Epps v. Duke University, Inc.

• Decision Date: 16 April 1996
• Docket Number: No. COA95-182,COA95-182
• Citation: 468 S.E.2d 846,122 N.C.App. 198
• Court: North Carolina Court of Appeals
• Parties: Hamlet EPPS, Robert Epps, Mary Montgomery, Jennifer Daniel, and Hazel Gadson, Plaintiffs, v. DUKE UNIVERSITY, INC., a North Carolina Corporation, Private Diagnostic Clinic, a North Carolina Partnership, John Peter Longabaugh, M.D., Nathan Pulkingham, M.D., Russell Hjelmstad, M.D., Michael Wilson, M.D., and Kathryn Lane, M.D., Defendants.

Page 846

468 S.E.2d 846

122 N.C.App. 198

Hamlet EPPS, Robert Epps, Mary Montgomery, Jennifer Daniel, and Hazel Gadson, Plaintiffs, v. DUKE UNIVERSITY, INC., a North Carolina Corporation, Private

Diagnostic Clinic, a North Carolina Partnership, John Peter

Longabaugh, M.D., Nathan Pulkingham, M.D., Russell

Hjelmstad, M.D., Michael Wilson, M.D., and Kathryn Lane,

M.D., Defendants.

No. COA95-182.

Court of Appeals of North Carolina.

April 16, 1996.

Ferguson, Stein, Wallas, Adkins, Gresham & Sumter, P.A. by Adam Stein and Ann Hubbard, Chapel Hill, for plaintiff appellees.

Attorney General Michael F. Easley by Special Deputy Attorney General Mabel Y. Bullock, for defendant appellant.

SMITH, Judge.

In this appeal from the trial court's denial of summary judgment, defendant appellant Dr. Russell Hjelmstad (hereinafter "Hjelmstad") contends he is not individually liable to plaintiffs in tort, because of the doctrine of public official immunity. Defendant argues plaintiffs' complaint is defective because it asserts a claim against a state officer acting in his official capacity. Therefore, defendant contends plaintiffs' action is barred by public official immunity.

Plaintiffs argue denial of summary judgment was proper, due to this Court's prior ruling in Epps v. Duke University, 116 N.C.App. 305, 447 S.E.2d 444 (1994) (Epps I). In Epps I, this Court held that plaintiffs had stated a "valid claim against Hjelmstad in his individual capacity as a public officer." Id. at 311, 447 S.E.2d at 448. The instant appeal poses the same official immunity issue decided in Epps I, set now against the legal standards of a summary judgment motion.

In disposing of defendant's arguments for summary judgment, we hold the following. First, we agree with plaintiffs that Epps I established the law of this case as it relates to the sufficiency of plaintiffs' pleadings. Plaintiffs have correctly maintained a personal or individual capacity claim against defendant Hjelmstad. Thus, defendant's arguments to the contrary are baseless in light of Epps I. In addition, we find the affidavits in the record squarely present disputed material facts, demonstrate that defendant is not entitled to judgment as a matter of law, and mandate affirmance of the trial court's denial of summary judgment against defendant.

The facts and posture of this case are as follows. The plaintiffs are the next of kin of Dora Epps McNair, who died in 1990, shortly after surgery involving a cardiac catheterization and attempted placement of an intra-aortic pump. The surgery was unsuccessful. Because of the manner of decedent's death, it was decided by the treating physician at Duke University Medical Center's Coronary Care Unit that an autopsy was required by state law.

Plaintiffs' action arises from the alleged wrongful autopsy of Dora Epps McNair, which autopsy was ordered and supervised by defendant Hjelmstad. Plaintiffs allege that "the excessive mutilat[ion] of Ms. McNair's body during [the] autopsy at Duke University Medical Center ("Duke") left her body disfigured and in a state that could not be embalmed and viewed as she had wished." At all times relevant to this dispute, Hjelmstad occupied dual roles as resident pathologist at Duke University Medical Center (Duke), and as Durham County Medical Examiner pursuant to N.C. Gen.Stat. § 130A-382 (1995). It is undisputed that Hjelmstad is being sued for activities performed under color of his authority as medical examiner. Defendant Hjelmstad is the only named defendant involved in this appeal.

Because defendant Hjelmstad performed the autopsy while acting under color of authority as medical examiner, he first moved to dismiss this case for failure to state a claim for relief on grounds of official immunity. Defendant's motion to dismiss was the basis of Epps I. The Epps I Court upheld the trial court's denial of defendant's dismissal motion by holding, that

because plaintiffs' complaint contains allegations indicating that Hjelmstad acted outside the scope of his official duties, they have stated a valid claim against Hjelmstad in his individual capacity as a public officer.

Epps I, 116 N.C.App. at 311, 447 S.E.2d at 448. On remand from the Epps I Court, defendant Hjelmstad moved for summary judgment against plaintiffs. The trial court denied this motion, which is now the subject of this appeal.

Usually, the denial of a motion for summary judgment is not immediately appealable, as it is interlocutory. See Herndon v. Barrett, 101 N.C.App. 636, 639, 400 S.E.2d 767, 769 (1991). However, denial of a motion for summary judgment " 'on the grounds of sovereign and qualified immunity is immediately appealable.' " Id. (citation omitted). Such is the case here, where defendant Hjelmstad seeks to interpose his official immunity as a shield against liability to plaintiffs. We allow interlocutory appeals in these situations because " 'the essence of absolute immunity is its possessor's entitlement not to have to answer for his conduct in a civil damages action.' " Id. (quoting Mitchell v. Forsyth, 472 U.S. 511, 525, 105 S.Ct. 2806, 2815, 86 L.Ed.2d 411, 424 (1985)).

Plaintiffs maintain the law of the case doctrine necessitates a ruling in their favor. We have previously held, "[a] decision of this Court on a prior appeal constitutes the law of the case, both in subsequent proceedings in the trial court and on a subsequent appeal. '[O]ur mandate is binding upon [the trial court] and must be strictly followed without variation or departure.' " Lea Co. v. N.C. Board of Transportation, 323 N.C. 697, 699, 374 S.E.2d 866, 868 (1989) (citation omitted) (quoting D & W, Inc. v. Charlotte, 268 N.C. 720, 722, 152 S.E.2d 199, 202 (1966)). Thus the argument by plaintiffs is well made, for much of defendant Hjelmstad's brief addresses issues resolved by Epps I.

Indeed, it is the law of this case that plaintiffs "have stated a valid claim against Hjelmstad in his individual capacity as a public officer." Epps I, 116 N.C.App. at 311, 447 S.E.2d at 448. Thus, insofar as defendant now addresses the sufficiency of plaintiffs' complaint against Hjelmstad, that matter is settled. Id. The only remaining examination apropos to our review of this appeal is defendant's argument relevant to the legal standard for summary judgment.

A party will prevail on a motion for summary judgment only if the moving party (here, defendant) can show no material facts are in dispute and entitlement to judgment as a matter of law. Moore v. City of Creedmoor, 120 N.C.App. 27, 36, 460 S.E.2d 899, 904 (1995). In addition, the record is to be viewed in the light most favorable to the non-movant, giving it the benefit of all inferences which reasonably arise therefrom. Id. Evidence properly considered on a motion for summary judgment "includes admissions in the pleadings, depositions on file, answers to Rule 33 interrogatories, admissions on file ... affidavits, and any other material which would be admissible in evidence or of which judicial notice may properly be taken." Kessing v. National Mortgage Corp., 278 N.C. 523, 533, 180 S.E.2d 823, 829 (1971).

Defendant's argument and evidence fall far short of the "no material fact in dispute" standard long adopted by this Court. We held in Epps I that defendant Hjelmstad, acting in his capacity as a county medical examiner, is a public officer. Epps I, 116 N.C.App. at 311, 447 S.E.2d at 448. The Epps I Court also held that "because plaintiffs' complaint contains allegations indicating that Hjelmstad acted outside the scope of his official duties, they have stated a valid claim against Hjelmstad in his individual capacity as a public officer." Id. Thus, to prevail on his motion for summary judgment, defendant must show that plaintiffs' presentation of properly considered evidence falls short of the allegations found in their complaint. This the defendant has not done.

The common law rules governing individual or personal capacity suits against a public official in tort have remained virtually unchanged for almost a century. See N.C. Supreme Court opinions: Lewis v. White, 287 N.C. 625, 643, 216 S.E.2d 134, 146 (1975); Williamston v. R.R., 236 N.C. 271, 275, 72 S.E.2d 609, 612 (1952); Smith v. Hefner, 235 N.C. 1, 7, 68 S.E.2d 783, 787-88 (1952); Teer v. Jordan, 232 N.C. 48, 51-52, 59 S.E.2d 359, 362 (1950); Schloss v. State Highway & Public Works Commission, 230 N.C. 489, 492, 53 S.E.2d 517, 518-19 (1949); Gurganious v. Simpson, 213 N.C. 613, 616, 197 S.E. 163, 164 (1938); Carpenter v. Atlanta & C. A. L. R. Co., 184 N.C. 400, 404-06, 114 S.E. 693, 695-96 (1922); Templeton v. Beard, 159 N.C. 63, 65, 74 S.E. 735, 736 (1912). And, see N.C. Court of Appeals opinions: Golden Rule Ins. Co. v. Long, 113 N.C.App. 187, 193-94, 439 S.E.2d 599, 602-03, disc. review denied, 335 N.C. 555, 439 S.E.2d 145 (1993); Dickens v. Thorne, 110 N.C.App. 39, 45, 429 S.E.2d 176, 180 (1993); Locus v. Fayetteville State University, 102 N.C.App. 522, 526, 402 S.E.2d 862, 865 (1991); Mazzucco v. N.C. Bd. of Medical Examiners, 31 N.C.App. 47, 49-50, 228 S.E.2d 529, 531-32, disc. review denied, 291 N.C. 323, 230 S.E.2d 676 (1976).

A suit against a public official in his official capacity is basically a suit against the public entity (i.e., the state) he represents. Dickens, 110 N.C.App. 39, 45, 429 S.E.2d 176, 180 (1993); Lewis, 287 N.C. at 643, 216 S.E.2d at 146. Therefore, an official capacity suit operates against the public entity itself, as the public entity is ultimately financially responsible for the compensable conduct of its officers. Id.; see Mazzucco, 31 N.C.App. at 49, 228 S.E.2d at 531. This state's doctrine of sovereign immunity is over a century old. Steelman v. City of New Bern, 279 N.C. 589, 591-94, 184 S.E.2d 239, 241 (1971) (discussing adoption of sovereign immunity by our Supreme Court in Moffit v. Asheville, 103 N.C. 237, 254, 9 S.E. 695, 697 (1889)).

Official immunity is a derivative form of sovereign immunity....