Jackson v. Housing Authority of the City of High Point , 316 N.C. 259 ( 1986 )

BILLINGS, Justice.

The plaintiff filed an action seeking recovery against the Housing Authority of the City of High Point for the death of Mary Magdalene Jackson. On 19 February 1978 Mrs. Jackson was found dead in her apartment in the Clara Cox Apartments, a low-income housing project owned and operated by the defendant. An autopsy report indicated that the cause of death was carbon monoxide poisoning. The plaintiff alleged that carbon monoxide backed up into the apartment because the chimney pipe from the natural gas heater was blocked by a bird’s nest, a bird carcass and other debris. She based her right to recover on theories of negligence, strict liability for violation of N.C.G.S. § 42-42, breach of express and implied warranties, and breach of contract. Included in the negligence and breach of warranty claims were demands for punitive damages based upon allegations of wilful, wanton and gross negligence and intentional, malicious, wilful or wanton breach of warranty.

In its answer, the defendant raised, inter alia, the defense, pursuant to N.C.G.S. § 1A-1, Rule 12(b)(6), that the complaint failed to state a claim upon which relief can be granted, and on 10 November 1982 it moved to dismiss the punitive damages claims. The matter came on for trial before Judge Washington at the 15 November 1982 Civil Jury Session of the Superior Court of Guilford County, High Point Division, at which time the trial judge allowed the Rule 12(b)(6) motion to dismiss the claims for punitive damages. At the close of the plaintiffs evidence, the trial court allowed the defendant’s motions for directed verdict “on the plaintiffs claims for gross [sic] willful and wanton negligence, implied warranty, and express warranty.” At the close of all the evidence, the trial court directed a verdict for the defendant on all claims.

On appeal to the Court of Appeals, that court reversed dismissal of plaintiff’s claims based on negligence and implied warranty and of the claims for punitive damages. Judge Webb dissented from “that part of the majority opinion which holds it was error to dismiss plaintiff’s claim for punitive damages.” Id. at 374, 326 S.E. 2d at 301. He further said that, since in his opinion the evidence would not support a. verdict of maliciousness, wilfulness, wantonness or gross negligence, the court did not have to decide whether punitive damages may be had in a wrongful death claim against a municipal corporation. The defendant filed notice of appeal and a petition for discretionary review of issues not raised by the dissent. The petition for discretionary review was denied.

In her brief and at oral argument, the plaintiff contended that, pursuant to Appellate Rule 16(b), only the question of sufficiency of the evidence to support an award of punitive damages is before this Court, and we should not consider whether under the law a claim for punitive damages may be maintained against a municipal corporation in a wrongful death action. The defendant contends that the question of sufficiency of the evidence was never before the Court of Appeals since the punitive damage claims had been dismissed pursuant to a Rule 12(b)(6) motion prior to trial, and that the trial judge’s subsequent directed verdict on that portion of the case was surplusage. Thus, it contends, the Court of Appeals could only determine the legal sufficiency of the claim alleged in the complaint, and the dissent from “that part of the majority opinion which holds it was error to dismiss plaintiffs claim for punitive damages” necessarily was a dissent from reversal of the Rule 12(b)(6) dismissal.

While we concede that there has been some procedural confusion in this matter, it also is apparent that both parties appeared in this Court prepared to argue the question of the legal availability of a punitive damages claim against a municipal corporation in a wrongful death action. Thus, to the extent that there is technical merit to the plaintiffs contention, we have chosen to exercise our authority under Appellate Rule 2 to consider the question, since it was fully argued by both parties.

In Long v. City of Charlotte, 306 N.C. 187, 293 S.E. 2d 101 (1982) this Court held that “in the absence of statutory provisions to the contrary, municipal corporations are immune from punitive damages” (id. at 208, 293 S.E. 2d at 115) regardless of whether the function of the municipality is governmental or proprietary.^* In Cox v. Kinston, 217 N.C. 391, 8 S.E. 2d 252 (1940) and Wells v. Housing Authority, 213 N.C. 744, 197 S.E. 693 (1938) we held that a public housing authority is a municipal corporation. Thus, there is no question but that the defendant is immune from a claim for punitive damages in a common law negligence action.

The plaintiff contends that by specifically including punitive damages as an item of damages recoverable in a wrongful death action under N.C.G.S. § 28A-18-2, the General Assembly has provided a statutory exception to the common law prohibition on punitive damages against municipal corporations. We agree and affirm the decision of the Court of Appeals.

The plaintiff contends that “[although punitive damages are generally not recoverable against a municipal corporation, they are recoverable where expressly authorized by statute,” and that since punitive damages are expressly authorized in N.C.G.S. § 28A-18-2, they may be recovered from a municipal corporation in an action under the statute. Thus, the plaintiff would have us construe the Long decision to mean that the exception to the common law prohibition exists whenever a statute authorizes punitive damages, not only when the statute expressly authorizes the recovery of punitive damages against a municipal corporation. We do not so read the Long decision.

The phrasing of the rule prohibiting punitive damages employed by the plaintiff is not the phrasing of this Court’s holding in Long. Even if there is some ambiguity in the statement employed by the plaintiff, which is taken from an early portion of the Court’s discussion in Long of the rule of law, the actual holding of the Court is not subject to a similar ambiguity. That holding is that “in the absence of statutory provisions to the contrary, municipal corporations are immune from punitive damages.” Long v. City of Charlotte, 306 N.C. at 208, 293 S.E. 2d at 115. This clearly states that the statutory provision must remove the immunity of municipal corporations, not merely provide for punitive damages, before the immunity of the common law is abrogated.

The plaintiff further contends that the immunity is statutorily abrogated when N.C.G.S. § 28A-18-2 is read in conjunction with N.C.G.S. § 12-3(6).

N.C.G.S. § 12-3 (1981), Rules for construction of statutes, provides inter alia that, “unless such construction would be inconsistent with the manifest intent of the General Assembly, . . . (6). . . The word ‘person’ shall extend and be applied to bodies politic and corporate, as well as to individuals, unless the context clearly shows to the contrary.”

Pertinent parts of N.C.G.S. § 28A-18-2 (1984) provide as follows:

(a) When the death of a person is caused by a wrongful act, neglect or default of another, such as would, if the injured person had lived, have entitled him to an action for damages therefor, the person or corporation that would have been so liable, and his or their personal representatives or collectors, shall be liable to an action for damages ....

(b) Damages recoverable for death by wrongful act include:

(5) Such punitive damages as the decedent could have recovered had he survived, and punitive damages for wrongfully causing the death of the decedent through maliciousness, wilful or wanton injury, or gross negligence;

[Emphasis added.]

We must assume that at the time the General Assembly enacted N.C.G.S. § 28A-18-2, it was aware of the rules of statutory construction contained in N.C.G.S. § 12-3(6), and that if it had intended a limitation on the word “person” at any place in N.C.G.S. § 28A-18-2, it would have so provided. In fact, no limitation is made, and there is no contention by the defendant that N.C.G.S. § 28A-18-2(a) does not apply to governmental entities such as municipal corporations. Therefore, a wrongful death action may be maintained against a municipal corporation.

Subdivision (b)(5) of N.C.G.S. § 28A-18-2 contains two provisions for punitive damages in a wrongful death action. The first of these is “[s]uch punitive damages as the decedent could have recovered had he survived.” Because the deceased could not have recovered punitive damages in a common law tort action for personal injuries against the municipality if she had survived, this portion of the statute does not authorize the recovery of punitive damages against a municipal corporation in a statutory action for wrongful death. However, the statute goes further and provides additionally for “punitive damages for wrongfully causing the death of the decedent through maliciousness, wilful or wanton injury, or gross negligence.”

By reading portions of N.C.G.S. § 12-3(6) into N.C.G.S. § 28A-18-2, we must construe that statute as follows:

(a) When the death of a person is caused by a wrongful act, neglect or default of another, such as would, if the injured person had lived, have entitled him to an action for damages therefor, the [body politic] or corporation that would have been so liable . . . shall be liable to an action for damages ....

(b) Damages recoverable for death by wrongful act include:

(5) . . . punitive damages for wrongfully causing the death of the decedent through maliciousness, wilful or wanton injury, or gross negligence.

Read in this fashion, the North Carolina Wrongful Death Act does contain a statutory provision providing for the recovery of punitive damages from bodies politic, which includes municipal corporations.

We recognize that the policy reasons set forth in the Long case for exempting municipal corporations from punitive damages claims may apply as well to actions for wrongful death as to actions for personal injury. However, the General Assembly has chosen to remove the immunity in case of wrongful death.

Because the claims for punitive damages were dismissed before trial, we do not consider whether the evidence offered at trial was sufficient to justify submission to the jury of the punitive damages claims. Although the plaintiff has not identified evidence which she would have introduced had the claims not been dismissed, we cannot assume that the dismissal which removed those issues from the trial did not have an effect upon the plaintiffs presentation of evidence.

The decision of the Court of Appeals reversing the dismissal of the plaintiffs claim for punitive damages is affirmed.

Affirmed.

* No question has been raised on this appeal about the general immunity of a municipal corporation from any liability in tort resulting from negligence in performing a governmental function, in the absence of waiver of immunity by the purchase of liability insurance. See N.C.G.S. § 160A-485.