Butterfield v. Gray

IN THE COURT OF APPEALS OF NORTH CAROLINA

2021-NCCOA-523

No. COA20-218

Filed 5 October 2021

Wilson County, No. 17 CVS 1579

CONNIE BUTTERFIELD and TRACIE CAVENESS as Co-Administrators of the

ESTATE OF TODD L. CAVENESS, Plaintiffs,

v.

HAYLEE GRAY, RN, SOUTHERN HEALTH PARTNERS, INC., VICKIE SHAW,

R.T. ADCOCK, SHERIFF CALVIN WOODARD, JR., WILSON COUNTY, and

HARTFORD FIRE INSURANCE COMPANY, Defendants.

Appeal by Defendants Vickie Shaw, R.T. Adcock, Sheriff Calvin Woodard, Jr.,

and Wilson County from order entered 22 October 2019 by Judge R. Allen Baddour

in Wilson County Superior Court. Heard in the Court of Appeals 2 September 2021.

Abrams and Abrams, P.A., by Douglas B. Abrams and Noah B. Abrams, and

Henson & Fuerst, by Rachel A. Fuerst, for Plaintiffs-Appellees.

Womble Bond Dickinson (US), LLP, by Bradley O. Wood, for Defendants-

Appellants Vickie Shaw, R.T. Adcock, Sheriff Calvin Woodard, Jr., and Wilson

County.

Crumley Roberts, LLP, by Karonnie R. Truzy, for Amicus Curiae, North

Carolina Advocates for Justice.

COLLINS, Judge.

¶1 This appeal arises from the death of Todd Caveness while in the custody of the

Wilson County Detention Center. Following Caveness’ death, Connie Butterfield and

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Tracie Caveness, as the co-administrators of his estate (“Plaintiffs”), sued Vickie

Shaw and R.T. Adcock, in their individual capacities and in their official capacities

as Wilson County Sheriff’s Detention Officers; Calvin Woodard, Jr., in his individual

capacity and in his official capacity as the Sheriff of Wilson County; and Wilson

County (collectively “Defendants”). Plaintiffs also brought claims against Southern

Health Partners (“SHP”), the contractor providing medical care at the Detention

Center; Haylee Gray, a nurse employed by SHP; and the Hartford Fire Insurance

Company, the surety on Sheriff Woodard’s statutory bond purchased pursuant to

N.C. Gen. Stat. § 162-8.1

¶2 Defendants appeal from an order denying their motions for summary judgment

on Plaintiffs’ official capacity claims against Shaw, Adcock, and Sheriff Woodard, and

Plaintiffs’ claims against Wilson County.2 Shaw, Adcock, and Sheriff Woodard each

argue that governmental immunity bars Plaintiffs’ official capacity claims against

them to the extent that Plaintiffs seek to recover in excess of the amount of Sheriff

Woodard’s official bond. The County also argues that governmental immunity bars

Plaintiffs’ claims against it and that it cannot be held liable for the actions of its

co-defendants. Together, Defendants argue that Plaintiffs may not assert a direct

1 The claims against SHP and Gray are not before this Court.

2 The claims again Shaw, Adcock, and Woodard, in their individual capacities, were

not subjects of Defendants’ motion for summary judgment and remain in the trial court.

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claim under the North Carolina Constitution, because Plaintiffs have an adequate

remedy at law that is not barred by governmental immunity. We dismiss Defendants’

argument regarding Plaintiffs’ direct constitutional claim and the County’s argument

concerning its liability for the acts of its co-defendants because Defendants have not

shown a basis for immediate appellate review of these issues. Because Defendants

are entitled to the defense of governmental immunity, we reverse the order denying

Defendants’ motions for summary judgment on the remaining issues.

I. Factual Background and Procedural History

¶3 Todd Caveness was arrested and confined in the Wilson County Detention

Center (“Detention Center”) on 10 January 2016. Caveness entered the Detention

Center with documented schizophrenia and anxiety diagnoses. While confined in the

Detention Center, Caveness refused food and water, expressing his belief that it had

been tampered with. By 2 February 2016, Caveness was weak and had lost

approximately 30 pounds since entering the Detention Center. The next day,

3 February 2016, Caveness was taken from the Detention Center to the hospital,

where he died on the morning of 5 February 2016. An autopsy found that he died of

a bilateral pulmonary thromboembolism resulting from dehydration and

malnutrition.

¶4 Plaintiffs instituted this suit on 7 November 2017. Plaintiffs asserted six

claims for relief: (1) “negligent and wanton conduct” by Haylee Gray; (2) “vicarious

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liability and negligent and wanton conduct” by SHP; (3) “negligent and wanton

conduct” by Adcock and Shaw; (4) “relief against Sheriff Calvin Woodard, Jr. in his

individual and in his official capacity and action on bond against Hartford Fire and

Insurance Company”; (5) “violation of [Caveness’] constitutional rights”; and

(6) “liability of Wilson County.” Plaintiffs’ claim for relief against Sheriff Woodard

was premised on three causes of action: wrongful death under N.C. Gen. Stat.

§ 28A-18-12, an action against the sheriff’s bond under N.C. Gen. Stat. § 58-76-5, and

treble damages for injury to a prisoner by a jailer under N.C. Gen. Stat. § 162-55.

Plaintiffs also pled that Defendants had waived any applicable immunity.

¶5 Defendants answered and raised multiple defenses, including that

governmental immunity barred Plaintiffs’ claims. Defendants moved for summary

judgment. Adcock, Shaw, and Sheriff Woodard each argued that governmental

immunity barred the claims brought against them in their official capacities to the

extent that Plaintiffs sought to recover in excess of the amount of Sheriff Woodard’s

official bond. Wilson County argued that governmental immunity barred Plaintiffs’

claim against it, and that it could not be held liable for the acts of the other defendants

as a matter of law. Defendants collectively argued that the availability of adequate

remedies at law foreclosed Plaintiffs’ direct claim under the North Carolina

Constitution. Following briefing and argument of counsel, the trial court denied the

motions for summary judgment. Defendants timely gave written notice of appeal.

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II. Appellate Jurisdiction

¶6 The trial court’s order denying Defendants’ motions for summary judgment is

interlocutory “because it is not a judgment that ‘disposes of the cause as to all the

parties, leaving nothing to be judicially determined between them in the trial court.’”

Snyder v. Learning Servs. Corp., 187 N.C. App. 480, 482, 653 S.E.2d 548, 550 (2007)

(quoting Veazey v. City of Durham, 231 N.C. 357, 361-62, 57 S.E.2d 377, 381 (1950)).

Parties are generally not entitled to an immediate appeal of an interlocutory order.

Goldston v. Am. Motors Corp., 326 N.C. 723, 725, 392 S.E.2d 735, 736 (1990).

¶7 Immediate appeal of an interlocutory order is permitted, however, where the

order affects a substantial right. N.C. Gen. Stat. § 1-277(a) (2019). “To confer

appellate jurisdiction based on a substantial right, ‘the appellant must include in its

opening brief, in the statement of the grounds for appellate review, sufficient facts

and argument to support appellate review on the ground that the challenged order

affects a substantial right.’” Doe v. City of Charlotte, 273 N.C. App. 10, 21, 848 S.E.2d

1, 9 (2020) (quoting Denney v. Wardson Constr., Inc., 264 N.C. App. 15, 17, 824 S.E.2d

436, 438 (2019)); see also N.C. R. App. P. 28(b)(4). The appellant has the burden of

showing that the order appealed from affects a substantial right. Coates v. Durham

Cnty., 266 N.C. App. 271, 273, 831 S.E.2d 392, 394 (2019).

¶8 Defendants assert as the sole ground for appellate review that “the denial of a

motion for summary judgment grounded on the defense of governmental immunity

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affects a substantial right and therefore is immediately appealable.” “[I]t is well-

established that the denial of a motion for summary judgment grounded on

governmental immunity affects a substantial right and is immediately appealable[.]”

Lucas v. Swain Cnty. Bd. of Educ., 154 N.C. App. 357, 360, 573 S.E.2d 538, 540 (2002)

(citation omitted). We will therefore review the trial court’s denial of Defendants’

motions for summary judgment to the extent the denial concerns the defense of

governmental immunity.

¶9 Defendants have failed, however, to meet their burden of showing that the

denial of summary judgment as to Plaintiffs’ direct constitutional claim is

immediately appealable. Defendants fail to address the direct constitutional claim

in their statement of grounds for appellate review. In the body of their brief,

Defendants argue only that adequate remedies at law foreclose Plaintiffs’

constitutional claim; they do not argue that the constitutional claim is barred by

immunity. Accordingly, we lack jurisdiction to address Defendants’ appeal of the trial

court’s denial of summary judgment as to the direct constitutional claim and we

dismiss Defendant’s appeal of this issue.

¶ 10 Similarly, Wilson County has failed to meet its burden of showing that the

denial of summary judgment based on its argument that it could not be held liable

for the acts of the other defendants as a matter of law is immediately appealable.

Wilson County fails to address this argument as a basis for immediate review in its

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statement of grounds for appellate review. In the body of its brief, Wilson County

advances no argument for immediate review on this basis. Accordingly, we lack

jurisdiction to address Wilson County’s appeal of the trial court’s denial of summary

judgment based on this theory and we dismiss Wilson’s County’s appeal of this issue.

III. Standard of Review

¶ 11 We review a trial court’s order denying summary judgment de novo. Variety

Wholesalers, Inc. v. Salem Logistics Traffic Servs., 365 N.C. 520, 523, 723 S.E.2d 744,

747 (2012). Summary judgment is proper “if the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, if any, show that

there is no genuine issue as to any material fact and that any party is entitled to a

judgment as a matter of law.” N.C. Gen. Stat. § 1A-1, Rule 56(c) (2019). The party

moving for summary judgment has the burden of showing that summary judgment

is proper. Leake v. Sunbelt Ltd. of Raleigh, 93 N.C. App. 199, 201, 377 S.E.2d 285,

287 (1989). The movant may do so “by proving that an essential element of the

opposing party’s claim is non-existent, or by showing through discovery that the

opposing party cannot produce evidence to support an essential element of his claim

or cannot surmount an affirmative defense which would bar the claim.” Collingwood

v. Gen. Elec. Real Estate Equities, Inc., 324 N.C. 63, 66, 376 S.E.2d 425, 427 (1989)

(citations omitted).

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IV. Discussion

A. Governmental Immunity

¶ 12 Shaw, Adcock, Sheriff Woodard, and Wilson County each argue that

governmental immunity bars Plaintiffs’ claims.3

¶ 13 Governmental immunity is not only an affirmative defense, “it is a complete

immunity from being sued in court.” Ballard v. Shelley, 257 N.C. App. 561, 564, 811

S.E.2d 603, 605 (2018) (quotation marks and citation omitted). Because a suit against

a public official in his official capacity operates as a suit against the governmental

entity itself, an official sued in this capacity may raise the defense of governmental

immunity. Paquette v. Cnty. of Durham, 155 N.C. App. 415, 420, 573 S.E.2d 715, 719

3 We note that previous decisions of this Court have used the terms “sovereign

immunity” and “governmental immunity” interchangeably. See, e.g., White v. Cochran, 229

N.C. App. 183, 189, 748 S.E.2d 334, 339 (2013) (stating that “a sheriff is a public official

entitled to sovereign immunity” but analyzing whether the sheriff waived “governmental

immunity”); Myers v. Bryant, 188 N.C. App. 585, 587, 655 S.E.2d 882, 885 (2008) (county

sheriff is a public official entitled to “sovereign immunity”). These forms of immunity are,

however, distinct: Sovereign immunity applies when the State or one of its agencies is the

defendant, Meyer v. Walls, 347 N.C. 97, 104, 489 S.E.2d 880, 884 (1997), while

“[g]overnmental immunity is that portion of the State’s sovereign immunity which extends

to local governments,” Wray v. City of Greensboro, 370 N.C. 41, 47, 802 S.E.2d 894, 898 (2017).

Governmental immunity applies where the defendant is a county or a county agency. Meyer,

347 N.C. at 104, 489 S.E.2d at 884. The distinction is salient because “[t]hese immunities do

not apply uniformly. The State’s sovereign immunity applies to both its governmental and

proprietary functions, while the more limited governmental immunity covers only the acts of

a municipality or a municipal corporation committed pursuant to its governmental

functions.” Evans v. Hous. Auth. of City of Raleigh, 359 N.C. 50, 53, 602 S.E.2d 668, 670

(2004) (citations omitted). Lastly, public official immunity is derivative of governmental

immunity, and applies where the public official is sued in his individual capacity. Fullwood

v. Barnes, 250 N.C. App. 31, 38, 792 S.E.2d 545, 550 (2016).

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(2002); Summey v. Barker, 142 N.C. App. 688, 690, 544 S.E.2d 262, 265 (2001). A

county may also raise the defense of governmental immunity. Est. of Williams ex rel.

Overton v. Pasquotank Cnty. Parks & Recreation Dep’t, 366 N.C. 195, 198, 732 S.E.2d

137, 140 (2012).

¶ 14 Under the doctrine of governmental immunity, both a county and a county’s

public officials4 are immune from suits alleging negligence in the exercise of a

governmental function, unless the plaintiff shows that the county or county’s public

officials waived immunity. Id. “A county is also generally immune from suit for

intentional torts of its employees in the exercise of governmental functions.” Fuller

v. Wake Cnty., 254 N.C. App. 32, 39, 802 S.E.2d 106, 111 (2017) (citation omitted).

¶ 15 Sheriffs, sheriff’s deputies, and jailers have all been recognized as public

officials who may avail themselves of the defense of governmental immunity. Baker

v. Smith, 224 N.C. App. 423, 434, 737 S.E.2d 144, 151; Phillips v. Gray, 163 N.C. App.

52, 56-57, 592 S.E.2d 229, 232 (2004); Summey, 142 N.C. App. at 691, 544 S.E.2d at

265. Our courts have also long deemed the operation of a county jail to be a

governmental function. Pharr v. Garibaldi, 252 N.C. 803, 810-11, 115 S.E.2d 18, 24

4 A sheriff is not considered a county public official as our Constitution and statutes

provide that each sheriff is an independently elected public official who acts at the county

level. N.C. Const. art. VII § 2; N.C. Gen. Stat. § 162-1; Young v. Bailey, 368 N.C. 665, 669,

781 S.E.2d 277, 280 (2016); Boyd v. Robeson Cnty., 169 N.C. App. 460, 476, 621 S.E.2d 1, 11

(2005).

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(1960) (“The . . . operation of prisons and jails, whether by the state, a county, or a

municipality, is a purely governmental function, being an indispensable part of the

administration of the criminal law . . . .”) (citations omitted); Gentry v. Town of Hot

Springs, 227 N.C. 665, 668, 44 S.E.2d 85, 86 (1947) (recognizing governmental

immunity for the chief of police and jailer against a claim of wrongful death in the

town jail); Kephart v. Pendergraph, 131 N.C. App. 559, 563, 507 S.E.2d 915, 918

(1998) (“[T]he actions of a county and its officials in maintaining confinement

facilities within the context of law enforcement services are likewise encompassed

within the rubric of governmental functions.”); Hare v. Butler, 99 N.C. App. 693, 698,

394 S.E.2d 231, 235 (1990) (“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.”).

¶ 16 Relying on Leonard v. Bell, 254 N.C. App. 694, 803 S.E.2d 445 (2017), and

Medley v. N.C. Dep’t of Corr., 330 N.C. 837, 412 S.E.2d 654 (1992), Plaintiffs argue

that the provision of medical services to inmates is not a governmental function.

Plaintiffs’ reliance is misplaced.

¶ 17 In Leonard, the plaintiff sued two physicians employed by the Department of

Public Safety in their individual capacities, alleging medical malpractice. 254 N.C.

App. at 695, 803 S.E.2d at 447. On appeal, the physicians contended that they were

entitled to public official immunity. Id. at 696, 803 S.E.2d at 447. The sole question

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on appeal was whether the physicians qualified as public officials, as opposed to mere

public employees, and thus were entitled to immunity from suit in their individual

capacities. Id. at 698, 803 S.E.2d at 449.

¶ 18 This Court held that the physicians did not qualify as public officials and

accordingly were not entitled to immunity from suit in their individual capacities. Id.

at 705, 803 S.E.2d at 453. While the Court “note[d] that there is nothing uniquely

sovereign about the health services provided by defendants,” id., this observation

pertained only to the treatment provided by the individual physicians themselves—

not whether the broader operation of the facility and the provision of medical services

within it was a governmental function. Moreover, the basis of Plaintiffs’ complaint

in this case is Defendants’ failure to provide Caveness with adequate medical care

while operating the jail and supervising its detainees.

¶ 19 Medley is likewise distinguishable. In Medley, an inmate brought a medical

malpractice claim under the North Carolina Tort Claims Act against the state

Department of Correction. 330 N.C. at 838, 412 S.E.2d at 655. The Department of

Correction moved to dismiss on the ground that the physician who treated the

plaintiff was an independent contractor. Id. Our Supreme Court held that the state

has a nondelegable duty to provide adequate medical care to inmates. Id. at 844, 412

S.E.2d at 659. As such, an independent contractor physician was considered an

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“agent” for purposes of claims against the state under the North Carolina Tort Claims

Act. Id. at 845, 412 S.E.2d at 659.

¶ 20 Neither Leonard nor Medley support the conclusion that Defendants—in their

respective roles as an elected sheriff, detention officers, and a county government—

were engaged in a proprietary function not subject to governmental immunity.

Governmental immunity applies, and Defendants are immune from the claims at

issue unless Plaintiffs have shown waiver.

1. Waiver of Immunity by Liability Insurance

¶ 21 Plaintiffs assert that Defendants waived governmental immunity by

purchasing liability insurance. Defendants respond that the provisions of their

applicable insurance policy left their governmental immunity intact.

¶ 22 The purchase of liability insurance pursuant to N.C. Gen. Stat. § 153A-435

may waive governmental immunity for both a county and a sheriff. Patrick v. Wake

Cnty. Dep’t of Human Servs., 188 N.C. App. 592, 595, 655 S.E.2d 920, 923 (2008);

Myers, 188 N.C. App. at 588, 655 S.E.2d at 885; N.C. Gen. Stat. § 153A-435 (2019).

Section 153A-435 provides:

A county may contract to insure itself and any of its

officers, agents, or employees against liability for wrongful

death or negligent or intentional damage to person or

property or against absolute liability for damage to person

or property caused by an act or omission of the county or of

any of its officers, agents, or employees when acting within

the scope of their authority and the course of their

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employment.

N.C. Gen. Stat. § 153A-435(a). “Purchase of insurance pursuant to this subsection

waives the county’s governmental immunity, to the extent of insurance coverage, for

any act or omission occurring in the exercise of a governmental function.” Id.

Governmental immunity is therefore not waived where the applicable liability

insurance policy excludes a plaintiff’s claim from coverage. Patrick, 188 N.C. App. at

596, 655 S.E.2d at 923.

¶ 23 In Patrick, this Court held that governmental immunity was not waived by the

defendant county agency’s purchase of insurance because the policy contained the

following exclusion:

This policy is not intended by the insured to waive its

governmental immunity as allowed by North Carolina

General Statutes Sec. 153A-435. Accordingly, subject to

this policy and the Limits of Liability shown on the

Declarations, this policy provides coverage only for

occurrences or wrongful acts for which the defense of

governmental immunity is clearly not applicable or for

which, after the defenses is asserted, a court of competent

jurisdiction determines the defense of governmental

immunity not to be applicable.

Id.

¶ 24 On multiple occasions since, our Court has held that purchase of similar

insurance policies did not waive a defendant’s governmental immunity. In Owen v.

Haywood Cnty., 205 N.C. App. 456, 697 S.E.2d 357 (2010), we held that immunity

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had not been waived where the policy excluded from coverage “any claim, demand, or

cause of action against any Covered Person as to which the Covered Person is entitled

to sovereign immunity or governmental immunity under North Carolina law.” Id. at

460, 697 S.E.2d at 359. Similarly, in Earley v. Haywood Cnty. Dep’t of Soc. Servs.,

204 N.C. App. 338, 694 S.E.2d 405 (2010), we held that immunity was not waived

where the policy contained an exclusion substantively identical to that in Owen and

the policy further specified that the parties

intend for no coverage to exist . . . as to any claim for which

the Covered Person is protected by sovereign immunity

and/or governmental immunity under North Carolina law.

It is the express intention of the parties to this Contract

that none of the coverage set out herein be construed as

waiving in any respect the entitlement of the Covered

Person to sovereign immunity and/or governmental

immunity.

Id. at 342, 694 S.E.2d at 409. We reached the same conclusion in Bullard v. Wake

Cnty., 221 N.C. App. 522, 729 S.E.2d 686 (2012), where the insurance policy similarly

provided that it was

not intended by the insured to waive its governmental

immunity as allowed by North Carolina General Statutes

Sec. 153A-435. Accordingly, subject to this policy and the

Limits of Liability shown on the Declarations, this policy

provides coverage only for occurrences or wrongful acts for

which the defense of governmental immunity is clearly not

applicable or for which, after the defense is asserted, a

court of competent jurisdiction determines the defense of

governmental immunity not to be applicable.

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Id. at 527, 729 S.E.2d at 690.

¶ 25 In this case, it is undisputed that a policy provided by the North Carolina

Association of County Commissioners (“NCACC Policy”) covered Defendants during

the relevant time period. Sections II, V, and VI of the NCACC Policy are pertinent.

¶ 26 Section II, entitled “General Liability Coverage,” extends certain coverage to

the County, its employees, and its volunteers. Section II contains a provision entitled

“Immunity” which states:

This Section II of the Contract does not cover claims

against a Covered Person against which the Covered

Person may assert sovereign and/or governmental

immunity in accordance with North Carolina Law. It is the

express intention of the parties to this Contract that the

coverage provided in this Section of the Contract does not

waive the entitlement of a Covered Person to assert

sovereign immunity and/or governmental immunity.

Section II also contains an exclusion stating that it “does not apply to any claim or

Suit . . . [a]s to which a Covered Person is entitled to sovereign immunity or

governmental immunity under North Carolina law.”

¶ 27 Section V, entitled “Public Officials Liability Coverage,” extends certain

coverage to the County, certain officers of the County, and certain employees of the

County. Section V contains a similar provision entitled “Immunity” which states:

The parties to this Contract intend for no coverage to exist

under Section V (Public Officials Liability Coverage) as to

any claim for which the Covered Person is protected by

sovereign immunity and/or governmental immunity under

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North Carolina law. It is the express intention of the

parties to this Contract that none of the coverage set out

herein be construed as waiving in any respect the

entitlement of the Covered Person to sovereign immunity

and/or governmental immunity.

Section V also contains a similar exclusion stating that it “does not apply to . . .

Claims or Suits to which a Covered Person is entitled to sovereign immunity or

governmental immunity under North Carolina law.”

¶ 28 Finally, Section VI, entitled “Law Enforcement Liability Coverage,” extends

coverage to the County, and is the sole portion of the policy extending coverage to the

Sheriff, sheriff’s deputies, and other law enforcement personnel. Section VI likewise

contains a provision entitled “Immunity” which states:

The parties to this Contract intend for no coverage to exist

under this Section VI of the Contract as to any claim for

which the Covered Person is protected by sovereign

immunity and/or governmental immunity under North

Carolina law. It is the express intention of the parties to

this Contract that none of the coverage set out herein be

construed as waiving in any respect the entitlement of the

Covered Person to sovereign immunity and/or

governmental immunity.

Additionally, Section VI contains an exclusion stating that it “does not apply to . . .

Claims or Suits to which a Covered Person is entitled to sovereign immunity or

governmental immunity under North Carolina Law.”

¶ 29 The NCACC Policy’s immunity provisions and policy exclusions are

substantively equivalent—and in many respects identical—to those we held did not

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waive immunity in Patrick, Earley, Bullard, and Owen. The NCACC policy

specifically states that the parties to the insurance contract did not intend for the

purchase of the coverage to waive immunity for any of the covered parties, did not

intend to cover any claims to which an immunity defense applied, and that such

claims were excluded from coverage. Accordingly, the NCACC Policy did not waive

Defendants’ governmental immunity.

¶ 30 Plaintiffs argue that “the absurd result created by these cases, which in effect

spends taxpayer funds for policies that will never pay out on behalf of the named

insured, is improper.” But “[w]here a panel of the Court of Appeals has decided the

same issue, albeit in a different case, a subsequent panel of the same court is bound

by that precedent, unless it has been overturned by a higher court.” In re Civil

Penalty, 324 N.C. 373, 384, 379 S.E.2d 30, 37 (1989).

2. Waiver of Immunity by Sheriff’s Bond

¶ 31 Though we conclude that Defendants did not waive immunity by purchasing

liability insurance, we must also consider whether Sheriff Woodard waived immunity

by purchasing a sheriff’s bond. Pursuant to statute, each sheriff “shall furnish a bond

payable to the State of North Carolina for the due execution and return of process,

the payment of fees and moneys collected, and the faithful execution of his office as

sheriff . . . .” N.C. Gen. Stat. § 162-8 (2019). Purchasing a sheriff’s bond as required

by N.C. Gen. Stat. § 162-8 waives the sheriff’s governmental immunity, but only “to

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the extent of the coverage provided.” White v. Cochran, 229 N.C. App. 183, 190, 748

S.E.2d 334, 339 (2013); see also Smith v. Phillips, 117 N.C. App. 378, 384, 451 S.E.2d

309, 314 (1994) (“[W]aiver of a sheriff’s official immunity may be shown by the

existence of his official bond[.]”); Summey, 142 N.C. App. at 690, 544 S.E.2d at 265

(holding sheriff’s immunity waived only to the extent of the amount of the bond). To

recover on the sheriff’s bond, “[e]very person injured by the neglect, misconduct, or

misbehavior in office of any . . . sheriff . . . 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 . . . .” N.C. Gen. Stat.

§ 58-76-5 (2019).

¶ 32 Sheriff Woodard concedes that he has purchased a $20,000 bond

pursuant to section 162-8. He has therefore waived his governmental immunity for

claims up to $20,000 against the bond, “the extent of the coverage provided.”

Cochran, 229 N.C. App. at 190, 748 S.E.2d at 339.

3. Constitutional Challenge

¶ 33 Plaintiffs appear to argue that governmental immunity violates the North

Carolina Constitution. Plaintiffs argue that the amount of damages must be assessed

by a jury, and the Constitution “does not permit [] an override of the rights and

remedies held by the people when an award of governmental immunity at the

summary judgment stage results in a duty left intact without remedy for its breach.”

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¶ 34 Our Supreme Court has consistently recognized the continued vitality of the

doctrine of governmental immunity. See, e.g., Est. of Williams, 366 N.C. at 198, 732

S.E.2d at 140 (“Our jurisprudence has recognized the rule of governmental immunity

for over a century.”). On multiple occasions, the Court has declined to limit or

abrogate the doctrine when asked to do so. See, e.g., Blackwelder v. City of Winston-

Salem, 332 N.C. 319, 324, 420 S.E.2d 432, 435 (1992) (“The plaintiff asks us either to

abolish governmental immunity or to change the way it is applied. . . . We feel that

any change in this doctrine should come from the General Assembly.”); Koontz v. City

of Winston-Salem, 280 N.C. 513, 529, 186 S.E.2d 897, 908 (1972) (“We again decline

to abrogate the firmly embedded rule of governmental immunity.”); Steelman v. City

of New Bern, 279 N.C. 589, 594, 184 S.E.2d 239, 242 (1971) (declining to follow a

“modern trend” of abrogating governmental immunity because “this judge-made

doctrine is firmly established in our law today, and by legislation has been recognized

by the General Assembly as the public policy of the State.”). We are bound by these

decisions upholding the doctrine of governmental immunity. State v. Gillis, 158 N.C.

App. 48, 53, 580 S.E.2d 32, 36 (2003) (“This Court is bound by precedent of the North

Carolina Supreme Court.”).

V. Conclusion

¶ 35 We dismiss Defendants’ argument regarding Plaintiffs’ direct constitutional

claim and the County’s argument concerning its liability for the acts of its co-

BUTTERFIELD V. GRAY

2021-NCCOA-523

Opinion of the Court

defendants because Defendants have not shown a basis for immediate appellate

review of these issues. Governmental immunity bars Plaintiffs’ suit against the

County and Plaintiffs’ official capacity claims against Shaw and Adcock.

Additionally, governmental immunity bars Plaintiffs’ claims in excess of Sheriff

Woodard’s statutory bond. The trial court therefore erred in denying Defendants’

motions for summary judgment on those causes of action.

DISMISSED IN PART; REVERSED IN PART.

Judges DIETZ and ZACHARY concur.