Nations v. United States

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF NORTH CAROLINA

ASHEVILLE DIVISION

CIVIL CASE NO. 1:22-cv-00010-MR-WCM

RACHEL K. NATIONS, )

as Administratrix of the Estate of )

Thresia Darlene Eaton, )

)

Plaintiff, )

) MEMORANDUM OF

vs. ) DECISION AND ORDER

)

UNITED STATES OF AMERICA, )

)

Defendant. )

)

THIS MATTER is before this Court on Defendant’s Partial Motion to

Dismiss for Lack of Subject Matter Jurisdiction.1 [Doc. 21].

I. PROCEDURAL AND FACTUAL BACKGROUND

On January 13, 2022, Rachel Nations (“Plaintiff”), in her capacity as

Administratrix of the Estate of Thresia Eaton, filed this wrongful death

medical malpractice action against the United States of America

(“Defendant”) under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 1346.

[Doc. 1]. In her Complaint, Plaintiff alleges that Thresia Eaton, her mother,

was dropped on her head from a mechanical lift while being moved inside

1 By this motion, Defendant only seeks dismissal of Plaintiff’s Second Cause of Action.

her room in the Tsali Care Center (the “Care Center”) in Cherokee, North

Carolina. [Id. at 1-2]. Plaintiff alleges that as a result of this fall, her mother

suffered a fractured skull and ultimately died. [Id. at 2]. Two certified nursing

assistants (“CNA”), Amanda Webb (“Webb”) and Shaneise Hutchinson

(“Hutchinson”), were operating the lift when Ms. Eaton fell.2 [Id.]. In her first

cause of action, Plaintiff generally alleges that Webb and Hutchinson

negligently operated the lift. [See id. at 10-15]. In her second cause of

action, Plaintiff alleges that the Care Center’s administrators and supervisory

nursing staff were negligent in various respects. [Id. at 15-20]. Plaintiff

specifically alleges as follows:

54. Each of the individual members of the EBCI/CIHA

and Care Center administration and/or nursing staff,

including, but not limited to, the Administrator,

Medical Director, Director of Nursing, Staff

Development Coordinator, Nurse Educator, Staffing

Coordinator/Nurse Scheduler and members of the

Care Center’s Human Resources staff, owed Thresia

Eaton multiple duties of care including, but not limited

to a duty to use ordinary care to protect Ms. Eaton

2 Plaintiff’s claims are brought against the United States of America because she alleges

Webb and Hutchinson were employees of the Cherokee Indian Hospital Authority

(“CIHA”). The CIHA was formed pursuant to a Title V Self-Governance Compact between

the Eastern Band of Cherokee Indians, a federally recognized tribe, and the United States

Department of Health and Human Services. Individuals acting within their scope of

employment for the CIHA are deemed to be employees of the Public Health Service for

purposes of tort liability. See Lossiah v. United States, No. 1:18-cv-00134-MR-DSC, 2021

WL 244802, at *1 (W.D.N.C. Jan. 25, 2021) (Reidinger, C.J.). As such, the FTCA

provides the exclusive remedy for any liability falling within the statute’s ambit. See 25

U.S.C. § 5321, et seq. For the purpose of considering this motion, however, it need not

be determined whether Webb and Hutchinson were employees of the CIHA.

from injury, and/or the duty to exercise that degree of

care, skill, and diligence had and exercised by similar

skilled health care facilities and their administrators,

nurses and other health and medical care providers

providing the same kind of services, medical care

and health care in similar conditions or under similar

circumstances, . . .

55. Each of the individual members of the EBCI/CIHA

and Care Center administration and/or nursing staff,

also owed Thresia Eaton an additional duty to protect

her from the foreseeable negligence and other

wrongful conduct of other medical and healthcare

professionals or other personnel working at the Care

Center on and before January 13, 2020, . . .

56. The members of the administration and/or

nursing staff of the EBCI/CIHA and/or Care Center,

individually or together, breached the duties and

standards of care owed and applicable to the

protection, care and treatment of Thresia Eaton as a

resident of the Care Center and was thereby

negligent, willful, wanton, reckless and/or grossly

negligent in the following ways:

A. By failing to verify and/or otherwise

observe and require Webb and

Hutchinson to demonstrate their

competency in the use of the facility’s

mechanical lifts and safe lifting

techniques before January 13, 2020 . . . ;

B. By failing to adequately orient and train

Webb and Hutchinson in the proper use

of the Care Center’s lifts and safe lifting

techniques . . . ;

C. By failing to provide facility materials and

resources to Webb and Hutchinson in the

proper use of the Care Center’s lifts and

safe lifting techniques . . . ;

D. By failing to ensure that Webb and

Hutchinson knew of, understood and

followed the Care Center’s procedures

for lift transfers and the use of

mechanical lifts before January 13, 2020

. . . ;

E. By failing to verify that Webb and

Hutchinson had been properly trained in

lifting techniques and the operation and

use of mechanical lifts before January

13, 2020 . . . ;

F. By failing to periodically observe and

review and evaluate Webb and

Hutchinson for adherence to the facility’s

policies and procedures and/or

applicable law regarding the proper use

of the facility’s mechanical lifts and safe

lifting techniques . . . ;

G. By delegating and assigning the

responsibility of transferring Ms. Eaton

using the lift to Webb and Hutchinson on

and before January 13, 2020, knowing

that neither Webb nor Hutchinson was

competent to use the lift or in safe lifting

techniques;

H. By delegating and assigning the

responsibility of transferring Ms. Eaton

using the lift to Webb and Hutchinson on

and before January 13, 2020 without

verifying or otherwise knowing in

advance whether Webb and Hutchinson

were competent in the use of the lift . . . ;

I. By delegating and assigning the

responsibility of transferring Ms. Eaton

using the lift to Webb and Hutchinson on

and before January 13, 2020 knowing in

advance that neither Webb nor

Hutchinson was competent in the use of

the lift . . . ;

J. By failing to monitor and oversee the

transfer activities of Webb and

Hutchinson while they attempted to

transfer Ms. Eaton on and before

January 13, 2020 . . . ;

K. By failing to direct and supervise the

transfer activities of Webb and

Hutchinson while they attempted to

transfer Ms. Eaton on and before

January 13, 2020 . . . ;

L. By failing to provide adequate

supervision to Webb and Hutchinson in

the use of the lift to transfer Ms. Eaton . .

. ;

M. By failing to provide adequate medical

and personal care and maintenance to

Ms. Eaton as a resident of the Care

Center . . . ;

N. By failing to adequately provide for the

safety and wellbeing of Ms. Eaton as a

resident of the Care Center . . . ;

O. By failing to ensure that Ms. Eaton as a

resident of the Care Center was provided

adequate supervision to prevent

accidents . . . ;

P. By failing to provide a sufficient number

of qualified and competent staff who

were substantively knowledgeable about

Ms. Eaton’s specific medical needs and

conditions in order to deliver care in an

organized, timely and efficient manner to

meet needs . . . ;

Q. By failing to act as would a reasonable

person under the same or similar

circumstances;

R. By retaining Defendants Webb and

Hutchinson in their employment when

members of the administration and/or

nursing staff of the EBCI/CIHA and the

Care Center knew or should have known

they were not competent to perform their

jobs; and/or

S. In such other separate or collective ways

as discovery in this action may hereafter

reveal.

[Doc. 1 at 15-20].

On August 28, 2023, Defendant moved to dismiss Plaintiff’s second

cause of action “insofar as it seeks to impose liability on the United States

based upon a claim of negligent hiring, training, supervision, or retention” for

lack of subject matter jurisdiction. [See Doc. 21 at 1]. Plaintiff filed a

Memorandum in Opposition on September 28, 2023, and Defendant filed its

Reply on October 12, 2023. [Docs. 34, 37]. Having now been fully briefed,

this matter is ripe for disposition.

II. STANDARD OF REVIEW

A motion to dismiss based on Rule 12(b)(1) of the Federal Rules of

Civil Procedure addresses whether this Court has subject matter jurisdiction

over the dispute at hand. A challenge to a court’s subject matter jurisdiction

under Rule 12(b)(1) may be raised as either a facial or factual attack. See

Hutton v. Nat’l Bd. of Exam’rs in Optometry, Inc., 892 F.3d 613, 621 n.7 (4th

Cir. 2018). In a facial attack, in which a defendant contends that a complaint

fails to allege facts upon which this Court can base subject matter

jurisdiction, the factual allegations in the complaint are taken as true. Adams

v. Bain, 697 F.2d 1213, 1219 (4th Cir. 1982). If, however, the defendant

makes a factual attack by contending that the jurisdictional allegations

contained in the complaint are false, this Court may go beyond the

allegations in the complaint to determine if the facts support its exercise of

jurisdiction. Id. The burden of establishing subject matter jurisdiction on a

motion to dismiss rests with the party asserting jurisdiction, in this case

Plaintiff. Id.; Williams v. United States, 50 F.3d 299, 304 (4th Cir. 1995).

III. DISCUSSION

Plaintiff purports to bring her second cause of action pursuant to the

FTCA. While the United States is generally immune from suit, see United

States v. Testan, 424 U.S. 392 (1976), that immunity is partially abrogated

by the FTCA, which provides the exclusive remedy for torts committed by

government employees in the scope of their employment. United States v.

Smith, 499 U.S. 160, 173 (1991); Maron v. United States, 126 F.3d 317, 321-

22 (4th Cir. 1997). Pursuant to the FTCA, the United States can be held

liable in tort under circumstances where, if it were a private individual, it

would be liable to a claimant in accordance with the law of the place where

the act or omission occurred. 28 U.S.C. § 1346(b)(1).

This requirement, known as the “private-party analogue,” must be met

to establish subject matter jurisdiction over a claim brought pursuant to the

FTCA. See FDIC v. Meyer, 510 U.S. 471, 477 (1994) (citing 28 U.S.C. §

1346(b)); see also Sanders v. United States, 493 F. Supp. 3d 470, 482-85

(D.S.C. 2020); Sheridan v. United States, 773 F. Supp. 786, 788 (D. Md.

1991) (“Here, ‘because no private analog exists,’ . . . there can be no FTCA

liability.”). Because Plaintiff alleges that she was injured in North Carolina,

to determine whether this case falls within the jurisdictional ambit of the

FTCA, this Court must decide whether North Carolina recognizes the claims

of negligent hiring, retention, training, and supervision that Plaintiff appears

to allege in her second cause of action.3 Medina v. United States, 259 F.3d

220, 223 (4th Cir. 2001); [see also Doc. 1 at 15-20].

Claims for negligent hiring, retention, training, and supervision are

actionable against employers in North Carolina. See Keith v. Health-Pro

Home Care Servs., Inc., 381 N.C. 442, 462, 873 S.E.2d 567, 582 (2022);

Smith v. Privette, 128 N.C. App. 490, 494, 495 S.E.2d 395, 398, appeal

dismissed, 348 N.C. 284, 501 S.E.2d 913 (1998). These “claims are not

based upon vicarious liability, but rather [are] direct claim[s] against the

employer based upon the actionable negligence of the employer[.]” Little v.

Omega Meats I, Inc., 171 N.C. App. 583, 586, 615 S.E.2d 45, 48, aff’d per

curiam, 360 N.C. 164, 622 S.E.2d 494 (2005). These claims are not

actionable, however, against co-employees. See Foster v. Crandell, 181

N.C. App. 152, 171, 638 S.E.2d 526, 539 (2007) (“At most, Crandell was …

a co-employee of Rivest. Consequently, there can be no argument that

Crandell negligently employed or retained Rivest.”); McFadyen v. Duke

3 In addition to the allegations in Plaintiff’s second cause of action that explicitly mention

the negligent hiring, training, supervising, and retaining of Webb and Hutchinson, Plaintiff

alleges that the Care Center employees referred to therein failed “to provide adequate

medical and personal care and maintenance to Ms. Eaton[;]” and failed “to adequately

provide for the safety and wellbeing of Ms. Eaton[.]” [See Doc. 1 at 19-20]. Defendant’s

Motion does not appear to extend to the portion of the count arising from these

allegations, moving only to dismiss that count “insofar as it is based on a claim of negligent

hiring, training, supervision or retention.” [Doc. 22 at 14].

Univ., 786 F. Supp. 2d 887, 1002 (M.D.N.C. 2011) (“[A] claim for negligent

hiring, retention, and supervision would be actionable only against the

employer, not the individual supervisors.”), aff’d in part, rev’d in part on other

grounds sub nom., Evans v. Chalmers, 703 F.3d 636 (4th Cir. 2012); Ostwalt

v. Charlotte-Mecklenburg Bd. of Educ., 614 F. Supp. 2d 603, 609 (W.D.N.C.

2008) (“no claim for negligent supervision lies when the Defendant is not the

employer of the individual who commits the tortious act.”).

This distinction exists because North Carolina’s Workers’

Compensation Act “provides [the] exclusive remedy for unintentional work-

related injuries.” Gregory v. Pearson, 224 N.C. App. 580, 583, 736 S.E.2d

577, 580 (2012) (citing N.C. Gen. Stat. § 97-10.1); see also Pleasant v.

Johnson, 312 N.C. 710, 713, 239 S.E.2d 244, 247 (1985) (“an employee who

recovers under the Workers’ Compensation Act cannot raise a negligence

claim against a co-employee . . . .”). “The social policy behind workers’

compensation is that injured workers should be provided with dignified,

efficient and certain benefits for work-related injuries[.]” Pleasant, 312 N.C.

at 712, 325 S.E.2d at 246. However, “in exchange for [these] limited but

assured benefits[,]” “the employee and his dependents give up their common

law right to sue the employer [and co-employees] for negligence . . . .” Id. at

712, 325 S.E.2d at 246-47. This limitation on the liability of an individual

supervisor or co-worker extends to claims by plaintiffs who were not

employees injured in the course and scope of their employment. See, e.g.,

Keller by & through Keller v. Deerfield Episcopal Ret. Cmty., Inc., 271 N.C.

App. 618, 628, 845 S.E.2d 156, 163 (2020).

Here, the administrators and supervisory nursing employees who are

the subject of Plaintiff’s claims for negligent hiring, retention, training, and

supervision were, at most,4 co-employees of Webb and Hutchinson. See

Trivette v. Yount, 366 N.C. 303, 309, 735 S.E.2d 306, 310-11 (2012) (a

school principal, despite his supervisory role, was the co-employee of a part

time office assistant); Regan v. Amerimark Bldg. Prods., Inc., 118 N.C. App.

328, 332, 454 S.E.2d 849, 852 (1995) (a plaintiff’s supervisors were his co-

employees); McCorkle v. Aeroglide Corp., 115 N.C. App. 651, 653, 446

S.E.2d 145, 147 (1994) (“[P]laintiff’s immediate supervisor . . . qualifies as a

‘co-employee[.]’”). Accordingly, Plaintiff cannot state a claim for negligent

hiring, retention, training, and supervision based upon the actions of these

individuals.

Plaintiff contends that her case should not be analyzed under the

general framework governing negligent hiring, retention, training, and

4 Defendant disputes that Webb and Hutchinson were employees of the Care Center, and

thereby of the CIHA.

supervision cases. [See Doc. 34 at 11-15]. She argues, instead, that N.C.

Gen. Stat. § 90-171.20 (the “SAVE Act”) imposes enforceable duties on

nursing professionals such as those referenced in her second cause of

action, and thereby provides an independent basis for her claim. [Id.].

The SAVE Act defines the “[p]ractice of nursing by a registered nurse”

as including, inter alia, “[t]eaching, assigning, delegating to or supervising

other personnel in implementing the treatment regimen” and “[s]upervising,

teaching, and evaluating those who perform or are preparing to perform

nursing functions and administering nursing programs and nursing services.”

N.C. Gen. Stat. § 90-170.20(7). It defines the “[p]ractice of nursing by a

licensed practical nurse” as including, inter alia, “[a]ssigning or delegating

nursing interventions to other qualified personnel under the supervision of

the registered nurse” and “participating in the teaching and counseling of

patients . . . [.]” Id. at § 90-170.20(8). However, the definitions in this statute

do not amount to duties the breach of which give rise to any actionable tort.

See Crider v. Cattie, 240 N.C. App. 88, 772 S.E.2d 13, at *5-*6 (2015)

(unpublished table decision) (“the definition of the practice of medicine itself

is not a public safety statute upon which negligence per se may be

established . . . .”); Russell v. Adams, 125 N.C. App. 637, 640, 482 S.E.2d

30, 33 (1997) (the code of ethics pertaining to the practice of psychology

does not establish the duty of care owed by psychologists in medical

malpractice actions); see also McConnell v. Servinsky Eng’g, PLLC, 22 F.

Supp. 3d 610, 617 (W.D. Va. 2014) (the “law does not support the argument

that statutes providing for professional standards of care give rise to an

independent tort duty . . . .”). Accordingly, the SAVE Act does not provide a

basis for Plaintiff’s second cause of action.

Moreover, Plaintiff references the Care Center’s “Administrator,

Medical Director, Director of Nursing, Staff Development Coordinator, Nurse

Educator, Staffing Coordinator/Nurse Scheduler, and members of the Care

Center’s Human Resources staff” in her second cause of action. [Doc. 1 at

15]. While she refers to these individuals as “nursing professionals” in her

filings, [see Doc. 34 at 9-15], she has not identified any of these individuals

nor alleged or asserted that they are registered or licensed practical nurses,

as would be required to bring them within the province of the SAVE Act. See

N.C. Gen. Stat. § 90-171.20(7)-(8). To the contrary, it appears that at least

some of these individuals are non-nursing administrative staff, to which the

SAVE Act’s definitions plainly do not apply. Thus, even if the statute imposed

enforceable tort duties on registered and licensed practical nurses, Plaintiff

has not pled or asserted any facts establishing that the statute would apply

to the individuals referenced in her second cause of action. As such, Plaintiff

has not demonstrated that the FTCA’s private-party analogue is met

regarding her claims of negligent hiring, retention, training, and supervision

as set forth in the second cause of action. Accordingly, to the extent that this

count purports to assert such claims, it is dismissed for lack of subject matter

jurisdiction. The second cause of action shall be allowed to proceed to the

extent that it alleges that the Care Center employees referred to therein failed

“to provide adequate medical and personal care and maintenance to Ms.

Eaton[;]” and failed “to adequately provide for the safety and wellbeing of Ms.

Eaton[;]” failed “to ensure Ms. Eaton . . . was provided adequate

supervision[.]” [See Doc. 1 at 19-20].

IV. CONCLUSION

For all these reasons, North Carolina does not recognize the claims of

negligent hiring, retention, training, and supervision alleged in Plaintiff’s

second cause of action. As a result, Plaintiff has failed to carry her burden

of establishing that the FTCA provides this Court with subject matter

jurisdiction over such claims. Therefore, to the extent that Plaintiff’s second

cause of action asserts claims for negligent hiring, retention, training, and

supervision, it is dismissed.

ORDER

IT IS, THEREFORE, ORDERED that Defendant’s Motion to Dismiss

for Lack of Subject Matter Jurisdiction [Doc. 21] is GRANTED, and Plaintiff's

Second Cause of Action, as stated in her Complaint [Doc. 1 at 15], is hereby

DISMISSED IN PART, but only to the extent that such count is based upon

claims of negligent hiring, retention, training, and supervision.

IT IS SO ORDERED.

Signed: February 14, 2024

a i

< Reidinger wey

Chief United States District Judge eA

15