Hare v. Butler

• Citation: 394 S.E.2d 231,99 N.C.App. 693
• Decision Date: 07 August 1990
• Docket Number: No. 8926SC965,8926SC965
• Court: Court of Appeal of North Carolina (US)
• Parties: David Charles Radford HARE v. Patricia BUTLER; Jeanette Murray; and Bob Person, Individually and in their Official Capacities as Social Workers of the Mecklenburg County Department of Social Services; Pesula Faulkner, Individually and in her Official Capacity as Protective Services Investigation Supervisor for the Mecklenburg County Department of Social Services; Katherine Wilson, Individually and in her Official Capacity as Program Administrator for Child and Family Services of the Mecklenburg County Department of Social Services; Merlene Wall, Individually and in her Official Capacity as Assistant Director of the Mecklenburg County Department of Social Services; Edwin H. Chapin, Individually and in his Official Capacity as Director of the Mecklenburg County Department of Social Services; Mecklenburg County Department of Social Services; Mecklenburg County, North Carolina; and Carole Lynn Peterson-Hare.

Page 231

394 S.E.2d 231

99 N.C.App. 693

David Charles Radford HARE v. Patricia BUTLER; Jeanette Murray; and Bob Person Individually and in their Official Capacities as Social Workers of the Mecklenburg County Department of Social Services; Pesula Faulkner, Individually and in her Official Capacity as Protective Services Investigation Supervisor for the Mecklenburg County Department of Social Services Katherine Wilson, Individually and in her Official Capacity as Program Administrator for Child and Family Services of the Mecklenburg County Department of Social Services Merlene Wall, Individually and in her Official Capacity as Assistant Director of the Mecklenburg County Department of Social Services; Edwin H. Chapin, Individually and in his Official Capacity as Director of the Mecklenburg County Department of Social Services; Mecklenburg County Department of Social Services; Mecklenburg County, North Carolina; and Carole Lynn Peterson-Hare.

No. 8926SC965.

Court of Appeals of North Carolina.

Aug. 7, 1990.

James, McElroy & Diehl by John S. Arrowood, Charlotte, for plaintiff-appellant.

Kennedy, Covington, Lobdell & Hickman by Wayne P. Huckel and Michelle C. Landers, Golding, Meekins, Holden, Cosper & Stiles by Fred C. Meekins and Martha R. Holmes, and Hedrick, Eatman, Gardner & Kincheloe by John F. Morris, Charlotte, for defendants-appellees.

ARNOLD, Judge.

Initially, we must decide if this appeal is interlocutory and therefore inappropriate at this time. See N.C.Gen.Stat. § 1A-1, Rule 54(b) (1983). The judgment below is not final as to all claims and parties. However, we find that plaintiff has a substantial right to have all of his claims for relief tried at the same time before the same judge and jury, and therefore allow this appeal. Shelton v. Fairley, 86 N.C.App. 147, 356 S.E.2d 917, cert. denied, 320 N.C. 634, 360 S.E.2d 94 (1987); see Nance v. Robertson, 91 N.C.App. 121, 370 S.E.2d 283, disc. rev. denied, 323 N.C. 477, 373 S.E.2d 865 (1988).

A county's liability for the torts of its officers and employees depends on whether the activity involved is "governmental" or "proprietary" in nature. Traditionally, a county was immune from torts committed by an employee carrying out a governmental function, but was liable for torts committed while engaged in a proprietary function. The North Carolina Supreme Court has distinguished between the two as follows:

Any activity ... which is discretionary, political, legislative or public in nature and performed for the public good in behalf of the State, rather than to itself, comes within the class of governmental functions. When, however, the activity is commercial or chiefly for the private advantage of the compact community, it is private or proprietary.

Millar v. Town of Wilson, 222 N.C. 340, 341, 23 S.E.2d 42, 44 (1942). Often making this distinction proves difficult. Certain activities are clearly governmental such as law enforcement operations and the operation of jails, public libraries, county fire departments, public parks and city garbage services. See County Government in North Carolina, 40-41 (A.F. Bell II, 3d ed.1989). Non-traditional governmental activities such as the operation of a golf course or an airport are usually characterized as proprietary functions. Charging a substantial fee to the extent that a profit is made is strong evidence that the activity is proprietary. Id. at 41-42.

Investigations by a social service agency of allegations of child sexual abuse are in the nature of governmental functions. Such activities are performed for the public good. Thus a county normally would be immune from liability for injuries caused by negligent social services employees working in the course of their duties. The General Assembly, however, has authorized counties through a statute to waive the defense of immunity for negligent actions that occur in the performance of governmental functions through the purchase of liability insurance. N.C.Gen.Stat. § 153A-435(a) (1987). Under this law, Mecklenburg County; the DSS, as a County agency; and the County employees may be liable for negligent or intentional actions carried out in the performance of their social services duties. McNeill v. Durham County ABC Board, 87 N.C.App. 50, 359 S.E.2d 500 (1987), modified on other ground, 322 N.C. 425, 368 S.E.2d 619, reh'g denied, 322 N.C. 838, 371 S.E.2d 278 (1988).

Nevertheless, in the case sub judice dismissal of the negligence claim against Mecklenburg County was proper because plaintiff failed to allege negligence against the County in his complaint. Further, plaintiff's complaint does not allege or provide any evidence that Mecklenburg County or the DSS has purchased liability insurance, thus failing to show that these entities or their employees have waived governmental immunity. Baucom's Nursery Co. v. Mecklenburg County, 89 N.C.App. 542, 366 S.E.2d 558, review denied, 322 N.C. 834, 371 S.E.2d 274 (1988). We therefore uphold the court order dismissing the negligence claims against the County, the DSS and Ms. Faulkner, Ms. Wilson, Ms. Wall and Mr. Chapin for any acts committed in their official capacities. See id. Again, we note that plaintiff's complaint did not allege negligence against the three social workers, Ms. Butler, Ms. Murray and Mr. Person.

Defendants, Ms. Faulkner, Ms. Wilson, Ms. Wall and Mr. Chapin, however, have also been sued individually for negligence. When a governmental worker is sued individually, or in his or her personal capacity, our courts distinguish between public employees and public officers in determining negligence liability. Harwood v. Johnson, 92 N.C.App. 306, 309, 374 S.E.2d 401, 404 (1988). A public officer sued individually is normally immune from liability for "mere negligence." Id. An employee, on the other hand, is personally liable for negligence in the performance of his or her duties proximately causing an injury. Id.; Givens v. Sellars, 273 N.C. 44, 159 S.E.2d 530 (1968).

A public officer is someone whose position is created by the constitution or statutes of the sovereign. State v. Hord, 264 N.C. 149, 155, 141 S.E.2d 241, 245 (1965). "An essential difference between a public office and mere employment is the fact that the duties of the incumbent of an office shall involve the exercise of some portion of sovereign power." Id. Officers exercise a certain amount of discretion, while employees perform ministerial duties. Discretionary acts are those requiring personal deliberation, decision and judgment; duties are ministerial when they are "absolute, certain, and imperative, involving merely the execution of a specific duty arising from fixed and designated facts." Jensen v. S.C. Dept. of Social Services, 297 S.C. 323, 377 S.E.2d 102 (1988).

In this case, Ms. Faulkner is the Protective Services Investigation Supervisor for the DSS; Ms. Wilson, the...