1. Appeal and Error--appealability--interlocutory order--governmental immunity--
substantial right
Although the trial court's denial of defendants' motion for summary judgment is an
interlocutory order, appeals raising issues of governmental or sovereign immunity affect a
substantial right warranting immediate appellate review.
2. Immunity--governmental--town--garbage collection--no allegation of waiver
In an action seeking damages for personal injuries arising out of an accident involving
plaintiffs' vehicle and one of defendant town of Madison's garbage trucks, the trial court erred in
failing to dismiss plaintiffs' claim against the town on the basis of governmental immunity because
garbage collection is a governmental function and plaintiffs failed to allege the town's waiver of
immunity through the purchase of insurance.
3. Immunity--governmental--public employee--official capacity
In an action seeking damages for personal injuries arising out of an accident involving
plaintiffs' vehicle and one of defendant town of Madison's garbage trucks, the trial court erred in
failing to grant defendants' motion for judgment on the pleadings as to defendant public employee
driver of the garbage truck because in the absence of a clear statement indicating the capacity in
which this defendant is being sued, a plaintiff is deemed to have sued the public employee in his
official capacity, and therefore, this defendant is entitled to the same immunity as the town of
Madison.
Appeal by defendants from order entered 24 March 1999 by
Judge James M. Webb in Rockingham County Superior Court. Heard
in the Court of Appeals 21 February 2000.
No brief filed by plaintiff-appellees.
McCall Doughton & Blancato, PLLC, by William A. Blancato,
for defendant-appellants.
EAGLES, Chief Judge.
This case presents the question of whether the Town of
Madison and its employee are entitled to immunity from
plaintiffs' suit for negligence.
Plaintiffs filed this action on or about 14 September 1998seeking damages for personal injuries allegedly suffered
by Annie
Mitchell Reid in a motor vehicle accident and for the subsequent
loss of consortium suffered by her husband, James Donald Reid.
Plaintiffs alleged that Ms. Reid was driving her automobile on 7
September 1995 in Madison, North Carolina, when she saw one of the
defendant Town of Madison's (“the Town”) garbage trucks. Defendant
Richard Keith Tucker, an employee of the Town, was driving the
garbage truck. Ms. Reid alleged that the garbage truck started
backing up toward her car. She contended that she steered her
vehicle to the edge of the roadway and came to a stop, but the
truck did not stop and crashed into her before she could take any
further evasive action.
On 4 February 1999, defendants moved for judgment on the
pleadings on the grounds that plaintiffs' claims were barred by
governmental immunity. On 24 March 1999, the trial court denied
defendants' motion. Defendants appeal.
[1]At the outset, we note that the order denying defendants'
motion for judgment on the pleadings is an interlocutory order.
However, “while, as a general rule, such orders are not immediatelyappealable, this Court has repeatedly held that appeals raising
issues of governmental or sovereign immunity affect a substantial
right sufficient to warrant immediate appellate review.” Price v.
Davis, 132 N.C. App. 556, 558-59, 512 S.E.2d 783, 785 (1999)
(citations omitted). Accordingly, defendants' appeal is properly
before this Court. Defendants' sole argument is that the trial court erred in
denying their motion for judgment on the pleadings because they
were protected by governmental immunity and plaintiffs did not
allege a waiver of immunity through the purchase of insurance.
Mullins v. Friend, 116 N.C. App. 676, 449 S.E.2d 227 (1994).
[2]We first consider the defendants' argument as to the Town
of Madison. The allegations in plaintiffs' complaint are deemed
admitted for the purpose of deciding the motion for judgment on the
pleadings. Cheape v. Town of Chapel Hill, 320 N.C. 549, 556-57,359 S.E.2d 792, 797 (1987). Under the doctrine of governmental
immunity, a municipality is immune from suit for torts committed by
officers or employees while performing a governmental function.
Mullins, 116 N.C. App. at 680, 449 S.E.2d at 230. We note that
garbage collection is a governmental function. Schmidt v. Breeden,
134 N.C. App. 248, 253, 517 S.E.2d 171, 175 (1999)(citing Hare v.
Butler, 99 N.C. App. 693, 698, 394 S.E.2d 231, 235, disc. review
denied, 327 N.C. 634, 399 S.E.2d 121 (1990)). However, a city can
waive its immunity by purchasing liability insurance. Mullins, 116
N.C. App. at 680, 449 S.E.2d at 230. The city waives immunity only
to the extent the insurance contract indemnifies it from liability
for the alleged acts. Id. at 681, 449 S.E.2d at 230. “If a
plaintiff does not allege a waiver of immunity by the purchase of
insurance, the plaintiff has failed to state a claim against the
governmental unit.” Id. Here, plaintiffs have failed to allege
the waiver of liability through the purchase of insurance.
Accordingly, the trial court should have dismissed plaintiffs'
claim against the Town of Madison on the basis of governmental
immunity.
[3]Next, we consider plaintiffs' claim against defendant
Richard Keith Tucker. All parties agree that defendant Tucker is a
public employee rather than a public official. In order to
determine whether Tucker is immune from suit, we must determine
whether the complaint seeks recovery from Tucker in his official or
individual capacity or both. Isenhour v. Hutto, 350 N.C. 601, 517
S.E.2d 121 (1999). “A suit against a defendant in his individual capacity means
that the plaintiff seeks recovery from the defendant directly; a
suit against a defendant in his official capacity means that the
plaintiff seeks recovery from the entity of which the public
servant defendant is an agent.” Meyer v. Walls, 347 N.C. 97, 110,
489 S.E.2d 880, 887 (1997). The term “official capacity” is not
synonymous with the term “official duties.” Id. at 111, 489 S.E.2d
at 888. Indeed, the performance of an employee's “duties” is
irrelevant to the determination of whether a defendant is being
sued in an official or individual capacity. Isenhour, 350 N.C. at
609, 517 S.E.2d at 126. In fact, it is questionable that an
employee even has official duties, because official duties are
reserved for public officers. The term “official capacity” is in
actuality “a legal term of art with a narrow meaning--the suit is
in effect one against the entity.” Meyer, 347 N.C. at 111, 489
S.E.2d at 888 (citing Anita R. Brown-Graham & Jeffrey S. Koeze,
Immunity from Personal Liability under State Law for Public
Officials and Employees: An Update, Loc. Gov't L. Bull. 67 at 7
(Inst. Of Gov't Univ. Of N.C. at Chapel Hill) Apr. 1995).
Accordingly, in a suit against a public employee in his official
capacity, the law entitles the employee to the same protection as
that of the entity. Warren v. Guilford County, 129 N.C. App. 836,
838, 500 S.E.2d 470, 472, disc. review denied, 349 N.C. 241, 516
S.E.2d 610 (1998). In contrast, a public employee sued in his
individual capacity is liable for mere negligence. Meyer, 347 N.C.
at 112, 489 S.E.2d at 888. The crucial question for determining
whether a defendant is sued in an individual
or official capacity is the nature of the
relief sought, not the nature of the act or
omission alleged. If the plaintiff seeks an
injunction requiring the defendant to take an
action involving the exercise of a
governmental power, the defendant is named in
an official capacity. If money damages are
sought the court must ascertain whether the
complaint indicates that the damages are
sought from the government or from the pocket
of the individual defendant. If the former, it
is an official-capacity claim; if the latter,
it is an individual-capacity claim; and if it
is both, then the claims proceed in both
capacities.
Id. at 110, 489 S.E.2d at 887. Our Supreme Court has expounded on
this point by holding that “a pleading should clearly state the
capacity in which the defendant is being sued.” Warren, 129 N.C.
App. at 839, 500 S.E.2d at 472 (citing Mullis v. Sechrest, 347 N.C.
548, 554, 495 S.E.2d 721, 724 (1998)). The plaintiffs should
include this statement of “capacity” in the caption, the
allegations, and the prayer for relief. Mullis, 347 N.C. at 554,
495 S.E.2d at 724-25. According to our Supreme Court, this
statement will allow defendants to have an opportunity to prepare
for a proper defense and eliminate the unnecessary litigation that
arises when parties fail to specify the capacity. Id. Our courts
since Mullis, have held that in the absence of a clear statement of
defendant's capacity a plaintiff is deemed to have sued a defendant
in his official capacity. Mullis, 347 N.C. 548, 495 S.E.2d 721;
Warren, 129 N.C. App. 836, 500 S.E.2d 470; Johnson v. York, 134
N.C. App. 332, 517 S.E.2d 670 (1999). Here, neither the caption, allegations, nor the prayer for
relief contain any suggestion as to whether the plaintiffs are
suing the defendant in an official or individual capacity. See
Mullis, 347 N.C. at 554, 495 S.E.2d at 725; Warren, 129 N.C. App.
at 839, 500 S.E.2d at 472. Our precedent binds us to treat the
complaint as a suit against the individual defendant in his
official capacity. Id. As we noted previously, a suit in an
official capacity is another way of “pleading an action against the
governmental entity.” Mullis, 347 N.C. at 554, 495 S.E.2d at 725.
Since the Town of Madison was immune from this suit, Tucker is as
well. Accordingly, the trial court should have granted defendants'
motion for judgment on the pleadings as to Defendant Tucker. We
note that if the plaintiffs had sued the employee individually, the
result might have been different.
For the foregoing reasons we reverse the decision of the
Superior Court and remand for action consistent with this opinion.
Reversed and remanded.
Judges WALKER and SMITH concur.
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