Appeal by defendants Barker, Schweitzer, and Hartford
Insurance Company from order entered 14 December 1999 by Judge
Catherine C. Eagles in Forsyth County Superior Court. Heard in the
Court of Appeals 15 February 2001.
Smith & Combs, by John R. Combs and Steven D. Smith, for
plaintiff-appellee.
Womble Carlyle Sandridge & Rice, by Allan R. Gitter and Stacey
M. Stone, for defendant-appellants.
MARTIN, Judge.
Plaintiff filed this action alleging claims against defendants
arising from events allegedly occurring while plaintiff was
incarcerated in the Forsyth County Jail. Plaintiff, who suffersfrom hemophilia, alleged that defendants failed to respond properly
to plaintiff's nose bleed, which ultimately caused him to be
hospitalized for more than ten days at Baptist Hospital in Winston-
Salem. Plaintiff alleged claims for relief for negligence,
violations of plaintiff's civil rights under Article I of the North
Carolina Constitution, and against defendants Barker and Schweitzer
for breach of their statutory duties and malfeasance in office.
Plaintiff alleged that defendant Hartford was the surety on the
sheriff's official bond.
Defendants Barker, Schweitzer, and Hartford, as sheriff's
surety, moved to dismiss plaintiff's first and second claims for
relief, alleging negligence and a violation of Article I of the
North Carolina Constitution, contending that public official's
immunity barred plaintiff's negligence claim, and that monetary
claims could not be brought in state court for violations of the
state constitution. The trial court granted defendants' motion to
dismiss plaintiff's second claim for relief under Article I of the
North Carolina Constitution but denied defendants' motion to
dismiss the negligence claim against defendants Barker, Schweitzer,
and Hartford. Defendants appeal the trial court's denial of their
motion to dismiss the first claim for relief.
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[1]Defendants have appealed from an interlocutory order.
Generally, no immediate appeal lies from an interlocutory order.
Auction Co. v. Myers, 40 N.C. App. 570, 253 S.E.2d 362 (1979).
However, when the order appealed from affects a substantial right,
a party has a right to an immediate appeal. N.C. Gen. Stat. § 1-277(a); 7A-27(d)(1). Orders denying dispositive motions based on
public official's immunity affect a substantial right and are
immediately appealable.
Taylor v. Ashburn, 112 N.C. App. 604, 436
S.E.2d 276 (1993),
disc. review denied, 336 N
.C. 77, 445 S.E.2d 46
(1994). We review the appeal of interlocutory orders in these
cases because “'the essence of absolute immunity is its possessor's
entitlement not to have to answer for his conduct in a civil
damages action.'”
Epps v. Duke University, Inc., 122 N.C. App.
198, 201, 468 S.E.2d 846, 849,
disc. review denied, 344 N.C. 436,
476 S.E.2d 115 (1996) (citations omitted). Thus, defendants'
appeal is properly before us.
[2] In reviewing the denial of a motion to dismiss pursuant to
N.C.R. Civ. P. 12(b)(6), “[t]he question for the court is whether,
as a matter of law, the allegations of the complaint, treated as
true, are sufficient to state a claim upon which relief may be
granted under some legal theory, whether properly labeled or not.”
Miller v. Nationwide Mutual Ins. Co., 112 N.C. App. 295, 300, 435
S.E.2d 537, 541 (1993) (citation omitted),
disc. review denied, 335
N.C. 770, 442 S.E.2d 519 (1994). Under this rule, a claim is
properly dismissed “'if no law exists to support the claim made, if
sufficient facts to make out a good claim are absent, or if facts
are disclosed which will necessarily defeat the claim.'”
Claggett
v. Wake Forest University, 126 N.C. App. 602, 608, 486 S.E.2d 443,
446 (1997) (citation omitted). The issue before this Court is
whether public official's immunity bars plaintiff's claims alleging
negligence against defendants Barker and Schweitzer. We hold that,
to the extent of the bond required by G.S. § 58-76-5, publicofficial's immunity does not bar plaintiff's claim, and we
therefore affirm the trial court's denial of defendants' motion to
dismiss.
In general, “the doctrine of governmental, or sovereign,
immunity bars actions against,
inter alia, the state, its counties,
and its public officials sued in their official capacity.”
Messick
v. Catawba County, N.C., 110 N.C. App. 707, 714, 431 S.E.2d 489,
493,
disc. review denied, 334 N.C. 621, 435 S.E.2d 336 (1993). A
public official sued in his official capacity “operates against the
public entity itself, as the public entity is ultimately
financially responsible for the compensable conduct of its
officers.”
Epps, 112 N.C. App. at 203, 468 S.E.2d at 850.
Governmental or sovereign immunity “prevents the State or its
agencies from being sued without its consent.”
Corum v. University
of North Carolina, 97 N.C. App. 527, 533, 389 S.E.2d 596, 599
(1990),
affirmed in part, reversed in part on other grounds, 330
N.C. 761, 413 S.E.2d 276 (1992). The doctrine of governmental
immunity “is inapplicable, however, where the state has consented
to suit or has waived its immunity through the purchase of
liability insurance.”
Messick, 110 N.C. App. at 714, 468 S.E.2d at
493-94. Defendants contend public official's immunity bars
plaintiff's claims against defendants in their official capacities.
Pursuant to statute, however, public officers may be sued in their
official capacities:
Every person injured by the neglect,
misconduct, or misbehavior in office of anyclerk of the superior court, register,
surveyor, sheriff, coroner, county treasurer,
or other officer, may institute a suit or
suits against said officer or any of them and
their sureties upon their respective bonds for
the due performance of their duties in office
in the name of the State . . . .
N.C. Gen. Stat. § 58-76-5. “By expressly providing for this cause
of action, the General Assembly has abrogated common law immunity
where a public official causes injury through 'neglect, misconduct,
or misbehavior' in the performance of his official duties or under
color of his office.”
Slade v. Vernon, 110 N.C. App. 422, 427-28,
429 S.E.2d 744, 747 (1993). The statutory requirement of a bond
removes the sheriff “from the protective embrace of governmental
immunity, but only where the surety is joined as a party to the
action.”
Messick, 110 N.C. App. at 715, 431 S.E.2d at 494. Our
courts have recognized that both sheriffs and deputy sheriffs are
public officers.
Id. at 718, 431 S.E.2d at 496.
In the present case, plaintiff brings suit against defendants
Barker and Schweitzer: “Ronald Barker, Forsyth County Sheriff; and
Hartford Insurance Company, Surety; Michael Schweitzer, chief
jailer of Forsyth County, in their official capacities.” The
complaint identifies defendant Barker as “Sheriff” of “Forsyth
County,” “a duly elected official” who “exercises authority over
local confinement facilities, including . . . the supervision of
personnel of the Forsyth County Jail”; and identifies defendant
Schweitzer as Chief Jailer with supervisory authority over
personnel at the Forsyth County Jail. Moreover, the complaint
alleges: 31. The acts or admissions and or negligence
of the Forsyth County Jail personnel who
failed to render appropriate medical care to
the Plaintiff are imputed to Michael
Schweitzer, Chief Jailer Forsyth County,
Ronald Barker Sheriff of Forsyth County,
operating in their official capacity; and
Forsyth County.
According to the complaint, therefore, defendants Barker and
Schweitzer were public officers acting in their official
capacities. Plaintiff also alleged that defendant Barker had
furnished a bond pursuant to G.S. § 162-8 and G.S. § 58-76-5, and
had purchased the bond from defendant Hartford, and joined Hartford
as surety. Defendants, accordingly, are not immune from suit
because of the existence of the bond which operates to remove the
protection of governmental immunity. The denial of defendants'
motion to dismiss plaintiff's first claim for relief is affirmed.
Affirmed.
Judges TIMMONS-GOODSON and TYSON concur.
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