Petrillo v. Barnes-Jones

IN THE COURT OF APPEALS OF NORTH CAROLINA

No. COA23-331

Filed 17 October 2023

Mecklenburg County, No. 21CVS9678

THERESA PETRILLO, Plaintiff,

v.

TIMISHA BARNES-JONES and ANDREW B. STRONG, in their individual

capacities and as public employees of the CHARLOTTE-MECKLENBURG BOARD

OF EDUCATION, Defendants.

Appeal by defendant from judgment entered 5 December 2022 by Judge Hugh

B. Lewis in Mecklenburg County Superior Court. Heard in the Court of Appeals 20

September 2023.

Ted A. Greve & Associates, PA, by Justin L. Lowenberger, for the plaintiff-

appellee.

Charlotte-Mecklenburg Board of Education, by Senior Associate General

Counsel Oksana K. Cody, for the defendant-appellant.

TYSON, Judge.

Timisha Barnes-Jones (“Barnes-Jones”) appeals the denial of her Rule 12(b)(6)

motion to dismiss, in which she asserted public official immunity barred Theresa

Petrillo (“Plaintiff” or “Petrillo”) from suing her in her individual capacity for

negligence purportedly committed in the course and scope of her public employment.

We reverse the trial court’s denial of Barnes-Jones’ motion to dismiss and remand for

entry of an order of dismissal.

PETRILLO V. BARNES-JONES

Opinion of the Court

I. Background

Barnes-Jones was the principal of West Charlotte High School (“WCHS”) in

2018. Andrew Strong (“Strong”) was a member of the custodial staff at WCHS. Both

Barnes-Jones and Strong were public employees.

Petrillo attended the University Instructors’ training to become an instructor

for their summer camp program, which was held on the campus of WCHS in June of

2018. Petrillo asserts she tripped and fell while walking on an outdoor, concrete

pathway between two WCHS buildings.

Petrillo filed a complaint against Barnes-Jones and Strong on 16 June 2021.

She alleged the concrete pathway between the two buildings was “raised and

unleveled,” which caused her to “fall to the ground” and severely injure herself.

Petrillo’s complaint alleges she is suing Barnes-Jones “solely in her individual

capacity” for negligence that occurred while Barnes-Jones was “acting in the course

and scope of her employment, as an agent and public employee” of the Charlotte-

Mecklenburg Board of Education and as principal of WCHS.

Petrillo’s complaint proffers Barnes-Jones “operated, managed, maintained[,]

and supervised the property and premises of WCHS.” She also cites Barnes-Jones’

and Strong’s duty to “exercise ordinary and reasonable care in the maintenance of

the property and premises of WCHS[,]” and claims her injuries were “proximately

caused by the careless, negligent[,] and unlawful conduct” of Barnes-Jones and

Strong.

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Opinion of the Court

On 1 April 2022, Barnes-Jones filed a Rules 12(b)(1), 12(b)(2), and 12(b)(6)

motions to dismiss the suit pursuant to governmental immunity. The trial court

denied her motion to dismiss because “the action name[d] Defendant Timisha Barnes-

Jones in her individual capacity.” See Taylor v. Ashburn, 112 N.C. App. 604, 607, 436

S.E.2d 276, 279 (1993) (“Governmental immunity protects the governmental entity

and its officers or employees sued in their ‘official capacity.’” (emphasis supplied)

(citation omitted)).

On 6 October 2022, Barnes-Jones filed a second 12(b)(1), 12(b)(2), and 12(b)(6)

motions to dismiss. In her second motions to dismiss, Barnes-Jones asserted Petrillo

“fail[ed] to state a claim upon which relief can be granted pursuant to the doctrine of

public official immunity.” (emphasis supplied). The trial court entered an order after

hearing, which denied Barnes-Jones’ second motions to dismiss on 5 December 2022.

Barnes-Jones filed a notice of appeal on 12 December 2022.

II. Jurisdiction - Interlocutory Appeal

The trial court’s order is interlocutory. “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 to settle and determine the entire controversy.”

Bartley v. City of High Point, 381 N.C. 287, 293, 873 S.E.2d 525, 532 (2022) (citing

Veazey v. City of Durham, 231 N.C. 354, 357, 362, 57 S.E.2d 377, 381 (1950)). “As a

general rule, interlocutory orders are not immediately appealable.” Turner v.

Hammocks Beach Corp., 363 N.C. 555, 558, 681 S.E.2d 770, 773 (2009) (citation

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Opinion of the Court

omitted).

Interlocutory orders can be immediately appealable “when the appeal involves

a substantial right of the appellant[,] and the appellant will be injured if the error is

not corrected before final judgment.” N.C. Dep’t of Transp. v. Stagecoach Vill., 360

N.C. 46, 47-48, 619 S.E.2d 495, 496 (2005) (citations omitted). See also N.C. Gen.

Stat. §§ 1-277(a) and 7A-27(b)(3)(a) (2021).

“Orders denying dispositive motions based on the defenses of governmental

and public official’s immunity affect a substantial right and are immediately

appealable.” Thompson v. Town of Dallas, 142 N.C. App. 651, 653, 543 S.E.2d 901,

903 (2001) (citation omitted); Price v. Davis, 132 N.C. App. 556, 558-59, 512 S.E.2d

783, 785 (1999) (explaining “this Court has repeatedly held that appeals raising

issues of governmental or sovereign immunity affect a substantial right sufficient to

warrant immediate appellate review”); Green v. Kearney, 203 N.C. App. 260, 266,

690 S.E.2d 755, 761 (2010) (extending this Court’s holding “that a denial of a Rule

12(b)(6) motion to dismiss on the basis of sovereign immunity affects a substantial

right and is immediately appealable” to allow interlocutory review of a public official

asserting public official immunity (emphasis supplied) (citing Price, 132 N.C. App. at

558-59, 512 S.E.2d at 785)); Bartley, 381 N.C. at 293, 873 S.E.2d at 532 (“The denial

of summary judgment on the ground of public official immunity is immediately

appealable because it affects a substantial right.”).

“Public official immunity is more than a mere affirmative defense to liability

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Opinion of the Court

as it shields a defendant entirely from having to answer for his conduct in a civil suit

for damages.” Bartley, 381 N.C. at 293, 873 S.E.2d at 532 (citations omitted).

“Nevertheless, this Court has declined to address interlocutory appeals of a

lower court’s denial of a Rule 12(b)(1) motion to dismiss despite the movant’s reliance

upon the doctrine of sovereign immunity.” Green, 203 N.C. App. at 265-66, 690 S.E.2d

at 760 (citations omitted).

Barnes-Jones seeks review of the trial court’s denial of her Rule 12(b)(6) motion

to dismiss asserting public official immunity from Petrillo’s action. Although Barnes-

Jones’ appeal is interlocutory, her claim involves a “substantial right.” Stagecoach

Vill., 360 N.C. at 47-48, 619 S.E.2d at 496; Thompson, 142 N.C. App. at 653, 543

S.E.2d at 903; Price, 132 N.C. App. at 558-59, 512 S.E.2d at 785; Green, 203 N.C.

App. at 266, 273, 690 S.E.2d at 761; Bartley, 381 N.C. at 293, 873 S.E.2d at 532.

Petrillo argues collateral estoppel barred Barnes-Jones from bringing her

second Rule 12(b)(6) motion to dismiss, in which she asserted public official

immunity. “The elements of collateral estoppel . . . are as follows: (1) a prior suit

resulting in a final judgment on the merits; (2) identical issues involved; (3) the issue

was actually litigated in the prior suit and necessary to the judgment; and (4) the

issue was actually determined.” Bluebird Corp. v. Aubin, 188 N.C. App. 671, 678, 657

S.E.2d 55, 61 (2008) (emphasis supplied) (citation and internal quotation marks

omitted).

The status of Barnes-Jones’ interlocutory appeal defeats Petrillo’s argument.

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Opinion of the Court

An interlocutory order is, by definition, not a final judgment. Bartley, 381 N.C. at

293, 873 S.E.2d at 532. But see Fox v. Johnson, 243 N.C. App. 274, 285, 777 S.E.2d

314, 324 (2015) (“It is well settled that ‘[a] dismissal under [North Carolina Rule of

Civil Procedure] Rule 12(b)(6) operates as an adjudication on the merits unless the

court specifies that the dismissal is without prejudice.’” (emphasis supplied) (citation

omitted)). Further, Barnes-Jones’ second motions to dismiss asserted a different

basis of immunity than her first motions. Petrillo’s argument is without merit.

Bluebird, 188 N.C. App. at 678, 657 S.E.2d at 61.

This court possesses appellate jurisdiction to review Barnes-Jones’ arguments.

N.C. Gen. Stat. §§ 1-277(a) and 7A-27(b)(3)(a) (2021); Stagecoach Vill., 360 N.C. at

47-48, 619 S.E.2d at 496; Thompson, 142 N.C. App. at 653, 543 S.E.2d at 903; Price,

132 N.C. App. at 558-59, 512 S.E.2d at 785; Green, 203 N.C. App. at 266, 273, 690

S.E.2d at 761, 765; Bartley, 381 N.C. at 293, 873 S.E.2d at 532.

III. Issue

A. Public Official Immunity

Barnes-Jones argues the trial court erred by denying her 12(b)(6) motion to

dismiss on the grounds of public official immunity.

1. Standard of Review

We review a Rule 12(b)(6) motion to dismiss de novo. Green, 203 N.C. App. at

266, 690 S.E.2d at 761.

The standard of review of an order granting a [motion to

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Opinion of the Court

dismiss pursuant to N.C. Gen. Stat. § 1A-1, Rule 12(b)(6)]

is whether the complaint states a claim for which relief can

be granted under some legal theory when the complaint is

liberally construed and all the allegations included therein

are taken as true. On a motion to dismiss, the complaint’s

material factual allegations are taken as true.

Bissette v. Harrod, 226 N.C. App. 1, 7, 738 S.E.2d 792, 797 (2013) (citations omitted).

2. Analysis

The doctrines of sovereign immunity, governmental immunity, and public

official immunity overlap and are directly related:

In general, the doctrine of sovereign/governmental

immunity “provides the State, its counties, and its public

officials with absolute and unqualified immunity from

suits against them in their official capacity.” Under the

doctrine of sovereign immunity, it is the State of North

Carolina which “is immune from suit [in the absence of]

waiver[,]” whereas under the doctrine of governmental

immunity, counties and cities are “immune from suit for

negligence of [their] employees in the exercise of

governmental functions absent waiver of immunity.”

Wray v. City of Greensboro, 247 N.C. App. 890, 892, 787 S.E.2d 433, 436 (2016)

(citations omitted). In other words, whether sovereign immunity or governmental

immunity applies depends upon the identity and status of the defendant.

Public official immunity is derived and stems from both sovereign immunity

and governmental immunity, and its applicability depends upon whether the public

official’s employment and authority flows from the state or from a city or county. If

the public employee works for a city or county, their individual immunity for acts

committed within their scope of employment arises under and from the city or

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PETRILLO V. BARNES-JONES

Opinion of the Court

county’s governmental immunity. See Fullwood v. Barnes, 250 N.C. App. 31, 38, 792

S.E.2d 545, 550 (2016) (“The defense of public official immunity is a ‘derivative form’

of governmental immunity.” (citation omitted)); Bartley, 381 N.C. at 294, 873 S.E.2d

at 533 (“Public official immunity, a judicially-created doctrine, is ‘a derivative form’

of governmental immunity which shields public officials from personal liability for

claims arising from discretionary acts or acts constituting mere negligence, by virtue

of their office, and within the scope of their governmental duties.”).

If the public official’s employment or authority flows from the State or a State

agency, whether the official may assert public official immunity as a defense to any

individual liability for purported negligent acts committed within the scope of their

employment derives from the state’s sovereign immunity. See Epps v. Duke Univ.,

Inc., 122 N.C. App. 198, 203, 468 S.E.2d 846, 850 (1996) (explaining “[a] suit against

a public official in his official capacity is basically a suit against the public entity (i.e.,

the state) he represents” and that “[o]fficial immunity is a derivative form of

sovereign immunity” (citations omitted)).

Public official immunity shields individuals, while serving as “public officials”,

from individual liability for negligence, “[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) (citation omitted).

“Actions that are malicious, corrupt or outside of the scope of official duties will pierce

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Opinion of the Court

the cloak of official immunity[.]” Moore v. Evans, 124 N.C. App. 35, 42, 476 S.E.2d

415, 421 (1996) (citations omitted).

Public official immunity may be asserted by “public officials,” but not by “public

employees.” Hare v. Butler, 99 N.C. App. 693, 699-700, 394 S.E.2d 231, 236 (1990)

(explaining “[w]hen a governmental worker is sued individually, or in his or her

personal capacity, our courts distinguish between public employees and public

officials in determining negligence liability” (citations omitted)).

“Officers exercise a certain amount of discretion, while employees perform

ministerial duties.” Cherry v. Harris, 110 N.C. App. 478, 480, 429 S.E.2d 771, 773

(1993) (citation omitted). “Discretionary acts are those requiring personal

deliberation, decision[,] and judgment. Ministerial duties, on the other hand, are

absolute and involve merely the execution of a specific duty arising from fixed and

designated facts.” Isenhour v. Hutto, 350 N.C. 601, 610, 517 S.E.2d 121, 127 (1999)

(citations and quotations omitted).

Whether a public official may assert public official immunity depends upon

which capacity the public official is being sued. See Patrick v. N. Carolina Dep’t of

Health & Hum. Servs., 192 N.C. App. 713, 716, 666 S.E.2d 171, 173 (2008) (providing

“public official immunity only applies to claims brought against public officials in

their individual capacities” (emphasis supplied)); Taylor, 112 N.C. App. at 607, 436

S.E.2d at 279 (explaining governmental immunity only applies to county or city

officials sued in their official capacity).

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Opinion of the Court

Principals constitute “public officials” and are entitled to assert the absolute

defense of public official immunity. Farrell v. Transylvania Cty. Bd. of Educ., 175

N.C. App. 689, 695, 625 S.E.2d 128, 133 (2006) (“[T]his Court has recognized [ ] school

officials such as superintendents and principals perform discretionary acts requiring

personal deliberation, decision, and judgment.” (citing Gunter v. Anders, 114 N.C.

App. 61, 67-68, 441 S.E.2d 167, 171 (1994))).

Petrillo’s complaint specifically alleges she was suing Barnes-Jones “solely in

her individual capacity” for negligence that occurred while Barnes-Jones was “acting

in the course and scope of her employment, as an agent and public employee” of the

Charlotte-Mecklenburg Board of Education and as the principal of WCHS. Under

our precedents, Barnes-Jones’ employment as a high school principal qualifies her as

a public official. Id. She may properly assert public official immunity as an absolute

defense to suit. Smith, 289 N.C. at 331, 222 S.E.2d at 430; Moore, 124 N.C. App. at

42, 476 S.E.2d at 421.

Public official immunity shields Barnes-Jones from alleged negligent activities

conducted within the scope of her employment, if her official acts were taken without

malice or corruption. Id. Petrillo’s complaint does not specifically allege Barnes-

Jones’ alleged acts were malicious or corrupt. The trial court erred in denying

Barnes-Jones’ motions to dismiss based upon assertion of public official immunity.

IV. Conclusion

Barnes-Jones is not collaterally estopped from bringing her second Rule

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Opinion of the Court

12(b)(6) motion to dismiss, asserting public official immunity. This interlocutory

appeal is properly before us.

Petrillo’s failure to allege Barnes-Jones acted with malice or corruption bars

and defeats her negligent claim upon proper assertion of public official immunity. Id.

See also White, 366 N.C. at 363, 736 S.E.2d at 168; Green, 203 N.C. App. at 266-67,

690 S.E.2d at 761. The trial judge erred by denying Barnes-Jones’ Rule 12(b)(6)

motion to dismiss asserting public official immunity. Id. We reverse the trial judge’s

order and remand for entry of an order granting Barnes-Jones’ motion to dismiss. It

is so ordered.

REVERSED AND REMANDED.

Judge COLLINS and Judge WOOD concur.

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