{ "id": 8523272, "name": "VIRGINIA R. JONES, Executrix of the Estate of CRISMAN S. JONES v. PITT COUNTY MEMORIAL HOSPITAL, INC., EAST CAROLINA UNIVERSITY SCHOOL OF MEDICINE, LEO WAIVERS, ROBERT C. TURNER, JAMES HOLLERAN, ROBERT BRUNER, JANICE BUSHER, DAVID T. WADDELL, LYNNE CHAPMAN, JAMES G. PEDEN, MICHAEL B. KODROFF, TIMOTHY J. CLARK, RICHARD RUMLEY, CINDY SMITH, JOHN HOLT, MOLLY BURGOYNE and B. LISA BURG", "name_abbreviation": "Jones v. Pitt County Memorial Hospital, Inc.", "decision_date": "1991-12-03", "docket_number": "No. 9125SC83", "first_page": "613", "last_page": "618", "citations": [ { "type": "official", "cite": "104 N.C. App. 613" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "33 ALR3d 703", "category": "reporters:specialty", "reporter": "A.L.R. 3d", "opinion_index": -1 }, { "cite": "91 N.C. App. 186", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525025 ], "opinion_index": -1, "case_paths": [ "/nc-app/91/0186-01" ] }, { "cite": "399 S.E.2d 326", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "opinion_index": 0 }, { "cite": "327 N.C. 633", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2499042, 2495332, 2498001, 2496891, 2495677 ], "year": 1990, "opinion_index": 0, "case_paths": [ "/nc/327/0633-01", "/nc/327/0633-04", "/nc/327/0633-03", "/nc/327/0633-02", "/nc/327/0633-05" ] }, { "cite": "394 S.E.2d 683", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "opinion_index": 0 }, { "cite": "100 N.C. App. 188", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526524 ], "year": 1990, "pin_cites": [ { "page": "189" } ], "opinion_index": 0, "case_paths": [ "/nc-app/100/0188-01" ] }, { "cite": "328 S.E.2d 437", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "313 N.C. 200", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4721484 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/nc/313/0200-01" ] }, { "cite": "314 S.E.2d 794", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "page": "797" } ], "opinion_index": 0 }, { "cite": "68 N.C. App. 191", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526861 ], "year": 1984, "pin_cites": [ { "page": "196" } ], "opinion_index": 0, "case_paths": [ "/nc-app/68/0191-01" ] }, { "cite": "299 S.E.2d 618", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1983, "pin_cites": [ { "page": "627" }, { "page": "626" }, { "page": "627" } ], "opinion_index": 0 }, { "cite": "307 N.C. 522", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564079 ], "weight": 3, "year": 1983, "pin_cites": [ { "page": "537-38" }, { "page": "536" }, { "page": "538" } ], "opinion_index": 0, "case_paths": [ "/nc/307/0522-01" ] }, { "cite": "42 U.S.C. \u00a7 1983", "category": "laws:leg_statute", "reporter": "U.S.C.", "opinion_index": 0 }, { "cite": "107 L.Ed.2d 19", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1989, "opinion_index": 0 }, { "cite": "493 U.S. 808", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11336832, 11337474, 11337027, 11337289, 11337100, 11337389, 11337554 ], "year": 1989, "opinion_index": 0, "case_paths": [ "/us/493/0808-01", "/us/493/0808-06", "/us/493/0808-02", "/us/493/0808-04", "/us/493/0808-03", "/us/493/0808-05", "/us/493/0808-07" ] }, { "cite": "377 S.E.2d 229", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "opinion_index": 0 }, { "cite": "323 N.C. 706", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2562472, 2561738, 2562828 ], "year": 1989, "opinion_index": 0, "case_paths": [ "/nc/323/0706-02", "/nc/323/0706-03", "/nc/323/0706-01" ] }, { "cite": "371 S.E.2d 503", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1988, "pin_cites": [ { "page": "507", "parenthetical": "emphasis added" } ], "opinion_index": 0 }, { "cite": "143 S.E.2d 247", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1965, "pin_cites": [ { "page": "253" }, { "page": "253" } ], "opinion_index": 0 }, { "cite": "265 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574297 ], "year": 1965, "pin_cites": [ { "page": "9" } ], "opinion_index": 0, "case_paths": [ "/nc/265/0001-01" ] }, { "cite": "118 S.E.2d 792", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1961, "pin_cites": [ { "page": "795" } ], "opinion_index": 0 }, { "cite": "254 N.C. 168", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8624863 ], "year": 1961, "pin_cites": [ { "page": "172-73" } ], "opinion_index": 0, "case_paths": [ "/nc/254/0168-01" ] }, { "cite": "91 N.C. App. 186", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525025 ], "weight": 2, "pin_cites": [ { "page": "192" } ], "opinion_index": 0, "case_paths": [ "/nc-app/91/0186-01" ] } ], "analysis": { "cardinality": 575, "char_count": 11484, "ocr_confidence": 0.76, "pagerank": { "raw": 1.2229152414511328e-07, "percentile": 0.5985580626515291 }, "sha256": "e23185ea7f5751a78d53528eb7b17a6586b03f652936f421bcbb8c3be1628a4b", "simhash": "1:4f1d80461d6b19ea", "word_count": 1853 }, "last_updated": "2023-07-14T22:39:04.224888+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges Parker and Wynn concur." ], "parties": [ "VIRGINIA R. JONES, Executrix of the Estate of CRISMAN S. JONES v. PITT COUNTY MEMORIAL HOSPITAL, INC., EAST CAROLINA UNIVERSITY SCHOOL OF MEDICINE, LEO WAIVERS, ROBERT C. TURNER, JAMES HOLLERAN, ROBERT BRUNER, JANICE BUSHER, DAVID T. WADDELL, LYNNE CHAPMAN, JAMES G. PEDEN, MICHAEL B. KODROFF, TIMOTHY J. CLARK, RICHARD RUMLEY, CINDY SMITH, JOHN HOLT, MOLLY BURGOYNE and B. LISA BURG" ], "opinions": [ { "text": "GREENE, Judge.\nPlaintiff appeals from an order entered 6 September 1990 dismissing plaintiff\u2019s claim against defendant East Carolina University School of Medicine for lack of jurisdiction.\nPlaintiff Virginia Jones, co-executor of the.estate of her deceased husband Crisman S. Jones, instituted this wrongful death action on 11 June 1990 in Caldwell County Superior Court against Pitt County Memorial Hospital, Inc., East Carolina University (ECU) School of Medicine, eight physicians serving on both the faculty of ECU School of Medicine and on the staff at Pitt County Memorial Hospital, and seven residents in training at Pitt County Memorial Hospital. Plaintiff\u2019s complaint alleges negligence on the part of the named defendants in the care and treatment of her husband, who died on 10 June 1988 while a patient at Pitt County Memorial Hospital.\nOn 31 July 1990, defendant ECU School of Medicine filed a motion to dismiss plaintiff\u2019s claim on the grounds that the suit against it is barred by the doctrine of sovereign immunity, that the Caldwell County Superior Court lacks jurisdiction over the action, and that the complaint fails to state a claim upon which relief can be granted. On 6 September 1990, the trial court entered an order dismissing plaintiff\u2019s claim against ECU School of Medicine. The court found that ECU School of Medicine is a constituent institution of the University of North Carolina pursuant to N.C.G.S. \u00a7\u00a7 116-4 (1987) and 116-40.4 (1987), and this finding is not disputed by the parties. The court concluded that the North Carolina Tort Claims Act, N.C.G.S. \u00a7 143-291 (1990) et seq., applies to plaintiffs claim against this defendant and that, accordingly, exclusive original jurisdiction of the claim lies with the North Carolina Industrial Commission. The trial court\u2019s order dismissed plaintiff\u2019s claim against ECU School of Medicine without prejudice to file a new claim against said defendant within one year of the filing of the order.\nThe dispositive issues are whether I) a state superior court has jurisdiction to adjudicate tort claims against a constituent institution of the University of North Carolina; and II) the trial court erred in dismissing plaintiff\u2019s claim without prejudice to plaintiff to file a new claim against ECU School of Medicine within one year.\nI\nPlaintiff contends that the trial court erred in dismissing her claim against defendant ECU School of Medicine because N.C.G.S. \u00a7 116-3 (1987) provides that the University of North Carolina \u201cshall be able and capable in law to sue and be sued in all courts whatsoever.\u201d Plaintiff argues that, as a constituent institution of The University of North Carolina (UNC), see N.C.G.S. \u00a7 116-2(4) (1987), Section 116-3 applies to defendant ECU School of Medicine. In plaintiff\u2019s view, Section 116-3 operates as a clear and unambiguous abolition by our General Assembly of the doctrine of sovereign immunity as it pertains to UNC and its constituent institutions, and thus allows plaintiff\u2019s tort action in the Caldwell County Superior Court. We disagree.\nIt is well established in North Carolina that the State is immune from suit unless and until it has expressly consented to be sued. Great Am. Ins. Co. v. Gold, Comm\u2019r of Ins., 254 N.C. 168, 172-73, 118 S.E.2d 792, 795 (1961). It is for the General Assembly to determine when and under what circumstances the State may be sued, id., and even when legislative action is taken, statutes enacted in derogation of sovereign immunity must be strictly construed. Nello L. Teer Co. v. State Highway Comm\u2019n, 265 N.C. 1, 9, 143 S.E.2d 247, 253 (1965). The doctrine of sovereign immunity applies not only to suits in which the State is a named defendant, but also to actions against its departments, institutions, and agencies. Id. at 9, 143 S.E.2d at 253; see also Truesdale v. University of North Carolina, 91 N.C. App. 186, 371 S.E.2d 503 (1988), appeal dismissed and disc. rev. denied, 323 N.C. 706, 377 S.E.2d 229 (1989), cert. denied, 493 U.S. 808, 107 L.Ed.2d 19 (1989).\nThis Court addressed a question nearly identical to the one presented here in Truesdale v. University of North Carolina, supra. The plaintiff there alleged federal constitutional violations and violations of 42 U.S.C. \u00a7 1983 against the University of North Carolina and one of its constituent institutions, Winston-Salem State University, where plaintiff was employed as a security officer. Like plaintiff in the instant case, the plaintiff in Truesdale cited the \u201cable and capable in law to sue and be sued in all courts whatsoever\u201d language of N.C.G.S. \u00a7 116-3 in support of her contention that our General Assembly has abolished sovereign immunity insofar as UNC and its constituent institutions are concerned. This Court disagreed, stating:\nThe purpose and intent of G.S. 116-3 is to allow UNC and its constituent institutions to sue and be sued in their own names but only as otherwise specifically provided by law. We do not believe that the General Assembly intended to abolish the doctrine of sovereign immunity.\nTruesdale, 91 N.C. App. at 192, 371 S.E.2d at 507 (emphasis added). We held that, since no other law specifically provided for discrimination suits against UNC and its constituent institutions, the doctrine of sovereign immunity barred plaintiff\u2019s claims.\nPlaintiff contends that Truesdale is distinguishable from the case at bar since Truesdale involved a discrimination action against a UNC constituent institution, not a tort claim such as the one involved here. This, however, is a distinction without a difference. Truesdale unequivocally holds without regard to the type of action involved that Section 116-3 allows UNC and its constituent institutions to be sued only as otherwise specifically provided by law, and we are bound by it. Moreover, our Supreme Court in Guthrie v. State Ports Authority, 307 N.C. 522, 537-38, 299 S.E.2d 618, 627 (1983), held that a statute with language similar to that of Section 116-3 does not operate as an express waiver of sovereign immunity. See N.C.G.S. \u00a7 143B-454(1) (1990) (vesting the North Carolina Ports Authority, a State agency, with the power to \u201csue or be sued\u201d).\nHowever, this case is different from Truesdale in that our General Assembly has \u201cspecifically provided\u201d in the State Tort Claims Act (the Act) for actions in tort against the State and its agencies and institutions. Under the Act, jurisdiction is vested in the North Carolina Industrial Commission to hear claims against the State for personal injuries sustained by any person as a result of a State employee\u2019s negligence while acting within the scope of his employment. Guthrie, 307 N.C. at 536, 299 S.E.2d at 626. When read together, the language of the Act and of Section 116-3, making UNC and its constituent institutions \u201cable and capable in law to sue and be sued in all courts whatsoever,\u201d evidence a legislative intent that all tort claims against UNC and its constituent institutions for money damages be brought before the North Carolina Industrial Commission. See Guthrie, 307 N.C. at 538, 299 S.E.2d at 627. Accordingly, the trial court correctly concluded that it lacked jurisdiction to adjudicate plaintiff\u2019s claim against ECU School of Medicine.\nII\nDefendant argues that the trial court erred in dismissing plaintiff\u2019s claim without prejudice because 1) the two-year statute of limitations applicable to plaintiff\u2019s claim, N.C.G.S. \u00a7 143-299 (1990), ran before the entry of the trial court\u2019s order and \u201cno one could extend it\u201d; and 2) even if the statute had not run, the trial court had no jurisdiction to take action extending the statute of limitations and any such action is null and void. Defendant seeks modification of the order to dismissal \u201cwith prejudice.\u201d\nHowever, defendant has not properly preserved for appellate review any objection that it may have to the trial court\u2019s order in this case. Defendant failed to appeal or cross appeal pursuant to R. App. P. 3, or to make any cross-assignments of error pursuant to R. App. P. 10(d), or to present for review in its brief any questions raised by cross-assignments of error (under Rule 10(d)) pursuant to R. App. P. 28(c). Moreover, because defendant does not contend that the trial court\u2019s order deprives it of additional bases supporting the court\u2019s order, but rather, that certain portions of the order are erroneous, the proper means by which to raise such an attack would have been an independent appeal pursuant to Rule 3. See Whedon v. Whedon, 68 N.C. App. 191, 196, 314 S.E.2d 794, 797 (1984), rev\u2019d on other grounds, 313 N.C. 200, 328 S.E.2d 437 (1985). Rule 3 is jurisdictional and if its requirements are not complied with, the appeal must be dismissed. Currin-Dillehay Bldg. Supply, Inc. v. Frazier, 100 N.C. App. 188, 189, 394 S.E.2d 683, appeal dismissed and disc. rev. denied, 327 N.C. 633, 399 S.E.2d 326 (1990). Accordingly, defendant\u2019s contentions regarding error in the trial court\u2019s order will not be addressed by this Court.\nFor the foregoing reasons, we affirm the decision of the trial court dismissing without prejudice plaintiff\u2019s claim against defendant ECU School of Medicine.\nAffirmed.\nJudges Parker and Wynn concur.", "type": "majority", "author": "GREENE, Judge." } ], "attorneys": [ "Law Offices of Grover C. McCain, Jr., by Grover C. McCain, Jr. and Kenneth B. Oettinger, for plaintiff-appellant.", "Lacy H. Thornburg, Attorney General, by D. Sigsbee Miller, Assistant Attorney General, for the State." ], "corrections": "", "head_matter": "VIRGINIA R. JONES, Executrix of the Estate of CRISMAN S. JONES v. PITT COUNTY MEMORIAL HOSPITAL, INC., EAST CAROLINA UNIVERSITY SCHOOL OF MEDICINE, LEO WAIVERS, ROBERT C. TURNER, JAMES HOLLERAN, ROBERT BRUNER, JANICE BUSHER, DAVID T. WADDELL, LYNNE CHAPMAN, JAMES G. PEDEN, MICHAEL B. KODROFF, TIMOTHY J. CLARK, RICHARD RUMLEY, CINDY SMITH, JOHN HOLT, MOLLY BURGOYNE and B. LISA BURG\nNo. 9125SC83\n(Filed 3 December 1991)\n1. State \u00a7 4.2 (NCI3d)\u2014 wrongful death \u2014 sovereign immunity\u2014 Tort Claims Act\nThe trial court correctly concluded that it lacked jurisdiction to adjudicate plaintiff\u2019s claim against the ECU School of Medicine.' Truesdale v. University of North Carolina, 91 N.C. App. 186, unequivocally holds without regard to the type of action involved that N.C.G.S. \u00a7 116-3 allows UNC and its constituent institutions to be sued only as otherwise specifically provided by law. When read together, the language of the Tort Claims Act and N.C.G.S. \u00a7 116-3 evidence a legislative intent that all tort claims against UNC and its constituent institutions for money damages be brought before the North Carolina Industrial Commission.\nAm Jur 2d, Municipal, County, School, and State Tort Liability \u00a7\u00a7 42, 649.\nModern status of doctrine of sovereign immunity as applied to public schools and institutions. 33 ALR3d 703.\n2. Appeal and Error \u00a7 342 (NCI4th)\u2014 wrongful death action-dismissed without prejudice \u2014 appellee\u2019s objection \u2014 not properly preserved\nDefendant\u2019s contentions regarding dismissal of plaintiff\u2019s wrongful death action without prejudice were not addressed on appeal where defendant failed to appeal or cross-appeal pursuant to N.C. R. App. P. 3, make any cross-assignments of error pursuant to N.C. R. App. P. 10(d), or to present for review in its brief any questions raised by cross-assignments of error pursuant to N.C. R. App. P. 28(c).\nAm Jur 2d, Appeal and Error \u00a7\u00a7 545, 648-650, 653-654, 657-658.\nAPPEAL by plaintiff from order entered 6 September 1990 in CALDWELL County Superior Court by Judge Claude S. Sitton. Heard in the Court of Appeals 5 November 1991.\nLaw Offices of Grover C. McCain, Jr., by Grover C. McCain, Jr. and Kenneth B. Oettinger, for plaintiff-appellant.\nLacy H. Thornburg, Attorney General, by D. Sigsbee Miller, Assistant Attorney General, for the State." }, "file_name": "0613-01", "first_page_order": 641, "last_page_order": 646 }