., 306 N.C. 324, 331, 293 S.E.2d 182, 186 (1982).
|||For the foregoing reasons, the fact that defendants may have been acting
as agents of DHR does not render defendants immune from suit in Superior
Court. Therefore, the trial court properly denied the motion to dismiss
the claims against Underwood, Barrow, and Miller for lack of subject matter
jurisdiction. Also, plaintiff sufficiently alleged a waiver of immunity
by Buncombe County through the purchase of liability insurance. Therefore,
the trial court improperly allowed the motion to dismiss the claim against
Buncombe County DSS for lack of subject matter jurisdiction.
|||DEFENDANTS UNDERWOOD, BARROW, AND MILLER
|||The complaint stated in its caption and in its allegations that plaintiff
was suing Underwood, Barrow, and Miller in both their official and individual
capacities. In its order, the trial court did not refer to the official
or individual capacities of these claimants. Instead, without explanation,
the court allowed these defendants' motions to dismiss for failure to state
a claim upon which relief can be granted and denied their motions to dismiss
for lack of subject matter jurisdiction.
|||In ruling on the individual defendants' motions to dismiss, the first
step is to determine whether the complaint seeks recovery from the individuals
in their official or individual capacities, or both. The difference between
official and individual-capacity lawsuits was explained by Anita R. Brown-Graham
and Jeffrey S. Koeze in an article published by the Institute of Government:
A suit against a defendant in his individual capacity means that the plaintiff
seeks recovery from the defendant directly; a suit against a defendant in
his official capacity means that the plaintiff seeks recovery from the entity
of which the public servant defendant is an agent. Anita R. Brown-Graham
& Jeffrey S. Koeze, Immunity from Personal Liability under State Law
for Public Officials and Employees: An Update, Loc. Gov't L. Bull. 67, at
7 (Inst. of Gov't, Univ. of N.C. at Chapel Hill), Apr. 1995 [hereinafter
|||As Brown-Graham and Koeze explained:
|||The crucial question for determining whether a defendant is sued in an
individual or official capacity is the nature of the relief sought, not
the nature of the act or omission alleged. If the plaintiff seeks an injunction
requiring the defendant to take an action involving the exercise of a governmental
power, the defendant is named in an official capacity. If money damages
are sought, the court must ascertain whether the complaint indicates that
the damages are sought from the government or from the pocket of the individual
defendant. If the former, it is an official-capacity claim; if the latter,
it is an individual-capacity claim; and if it is both, then the claims proceed
in both capacities.
|||Id. ; see also Kentucky v. Graham, 473 U.S. 159, 166, 87 L. Ed. 2d 114,
121, 105 S. Ct. 3099 (1985) (explaining that "while an award of damages
against an official in his personal [individual] capacity can be executed
only against the official's personal assets, a plaintiff seeking to recover
on a damages judgment in an official-capacity suit must look to the government
entity itself"); Moore v. City of Creedmoor, 345 N.C. 356, 367, 481
S.E.2d 14, 21 (1997) (holding that claims against the City of Creedmoor
police chief and a member of the City of Creedmoor Board of Commissioners
in their official capacities were merely another way of bringing suit against
the City of Creedmoor).
|||Thus, "'official capacity' is not synonymous with 'official duties';
the phrase is a legal term of art with a narrow meaning -- the suit is in
effect one against the entity." Law Bulletin at 7. Whether the allegations
relate to actions outside the scope of defendant's official duties is not
relevant in determining whether the defendant is being sued in his or her
official or individual capacity. To hold otherwise would contradict North
Carolina Supreme Court cases that have held or stated that public employees
may be held individually liable for mere negligence in the performance of
their duties. See, e.g., Givens v. Sellars, 273 N.C. 44, 159 S.E.2d 530
(1968); Wirth v. Bracey, 258 N.C. 505, 128 S.E.2d 810; Smith v. Hefner,
235 N.C. 1, 68 S.E.2d 783 (1952); Hansley v. Tilton, 234 N.C. 3, 65 S.E.2d
300 (1951); Miller v. Jones, 224 N.C. 783, 32 S.E.2d 594 (1945); Lewis v.
Hunter, 212 N.C. 504, 193 S.E. 814 (1937).
|||In the case before us, an examination of the complaint reveals that as
well as stating in the caption and allegations that Underwood, Barrow, and
Miller were being sued in their official and individual capacities, plaintiff
was seeking damages from all defendants, including Underwood, Barrow, Miller,
and their employer, Buncombe County DSS. Therefore, the complaint seeks
recovery from Underwood, Barrow, and Miller in both their official and individual
|||Next, we must look at the official-capacity claims separately from the
individual-capacity claims. A claim against Underwood, Barrow, and Miller
in their official capacities is a claim against DSS and is subject to the
same jurisdictional rulings as the suit against DSS. Therefore, for the
reasons stated above, the claims against Underwood, Barrow, and Miller in
their official capacities are properly before the Superior Court along with
the claim against DSS, and as to this aspect of plaintiff's claim, the trial
|||We turn now to a determination of whether the trial court properly dismissed
the claims against Underwood, Barrow, and Miller in their individual capacities
for failure to state a claim upon which relief can be granted. Our standard
of review is "whether, as a matter of law, the allegations of the complaint,
treated as true, are sufficient to state a claim upon which relief may be
granted under some legal theory." Harris v. NCNB Nat'l Bank of N.C.,
85 N.C. App. 669, 670, 355 S.E.2d 838, 840 (1987). In ruling upon such a
motion, the complaint is to be liberally construed, and the trial court
should not dismiss the complaint "unless it appears beyond doubt that
[the] plaintiff could prove no set of facts in support of his claim which
would entitle him to relief." Dixon v. Stuart, 85 N.C. App. 338, 340,
354 S.E.2d 757, 758 (1987).
|||Our determination depends partly on whether these defendants are public
officials or public employees. Public officials cannot be held individually
liable for damages caused by mere negligence in the performance of their
governmental or discretionary duties; public employees can. See, e.g., Harwood
v. Johnson, 326 N.C. 231, 241, 388 S.E.2d 439, 445 (1990); Smith v. State,
289 N.C. 303, 331, 222 S.E.2d 412, 430 (1976); Givens v. Sellars, 273 N.C.
at 49, 159 S.E.2d at 534; Smith v. Hefner, 235 N.C. at 7, 68 S.E.2d at 787;
Hansley v. Tilton, 234 N.C. at 8, 65 S.E.2d at 303; Miller v. Jones, 224
N.C. at 787, 32 S.E.2d at 597.
|||It is settled law in this jurisdiction that a public official, engaged
in the performance of governmental duties involving the exercise of judgment
and discretion, may not be held personally liable for mere negligence in
respect thereto. The rule in such cases is that an official may not be held
liable unless it be alleged and proved that his act, or failure to act,
was corrupt or malicious, or that he acted outside of and beyond the scope
of his duties. And, while an employee of an agency of government, as distinguished
from a public official, is generally held individually liable for negligence
in the performance of his duties, nevertheless such negligence may not be
imputed to the employer on the principle of respondeat superior, when such
employer is clothed with governmental immunity.
|||Smith v. Hefner, 235 N.C. at 7, 68 S.E.2d at 787 (citations omitted).
"As long as a public officer lawfully exercises the judgment and discretion
with which he is invested by virtue of his office, keeps within the scope
of his official authority, and acts without malice or corruption, he is
protected from liability." Smith v. State, 289 N.C. at 331, 222 S.E.2d
at 430 (citing Carpenter v. Atlanta & C.A.L. Ry. Co., 184 N.C. 400,
406, 114 S.E. 693, 696 (1922)).
|||The immunity thus extended to officers in the performance of a public
duty grows out of a public policy which is fully explained in the two cases
cited. Hipp v. Ferrall, [173 N.C. 167, 91 S.E. 831 (1917)]; Templeton v.
Beard, [159 N.C. 63, 74 S.E. 735 (1912)], and cases cited. One reason for
the existence of such a rule is that it would be difficult to find those
who would accept public office or engage in the administration of public
affairs if they were to be held personally liable for acts or omissions
involved in the exercise of discretion and sound judgment which they had
performed to the best of their ability, and without any malevolent intention
toward anyone who might be affected thereby. However, in proper cases even
public officers may be liable for misfeasance in the performance of their
ministerial duties where injury has ensued.
|||Miller v. Jones, 224 N.C. at 787, 32 S.E.2d at 597.
|||The [public official] immunity has never been extended to a mere employee
of a governmental agency upon this principle, although employed upon public
works, since the compelling reasons for the nonliability of a public officer,
clothed with discretion, are entirely absent. . . . The mere fact that a
person charged with negligence is an employee of others to whom immunity
from liability is extended on grounds of public policy does not thereby
excuse him from liability for negligence in the manner in which his duties
are performed, or for performing a lawful act in an unlawful manner. The
authorities generally hold the employee individually liable for negligence
in the performance of his duties, notwithstanding the immunity of his employer,
although such negligence may not be imputed to the employer on the principle
of respondeat superior, when such employer is clothed with a governmental
immunity under the rule.
|||As the Court of Appeals noted, when categorizing a public servant as either
a public officer or a public employee, this Court has recognized several
|||A public officer is someone whose position is created by the constitution
or statutes of the sovereign. State v. Hord, 264 N.C. 149, 155, 141 S.E.2d
241, 245 (1965). "An essential difference between a public office and
mere employment is the fact that the duties of the incumbent of an office
shall involve the exercise of some portion of sovereign power." Id.
Officers exercise a certain amount of discretion, while employees perform
ministerial duties. Discretionary acts are those requiring personal deliberation,
decision and judgment; duties are ministerial when they are "absolute,
certain, and imperative, involving merely the execution of a specific duty
arising from fixed and designated facts." Jensen v. S.C. Dept. of Social
Services, 297 S.C. 323, [322,] 377 S.E.2d 102[, 107] (1988) [, aff'd, 304
S.C. 195, 403 S.E.2d 615 (1991)].
|||Hare v. Butler, 99 N.C. App. 693, 700, 394 S.E.2d 231, 235-36, disc. rev.
denied, 327 N.C. 634, 399 S.E.2d 121 (1990).
|||In the case before us, the Court of Appeals concluded that Underwood was
a public official and that Barrow and Miller were public employees. The
Court of Appeals also held that the allegations in the complaint that Underwood's
conduct was "willful, wanton and in reckless disregard of the rights
of Clearman Frisbee" were sufficient to pierce his public-official
immunity. Therefore, the court held that dismissal of the individual-capacity
claim against Underwood was improper. The Court of Appeals also held that
as public employees, Barrow and Miller were not entitled to any immunity
defense. Therefore, the court held that dismissal of the individual-capacity
claims against Barrow and Miller was also improper. Defendants did not appeal
these holdings to this Court. Therefore, the Court of Appeals' holdings
on the individual-capacity claims against Underwood, Barrow, and Miller
stand. However, we note that a conclusory allegation that a public official
acted willfully and wantonly should not be sufficient, by itself, to withstand
a Rule 12(b)(6) motion to dismiss. The facts alleged in the complaint must
support such a Conclusion.
|||For the foregoing reasons, we reverse the Court of Appeals' decision as
it pertains to the claim against DSS because we hold that since DSS is not
a state agency, the Tort Claims Act does not apply to the claim against
DSS. However, we hold that plaintiff sufficiently alleged a waiver of immunity
by Buncombe County through the purchase of liability insurance. Therefore,
we hold that the trial court improperly allowed the motion to dismiss the
claim against Buncombe County DSS for lack of subject matter jurisdiction.
We affirm the Court of Appeals' decision as it pertains to the claims against
Underwood, Barrow, and Miller, and we remand the case to the Court of Appeals
for further remand to Superior Court, Haywood County, for further proceedings
not inconsistent with this opinion. Therefore, this case is
|||AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
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