DocketNumber: I.C. NO. TA-13658
Judges: DECISION AND ORDER FOR THE FULL COMMISSION BY J. RANDOLPH WARD, COMMISSIONER.
Filed Date: 2/10/1997
Status: Precedential
Modified Date: 7/6/2016
The Deputy Commissioner denied defendant's motion to dismiss plaintiff's claim pursuant to Rule 12(b)(1), (2) and (6) of the North Carolina Rules of Civil Procedure and N.C. Gen. Stat. §
Upon review of the allegations of the pleadings and the reasonable inferences drawn therefrom, in the light most favorable to the plaintiff, with reference to the arguments of counsel, the Full Commission concludes as a matter of law that the affidavit states a claim within the jurisdiction of the Commission pursuant to the State Tort Claims Act (hereinafter, the Act); and, that the claim was filed within the three year limitation of the Act; but that the claimant has incorrectly identified as defendants parties not liable for awards under the Act, but may, within a reasonable time, amend his complaint to properly show jurisdiction by naming as defendant the agency of the State that his allegations implicate as the liable party.
Jurisdiction of the Claim and the Parties
The Act provides that the Commission is "constituted a court" to hear claims of negligence against "the State Board of Education, the Board of Transportation, and all other departments, institutions and agencies of the State"; community colleges, technical colleges, and the N.C. High School Athletic Association, Inc., which are "deemed State agencies for the purpose of this Article"; and, claims against local Boards of Education that arise from the operation or maintenance of their buses and other school transportation vehicles. N.C. Gen. Stat. §§
While counties and municipalities are "subordinate divisions" of the State, they are not "agencies" of the State as the term is used in the statutes generally, or the State Tort Claims Act in particular, and thus cannot be sued in the Industrial Commission except as that Act specifically provides. N.C. Gen. Stat. §
"With regard to sewage treatment and disposal and the issuance of improvement permits, local health departments act as agents of the State . . . .". Carter v. Stanly County,supra, citing EEE-ZZZ Lay Drain Co. v. N.C. Dept. ofHuman Resources,
However, Iredell County and its Health Department are not proper defendants under the Tort Claims Act. First, and in any forum, a department or agency of a local government is not by itself an entity that may be sued separate and apart from the local government. Consequently, the Iredell County Department of Health should be dismissed as a defendant. Coleman v.Cooper,
Public Duty Doctrine
The following discussion concerning the public duty doctrine was written prior to the filing on February 4, 1997 of the Court of Appeals' decisions in Hunt v. N.C. Dept. of Labor, (No. COA96-312) and Stone, et al. v. N.C. Dept. ofLabor, (No. COA96-207), which hold that "the public duty doctrine is inapplicable in suits brought under the Tort Claims Act", on the principle that "`negligence is determined by the same rules as those applicable to private parties'". That principle is "implicit in the language of the Act itself", which provides that the State will be liable "where . . . if a private person, would be liable to the claimant in accordance with the laws of North Carolina." N.C. Gen. Stat. §
The defendant also moved to dismiss the complaint per Rule 12(b)(6) on the ground that plaintiff's allegations failed to state a claim in light of the Public Duty Doctrine. The doctrine is not a species of sovereign immunity, although it is applicable only to governments, with similar effect, since it obviates the waiver of immunity. While our Courts have rarely stated it specifically, it is clear from the cases in which this common law rule has been applied, and not applied, that the Public Duty Doctrine is applicable when the plaintiff has been victimized by some third party that a public employee or agency was empowered to restrain, and the plaintiff seeks damages on the theory that the public employee or agency negligently failed to prevent his or her loss or injury. The doctrine holds that, when the governmental function is carried out for the benefit of the general public, there is no breach of duty to any individual that the effort fails to protect. "In general, there is no duty to prevent harm to another by the conduct of a third person."Hedrick v. Raines,
In support of the Rule 12(b)(6) motion, the Attorney General cites the recent case of Sinning v. Clark,
In the present case, plaintiff alleges he purchased a residence in 1986 in reliance on a sanitarian's pre-closing inspection that revealed no problems. In 1994, another sanitarian inspected the property, apparently in preparation for plaintiff's resale of it, and reported that the septic system had defects as a result of "fundamental changes [since initial installation] . . . not authorized by existing permit rendering the system in violation of State law" which plaintiff alleges either existed at the time he purchased the property, or not at all. Assuming the truth of his allegations, Mr. Becker was not damaged by the shoddy workmanship — he did not own the property when it was done. Rather, he alleges that he was injured when he purchased the property based on the negligently obtained or rendered opinion of the Iredell County's sanitarian that this property was free from such defects. Alternatively, the second inspection and report were wrong, and the sanitarian making them thus inflicted needless repair or replacement costs, spoiled his sale, etc. Thus, the immediate cause of the injury was not a third party, but an alleged agent of a State department. The State contends that the sanitarian was operating under a county program, outside of the State mandated or controlled program that renders him their agent. However, in light of the broad statement inCarter cited above, and the method of scrutinizing pleadings offered by the non-moving party to resolve Rule 12(b)(6) motions, that question must be resolved after findings of fact. See also Cates, supra.
Statute of Limitations
Finally, the State argues that the plaintiff's claim was not filed "within three years after the accrual of such claim", as required by the State Tort Claims Act. N.C. Gen. Stat. §
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ORDER
Consequently, IT IS ORDERED that the defendant's motions to dismiss the claim are DENIED; and, that the plaintiff shall have 30 days from the date of this Order to amend the complaint to substitute department(s) or agencies of the State specified in N.C. Gen. Stat. §
S/ _________________ J. RANDOLPH WARD COMMISSIONER
CONCURRING:
S/ _________________ DIANNE C. SELLERS COMMISSIONER
S/ _________________ COY M. VANCE COMMISSIONER
JRW:md 11/13/96
Nello L. Teer Co. v. North Carolina State Highway Commission , 265 N.C. 1 ( 1965 )
Wilson v. McLeod Oil Co., Inc. , 327 N.C. 491 ( 1990 )
Raftery v. Wm. C. Vick Construction Co. , 291 N.C. 180 ( 1976 )
MacFarlane v. North Carolina Wildlife Resources Commission , 244 N.C. 385 ( 1956 )
Teachy v. Coble Dairies, Inc. , 306 N.C. 324 ( 1982 )
Wirth v. Bracey , 258 N.C. 505 ( 1963 )
Lyon & Sons, Inc. v. N. C. State Board of Education , 238 N.C. 24 ( 1953 )
Givens v. Sellars , 273 N.C. 44 ( 1968 )
Braswell v. Braswell , 330 N.C. 363 ( 1991 )
Hedrick v. Rains , 344 N.C. 729 ( 1996 )
Barney v. North Carolina State Highway Commission , 282 N.C. 278 ( 1972 )
Branch Banking & Trust Co. v. WILSON COUNTY BD. OF ED. , 251 N.C. 603 ( 1960 )
Collins v. North Carolina Parole Commission , 344 N.C. 179 ( 1996 )
Northwestern Distributors, Inc. v. NC Dept. of Transp. , 298 N.C. 567 ( 1979 )
Coleman v. Cooper , 89 N.C. App. 188 ( 1988 )
Wilson v. McLeod Oil Co., Inc. , 95 N.C. App. 479 ( 1989 )
EEE-ZZZ Lay Drain Co. v. North Carolina Department of Human ... , 108 N.C. App. 24 ( 1992 )
Sinning v. Clark , 119 N.C. App. 515 ( 1995 )
Northwestern Distributors, Inc. v. N. C. Department of ... , 41 N.C. App. 548 ( 1979 )
Vaughn v. North Carolina Department of Human Resources , 296 N.C. 683 ( 1979 )