Hare v. Butler
394 S.E.2d 231
N.C. Ct. App.
1990
Check Treatment
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 *699 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 *700 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 Program Administrator for Child and Family Services for the DSS; and Ms. Wall, the Assistant Director of the DSS. These three defendants are employees of the County agency, not public officers. It does not appear that their positions are created by statute nor that they exercise any sovereign power. See Harwood, 92 N.C. App. 306, 374 S.E.2d 401. Therefore, Ms. Faulkner, Ms. Wilson and Ms. Wall may be personally liable for the negligent performance of their duties that proximately caused foreseeable injury to plaintiff, and the claims against these three individuals were improperly dismissed.

Mr. Chapin’s position as director of the County DSS is created by statute. At least some of his duties are imposed by law and as director he exercises a substantial amount of discretionary authority. See N.C. Gen. Stat. § 108A-12 (1988). He is a public officer, and therefore normally immune from liability for negligent conduct. Duties of a public officer, however, are classified as either discretionary or ministerial. Public officers are absolutely immune from liability for discretionary acts when taken without bad faith or malicious intent. Pigott v. City of Wilmington, 50 N.C. App. 401, 402, 273 S.E.2d 752, 753-54, cert. denied, 303 N.C. 181, 280 S.E.2d 401 (1981). Plaintiff here alleges Chapin was negligent for his part *701 in failing to properly train and supervise agency employees. We believe such activities are discretionary in nature and hold therefore that Mr. Chapin is immune from the negligence claim brought against him in his individual capacity.

Plaintiff also contends that the trial court erred in dismissing his claim for punitive damages against the defendants. Plaintiff now concedes that the trial court properly dismissed the punitive damages claim against Mecklenburg County and the DSS. See Long v. City of Charlotte, 306 N.C. 187, 208, 293 S.E.2d 101, 115 (1982). Furthermore, an action against government personnel in their official capacities is one against the State for the purpose of applying the doctrine of sovereign immunity. Harwood, 92 N.C. App. at 309, 374 S.E.2d at 404. Dismissal of the punitive damages claim against the personnel in their official capacities was proper.

The trial court, however, erroneously dismissed the punitive damages claims against the seven agency personnel in their individual capacities. Punitive damages are awarded where a defendant’s conduct reaches a level higher than mere negligence and amounts to willful, wanton, malicious, or reckless indifference to foreseeable consequences. Nance, 91 N.C. at 123, 370 S.E.2d at 284. While personal liability for mere negligence turns on the question of whether the individual is a public officer or an employee, this distinction is immaterial if the individual’s actions are “corrupt or malicious” or are “outside and beyond the scope of his duties.” Harwood, at 309, 374 S.E.2d at 404. Both employees and public officers are liable for damages proximately caused by such actions. In paragraph 130 of his complaint, plaintiff alleges that the conduct of all defendants was “intentional, willful, wrongful, deliberate and malicious.” We hold the complaint sufficiently states a cause of action to survive a 12(b)(6) motion against defendants Ms. Butler, Ms. Murray, Mr. Person, Mr. Chapin, Ms. Wall, Ms. Wilson and Ms. Faulkner personally for any malicious acts that proximately caused the plaintiff foreseeable injury. This claim would allow for the recovery of punitive damages. The trial court’s order concerning this aspect of the complaint was improperly dismissed.

In summary the Order is reversed as against Mr. Chapin in his individual capacity for any malicious actions directed at the plaintiff and for possible punitive damages related to that claim. The Order is reversed against Ms. Faulkner, Ms. Wilson and Ms. Wall in their individual capacities for any negligent or malicious *702 acts that caused plaintiff injury and for punitive damages for any proven malicious behavior. The Order also is reversed against Ms. Butler, Ms. Murray and Mr. Person for malicious acts that caused plaintiff injury and for punitive damages related to the claim of malicious behavior.

The remainder of the Order is affirmed.

Judges LEWIS and DUNCAN concur.