Wright v. Gaston County
| Decision Date | 20 July 2010 |
| Docket Number | No. COA09-792.,COA09-792. |
| Parties | Marcia WRIGHT, as Administrator of the Estate of Matthew Dillon Bowser, and Nichole McQueary, Plaintiffs,v.GASTON COUNTY, Shannon Saleet, Melanie Duncan, Christy Gantt, and Ann Putnam, Defendants. |
| Court | North Carolina Court of Appeals |
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Appeal by plaintiffs from order entered 23 December 2008 by Judge Timothy S. Kincaid in Gaston County Superior Court. Heard in the Court of Appeals 13 January 2010.
Gray, Layton, Kersh, Solomon, Furr & Smith, P.A., Gastonia, by William E. Moore, Jr. and Michael L. Carpenter, for plaintiff-appellants.
Stott, Hollowell, Palmer & Windham, L.L.P., Gastonia, by Martha Raymond Thompson, and Aaron C. Low, for defendant-appellants.
Where the Gaston County 911 call center provided for the health and welfare of the citizens of the county, the trial court properly held as a matter of law that the 911 call center performs a governmental function. Where defendants' insurance policy contains a provision that expressly states that it does not waive the defense of governmental immunity, the trial court did not err by granting Gaston County's motion for summary judgment and granting the 911 operators' motion to dismiss plaintiffs' claims against them in their official capacities. Plaintiffs' complaint also alleges claims against the 911 operators in their individual capacities, for which governmental immunity is not applicable. This case is remanded for further proceedings as to the 911 operators in their individual capacities.
On 29 January 2008, plaintiffs filed a complaint that alleged the following: on 12 August 2006, the minor child Matthew Dillon Bowser (Matthew) was in the custody of his father while his mother Nichole McQueary (Nichole) and grandmother Marcia Wright (Marcia) went shopping. At approximately 9:00 p.m., they returned to Matthew's father's residence and found Matthew awake, but crying. At approximately 9:20 p.m., Matthew was sitting in Nichole's lap, facing her, eating an “ice pop.” Matthew fell backwards and Nichole caught him, preventing him from hitting his head. When Nichole lifted Matthew up, he was not breathing. Matthew's grandfather immediately put him on the floor and began administering cardiopulmonary resuscitation (CPR). Marcia called 911 and informed Shannon Saleet (Saleet), a 911 operator, that Matthew had stopped breathing. The first 911 call was received at 9:36 p.m. and Saleet designated the call as “general sickness.” At 9:40 p.m., 911 was advised that Matthew was possibly running a fever and may have had a seizure. At 9:41 p.m., Paramedic Unit # E56P (Gaston Emergency Medical Services) and Basic EMT Unit # G156 (Gaston Lifesaving and First Aid Crew, Inc.) were dispatched simultaneously. Eleven seconds later, Melanie Duncan (Duncan), also a 911 operator, cleared the primary paramedic unit from the call and only the basic EMT unit was sent to the residence. The basic EMT unit arrived at the residence at 9:53 p.m. and was advised by persons on the scene that Matthew had been resuscitated. Matthew was loaded into the ambulance with Nichole to be transported to Gaston Memorial Hospital. The basic EMT unit requested assistance from the paramedic unit. Matthew was alert during transport and no oxygen was administered.
At 9:59 p.m., Duncan dispatched the paramedic unit to assist the basic EMT unit, and advised the basic EMT unit to meet the paramedic unit at the Gaston County Library. At that time, the basic EMT unit had already passed the library so the ambulance driver pulled into the Wachovia parking lot located less than two miles from Gaston Memorial Hospital to wait for the paramedic unit. Ten minutes later, the paramedic unit arrived on the scene. As they arrived, Matthew stopped breathing for a second time. Matthew was placed on oxygen and intubation was attempted, but was unsuccessful. The paramedic unit left the parking lot at approximately 10:25 p.m. and arrived at the hospital five minutes later. All subsequent CPR efforts were futile. The autopsy of Matthew showed a slight to moderate edema of the left cerebral hemisphere, moderate chronic esophagitis, mild chronic portal triaditis in the liver, and mild to moderate amount of gastric contents in both lungs. Matthew died from a lack of oxygen to the brain.
Plaintiffs initially filed this action against Gaston County, Gaston Emergency Medical Services, and Gaston Lifesaving and First Aid Crew, Inc., and alleged claims for wrongful death, medical malpractice, reckless infliction of emotional distress, negligent infliction of emotional distress res ispa loquitur, and punitive damages. Gaston County filed an answer, which denied the material allegations of plaintiffs' complaint and asserted several affirmative defenses, including governmental immunity.
On 12 August 2008, plaintiffs moved to amend their complaint to add 911 operators Saleet, Duncan, Christy Gantt, and Ann Putnam (911 operators) in their individual and official capacities. On 15 August 2008, Gaston County filed a motion for summary judgment on the basis of governmental immunity. Plaintiffs' motion to amend their complaint was granted on 4 September 2008. On 12 September 2008, plaintiffs voluntarily dismissed their claims against Gaston Emergency Medical Services and Gaston Lifesaving and First Aid Crew, Inc. based upon a settlement agreement. On 12 November 2008, Gaston County and the 911 operators filed an amended answer, which contained a motion to dismiss pursuant to Rule 12(b)(1), (2), and (6) on the basis that the claims were barred by governmental immunity. On 8 December 2008, a hearing was held on Gaston County's motion for summary judgment and on the remaining defendants' motion to dismiss. The trial court granted these motions on the basis of governmental immunity and dismissed plaintiffs' action. Plaintiffs appeal.
In their first argument, plaintiffs contend that the trial court erred by holding as a matter of law that the Gaston County 911 call center performs a governmental function. We disagree.
“Governmental immunity depends on the nature of the power the entity is exercising.” McIver, 134 N.C.App. at 586, 518 S.E.2d at 525. “[I]f the governmental entity was acting in a government function, there can be no recovery unless the county waives its governmental immunity; but if the operations were proprietary rather than governmental, the county is not protected.” Id. (citation omitted).
Any activity ... which is discretionary, political, legislative, or public in nature and performed for the public good [on] behalf of the State rather than for 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.
Britt v. Wilmington, 236 N.C. 446, 450, 73 S.E.2d 289, 293 (1952) (citation omitted). “Providing for the health and welfare of the citizens of the county is a legitimate and traditional function of county government.” McIver, 134 N.C.App. at 586, 518 S.E.2d at 525 (quotation omitted). Because the responsibility for preserving the health and welfare of its citizens is “a traditional function of government, it follows that the county may operate government functions that ensure the health and welfare of its citizens.” Id. (citation omitted).
In McIver v. Smith, supra, this Court addressed whether the Forsyth County ambulance service was entitled to governmental immunity. One of the main contentions between the parties was whether providing the ambulance service was a government or proprietary function. Id. at 586, 518 S.E.2d at 525. In McIver, the plaintiffs argued that it was proprietary based upon, inter alia, the fact that the ambulance service charged the public a fee for its operation, and that the ambulance service was not historically a government function and was providing a service that a private individual, corporation or company could provide. This Court found no merit in either of these contentions. The arguments made by plaintiffs in the instant case are virtually identical to those made in McIver. We hold the reasoning of McIver is applicable to this case.
As to the service fee charged, this Court stated in McIver:
The fact that Forsyth County charged a fee for its ambulance service does not alone make it a proprietary operation. The test to determine if an activity is governmental in nature is “whether the act is for the common good of all...
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