Grad v. Kaasa

• Citation: 321 S.E.2d 888,312 N.C. 310
• Decision Date: 06 November 1984
• Docket Number: No. 251A84,251A84
• Parties: In the Matter of Lucille B. GRAD v. Laurin J. KAASA, M.D.
• Court: North Carolina Supreme Court

Page 888

321 S.E.2d 888

312 N.C. 310

In the Matter of Lucille B. GRAD v. Laurin J. KAASA, M.D.

No. 251A84.

Supreme Court of North Carolina.

Nov. 6, 1984.

Jordan, Brown, Price & Wall by Henry W. Jones, Jr., Raleigh, for plaintiff.

Patterson, Dilthey, Clay, Cranfill, Sumner & Hartzog by Ronald C. Dilthey, Raleigh, for the defendant.

COPELAND, Justice.

Plaintiff argues that there are several issues of material fact in this case to be resolved by the jury and that the Court of Appeals correctly reversed the trial court's grant of summary judgment in favor of the defendant. Before we consider the question of whether summary judgment was proper, we note that plaintiff contends that there is a genuine issue of fact as to whether defendant acted outside the scope of his authority. The Court of Appeals, including Judge Braswell in dissent, concluded that defendant was acting within the scope of his office. Grad, 68 N.C.App. at 132, 134, 314 S.E.2d at 759-60. Because the Court of Appeals' opinion on this issue was unanimous, it is not properly before the Court and will not be considered. N.C.R.App.P. 16(b).

Summary judgment will be granted "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to judgment as a matter of law." N.C.R.Civ.P. 56(c). Issues which can be proven by substantial evidence are genuine, and facts are material if they constitute or establish any material element of a claim or defense. Lowe v. Bradford, 305 N.C. 366, 369, 289 S.E.2d 363, 366 (1982). If a party moving for summary judgment meets his burden of proving that there are no disputed issues of material fact and that he is entitled to judgment as a matter of law, then the burden shifts to the opposing party to show that a genuine issue of material fact exists. Id. In meeting this burden the opposing party must set forth specific facts that show there is a genuine issue of material fact. Id. at 370, 289 S.E.2d at 366.

"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. 303, 331, 222 S.E.2d 412, 430 (1976). A defendant acts with malice when he wantonly does that which a man of reasonable intelligence would know to be contrary to his duty and which he intends to be prejudicial or injurious to another. Givens v. Sellars, 273 N.C. 44, 159 S.E.2d 530 (1968). "An act is wanton when it is done of wicked purpose, or when done needlessly, manifesting a reckless indifference to the rights of others." Id. at 50, 159 S.E.2d at 535 (quoting Everett v. Receivers, 121 N.C. 519, 27 S.E. 991 (1897)).

Defendant's forecast of the evidence tended to show that he received a proper death report and made an investigation into the cause and manner of death as required by N.C.Gen.Stat. § 130-199 (1981). Following his investigation, he made a subjective determination that an autopsy was advisable and in the public interest. Defendant was acting within the scope of his office, and his forecast entitles him to summary judgment unless in her forecast of the evidence plaintiff shows by specific facts that a genuine issue of material fact exists. Lowe, 305 N.C. at 369-70, 289 S.E.2d at 366.

Plaintiff contends that a genuine issue of fact exists as to whether defendant acted maliciously or corruptly in conducting the autopsy. In support, plaintiff points to the fact that defendant was well acquainted with her but did not contact her prior to performing the autopsy. Plaintiff knew that her husband had suffered a previous heart attack and had been warned not to overexert himself. The plaintiff's forecast of evidence indicated that defendant could have obtained this information by contacting plaintiff or examining Mr. Grad's medical records. The Court of Appeals concluded that this forecast raised a genuine issue of material fact as to whether defendant acted with reckless disregard of plaintiff's rights by ordering the autopsy without first having made further reasonable investigation into the circumstances of Mr. Grad's death. Grad, 68 N.C.App. at 133, 314 S.E.2d at 760. Plaintiff also argues that the fact that defendant receives $200 for each autopsy he performs as medical examiner raises a genuine issue of fact on the question of whether he acted with corruption. After carefully considering the evidence, we find nothing that raises an issue of material fact as to whether plaintiff acted maliciously or corruptly.

The regulations of the North Carolina Department of Human Resources, in effect at the time of the autopsy, set forth thirteen types of death that shall be reported to the medical examiner by anyone having knowledge of the death. 10 N.C.Admin.Code § 11.0203 (repealed 1 January 1984). Four of the classifications are relevant to this case; (1) trauma, (2) accident, (3) unknown, unnatural, or suspicious circumstances, and (4) sudden, unexpected deaths not reasonably related to known previous diseases. Id. Under N.C.Gen.Stat. § 130-200 (1981), a medical examiner shall conduct an autopsy if in his judgment it is advisable and in the public interest. There is abundant...