Mullis v. Sechrest

Judge McGee

concurring in part and dissenting in part.

I concur with the majority that the trial court did not err in allowing defendants to amend their answer and that partial summary judgment for the Board was appropriate. However, I respectfully dissent to the portion of the majority opinion denying partial summary judgment to defendant Sechrest.

When an action is brought against individual state officers or employees in their official capacities, the action is one against the State for the purposes of applying the doctrine of sovereign immunity. Insurance Co. v. Unemployment Compensation Com., 217 N.C. 495 , 8 S.E. 2d 619 (1940). Therefore, if plaintiffs have sued Sechrest only in his official capacity, there can be no recovery absent a waiver of immunity “because the award would in essence be against the State . . . Harwood v. Johnson, 92 N.C. App. 306, 309 , 374 S.E. 2d 401, 404 (1988), aff’d in part, rev’d in part on other grounds, 326 N.C. 231 , 388 S.E.2d 439 (1990). Under the authority of prior decisions, plaintiffs have stated a claim only in Sechrest’s official capacity.

The caption of the complaint in this action does not designate whether Sechrest is being sued in his official capacity as a teacher and employee of the Board or whether he is being sued in his individual capacity. Also, the complaint never uses the words “individual” or “individual capacity.” When a complaint’s allegations relate only to *100 a defendant’s official governmental duties, the action will be treated as a claim against a defendant only in the defendant’s official capacity, and not as a claim against a defendant individually. Taylor v. Ashburn, 112 N.C. App. 604, 607-08 , 436 S.E.2d 276, 279 (1993), cert. denied, 336 N.C. 77 , 445 S.E.2d 46 (1994). Here, the allegations center solely on Sechrest’s official duties and responsibilities as a teacher. Plaintiffs failed to advance any allegations against Sechrest other than those relating to his official duties as an industrial arts teacher. “Absent any allegations in the complaint separate and apart from official duties which would hold a nonofficial liable for negligence, the complaint cannot be found to sufficiently state a claim against [a defendant employee] individually.” Whitaker v. Clark, 109 N.C. App. 379, 383-84 , 427 S.E.2d 142, 145 , disc. review denied and cert. denied, 333 N.C. 795 , 431 S.E.2d 31 (1993).

In determining whether an action is a suit against the state, despite the fact that the . . . defendant is a state officer or employee joined in his individual capacity, the result is dependent on an analysis of the two key factors, namely, the issues involved and the relief sought, rather than on the mere formal identification of the parties. A claim involves activities which may be attributed to the state, and thus renders the action one subject to limitations on actions against the state, where: (1) there are no allegations that the state agent or employee acted beyond the scope of his authority through wrongful acts; (2) the authority alleged to have been breached was not owed to the public generally independent of the fact of state employment; and (3) the activities giving rise to the plaintiff’s complaint involved matters ordinarily within the employee’s normal and official functions for the state.

57 Am. Jur. 2d Municipal, County, School, and State Tort Liability § 70 (1988); see also Electric Co. v. Turner, 275 N.C. 493, 498 , 168 S.E.2d 385, 388-89 (1969) (“The record discloses that every act charged against any defendant was performed in his capacity as representative of the State .... The facts and issues involved, and the relief demanded, permit only one conclusion: This is an action against the State of North Carolina.”). Therefore, plaintiffs have asserted a negligence claim against Sechrest only in his official capacity, which is in essence a claim against the State.

I do not agree that this position “fl[ies] in the face of well-established precedent.” As pointed out in Jones v. Kearns, 120 N.C. App. 301 , 462 S.E.2d 245 , (1995), disc. review denied, 342 N.C. 414 , 465 *101 S.E.2d 541 (1995), recent decisions cast doubt on the continued vitality of those cases holding officers and employees liable, absent statutory authority, in their individual capacities when they negligently, but in good faith, perform official duties. See, e.g., Taylor, supra; Whitaker, supra (claims against DSS employees for negligent performance of official duties asserted claims in official capacity only and did not sufficiently state a claim against defendants individually); Aune v. University of North Carolina, 120 N.C. App. 430, 437 , 462 S.E.2d 678, 683 (1995) (although the caption stated individual defendants were sued in their individual capacity, “allegations in the complaint ... involve acts of the defendants performed within the bounds of their official duties .... Therefore, the individual defendants can only be sued in their official capacity.”), disc. review denied, 342 N.C. 893 , 467 S.E.2d 901 (1996); Stancill v. City of Washington, 29 N.C. App. 707, 710 , 225 S.E.2d 834, 836 (1976) (although “the caption of the case indicates that he has been sued individually and not in his official capacity . . . we can find no allegation of any negligence on the part of [defendant] other than allegations of negligence with respect to him while serving in his official capacity”); see also, Coleman v. Cooper, 102 N.C. App. 650, 658-59 , 403 S.E.2d 577, 582 (Arnold, J., concurring) (“[W]hile I agree that we are bound by the result of the Court’s prior panel on the question of this defendant’s liability, I strongly question the reasoning of that prior decision. Its anomalous rationale appears to allow a claim against an employee in an individual capacity while conferring immunity from liability in a governmental capacity.”), disc. review denied, 329 N.C. 786 , 408 S.E.2d 517 (1991).

Nonetheless, I am mindful of the cases such as Givens v. Sellers, 273 N.C. 44 , 159 S.E.2d 530 (1968), cited by the majority. However, Givens cites both Lewis v. Hunter, 212 N.C. 504 , 193 S.E. 814 (1937) and Miller v. Jones, 224 N.C. 783 , 32 S.E.2d 594 (1945) for the proposition that an employee is personally liable for negligence in the performance of his or her duties even though the employer is immune from suit. The Miller case is the first to use this language and cites Lewis in support of that statement.

In Lewis, the defendant city paid individual defendant Spear by the hour to repair radios in the city’s police cars. While returning a police car to the city’s garage after repairing the radio at his shop, Spear ran over the plaintiff’s decedent. Lewis, 212 N.C. at 506 , 193 S.E. at 815. The Court did not address the question of any immunity of Spear by or through the nature of his temporary employment, and *102 judgment against Spear was allowed to stand. Id. at 508, 193 S.E. at 816. Although Miller held that the defendant employees could be individually liable for negligently cleaning a roadway, Justice Schenck, the author of the Lewis opinion, dissented from the majority opinion in that case. In his dissent, after noting the defendants were employees of the highway commission and any liability arose out of their public employment, Justice Schenck stated:

If the plaintiff seeks to hold the defendants liable upon the theory that the defendants’ duties . . . were ministerial in character, it appears that such duties were of a public nature and were imposed for public benefit and no provision is made in the statute creating such duties imposing individual liability upon the part of the person upon whom such duties are cast, and the absence of such provision is fatal to the plaintiff’s case.

Since the defendants were public employees, I think it is immaterial whether they were engaged in the performance of official and governmental duties requiring the exercise of judgment and discretion, or were engaged in the performance of duties purely ministerial in character of a public nature and imposed entirely for public benefit, with no provision for personal liability made in the statute creating such duties. In either case, I think the plaintiff should fail in his action.

Miller, 224 N.C. at 789-90, 32 S.E.2d at 598-99 (Schenck, J., dissenting).

At best, the case law in this area is confusing, and at worst, it is at odds. Taylor and Whitaker take the better approach. Under this view, while an employee may be liable for negligent acts committed within the scope and in the course of his public employment, see Lewis, supra, allegations of negligent performance of governmental duties actually present a claim against the State. Such an interpretation avoids the “anomalous rationale” of those cases elevating form over substance by allowing or prohibiting an action to proceed against an employee depending on whether the action is captioned as a proceeding against the employee in the employee’s official or individual capacity — despite the fact the action remains based upon exactly the same facts regardless of the capacity in which the employee is being sued.

Recent decisions of this Court have stated the position of teacher does not precisely fit within the criteria for public officer as determined by case law. However, I do not agree with the notion that a *103 teacher’s official duties involve no exercise of the sovereign power and that a teacher’s education of our children is purely “ministerial.” Further, the education of students is the duty of the State, and I believe the State in this case is the real party in interest in an action involving a claim for negligent instruction. Therefore, I would hold that plaintiffs have sued Sechrest only in his official capacity and he is entitled to immunity to the same extent as the Board.