Green v. Kearney

• Decision Date: 06 April 2010
• Docket Number: No. COA09-787.,COA09-787.
• Citation: 690 S.E.2d 755
• Parties: Larry Donnell GREEN, by and through his Guardian ad Litem, Sharon Crudup; Larry Alston, Individually; Ruby Kelly, Individually, Plaintiffs, v. Wade R. KEARNEY, II; Paul Kilmer; Katherine Elizabeth Lamell; Pamela Ball Hayes; Ronnie Wood; Phillip Grissom, Jr.; Dr. J.B. Perdue, individually, and in his official capacity as Medical Examiner of Franklin County; Louisburg Rescue and Emergency Medical Services, Inc.; Franklin County Emergency Medical Services, Epsom Fire and Rescue Association, Inc.; and Franklin County, North Carolina, a body politic, Defendants.
• Court: North Carolina Court of Appeals

690 S.E.2d 755

Larry Donnell GREEN, by and through his Guardian ad Litem, Sharon Crudup; Larry Alston, Individually; Ruby Kelly, Individually, Plaintiffs, v. Wade R. KEARNEY, II; Paul Kilmer; Katherine Elizabeth Lamell; Pamela Ball Hayes; Ronnie Wood; Phillip Grissom, Jr.; Dr. J.B. Perdue, individually, and in his official capacity as Medical Examiner of Franklin County; Louisburg Rescue and Emergency Medical Services, Inc.; Franklin County Emergency Medical Services, Epsom Fire and Rescue Association, Inc.; and Franklin County, North Carolina, a body politic, Defendants.

No. COA09-787.

Court of Appeals of North Carolina.

April 6, 2010.

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Bell & Vincent-Pope, P.A., by Judith M. Vincent-Pope, Cary, for plaintiffs-appellees.

Attorney General Roy Cooper, by Special Deputy Attorney General Mabel Y. Bullock and J.P. Williamson, Jr., Louisburg, for defendant-appellant.

HUNTER, ROBERT C., Judge.

Doctor J.B. Perdue ("Perdue") appeals from the trial court's denial of his motion to dismiss the complaint filed by Larry Donnell Green ("Green"), by and through his Guardian ad Litem, Sharon Crudup, Larry Alston, and Ruby Kelly (collectively "plaintiffs"), which was brought pursuant to Rules 12(b)(1) and 12(b)(6) of the Rules of Civil Procedure on the basis of sovereign immunity. After careful review, we decline to address defendant's argument with regard to Rule 12(b)(1) as it is interlocutory and not immediately appealable. With regard to the trial court's order pertaining to Rule 12(b)(6), we reverse.

Background

The facts as alleged in plaintiffs' complaint show that on 24 January 2005, at approximately 8:53 p.m., emergency services were dispatched in Franklin County, North Carolina to the scene of an accident involving a pedestrian — Green — and a motor vehicle. Green suffered an open head wound as a result of the accident. Defendant Wade Kearney ("Kearney") with the Epsom Fire Department was the first to arrive at the scene and checked Green for vital signs. Kearney determined that Green was dead and did not initiate efforts to resuscitate him.

Several minutes later, defendants Paul Kilmer ("Kilmer") and Katherine Lamell ("Lamell") with Franklin County EMS arrived. Kearney asked Kilmer to verify that Green did not have a pulse, but Kilmer declined to do so, stating that Kearney had already checked and that was sufficient. Without checking the pupils or otherwise manually rechecking for a pulse, Kearney and Kilmer placed a white sheet over Green's body.

At approximately 9:00 p.m., defendants Pamela Hayes ("Hayes") and Ronnie Wood ("Wood") with the Louisburg Rescue Unit arrived at the scene. After being informed by Kearney and Kilmer that Green was dead, neither Hayes nor Wood checked Green for vital signs. At around 9:31 p.m., Perdue, the Franklin County Medical Examiner, arrived at the scene. He first conducted a survey of the scene, taking notes regarding the location of Green's body and the condition of the vehicle that struck him. Once the Crime Investigation Unit arrived, Perdue inspected Green's body. While Perdue was examining Green, eight people saw movement in Green's chest and abdomen. Kearney asked Perdue whether Green was still breathing and Perdue responded: "That's only air escaping the body." Once Perdue finished examining Green, he directed that Green should be taken to the morgue located at the Franklin County jail.

At approximately 10:06 p.m., Green was transported to the morgue by Hayes and Wood where Perdue examined him. Perdue lifted Green's eyelids, smelled around Green's mouth to determine the source of an odor of alcohol that had been previously noted, and drew blood. During this particular examination, Perdue, Hayes, and Wood all observed several twitches in Green's upper right eyelid. Upon being asked if he was sure Green was dead, Perdue responded that the eye twitch was just a muscle spasm. Plaintiffs claim that Hayes did not feel comfortable with Perdue's response and went outside to report the eye twitch to Lamell. Hayes then returned inside and asked Perdue again if he was sure Green was dead. Perdue reassured Hayes that Green was, in fact, dead. Green was then placed in a refrigeration drawer until around 11:23 p.m. when State Highway Patrolman Tyrone Hunt ("Hunt") called Perdue and stated that he was trying to ascertain the direction from which Green was struck. To assist Hunt, Perdue removed Green from the drawer and unzipped the bag in which he was sealed. Perdue then noticed movement in Green's abdomen and summoned emergency services. Green was rushed to the hospital where he was treated from 25 January 2005 to 11 March 2005. Green was alive at the time this action was brought. His exact medical condition is unknown, though plaintiffs allege that he suffered severe permanent injuries.

On 22 May 2008, Green, through his guardian ad Litem, and Green's parents, Larry and Kelly Alston, brought this action in Franklin County Superior Court. Plaintiffs allege, inter alia, general negligence on the part of Perdue in his official capacity as medical examiner for Franklin County, and willful and wanton negligence on the part of Perdue in his individual capacity.¹ On 23 July 2008, in lieu of an answer, Perdue filed a motion to dismiss the claims against him pursuant to Rule 12(b)(1), which pertains to lack of subject matter jurisdiction in the trial court, and Rule 12(b)(6), which relates to a failure to state a claim upon which relief may be granted, on the basis of sovereign immunity. The trial court heard arguments from council concerning Perdue's motion on 17 February 2009. On 12 March 2009, the trial court denied Perdue's motion to dismiss. Perdue appeals the trial court's order.²

Analysis

Perdue argues on appeal: (1) subject matter jurisdiction was properly vested in the Industrial Commission, not the superior court and (2) plaintiffs have not stated a claim for which relief may be granted because Perdue was a public officer, and, therefore, protected by sovereign immunity in his official capacity as well as his individual capacity.

I. Interlocutory Nature of Appeal

Perdue appeals from an interlocutory order denying his motion to dismiss pursuant to Rules 12(b)(1) and 12(b)(6); therefore, we must first determine whether the order is immediately appealable. "Interlocutory orders are those made during the pendency of an action which do not dispose of the case, but instead leave it for further action by the trial court in order to settle and determine the entire controversy." Carriker v. Carriker, 350 N.C. 71, 73, 511 S.E.2d 2, 4 (1999). "As a general rule, interlocutory orders are not immediately appealable." Turner v. Hammocks Beach Corp., 363 N.C. 555, 558, 681 S.E.2d 770, 773 (2009).

A. Rule 12(b)(1) Motion

First, Perdue claims that his Rule 12(b)(1) motion to dismiss for lack of subject matter jurisdiction should be heard interlocutory because it is based on the doctrine of sovereign immunity. This Court has held that the doctrine of sovereign immunity involves a question of personal jurisdiction rather than subject matter jurisdiction. Stahl-Rider v. State, 48 N.C.App. 380, 269 S.E.2d 217 (1980); Sides v. Cabarrus Memorial Hospital, 22 N.C.App. 117, 205 S.E.2d 784 (1974), modified and aff'd, 287 N.C. 14, 213 S.E.2d 297 (1975).

The distinction is important because the denial of a motion to dismiss for lack of subject matter jurisdiction pursuant to . . . Rule 12(b)(1) is not immediately appealable, but the denial of a motion challenging the jurisdiction of the court over the person of the defendant pursuant to . . . Rule 12(b)(2) is immediately appealable.

Zimmer v. N.C. Dept. of Transportation, 87 N.C.App. 132, 133-34, 360 S.E.2d 115, 116 (1987) (internal citation omitted) (holding that appeal could be heard interlocutory pursuant to Rule 12(b)(2) where the Department of Transportation claimed that under the doctrine of sovereign immunity the Industrial Commission had no jurisdiction over the person of the State).

In Teachy v. Coble Dairies, Inc., 306 N.C. 324, 328, 293 S.E.2d 182, 184 (1982), our Supreme Court declined to determine "whether sovereign immunity is a question of subject matter jurisdiction or whether the denial of a motion to dismiss on grounds of sovereign immunity is immediately appealable." Nevertheless, the Court recognized that N.C. Gen.Stat. § 1-277 (2009)

provides for immediate appeal of certain orders and determinations of trial judges. An order granting a motion to dismiss for lack of subject matter jurisdiction is immediately appealable under G.S. 1-277(a), because it determines or discontinues the action. G.S. 1-277(b) permits the immediate appeal of a ruling, whether granting or denying a motion to dismiss under Rule 12(b)(2), as to the court's jurisdiction over the defendant's person or property.

Teachy, 306 N.C. at 327, 293 S.E.2d at 184 (emphasis added). In sum, based on the precedent set by this Court in Stahl-Rider and Sides, the general rule is that sovereign immunity presents a question of personal jurisdiction, not subject matter jurisdiction, and denial of a motion to dismiss pursuant to Rule 12(b)(1) is not immediately appealable.

We recognize that, "interlocutory review of such an order nonetheless may be permissible if the appellant demonstrates that, under the circumstances of the particular case, the order affects a substantial right that would be jeopardized in the absence of review prior to a final determination on the merits." Burton v. Phoenix Fabricators & Erectors, Inc., 185 N.C.App. 303, 305, 648 S.E.2d 235, 237 (2007). "This Court has repeatedly held that appeals raising issues of governmental or sovereign immunity affect a substantial right sufficient to warrant immediate appellate review" pursuant to N.C. Gen.Stat. § 1-277(a). Price v. Davis, 132 N.C.App. 556, 558-59, 512 S.E.2d 783, 785 (1999). Nevertheless, this Court has declined to address...