All
opinions are subject to modification and technical correction prior to official
publication in the
NO.
COA07-1515
Filed: 16 September 2008
MICHAEL W. PATRICK, Guardian
Ad Litem and Guardian of the
Estate of J.D., Minor Child,
Plaintiff,
v.
I.C.
File No. TA-19778
NORTH CAROLINA DEPARTMENT
OF HEALTH AND HUMAN SERVICES,
Defendant.
Appeal
by Defendant from order entered 21 September 2007 by the North Carolina
Industrial Commission. Heard in the
Court of Appeals 21 August 2008.
Holtkamp Law Firm,
by Lynne M. Holtkamp, for Plaintiff-Appellee.
Attorney General
Roy Cooper, by Assistant Attorney General Tina L. Hlabse, for Defendant-Appellant.
STEPHENS,
Judge.
Defendant
North Carolina Department of Health and Human Services (“DHHS”) appeals the
North Carolina Industrial Commission’s order denying DHHS’s motion to dismiss
an action brought by J.D., through her guardian ad litem Michael Patrick
(“Plaintiff”), pursuant to the North Carolina State Tort Claims Act, N.C. Gen.
Stat. §§143-291 to -300.1A (2007). DHHS
asserts that Plaintiff’s claim is barred by public official immunity. We disagree and affirm the Industrial Commission’s
order.
I. BACKGROUND
On 25
August 2006, Plaintiff filed an affidavit of claim in the Industrial Commission
pursuant to the Tort Claims Act. Because
this appeal is before us on DHHS’s motion to dismiss, we treat the factual
allegations in Plaintiff’s affidavit as true.
Hunt v. N.C. Dep’t of Labor, 348 N.C. 192, 499 S.E.2d 747
(1998). In the affidavit, Plaintiff
alleged that on 23 August 2001, a physician reported to Wake County Department
of Social Services (“DSS”) social worker John Godwin (“Godwin”) a case of
suspected child sexual abuse. At that
time, Maria Spaulding (“Spaulding”) was DSS’s director, and John Webster
(“Webster”) and V. Anderson King (“King”) were DSS supervisors. According to the physician, James McDaniel
Webb (“Webb”) contacted the physician’s office seeking to be castrated because
Webb was having inappropriate sexual thoughts about J.D., a twelve-year-old
girl. The physician gave Godwin J.D.’s
and Webb’s names and Webb’s address and telephone number. On 24 August 2001, DSS opened an
investigation regarding the physician’s report and reported the matter to the
Fuquay-Varina police department, “which was in fact the wrong police
jurisdiction.” On 25 August 2001, DSS
discovered that it had contacted the wrong police department, but did not
contact the proper authorities. On 26
August 2001, Godwin conducted a home visit and interviewed Webb and J.D. Godwin learned that Webb was single and did
not have legal custody of J.D. Webb told
Godwin that he was in the process of adopting J.D. Godwin did not report his findings to Lori
Bryant (“Bryant”), a DSS social worker assigned to the case. On 28 August 2001, a second physician
contacted DHHS caseworker Gwen Horton (“Horton”) concerning suspected sexual
abuse of J.D. by Webb. Horton provided
the information she received from the physician to DSS. In January 2002, DSS closed its investigation
as unsubstantiated. From October 2001
through January 2003, Webb repeatedly sexually assaulted J.D. In January 2003, Webb was arrested and
charged with numerous counts of sexual assault.
In the
affidavit, Plaintiff asserted that DHHS was negligent “through its agents and
employees” in failing to properly investigate the two reports of suspected
child abuse and that DHHS was negligent in failing to implement adequate
policies and procedures for the investigation of reports of suspected abuse.[Note 1] On 21 November 2006, DHHS filed its motion to
dismiss based on public official immunity.
On or about 13 March 2007, Deputy Commissioner George T. Glenn, II, of
the Industrial Commission, denied DHHS’s motion. DHHS appealed to the Full Commission. In an order filed 21 September 2007, the Full
Commission affirmed Deputy Commissioner Glenn’s order. DHHS appealed the Full Commission’s order to
this Court. See Summey v. Barker,
142 N.C. App. 688, 689, 544 S.E.2d 262, 264 (2001) (“Orders denying dispositive
motions based on public official’s immunity affect a substantial right and are
immediately appealable.”) (citation omitted).
II. ANALYSIS
The
sole issue presented by this appeal is whether the Full Commission erred when
it concluded that public official immunity does not bar Plaintiff’s claim.
The essence of the doctrine of public
official immunity is that public officials engaged in the performance of their
governmental duties involving the exercise of judgment and discretion, and
acting within the scope of their authority, may not be held liable for such
actions, in the absence of malice or corruption.
Price v. Davis, 132 N.C. App. 556, 562, 512 S.E.2d 783,
787 (1999) (citation omitted); Meyer
v. Walls, 347 N.C. 97, 489 S.E.2d 880 (1997). Under the Tort Claims Act, “[o]nly actions
against state departments, institutions, or state agencies are
authorized.” Charles E. Daye & Mark
W.
Plaintiff’s
claim in this case is factually indistinguishable from the plaintiff’s claim in
Gammons v. N.C. Dep’t of Human Res., 344 N.C. 51, 472 S.E.2d 722
(1996). In Gammons, the plaintiff
filed an affidavit in the Industrial Commission pursuant to the Tort Claims Act
alleging that DHHS – then known as the Department of Human Resources – failed
“to properly supervise the Cleveland County Department of Social Services in
the provision of child protective services.”
there exists a sufficient agency
relationship between [DHHS] and the Cleveland County Director of Social
Services and his staff such that the doctrine of respondeat superior is
implicated. It follows therefore that
because [DHHS] may be liable, the Industrial Commission has jurisdiction under
the Tort Claims Act to determine [DHHS’s] liability for alleged negligence of
the Cleveland County Director of Social Services and his staff while acting
within the scope of their obligation to assure that the county’s citizens are
“properly protected and minimally cared for when those citizens are dependent
upon others[.]”
We do
not, however, find instructive the cases principally relied upon by DHHS in its
brief to this Court: Hobbs v. N.C.
Dep’t of Human Res., 135 N.C. App. 412, 520 S.E.2d 595 (1999), and Collins
v. N.C. Parole Comm’n, 344 N.C. 179, 473 S.E.2d 1 (1996), aff’g on other
grounds 118 N.C. App. 544, 456 S.E.2d 333 (1995). The plaintiff in
In Collins,
the plaintiff brought an action in the Industrial Commission against the North
Carolina Parole Commission and three of its former members. Plaintiff alleged that the former members
were grossly negligent in granting parole to an inmate, Karl DeGregory, and in
supervising DeGregory while he was on parole.
The plaintiff further alleged that while DeGregory was on parole, he
entered plaintiff’s home, shot plaintiff, abducted and shot plaintiff’s wife to
death, and killed himself. The
Industrial Commission dismissed plaintiff’s claims, concluding that (1)
plaintiff did not prove that the Parole Commission was negligent in placing
DeGregory on parole; (2) as public officials, the former members of the Parole
Commission were immune from suit for negligence for actions taken in the course
of their official capacities; and (3) Parole Commission employees were not negligent
in supervising DeGregory while he was on parole. This Court affirmed the Industrial
Commission’s decision on the ground that the Tort Claims Act waived the State’s
sovereign immunity only for ordinary negligence, and plaintiff alleged more
than ordinary negligence. 118 N.C. App.
544, 456 S.E.2d 333.
The
Supreme Court affirmed this Court’s decision on other grounds. In a concise opinion, the Supreme Court only
addressed the Industrial Commission’s ruling that, as public officials, the
former members of the Parole Commission were immune from suit. The Court stated that “[t]he defendants were
undoubtedly acting within the scope of their official authority when they
granted parole to DeGregory and refused to revoke his parole[,]” 344 N.C. at
183, 473 S.E.2d at 3, invoked the doctrine of public official immunity, and
concluded that the Industrial Commission properly dismissed plaintiff’s
claim. The Supreme Court in Collins
did not hold, as DHHS suggests, that no action may be brought under the Tort Claims
Act against DHHS on allegations that a county department of social services,
through its social workers, negligently failed to investigate reports of
suspected child abuse or failed to implement adequate policies and procedures
for the investigation of such reports.
Finally,
we find DHHS’s interpretation of the language of the Tort Claims Act
unavailing. Pursuant to the Act,
[t]he Industrial Commission shall
determine whether or not each individual claim arose as a result of the
negligence of any officer, employee, involuntary servant or agent of the State
while acting within the scope of his office, employment, service, agency or
authority, under circumstances where the State of North Carolina, if a
private person, would be liable to the claimant in accordance with the laws
of North Carolina.
N.C. Gen. Stat.
§143-291(a) (emphasis added). In other
words, “[t]he state may be liable if, under the circumstances, a private person
would be liable.”
Because
the doctrine of public official immunity does not apply to the case at bar, the
order of the Industrial Commission is affirmed.
AFFIRMED.
Judges
STEELMAN and GEER concur.
NOTE
1. On the same day Plaintiff filed the affidavit in the
Industrial Commission, Plaintiff also filed a complaint against DSS, Spaulding,
Webster, and King in Wake County Superior Court on similar allegations. In Patrick v. Wake Cty. Dep’t of Human
Servs., ___ N.C. App. ___, 655 S.E.2d 920 (2008), this Court affirmed the
superior court’s grant of summary judgment in favor of the DSS defendants.