Gammons v. North Carolina Dept. of Human Resources

• Decision Date: 31 July 1996
• Docket Number: No. 311PA95,311PA95
• Citation: Gammons v. North Carolina Dept. of Human Resources, 472 S.E.2d 722, 344 N.C. 51 (N.C. 1996)
• Parties: Fred GAMMONS, Guardian ad Litem for Travis Gammons v. NORTH CAROLINA DEPARTMENT OF HUMAN RESOURCES.
• Court: North Carolina Supreme Court

Page 722

472 S.E.2d 722

344 N.C. 51

Fred GAMMONS, Guardian ad Litem for Travis Gammons v. NORTH CAROLINA DEPARTMENT OF HUMAN RESOURCES.

No. 311PA95.

Supreme Court of North Carolina.

July 31, 1996.

Thomas B. Kakassy, P.A. by Thomas B. Kakassy, Gastonia, for plaintiff-appellee.

Michael F. Easley, Attorney General by D. Sigsbee Miller, Assistant Attorney General, Gayl M. Manthei, Special Deputy Attorney General, and David Gordon, Assistant Attorney General, for defendant-appellant.

ORR, Justice.

This is an action for recovery of damages under the Tort Claims Act which was brought by the minor child, Travis Gammons, by and through his guardian ad litem, Fred Gammons ("the claimant") against defendant North Carolina Department of Human Resources, by and through its local agencies, the County of Cleveland and the Cleveland County Department of Social Services, for failure to properly supervise the Cleveland County Department of Social Services in the provision of child protective services. On 15 July 1991, the claimant commenced this action by filing an affidavit with the North Carolina Industrial Commission pursuant to the Tort Claims Act, N.C.G.S. §§ 143-291 to -300.1 (Supp.1995). In the affidavit, the claimant specifically alleges that Cleveland County Department of Social Services employees failed to properly respond to reports that the minor child was being physically abused by his stepfather. The record tends to show that on at least three occasions from February 1988 until August 1988, reports of physical abuse were made to the Cleveland County Department of Social Services, which took no action to protect the interest of the minor child or to remove him from the injurious environment in which he lived. After the injuries had been inflicted, the Cleveland County Department of Social Services took legal custody of the minor child and, in 1991, released custody of the minor child to Fred Gammons, who is the minor child's biological father.

On 25 October 1991, defendant Department of Human Resources moved to dismiss claimant's claim pursuant to Rules 12(b)(1), (2), and (6) of the North Carolina Rules of Civil Procedure, specifically alleging that the claimant "failed to allege negligence by a named officer, agent, employee or involuntary servant of the State as required by G.S. § 143-291 and [ § ] 143-297" and that "[n]either Cleveland County nor Cleveland County Department of Social Services is an agent of the defendant North Carolina Department of Human Resources" with respect to providing child protective services. On 15 June 1993, the claimant moved to strike from consideration affidavits attached to defendant's motion to dismiss, which the deputy commissioner allowed, and then denied defendant's motion to dismiss. On 1 July 1993, defendant moved for reconsideration of the deputy commissioner's order allowing the claimant's motion to strike defendant's affidavits and its denial of defendant's motion to dismiss, and in the alternative, defendant moved for summary judgment on the same jurisdictional grounds as the motion to dismiss and requested consideration of the supporting affidavits. On 19 July 1993, defendant's motion for reconsideration was denied.

On 24 July 1993, the deputy commissioner denied defendant's motion to dismiss and ordered the claimant to file an amended affidavit (within thirty days of the date of the order), which "names an officer, agent, or employee of the State who is alleged to be negligent." On 28 July 1993, the claimant filed an amended affidavit naming as officers, employees, or agents of the State, Mary Deyampert, Director of the Department of Human Resources, and Lois Ray, Regional Director of the Department of Human Resources, as well as several Cleveland County Department of Social Services employees, including County Director Hal Smith.

On 5 August 1993, the deputy commissioner denied defendant's motion for summary judgment, and on 12 August 1993, defendant appealed to the full Commission. On 30 March 1994, the full Commission ordered that defendant's motion for summary judgment be denied, concluding that this case is controlled by Coleman v. Cooper, 102 N.C.App. 650, 403 S.E.2d 577, disc. rev. denied, 329 N.C. 786, 408 S.E.2d 517 (1991). From this order, on 29 April 1994, defendant appealed to the Court of Appeals, which affirmed the decision of the full Commission. On 2 November 1995, we granted discretionary review.

The sole issue to be decided is whether, under principles of agency law as applied to the facts in this particular case, the Cleveland County Director of Social Services and his staff are agents of the North Carolina Department of Human Resources for the purpose of providing child protective services so as to confer jurisdiction upon the Industrial Commission to hear and decide the tort claim at issue. The claimant contends that the Department of Human Resources is vicariously liable for the negligence of the Cleveland County Department of Social Services for failing to properly investigate the reports of abuse which resulted in the minor child being severely injured by his stepfather.

Generally, the State is immune from suit unless it expressly consents to be sued. By the 1951 enactment of the Tort Claims Act, the General Assembly partially waived the sovereign immunity of the State. 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) (Supp.1995).

The effect of the Tort Claims Act was twofold. First, the State partially waived its sovereign immunity by consenting to direct suits brought as a result of negligent acts committed by its employees in the course of their employment. Second, the Act provided that the forum for such direct actions would be the Industrial Commission, rather than the State courts.

Teachy v. Coble Dairies, Inc., 306 N.C. 324, 329, 293 S.E.2d 182, 185 (1982). "Under the Tort Claims Act, jurisdiction is vested in the Industrial Commission to hear claims against the State of North Carolina for personal injuries sustained by any person as a result of the negligence of a State employee while acting within the scope of his employment." Guthrie v. N.C. State Ports Auth., 307 N.C. 522, 536, 299 S.E.2d 618, 626 (1983).

In this case, we are asked to decide whether the State, through the North Carolina Department of Human Resources, is liable for the negligent acts of the Cleveland County Director of Social Services and his staff with respect to the delivery of child protective services so as to confer jurisdiction on the Industrial Commission to hear and decide the merits of this claim pursuant to the provisions of the Tort Claims Act. Application of the principles of agency law and respondeat superior to the statutory scheme for the provision of child protective services leads us to conclude that because, in this particular case, the Department of Human Resources may be liable for the negligence of the Cleveland County Director of Social Services and his staff, jurisdiction does reside with the Commission, which may therefore "hear and pass upon" the claimant's tort claim.

In the case at bar, the Court of Appeals concluded, as did the Commission, that this case is "controlled by Coleman v. Cooper, 102 N.C.App. 650, 403 S.E.2d 577." In Coleman, the plaintiff, as administrator of the estates of her two minor daughters, filed an action against, among others, the Wake County Department of Social Services, seeking damages for the wrongful death of the decedents. The defendant had conducted a sexual abuse investigation of Melvin Coleman, the father/stepfather of the two girls, after the stepdaughter told a school nurse that she and her half-sister were involved in sexual relations with Coleman. During the investigation, Coleman was confronted by social worker Kathy Cooper, also a defendant, with the sexual abuse allegations. Despite denying the allegations, Coleman was subsequently told by his attorney that indictments had been handed down by the grand jury. Instead of turning himself in, Coleman broke into the trailer where the girls lived, stabbed and murdered them, and then fire-bombed the trailer. In Coleman, the plaintiff alleged that the liability of the Wake County Department of Social Services was " 'based upon respondeat superior for the negligence of defendant Cooper' " and the " 'failure of the Defendant Wake County to have appropriate safety procedures.' " Id. at 655, 403 S.E.2d at 580.

The trial court, after a series of motions and appeals, entered an order granting defendant Wake County Department of Social Services' motion to dismiss for lack of subject matter jurisdiction. On appeal to the Court of Appeals, the plaintiff contended that Wake County Superior Court was the proper forum to hear and decide the wrongful death claim and that the trial court erred in holding that the claim should be brought before the Industrial Commission. In deciding the issue before it, the Court of Appeals held that the Industrial Commission was the proper forum for the claim. In making that determination, the Court of Appeals relied exclusively on Vaughn v. N.C. Dept. of Human Resources, 296 N.C. 683, 252 S.E.2d 792 (1979).

In Vaughn, the claimant filed a negligence claim against the Department of Human Resources with the ...