Guthrie v. North Carolina State Ports Authority

• Decision Date: 08 February 1983
• Docket Number: No. 97PA82,97PA82
• Citation: 299 S.E.2d 618,307 N.C. 522
• Court: North Carolina Supreme Court
• Parties: Fred GUTHRIE, Jr. and Kathy Guthrie v. NORTH CAROLINA STATE PORTS AUTHORITY.

Page 618

299 S.E.2d 618

307 N.C. 522

Fred GUTHRIE, Jr. and Kathy Guthrie v. NORTH CAROLINA STATE PORTS AUTHORITY.

No. 97PA82.

Supreme Court of North Carolina.

Feb. 8, 1983.

Bennett, McConkey & Thompson, P.A. by Thomas S. Bennett and James W. Thompson, III, Morehead, for plaintiffs-appellants.

Stith & Stith by F. Blackwell Stith, New Bern, for defendant-appellee.

MEYER, Justice.

The sole question presented for our review is whether the trial court properly assumed jurisdiction to adjudicate plaintiffs' claims, ¹ or whether exclusive original jurisdiction lies with the Industrial Commission under the North Carolina Tort Claims Act, N.C.Gen.Stat. §§ 143-291 to -300.1 (1978 and Supp.1981). In order to resolve this issue, we must make three determinations:

1. Is the State Ports Authority an "agency of the State" and thus entitled to claim the defense of sovereign immunity? We answer in the affirmative.

2. Has the State Ports Authority implicitly waived its defense of sovereign immunity with respect to plaintiffs' claims? We find that it has not.

3. Does the explicit limited waiver of sovereign immunity by the State for the negligence of its employees and agents as set forth in the Tort Claims Act apply to plaintiffs' claims? We answer in the affirmative.

The male plaintiff-appellant's complaint, in pertinent part, alleges that on 27 March 1980 at approximately 9:00 a.m. he was employed by Lavino Shipping Company as a longshoreman assigned to work as a forklift operator to move stacked bundles of lumber from a warehouse owned and operated by the defendant. The warehouse was located on the defendant's premises at its port facility in Morehead City, North Carolina. The stacked bundles of lumber were approximately four feet deep, four feet high, and sixteen feet long, and weighed approximately seven thousand pounds each. They were stacked five high in defendant's warehouse by defendant's employees in accordance with instructions given by defendant's management. The plaintiff was in the process of moving the bundles of lumber from the warehouse site to dockside for loading on a vessel moored at defendant's facility. As he attempted to move one of the bundles of lumber, a stack of bundles approximately twenty feet high, located directly behind the bundle plaintiff was attempting to move, fell over and crashed down upon the forklift which the plaintiff was operating. As a result, he sustained severe, crippling and permanent injuries including a fractured back. Plaintiff is now a paraplegic and confined to a wheelchair.

The plaintiff contends that the injuries he sustained were a result of the negligence of the defendant, its agents and employees and seeks damages in the amount of several million dollars as set forth with particularity in the complaint. As a part of the same complaint, the plaintiff's wife joined in the action and seeks damages for loss of consortium in the amount of one million dollars.

The defendant-appellee, in apt time, filed motions to dismiss for lack of jurisdiction and for failure of the complaint to state a claim upon which relief could be granted. Upon the trial court's denial of defendant's motions to dismiss, appeal was taken to the Court of Appeals. Recognizing that while ordinarily there is no right of appeal from the denial of a motion to dismiss, that court nevertheless elected to hear the case on the merits because of the importance of the question presented. The Court of Appeals considered the following language from the State Tort Claims Act: "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 Department of Transportation, and all other departments, institutions and agencies of the State." G.S. § 143-291 (emphasis added). Based on the court's comparison of the organization and powers of the State Board of Education and the Department of Transportation with those of the defendant, it determined that the three were ejusdem generis. Therefore, "[e]ven though its act of creation has the effect of rendering defendant 'a substantially independent and autonomous public or quasi-municipal corporation,' ... neither this description nor defendant's 'proprietary function' erase[s] its substantial ties to the State of North Carolina ...." 56 N.C.App. at 74, 286 S.E.2d at 827. The order of the trial judge denying plaintiffs' motions to dismiss was reversed and the plaintiffs' complaint was dismissed upon the court's finding that the defendant was an agency of the State of North Carolina and as such plaintiffs' right of recovery was restricted entirely to the State Tort Claims Act, with exclusive original jurisdiciton vested in the North Carolina Industrial Commission. Plaintiff-appellants' petition for discretionary review was allowed by this Court on 5 May 1982.

The plaintiff-appellants contend that the Ports Authority is in fact, and by legislative enactment, a substantially independent and autonomous public or quasi-municipal corporation engaging in a proprietary function to the extent that it cannot avail itself of the defense of the State's sovereign immunity in a tort action for negligence. Thus, argue plaintiff-appellants, their remedy cannot be limited to the State Tort Claims Act.

The defendant-appellee Ports Authority contends that this Court should affirm the decision of the Court of Appeals because the Ports Authority is indeed an agency and instrumentality of the State created and empowered to accomplish a public purpose is engaged in a governmental function, and is clothed with sovereign immunity to the extent it has not waived it under the provisions of the State Tort Claims Act. Thus, argues defendant, the Superior Court has no jurisdiction, and plaintiffs' exclusive remedy is a claim pursuant to the Tort Claims Act.

In substance, Judge Brown's sixteen findings of fact are premised on the theory that there is a distinction between the "governmental" and "proprietary" functions as engaged in by the State Ports Authority and point unmistakably to the conclusion that, because it is a "proprietary" enterprise, the Ports Authority has implicitly waived its defense of sovereign immunity.

In his "Order Denying Defendant's Motion to Dismiss," filed 17 March 1981, Judge Brown recited that, on the Rule 12(b)(1) and (2) motions only, he had allowed into evidence some thirty-four of plaintiffs' exhibits, and the affidavit of a witness for the plaintiffs with an exhibit attached, all over the objection of defendant. The defendant Ports Authority put on no evidence of any kind. Judge Brown further recited that on his consideration of defendant's Rule 12(b)(6) motion, he heard no evidence and considered only the pleadings. The parties have chosen to stipulate to the content of a record on appeal which does not include any of plaintiffs' thirty-four exhibits or the affidavit, although it is obvious from the nature and content of Judge Brown's lengthy findings of facts that he relied heavily on those items of evidence. Fortunately, we need not consider whether the findings of fact are supported by the evidence--we assume arguendo that they are. Greene v. Greene, 15 N.C.App. 314, 190 S.E.2d 258 (1972); Bundy v. Ayscue, 5 N.C.App. 581, 169 S.E.2d 87, appeal dismissed 276 N.C. 81, 171 S.E.2d 1 (1969). Here, we need only concern ourselves with whether the findings made support the conclusions of law that (1) the court had jurisdiction of the claim; (2) the State Ports Authority is not entitled to claim the defense of sovereign immunity; and (3) the State Tort Claims Act is not applicable to plaintiffs' claims. We find that Judge Brown's findings do not support these conclusions.

Our determination that the findings do not support the conclusions is based upon our examination of three issues raised by those conclusions: (1) whether the Ports Authority is an agency of the State entitled to claim the defense of sovereign immunity; (2) whether the Ports Authority may implicitly waive its defense of sovereign immunity by engaging in a "proprietary" enterprise; and (3) whether the explicit limited waiver of immunity of the State Tort Claims Act applies to plaintiffs' claims. We will address each of these questions seriatim.

1.

We first address the question of whether the Ports Authority is an agency of the State entitled to claim the defense of sovereign immunity.

It cannot be disputed that our Legislature has the power to create a State Ports Authority and to maintain it as an agency of the State, under the control of the State. It is clear from the language of the act creating the Authority that the Legislature intended that the State itself, through the instrumentality of the Ports Authority, conduct the desired activities:

Through the Authority hereinbefore created, the State of North Carolina may engage in [numerous enumerated activities hereinafter set forth specifically]. Said Authority is created as an instrumentality of the State of North Carolina....

N.C.Gen.Stat. § 143B-453 (Supp.1981) (emphasis added).

Such a legislative declaration, although not conclusive upon the court, carries great weight. See Stanley, Edwards, Henderson v. Dept. Conservation & Development, 284 N.C. 15, 199 S.E.2d 641 (1973); Foster v. Medical Care Comm., 283 N.C. 110, 195 S.E.2d 517 (1973); Mitchell v. Financing Authority, 273 N.C. 137, 159 S.E.2d 745 (1968).

The North Carolina State Ports Authority was created in 1945 by an act of the General Assembly. See G.S. § 143B-452 et seq. It is a division of the Department of Commerce. See G.S. § 143B-431(2)(l ). The purposes of the Authority are set out in the General Statutes:

Through the Authority hereinbefore created, the State of North Carolina may engage in promoting, developing, constructing, equipping, maintaining and operating the harbors and seaports within the State, or within the jurisdiction of the State, and works of...