Cline v. James Bane Home Bldg.

IN THE COURT OF APPEALS OF NORTH CAROLINA

2021-NCCOA-266

No. COA20-422

Filed 15 June 2021

Gaston County, No. 17 CVS 4800

CHARLES B. CLINE and wife, DANIELLE C. CLINE, Plaintiffs,

v.

JAMES BANE HOME BUILDING, LLC; JAMES BANE, INDIVIDUALLY; CURTIS

HOPPER, in his individual capacity as an inspector for GASTON COUNTY HEALTH

DEPARTMENT; GASTON COUNTY, NORTH CAROLINA; LACHELLE CROSBY

and HOME BUYERS MARKETING, II, INC., Defendants.

Appeal by Plaintiffs from order entered 19 March 2020 by Judge Kevin M.

Bridges in Gaston County Superior Court. Heard in the Court of Appeals 9 February

2021.

Devore, Acton & Stafford, P.A., by Fred W. DeVore, III and Brittany N. Conner,

for plaintiffs-appellants.

The Law Office of Martha R. Thompson, by Martha Raymond Thompson, for

defendants-appellees.

MURPHY, Judge.

¶1 Unless waived, a county and its employees acting in their official capacities are

protected from tort actions under the doctrine of governmental immunity. Likewise,

the doctrine of public official’s immunity protects a public official, when sued in his

or her individual capacity, from actions for mere negligence in the performance of

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their duties. However, this immunity does not exist for public employees.

¶2 Here, the trial court did not err in granting summary judgment in favor of

Gaston County and Curtis Hopper, in his official capacity, based on governmental

immunity. However, the trial court erred in granting summary judgment in favor of

Curtis Hopper, in his individual capacity, based on public official’s immunity since he

is a public employee. We affirm in part the trial court’s judgment insofar as its ruling

is based on governmental immunity, but reverse in part the trial court’s decision to

grant summary judgment on the basis of public official’s immunity.

BACKGROUND

¶3 On 12 February 2016, Plaintiffs-Appellants Charles and Danielle Cline (“the

Clines”) closed on a newly constructed home from non-appealing Defendant James

Bane Home Building, LLC (“Bane Homes”). The Clines’ home is located in Gaston

County and is serviced by a septic system. Curtis Hopper (“Hopper”), a Gaston

County Environmental Health Administrator, had previously approved a septic

system permit classified as “provisionally suitable.”1 Within a few months of moving

into the home, the Clines started to observe raw sewage bubbling in the yard and

1 “Provisionally suitable” is one of several choices of soil suitability and these sites

“may be utilized for a ground absorption sewage treatment and disposal system.” 15A N.C.

Admin. Code § 18A.1948(b) (2019). “Sites classified [p]rovisionally [s]uitable require some

modifications and careful planning, design, and installation in order for a ground absorption

sewage treatment and disposal system to function satisfactorily.” Id.

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running down the driveway. To determine the source and cause of the raw sewage,

the Clines hired an expert who opined that the septic system, as constructed, was

undersized and insufficient for the size of the home.

¶4 The Clines sued Bane Homes and James Bane in his individual capacity for

breach of contract and breach of implied warranty of habitability; Bane Homes for

rescission; James Bane in his individual capacity for negligence; Hopper, in his

individual capacity and official capacity, and Gaston County for negligence; LaChelle

Crosby, the real estate agent who marketed the home, for negligence and

misrepresentation; and LaChelle Crosby and Home Buyers Marketing, II, Inc. for

unfair and deceptive trade practices.2 Following discovery, Appellees filed a motion

for summary judgment, arguing they were entitled to governmental immunity and

public official’s immunity.3 In its order filed 19 March 2020 (“Order”), the trial court

granted Appellees’ motion for summary judgment, ordering “Defendants Gaston

County and Curtis Hopper are entitled to judgment as a matter of law on the bases

of governmental immunity and public official[’]s immunity.” The Clines timely

2 This appeal involves only the negligence claims against Hopper, in both his

individual and official capacity, and Gaston County. When referring to Hopper and Gaston

County collectively, the term “Appellees” will be used to avoid referring to any Defendants

that are not the subject of this appeal.

3 Public official’s immunity is also referred to as “public officers’ immunity” and the

two terms are interchangeable. See e.g., Schlossberg v. Goins, 141 N.C. App. 436, 445, 540

S.E.2d 49, 56 (2000), disc. rev. denied, 355 N.C. 215, 560 S.E.2d 136 (2002) (referring to

“public officers’ immunity”); Summey v. Barker, 142 N.C. App. 688, 689, 544 S.E.2d 262, 264

(2001) (referring to “public official’s immunity”).

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appealed the Order. Bane Homes, James Bane, LaChelle Crosby, and Home Buyers

Marketing, II, Inc. remain Defendants in the case and did not appeal the Order.

ANALYSIS

¶5 Summary judgment is appropriate “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.G.S. § 1A-1, Rule 56(c) (2019). When considering

a summary judgment motion, “all inferences of fact . . . must be drawn against the

movant and in favor of the party opposing the motion.” Caldwell v. Deese, 288 N.C.

375, 378, 218 S.E.2d 379, 381 (1975).

¶6 We review a trial court’s order granting summary judgment de novo. See

Builders Mut. Ins. Co. v. N. Main Constr. Ltd., 361 N.C. 85, 88, 637 S.E.2d 528, 530

(2006). “Under a de novo review, [we] consider[] the matter anew and freely

substitute[] [our] own judgment” for that of the lower tribunal. In re Greens of Pine

Glen Ltd., 356 N.C. 642, 647, 576 S.E.2d 316, 319 (2003). “The showing required for

summary judgment may be accomplished by proving an essential element of the

opposing party’s claim . . . would be barred by an affirmative defense . . . .” Dobson

v. Harris, 352 N.C. 77, 83, 530 S.E.2d 829, 835 (2000).

A. Jurisdiction

1. Subject Matter Jurisdiction

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¶7 Hopper argues we do not have subject matter jurisdiction over the claims

against him, in either capacity, because subject matter jurisdiction over his alleged

acts of negligence is vested exclusively in the Industrial Commission pursuant to the

State Tort Claims Act, N.C.G.S. Chapter 143, Article 31. We disagree.

¶8 In Meyer v. Walls, our Supreme Court decided “whether jurisdiction for [a] suit

against [Buncombe County Department of Social Services lied] before the Industrial

Commission pursuant to the Tort Claims Act or before the Superior Court as

originally filed by [the] plaintiff.” Meyer v. Walls, 347 N.C. 97, 104, 489 S.E.2d 880,

884 (1997). Our Supreme Court held “the Tort Claims Act applies only to actions

against state departments, institutions, and agencies and does not apply to claims

against officers, employees, involuntary servants, and agents of the State.” Id. at

107-08, 489 S.E.2d at 885-86. Our Supreme Court also explicitly overruled Robinette

v. Barriger, which held “Alexander County Health Department is a state agency,

rather than a county agency, and that because the Industrial Commission has

exclusive jurisdiction of negligence actions against the State, the trial court did not

err in granting summary judgment for the county based on a lack of subject matter

jurisdiction.” Id. at 107, 489 S.E.2d at 886 (citing Robinette v. Barriger, 116 N.C. App.

197, 447 S.E.2d 498 (1994)). Our Supreme Court ultimately concluded “the Tort

Claims Act does not apply to the claim against Buncombe County [Department of

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Social Services].” Id. at 107-08, 489 S.E.2d at 885-86. We similarly hold Gaston

County’s health department is not a state agency or institution.

¶9 Here, Hopper was acting as an agent for Gaston County’s health department,

which is not a state department, or institution, but rather a county agency. The

Industrial Commission does not have exclusive jurisdiction over his alleged acts of

negligence, and both the trial court and this Court have subject matter jurisdiction.

2. Appellate Jurisdiction

¶ 10 Appellees argue this appeal “should be dismissed as an improper interlocutory

appeal as there are insufficient grounds for appellate review.” We disagree.

¶ 11 “An interlocutory order is one made during the pendency of an action, which

does not dispose of the case, but leaves it for further action by the trial court in order

to settle and determine the entire controversy.” Veazey v. City of Durham, 231 N.C.

357, 362, 57 S.E.2d 377, 381 (1950). In contrast, “[a] final judgment is one which

disposes of the cause as to all the parties, leaving nothing to be judicially determined

between them in the trial court.” Id. at 361-62, 57 S.E.2d at 381. “[T]he entry of

summary judgment for fewer than all defendants is not a final judgment[,]” but

rather an interlocutory judgment. Long v. Giles, 123 N.C. App. 150, 152, 472 S.E.2d

374, 375 (1996). Although an interlocutory order is ordinarily not immediately

appealable, an interlocutory order may be immediately appealed if it affects a

substantial right. See N.C.G.S. § 1-277(a) (2019); N.C.G.S. § 7A-27(b)(3)(a) (2019).

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¶ 12 Here, the Order disposed of only the claims against Gaston County and

Hopper, and the remaining claims include: breach of contract and breach of implied

warranty of habitability against Bane Homes and James Bane in his individual

capacity; rescission against Bane Homes; negligence against James Bane in his

individual capacity; negligence and misrepresentation against LaChelle Crosby; and

unfair and deceptive trade practices against LaChelle Crosby and Home Buyers

Marketing, II, Inc. As the Clines’ various claims against the other Defendants have

not been resolved and further action by the trial court is required “in order to settle

and determine the entire controversy[,]” the Clines’ appeal from the Order is an

appeal from “[a]n interlocutory order . . . , which does not dispose of the case[.]”

Veazey, 231 N.C. at 362, 57 S.E.2d at 381. The Order must affect a substantial right

in order for us to have proper appellate jurisdiction.

¶ 13 The Clines argue the Order affects a substantial right and is immediately

appealable because

[a] litigant appealing the denial of a sovereign[4] immunity

defense need only show that they raised the issue below

and that the trial court rejected it in order to establish that

the challenged order affects [a] substantial right. [The trial

court judge] ruled against [the Clines] exclusively on the

4 Gaston County is a county agency. “As such, the immunity it possesses is more

precisely identified as governmental immunity, while sovereign immunity applies to the

State and its agencies.” Craig ex rel. Craig v. New Hanover Cty. Bd. of Educ., 363 N.C. 334,

335 n.3, 678 S.E.2d 351, 353 n.3 (2009). For the purposes of our analysis, the distinction is

immaterial.

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issue of “governmental immunity and public official[’s]

immunity.” Thus, this immediate appeal of governmental

immunity is approved by statute and this Court. Applying

the Court’s logic in [Greene v. Barrick, 198 N.C. App. 647,

680 S.E.2d 727 (2009)] . . . , [the Clines] need not further

explain why, when on the face of [the trial judge’s] ruling a

substantial right is affected. So long as the issue involves

sovereign immunity, an immediate appeal is properly

before this Court.

In Greene, we decided an interlocutory order granting summary judgment based on

the defense of sovereign immunity was properly before us:

This Court has held that “when the moving party claims

sovereign, absolute or qualified immunity, the denial of a

motion for summary judgment is immediately appealable.”

Moore v. Evans, 124 N.C. App. 35, 39, 476 S.E.2d 415, 420

(1996) (citations omitted). Even though this case involves

the grant, rather than the denial of sovereign immunity,

we believe the same type of issues are called into question

by the appeal, and therefore, [the] plaintiff’s appeal is

properly before this Court.

Greene, 198 N.C. App. at 650, 680 S.E.2d at 729-30. According to Greene, both an

order denying a motion for summary judgment on the basis of sovereign immunity

and an order granting a motion for summary judgment on the basis of sovereign

immunity affect a substantial right. Id.

¶ 14 Appellees argue our “holding [in Greene] is inconsistent with the public policy

bases for permitting interlocutory appeals.” However,

as is often the case with our jurisprudence, what one might

reasonably assume is not what our case law holds. In a

series of cases that we are unable to distinguish from this

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one, our Court has held that the grant of a motion to

dismiss based on sovereign or governmental immunity is

immediately appealable. Because one panel of this Court

cannot overrule another, we are bound to hold that [the

Clines’] interlocutory appeal on this issue is permissible.

Ballard v. Shelley, 257 N.C. App. 561, 564, 811 S.E.2d 603, 605-06 (2018) (citations

omitted) (emphasis in original). As an appeal granting governmental immunity

affects a substantial right, the Clines’ appeal is properly before this Court. We now

address the merits of the appeal.

B. Claims Against Gaston County and Hopper in his Official Capacity

¶ 15 The Clines argue the trial court erred by granting summary judgment to

Gaston County and Hopper, in his official capacity, on the grounds Gaston County

waived its governmental immunity for itself and its employees when it purchased

liability insurance.

¶ 16 “Under the doctrine of governmental immunity, a county or municipal

corporation is immune from suit for the negligence of its employees in the exercise of

governmental functions absent waiver of immunity.” Estate of Williams ex rel.

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

137, 140 (2012) (marks omitted). “In North Carolina, governmental immunity serves

to protect a municipality, as well as its officers or employees who are sued in their

official capacity, from suits arising from torts committed while the officers or

employees are performing a governmental function.” Schlossberg, 141 N.C. App. at

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439, 540 S.E.2d at 52. Governmental immunity is “absolute unless the [county] has

consented to [suit] or otherwise waived its right to immunity.” Id. at 440, 540 S.E.2d

at 52.

1. Governmental Function

¶ 17 Exercising a governmental function is a requirement for governmental

immunity to attach. See Estate of Williams, 366 N.C. at 198, 732 S.E.2d at 140.

However, the Clines do not argue, at the trial court level or on appeal, that Gaston

County or Hopper, in his official capacity, were not performing a governmental

function when they were allegedly negligent. As such, whether Gaston County or

Hopper, in his official capacity, were performing a governmental function is deemed

abandoned and not an issue before us on appeal. See N.C. R. App. P. 28(a) (2021)

(“The scope of review on appeal is limited to issues so presented in the several briefs.

Issues not presented and discussed in a party’s brief are deemed abandoned.”).

2. Purchase of Insurance Coverage

¶ 18 “A plaintiff bringing claims against a governmental entity and its employees

acting in their official capacities must allege and prove that the officials have waived

their [governmental] immunity or otherwise consented to suit[.]” Sellers v.

Rodriguez, 149 N.C. App. 619, 623, 561 S.E.2d 336, 339 (2002) (emphasis added).

Under the plain language of N.C.G.S. § 153A-435, counties waive governmental

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immunity by purchasing an insurance policy that would indemnify the county and its

employees:

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

employment. The board of commissioners shall determine

what liabilities and what officers, agents, and employees

shall be covered by any insurance purchased pursuant to

this subsection.

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. Participation in a

local government risk pool pursuant to Article 23 of

[N.C.G.S.] Chapter 58 shall be deemed to be the purchase

of insurance for the purposes of this section. By entering

into an insurance contract with the county, an insurer

waives any defense based upon the governmental

immunity of the county.

N.C.G.S. § 153A-435(a) (2019) (emphasis added). While “[a] county may waive

[governmental] immunity by purchasing liability insurance [under N.C.G.S. § 153A-

435], [it is waived] only to the extent of coverage provided.” Cunningham v. Riley,

169 N.C. App. 600, 602, 611 S.E.2d 423, 424, disc. rev. denied and appeal dismissed,

359 N.C. 850, 619 S.E.2d 405 (2005), cert. denied, 546 U.S. 1142, 163 L. Ed. 2d 1008

(2006).

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¶ 19 Appellees argue the purchase of liability insurance does not constitute waiver

of governmental immunity because the County Manager of Gaston County, Kim

Eagle (“Eagle”), asserts in an affidavit that “the insurance purchased by Gaston

County does not extend to those governmental functions for which governmental

immunity would apply and does not operate as a waiver of the defense of

governmental immunity.” We have previously interpreted similar provisions in

liability insurance contracts. See Patrick v. Wake Cty. Dep’t of Human Servs., 188

N.C. App. 592, 655 S.E.2d 920 (2008); Wright v. Gaston Cty., 205 N.C. App. 600, 698

S.E.2d 83 (2010).

¶ 20 In Patrick, the plaintiff filed a complaint against the defendants in their official

capacities as supervisors of the Child Protective Services of the Wake County

Department of Human Services. Patrick, 188 N.C. App. at 593, 655 S.E.2d at 922.

The insurance policy at issue there contained the following exclusion: “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.” Id. at 596, 655 S.E.2d at 923 (alteration omitted). In

holding the exclusionary provision was clear and unambiguous and the defendants

had not waived governmental immunity through the purchase of the policy, we

stated:

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If the language in an exclusionary clause contained in a

policy is ambiguous, the clause is to be strictly construed in

favor of coverage. If the meaning of the policy is clear and

only one reasonable interpretation exists, the courts must

enforce the contract as written; they may not, under the

guise of construing an ambiguous term, rewrite the

contract or impose liabilities on the parties not bargained

for and found therein.

Id. at 596-97, 655 S.E.2d at 924 (citations and marks omitted).

¶ 21 In Wright, the provision at issue stated:

By accepting coverage under this policy, neither the

insured nor States waive any of the insured’s statutory or

common law immunities and limits of liability and/or

monetary damages . . . , and States shall not be liable for

any claim or damages in excess of such immunities and/or

limits.

Wright, 205 N.C. App. at 607, 698 S.E.2d at 89 (emphasis in original). We relied on

our holding and reasoning in Patrick to conclude Gaston County did not waive

governmental immunity. Id. at 607-08, 698 S.E.2d at 89-90.

¶ 22 Here, the Record reflects a liability insurance policy for Gaston County was in

effect from 1 July 2015 to 1 July 2016. However, the insurance contract in its entirety

is not contained in the Record and does not appear to have been presented to the trial

court. A total of three pages from the actual policy are included in the Record,

entitled: the Schedule of Forms and Endorsements, the Public Risk Liability Retained

Limit Policy Declarations, and the “Wrongful Act” Claims-Made Coverage. These

three pages do not contain the language of the coverage provisions or exclusion

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provisions and their exact language does not appear anywhere else in the Record. In

her affidavit, Eagle provided a parol summary of her interpretation of the policy:

On the occurrence dates alleged in the Complaint and its

amendments, Gaston County was self-insured up to

$250,000[.00] and had certain excess liability insurance . .

. that comes into effect for certain incidents after

$250,000[.00] has been expended by the County on each

such incident. However, the insurance purchased by

Gaston County does not extend to those governmental

functions for which governmental immunity would apply

and does not operate as a waiver of the defense of

governmental immunity.

While Appellees’ motion for summary judgment indicates reliance on discovery

responses, nothing in the Record indicates presentation of the insurance contract to

the trial court for examination of its contents.

¶ 23 The lack of the insurance contract and exclusionary language in the Record

restricts us from determining the existence of coverage for the alleged acts of Gaston

County or Hopper in his official capacity.

Once the moving party has made and supported its motion

for summary judgment, section (e) of Rule 56 provides that

the burden is then shifted to the non-moving party to

introduce evidence in opposition to the motion, setting

forth specific facts showing that there is a genuine issue for

trial. At [that] time, the non-movant must come forward

with a forecast of his own evidence.

Crowder Constr. Co. v. Kiser, 134 N.C. App. 190, 196, 517 S.E.2d 178, 183 (marks

omitted), disc. rev. denied, 351 N.C. 101, 541 S.E.2d 142 (1999). The Clines, as the

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non-moving party, had the burden to produce the insurance contract to allow an

examination of Gaston County’s potential waiver of governmental immunity.

¶ 24 The Clines failed to forecast evidence showing the existence of a genuine issue

of material fact as to whether Appellees waived governmental immunity to the extent

of Gaston County’s insurance coverage. The entry of summary judgment in favor of

Gaston County and Hopper, in his official capacity, was proper. However, the claims

against Hopper, in his individual capacity, are controlled by separate caselaw, which

is addressed below.

C. Claims Against Hopper in His Individual Capacity

¶ 25 The Clines argue Hopper’s position as an Environmental Health Administrator

is a public employee, rather than a public official, and therefore he is not entitled to

public official’s immunity. We agree.

¶ 26 The defense of public official’s immunity is a “derivative form” of governmental

immunity. Epps v. Duke Univ., Inc., 122 N.C. App. 198, 203, 468 S.E.2d 846, 850,

disc. rev. denied, 344 N.C. 436, 476 S.E.2d 115 (1996). Public official’s immunity

precludes suits against public officials in their individual capacities and protects

them from liability “[a]s long as a public officer lawfully exercises the judgment and

discretion with which he is invested by virtue of his office, keeps within the scope of

his official authority, and acts without malice or corruption[.]” Smith v. State, 289

N.C. 303, 331, 222 S.E.2d 412, 430 (1976).

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¶ 27 “It is settled law in this jurisdiction that a public official, engaged in the

performance of governmental duties involving the exercise of judgment and

discretion, may not be held personally liable for mere negligence in respect thereto.”

Meyer, 347 N.C. at 112, 489 S.E.2d at 888. “An employee, on the other hand, is

personally liable for negligence in the performance of his or her duties proximately

causing an injury.” Reid v. Roberts, 112 N.C. App. 222, 224, 435 S.E.2d 116, 119, disc.

rev. denied, 335 N.C. 559, 439 S.E.2d 151 (1993). “Public officials receive immunity

because it would be difficult to find those who would accept public office or engage in

the administration of public affairs if they were to be personally liable for acts or

omissions involved in exercising their discretion.” Isenhour v. Hutto, 350 N.C. 601,

610, 517 S.E.2d 121, 127 (1999) (marks omitted).

Our courts have recognized several basic distinctions

between a public official and a public employee, including:

(1) a public office is a position created by the constitution

or statutes; (2) a public official exercises a portion of the

sovereign power; and (3) a public official exercises

discretion, while public employees perform ministerial

duties.

Id. We are guided by the factors set forth in Isenhour and our prior holdings to

determine whether Hopper, as an Environmental Health Administrator for a local

county department of health, is a public official entitled to immunity or a public

employee.

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¶ 28 We begin our analysis by addressing the first factor, whether the position of

Environmental Health Administrator is “created by the constitution or statutes[.]”

Id. “A position is considered ‘created by statute’ when ‘the officer’s position has a

clear statutory basis or the officer has been delegated a statutory duty by a person or

organization created by statute’ or the Constitution.” Baker v. Smith, 224 N.C. App.

423, 428, 737 S.E.2d 144, 148 (2012) (alteration omitted) (quoting Fraley v. Griffin,

217 N.C. App. 624, 627, 720 S.E.2d 694, 696 (2011), cert. denied, 367 N.C. 234, 748

S.E.2d 552 (2013)).

¶ 29 We have previously decided the positions of “Environmental Health

Specialists” and “Environmental Health Supervisors” for a county health department

are not created by statute. See Murray v. Cty. of Person, 191 N.C. App. 575, 580, 664

S.E.2d 58, 61-62 (2008), disc. rev. denied, 363 N.C. 129, 673 S.E.2d 360 (2009); Block

v. Cty. of Person, 141 N.C. App. 273, 281-82, 540 S.E.2d 415, 421-22 (2000). However,

whether an “Environmental Health Administrator” is a position created by statute is

a question of first impression.

¶ 30 Hopper points to N.C.G.S. § 130A-41(b)(12) and N.C.G.S. § 130A-227(a) in

arguing his position is created by statute. See N.C.G.S. §§ 130A-41(b)(12), 130A-

227(a) (2019). N.C.G.S. § 130A-41(b)(12) authorizes the powers and duties of local

health directors, including the power and duty “[t]o employ and dismiss employees of

the local health department in accordance with [N.C.G.S. Chapter 126]” and N.C.G.S.

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§ 130A-227(a) authorizes the Department of Health and Human Services to “employ

environmental engineers, sanitarians, soil scientists and other scientific personnel

necessary to carry out the sanitation provisions of this Chapter and the rules of the

Commission.” N.C.G.S. §§ 130A-41(b)(12), 130A-227(a) (2019). These statutes

authorize and regulate the hiring of certain employees, but do not operate, either on

their own or in conjunction, to create the position of Environmental Health

Administrator. There is no “clear statutory basis” for the position of Environmental

Health Administrator. Baker, 224 N.C. App. at 428, 737 S.E.2d at 148.

¶ 31 However, “[o]ur case law makes clear that where a statute expressly creates

the authority to delegate a duty, a person or organization who is delegated and

performs the duty on behalf of the person or organization in whom the statute vests

the authority to delegate passes the first [] Isenhour factor.” McCullers v. Lewis, 265

N.C. App. 216, 223, 828 S.E.2d 524, 532 (2019); see, e.g., Baker, 224 N.C. App. at 428-

30, 737 S.E.2d at 148-49 (emphasis in original) (holding where the relevant statutes

(1) gave the constitutionally-created Sheriff the duty to take “care and custody of the

jail” and (2) provided the sheriff with authority to “appoint a deputy or employ others

to assist him in performing his official duties[,]” assistant jailers “are delegated [a]

statutory duty . . . by the [S]heriff – a position created by our Constitution” satisfying

the first Isenhour factor); Hobbs v. N.C. Dep’t of Human Res., 135 N.C. App. 412, 421-

22, 520 S.E.2d 595, 602 (1999) (holding because the relevant statute gave the director

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of social services the authority to “delegate to one or more members of his staff the

authority to act as his representative[,]” social workers were acting as public officials

for public official immunity purposes); Cherry v. Harris, 110 N.C. App. 478, 480-81,

429 S.E.2d 771, 772-73 (holding a forensic pathologist who conducted an autopsy and

prepared reports in response to an official request by a county medical examiner

satisfied the first factor of the Isenhour test because the medical examiner, a position

created by statute, “had the statutory authority pursuant to [N.C.G.S.] § 130A-389(a)

[] to order [] an autopsy be performed by a pathologist . . . designated by the Chief

Medical Examiner), disc. rev. denied, 335 N.C. 171, 436 S.E.2d 371 (1993). In Baker,

Hobbs, and Cherry, we pointed directly to a statute that authorized a constitutionally

or statutorily created position or organization to delegate its statutory authority to

another individual.

¶ 32 The Clines argue N.C.G.S. § 130A-41(b)(12) lacks language to indicate there

is a statutory delegation of authority to sufficiently pass the first Isenhour factor.

Before the trial court, Hopper argued there is “delegation of the authority to enforce

the commission for health services sanitation rules as required by the administrative

code,” and this “delegation of authority to do the very acts of which [the Clines]

complained” is sufficient to pass the first Isenhour factor. The only support for

Hopper’s argument before the trial court was a letter dated 8 May 1995 from the

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North Carolina Department of Environment, Health and Natural Resources

(“DEHNR”) stating:

Attached is the authorization/identification card for Mr.

Norman Curtis Hopper, Environmental Health Specialist,

employed by [Gaston County Health Department]. Please

give the card to Mr. Hopper with instructions that it must

be available at all times for identification during official

business.

The authorization for On-Site Wastewater delegates

authority to administer and enforce the laws in [N.C.G.S.]

Chapter 130A, Article 11 and the rules promulgated

thereunder in the North Carolina Administrative Code

Title 15A- Subchapter 18A.1900 et seq.

Rules governing the “Delegation of Authority to Enforce

Commission for Health Services’ Sanitation Rules” require,

in 15A NCAC 18A.2302(1), that individuals who are

delegated authority be employed by a local health

department. In the event that Mr. Hopper is no longer

employed by [Gaston County Health Department],

delegation of authority to enforce state laws and rules in

the Gaston County is immediately suspended. At that

time, the authorization/identification card must be

forwarded to this office.

However, in May 1995, Hopper was employed in the position of Environmental

Health Specialist,5 a role we have previously held to be a public employee. See Block,

141 N.C. App. at 282, 540 S.E.2d at 421-22 (citations and marks omitted) (“Our courts

5 Hopper was employed as an “[E]nvironmental [H]ealth [S]pecialist [I]ntern” in 1990

with Gaston County. In 1992, his role changed to “[E]nvironmental [H]ealth [S]pecialist.”

Around 1999 or 2000, Hopper became a “supervisor/coordinator,” and then in 2002 became

“the [D]epartment [A]dministrator for [E]nvironmental [H]ealth,” his current role.

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have held that a supervisor of the Department of Social Services is a public employee.

Similarly, a supervisor for the Health Department is a public employee, as is a

specialist, who is a subordinate of the supervisor. As such, these employees may be

held personally liable for the negligent performance of their duties that proximately

caused foreseeable injury.”). The forecasted evidence, to wit Hopper’s letter from

DEHNR regarding his position as Environmental Health Specialist, does not create

a genuine issue of material fact as to Hopper’s ability to invoke public official’s

immunity. As Hopper made no other delegation argument before the trial court, we

hold there is no statutory authorization for the delegation of a duty in his position as

Environmental Health Administrator.

¶ 33 Since the statutes cited by Hopper neither provide a clear statutory basis for

the position of Environmental Health Administrator nor allow a person or

organization created by statute to delegate any statutory duties to Environmental

Health Administrators, Hopper has failed to establish his position was created by

statute. As the first factor is not met, we need not reach the other two Isenhour

factors. See Leonard v. Bell, 254 N.C. App. 694, 705, 803 S.E.2d 445, 453 (2017)

(“Because we hold that [the] defendants’ positions are not created by statute, we need

not address the remaining elements to reach the conclusion that [the] defendants are

not public officials entitled to immunity.”). The trial court erred in granting summary

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judgment to Hopper, in his individual capacity, on the basis of public official’s

immunity and we reverse.

CONCLUSION

¶ 34 The Clines did not meet their burden of production to show Gaston County and

Hopper, in his official capacity, waived governmental immunity through the purchase

of liability insurance. The trial court properly granted Appellees’ motion for

summary judgment in regards to Gaston County and Hopper, in his official capacity.

¶ 35 Hopper is a public employee and not a public official. His position as

Environmental Health Administrator was not created by statute and the only

argument he advanced at the trial court as to delegation fails based on our decision

in Block. As such, he is not protected by public official’s immunity and the trial court

erred in granting summary judgment to Hopper, in his individual capacity, on the

basis of public official’s immunity.

AFFIRMED IN PART; REVERSED IN PART.

Judges DILLON and ARROWOOD concur.