Slade v. Vernon

Decision Date01 June 1993
Docket NumberNo. 9217SC449.,9217SC449.
CourtNorth Carolina Court of Appeals
PartiesFred Levette SLADE, and wife, Barbara J. Slade, Plaintiffs, v. C.D. VERNON, Sheriff of Rockingham County; Jack Kenneth Bryant, Chief Jailer of the Rockingham County Jail; Being Sued Individually and In Their Official Capacities, Defendants.

Moses & Moses, by Pinkney J. Moses, Greensboro, for plaintiffs-appellees.

Womble Carlyle Sandridge & Rice, by James R. Morgan, Jr. and Allan R. Gitter, Winston-Salem, for defendants-appellants.

WELLS, Judge.

The sole question upon review is whether the trial court erred in denying defendants' summary judgment motion based upon public officers' immunity, governmental immunity and qualified immunity.

We first address the threshold issue of the reviewability of an order denying appellants' summary judgment motion. Generally, the denial of a motion for summary judgment is not appealable as an interlocutory order unless such order would deprive the appellant of a substantial right which would be lost if not reviewed prior to final judgment. See N.C.Gen.Stat. § 1-277; Pruitt v. Williams, 288 N.C. 368, 218 S.E.2d 348 (1975). Usually the denial of a summary judgment motion would not affect a substantial right; however, where the summary judgment motion is based on a substantial claim of immunity, an immediate appeal shall lie. Herndon v. Barrett, 101 N.C.App. 636, 400 S.E.2d 767 (1991). The justification for such an exception stems from the nature of the immunity defense. A valid claim of immunity is more than a defense in a lawsuit; it is in essence immunity from suit. Were the case to be erroneously permitted to proceed to trial, immunity would be effectively lost. Corum v. University of North Carolina, 97 N.C.App. 527, 389 S.E.2d 596 (1990), aff'd in part, rev'd in part on other grounds, 330 N.C. 761, 413 S.E.2d 276 (1992) (citing Mitchell v. Forsyth, 472 U.S. 511, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985)). In the case subjudice, defendants do assert a claim of immunity, and therefore their appeal is properly before this Court.

Plaintiffs have brought suit against defendants in both their official capacity and individually, and defendants assert that immunity bars each of plaintiffs' claims. We therefore shall address each of plaintiffs' claims separately.

I. State Law Claims
A. Official Capacity

Defendants first argue summary judgment should have been granted as to plaintiffs' negligence claims because defendants, acting in their official capacities as public officers, are immune from suit based on sovereign immunity. It is well established that the State is immune from suit under the doctrine of sovereign immunity, until and unless it consents to be sued.Jones v. Pitt County Memorial Hospital, 104 N.C.App. 613, 410 S.E.2d 513 (1991). Sovereign immunity also precludes suit against a county, a governmental agency exercising the police power of the State. Likewise, county employees and county officials engaged in governmental functions are also immune from suit. Baucom's Nursery Co. v. Mecklenburg Co., 89 N.C.App. 542, 366 S.E.2d 558, disc. rev. denied, 322 N.C. 834, 371 S.E.2d 274 (1988). It is uncontroverted that defendants are public officials of Rockingham County, and, as such, are entitled to sovereign immunity.

Sovereign immunity is a "common law theory or defense established by the Court," to protect the sovereign or the State and its agents from suit. Corum v. University of North Carolina, 330 N.C. 761, 413 S.E.2d 276 (1992). Our courts, however, have deferred to the General Assembly to determine those circumstances in which a state or its agents may be sued. For example, under G.S. § 153A-435(a), a county waives its defense of immunity for negligence in the performance of governmental functions to the extent it has purchased liability insurance. Hare v. Butler, 99 N.C.App. 693, 394 S.E.2d 231, rev. denied, 327 N.C. 634, 399 S.E.2d 121 (1990). The General Assembly, in enacting the Tort Claims Act, G.S. § 143-291 et seq., has also partially waived sovereign immunity of the State for tort claims falling within its purview.

With the enactment of G.S. § 58-76-5 (formerly G.S. § 109-34), the General Assembly specifically provided for a cause of action against a sheriff or other officer and their surety. Pertinent portions of that statute are as follows:

Every person injured by the neglect, misconduct, or misbehavior in office of any ... sheriff ... or other officer, may institute a suit or suits against said officer or any of them and their sureties upon their respective bonds for the due performance of their duties in office in the name of the State, without any assignment thereof; ... and every such officer and the sureties on his official bond shall be liable to the person injured for all acts done by said officer by virtue or under color of his office.

See Williams v. Adams, 288 N.C. 501, 219 S.E.2d 198 (1975). This statute allows a plaintiff to maintain suit against a public officer and the surety on his official bond for acts of negligence in performing his official duties. In addition, our appellate courts have traditionally recognized this statutory claim without reaching the question of sovereign immunity. See Williams, supra; Hayes v. Billings, 240 N.C. 78, 81 S.E.2d 150 (1954); Dunn v. Swanson, 217 N.C. 279, 7 S.E.2d 563 (1940).

Here, plaintiffs allege a statutorybased negligence cause of action against defendants in performing their official duties under G.S. § 153A-224(a). This statute creates an affirmative duty owed by prison officials to inmates in supervising local confinement facilities. G.S. § 153A-224(a) provides as follows:

Supervision of local confinement facilities.
(a) No person may be confined in a local confinement facility unless custodial personnel are present and available to provide continuous supervision in order that custody will be secure and that, in event of emergency, such as fire, illness, assaults by other prisoners, or otherwise, the prisoners can be protected. These personnel shall supervise prisoners closely enough to maintain safe custody and control and to be at all times informed of the prisoners' general health and emergency medical needs.

Plaintiffs allege that defendant prison officials observed plaintiff's bizarre behavior often and that one of the jailers informed them of plaintiff's need for medical attention and additional supervision. Plaintiffs also allege that after observing plaintiff's behavior and being informed of his condition, defendants knew or should have known plaintiff was likely to injure himself but failed to take the necessary steps to ensure plaintiff's safety. Plaintiffs' forecast of evidence is sufficient to maintain an action in negligence based on the violation of G.S. § 153A-224(a). The General Assembly specifically allows such a claim based on the negligence of public officers acting in their official capacity under G.S. § 58-76-5. By expressly providing for this cause of action, the General Assembly has abrogated common law immunity where a public official causes injury through "neglect, misconduct, or misbehavior" in the performance of his official duties or under color of his office. We therefore hold that the trial court's denial of summary judgment as to this issue was proper.

We note that plaintiffs' action in this case was brought against the sheriff and the jailer individually, and their official sureties were not joined as parties. Although courts in our State have held the sureties to be necessary parties in an action under G.S. § 58-76-5, see Cain v. Corbett, 235 N.C. 33, 69 S.E.2d 20 (1952), defendants did not raise this argument in their assignments of error and this issue is therefore not before our Court.

B. Individual Capacity

Defendants next contend that they are immune from suit because as public officers, they cannot be held individually liable for "mere negligence" in the performance of their duties. We agree.

The general rule is that a public official is immune from personal liability for mere negligence in the performance of his duties, but he is not shielded from liability if his alleged actions were corrupt or malicious or if he acted outside and beyond the scope of his duties. Thompson Cadillac-Oldsmobile, Inc. v. Silk Hope Automobile, Inc., 87 N.C.App. 467, 361 S.E.2d 418 (1987), disc. rev. denied, 321 N.C. 480, 364 S.E.2d 672 (1988).

Here, plaintiffs have alleged defendants were negligent in their failure to supervise plaintiff in the course of their duties, where defendants knew or should have known plaintiff was likely to injure himself. Plai...

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