Summey v. Barker

• Decision Date: 03 April 2001
• Docket Number: No. COA00-106.,COA00-106.
• Citation: 544 S.E.2d 262,142 NC App. 688
• Parties: Joseph Patrick SUMMEY, Plaintiff, v. Ronald BARKER, Forsyth County Sheriff; and Hartford Insurance Company, Surety; Michael Schweitzer, chief jailer of Forsyth County in their official capacities; Linda Sides; Joe Maddux, Correctional Medical Services, Inc., d/b/a Correctional Medical Systems a/k/a Correctional Medical Services, Defendants.
• Court: North Carolina Court of Appeals

544 S.E.2d 262

142 NC App. 688

Joseph Patrick SUMMEY, Plaintiff, v. Ronald BARKER, Forsyth County Sheriff; and Hartford Insurance Company, Surety; Michael Schweitzer, chief jailer of Forsyth County in their official capacities; Linda Sides; Joe Maddux, Correctional Medical Services, Inc., d/b/a Correctional Medical Systems a/k/a Correctional Medical Services, Defendants.

No. COA00-106.

Court of Appeals of North Carolina.

April 3, 2001.

Smith & Combs, by John R. Combs and Steven D. Smith, Winston-Salem, for plaintiff-appellee.

Womble Carlyle Sandridge & Rice, by Allan R. Gitter and Stacey M. Stone, Winston-Salem, for defendant-appellants.

MARTIN, Judge.

Plaintiff filed this action alleging claims against defendants arising from events allegedly occurring while plaintiff was incarcerated in the Forsyth County Jail. Plaintiff, who suffers from hemophilia, alleged that defendants failed to respond properly to plaintiff's nose bleed, which ultimately caused him to be hospitalized for more than ten days at Baptist Hospital in Winston-Salem. Plaintiff alleged claims for relief for negligence, violations of plaintiff's civil rights under Article I of the North Carolina Constitution, and against defendants Barker and Schweitzer for breach of their statutory duties and malfeasance in office. Plaintiff alleged that defendant Hartford was the surety on the sheriff's official bond.

Defendants Barker, Schweitzer, and Hartford, as sheriff's surety, moved to dismiss plaintiff's first and second claims for relief, alleging negligence and a violation of Article I of the North Carolina Constitution, contending that public official's immunity barred plaintiff's negligence claim, and that monetary claims could not be brought in state court for violations of the state constitution. The trial court granted defendants' motion to dismiss plaintiff's second claim for relief under Article I of the North Carolina Constitution but denied defendants' motion to dismiss the negligence claim against defendants Barker, Schweitzer, and Hartford. Defendants appeal the trial court's denial of their motion to dismiss the first claim for relief.

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Defendants have appealed from an interlocutory order. Generally, no immediate appeal lies from an interlocutory order. Auction Co. v. Myers, 40 N.C.App. 570, 253 S.E.2d 362 (1979). However, when the order appealed from affects a substantial right, a party has a right to an immediate appeal. N.C. Gen.Stat. § 1-277(a); 7A-27(d)(1). Orders denying dispositive motions based on public official's immunity affect a substantial right and are immediately appealable. Taylor v. Ashburn, 112 N.C.App. 604, 436 S.E.2d 276 (1993), disc. review denied, 336 N.C. 77, 445 S.E.2d 46 (1994). We review the appeal of interlocutory orders in these cases because "`the essence of absolute immunity is its possessor's entitlement not to have to answer for his conduct in a civil damages action.'" Epps v. Duke University, Inc., 122 N.C.App. 198, 201, 468 S.E.2d 846, 849, disc. review denied, 344 N.C. 436, 476 S.E.2d 115 (1996) (citations omitted). Thus, defendants' appeal is properly before us.

In reviewing the denial of a motion to dismiss pursuant to N.C.R. Civ. P. 12(b)(6), "[t]he question for the court 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, whether properly labeled or not." Miller v. Nationwide Mutual Ins. Co., 112 N.C.App. 295, 300, 435 S.E.2d 537, 541 (1993) (citation omitted), disc. review denied, 335 N.C. 770, 442 S.E.2d 519 (1994). Under this rule, a claim is properly dismissed "`if no law exists to support the claim made, if sufficient facts to make out a good claim are absent, or if facts are disclosed which will necessarily defeat the claim.'" Claggett v. Wake Forest University, 126 N.C.App. 602, 608, 486 S.E.2d 443, 446 (1997) (citation omitted). The issue before this Court is whether public official's immunity bars plaintiff's claims alleging negligence against defendants Barker and Schweitzer. We hold that, to the extent of the bond required by G.S. § 58-76-5, public official's immunity does not bar plaintiff's claim, and we therefore affirm the trial court's denial of defendants' motion to dismiss. In general, "the doctrine of governmental, or sovereign, immunity bars actions against, inter alia, the state, its counties, and its public officials sued in their official capacity." Messick v. Catawba County, N.C., 110 N.C.App. 707, 714, 431 S.E.2d 489, 493,disc. review denied, 334 N.C. 621, 435 S.E.2d 336 (1993). A public official sued in his official capacity "operates against the public entity itself, as the public entity is ultimately financially responsible for the compensable conduct of its officers." Epps, 122 N.C.App. at 203,468 S.E.2d at 850.

Governmental or sovereign immunity "prevents the State or its agencies from being sued without its consent." Corum v. University of North Carolina, 97 N.C.App. 527, 533, 389 S.E.2d 596, 599 (1990), affirmed in part, reversed in part on other grounds, 330 N.C. 761, 413 S.E.2d 276 (1992). The doctrine of governmental immunity "is inapplicable, however, where the state has consented to suit or has waived its immunity through the purchase of liability insurance." Messick, 110 N.C.App. at 714, 431 S.E.2d at 493-94. Defendants contend public official's immunity bars plaintiff's claims against defendants in their official capacities. Pursuant to statute, however, public officers may be sued in their official capacities:

Every person injured by the neglect, misconduct, or misbehavior in office of any clerk

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