Whitaker v. Clark
| Decision Date | 16 March 1993 |
| Docket Number | No. 9222SC68,9222SC68 |
| Citation | 109 N.C.App. 379,427 S.E.2d 142 |
| Court | North Carolina Court of Appeals |
| Parties | Ginger York WHITAKER, Administratrix of the Estate of Jonathan Wesley Whitaker, Plaintiff, v. Jim CLARK, Karen Smith and Judi Casterline, Defendants. |
Hall, Vogler & Fleming by E. Edward Vogler, Jr., and Beverly S. Murphy, Mocksville, for plaintiff-appellee.
Womble Carlyle Sandridge & Rice by Allan R. Gitter, Thomas M. Van Camp, and J. Daniel McNatt, Winston-Salem, for defendants-appellants.
Plaintiff filed a wrongful death action against defendants to recover damages for the death of her son. Defendants are employees of the Davie County Department of Social Services (DSS). In their answer defendants asserted the defense of governmental immunity. Defendants then filed a motion for judgment on the pleadings, which was denied by the trial court. Defendants appeal. We find the plaintiff's complaint contained allegations pertaining only to the defendants' actions or inactions in their official capacities with DSS and that defendants were entitled to judgment based on governmental immunity. We reverse.
Plaintiff Ginger York Whitaker filed a complaint against Jim Clark, Karen Smith, and Judi Casterline to recover for the wrongful death of her son, Jonathan Whitaker. Defendants were employed by the DSS when Jonathan's death occurred. Plaintiff claims that defendants' negligent failure to investigate claims of child abuse and neglect, coupled with their failure to remove her son from the custody of his abusive father, Bruce Whitaker, caused her son's death. In the complaint, plaintiff alleged that she repeatedly contacted the defendants and reported incidents of her estranged husband's drunkenness. Mr. Whitaker had custody of Jonathan. On 2 April 1991, Mr. Whitaker was involved in an automobile accident while driving under the influence of alcohol. Both he and Jonathan died as a result of the accident.
Defendants filed a motion for judgment on the pleadings on 1 November 1991. On 26 November 1991, plaintiff voluntarily dismissed her claim pursuant to N.C.Gen.Stat. § 1A-1, Rule 41(a) against defendant Jim Clark; Ms. Smith and Ms. Casterline remained as defendants. On 3 December 1991, the trial court entered an order denying the defendants' motion for judgment on the pleadings. On appeal, defendants contend the trial court erred in denying defendants' motion on the pleadings.
Rule 12(c) of the North Carolina Rules of Civil Procedure permits any party to move for judgment on the pleadings after the pleadings are closed but within such time as not to delay the trial. N.C.Gen.Stat. § 1A-1, Rule 12(c) (1990). Judgment on the pleadings is not favored by the law and the pleadings must be liberally construed in the light most favorable to the nonmoving parties. DeTorre v. Shell Oil Co., 84 N.C.App. 501, 504, 353 S.E.2d 269, 271 (1987). The movant under section (c) must show, even when viewing the facts and permissible inferences in the light most favorable to the nonmoving party, that he is clearly entitled to judgment as a matter of law. Id. Although normally an appeal does not lie from the denial of a motion for judgment on the pleadings, Barrier v. Randolph, 260 N.C. 741, 743, 133 S.E.2d 655, 657 (1963), an immediate appeal will lie under subsection (c), as well as subsection (b), where the trial court refuses to grant a judgment on the pleadings for the state on the grounds of governmental immunity. See, i.e., Huyck Corp. v. C.C. Mangum, Inc., 58 N.C.App. 532, 293 S.E.2d 846 (1982).
Defendants claim they deserved a judgment on the pleadings because even taken in the light most favorable to the plaintiff, her complaint indicates she sued the defendants in their official capacities and not individually. Services provided by local Departments of Social Services are governmental functions to which governmental immunity applies. Hare v. Butler, 99 N.C.App. 693, 698, 394 S.E.2d 231, 235, disc. review denied, 327 N.C. 634, 399 S.E.2d 121 (1990). See also, Coleman v. Cooper, 102 N.C.App. 650, 403 S.E.2d 577, disc. review denied, 329 N.C. 786, 408 S.E.2d 517 (1991). It is also well-settled that when an action is brought against individual officers in their official capacities the action is one against the state for the purposes of applying the doctrine of sovereign immunity. 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, and , 330 N.C. 761, 413 S.E.2d 276 (1992). In consequence, if plaintiff's complaint demonstrates that she has sued the defendants only in an official capacity, rather than as individuals, defendants would be potentially shielded from plaintiff's cause of action by governmental immunity.
At the outset, an examination of plaintiff's complaint reveals a failure to designate in what capacity defendants are being sued. As for substance, the body of the complaint includes the following:
4. That Defendants are employees of the Davie County Department of Social Services and, as a result, may be subjected to liability in the performance of their official duties.
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7. That the decedent, Bruce Earl Whitaker, Sr. neglected and abused the decedent, Jonathan Wesley Whitaker on many occasions before April 2, 1991. That said neglect and abuse consisted of Bruce Earl Whitaker, Sr. creating or being allowed to create a substantial risk of physical injury to the decedent Jonathan Wesley Whitaker by other than accidental means which would likely cause death, disfigurement or impairment of bodily organs by driving while under the influence of impairing substances on many occasions while the decedent Jonathan Wesley Whitaker was present in the same automobile and therefore allowing the said Jonathan Wesley Whitaker to be in an environment injurious to his welfare; and further by supervising the decedent, Jonathan Wesley Whitaker while said Bruce Earl Whitaker, Sr. was in a state of intoxication.
8. That Plaintiff repeatedly contacted the Defendants, in their official capacity, and reported incidents of drunkeness [sic] of Bruce E. Whitaker, Sr. and his abusive and neglectful conduct toward his son, Jonathan Wesley Whitaker.
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11. That the Defendant's [sic] were negligent in their failure to adequately investigate Plaintiff's reports and respond to the abuses and neglect by Bruce E. Whitaker, Sr. of Jonathan Wesley Whitaker; and as a result of the Defendant's [sic] negligent...
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Molamphy v. Town of Southern Pines, No. 1:02CV00720 (M.D.N.C. 3/3/2004)
...that this waiver has occurred in order to take advantage of the waiver and state a proper claim for relief. Whitaker v. Clark, 109 N.C. App. 379, 384, 427 S.E.2d 142, 145, rev. denied and cert. denied, 333 N.C. 795, 431 S.E.2d 31 Plaintiff did not allege in the complaint that defendants had......
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Mandsager v. Univ. Of North Carolina at Greensboro
...he is entitled to defenses available to the state such as Eleventh Amendment immunity and sovereign immunity. Whitaker v. Clark, 109 N.C.App. 379, 427 S.E.2d 142, 143-44 (1993). If, on the other hand, an individual is sued in his individual capacity, he may be entitled to the defense of pub......
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