{ "id": 11919120, "name": "GINGER YORK WHITAKER (RUTLEDGE), Administratrix of the Estate of JONATHAN WESLEY WHITAKER, a Minor, Plaintiff v. NC DEPARTMENT OF HUMAN RESOURCES, SOCIAL SERVICES COMMISSION, Defendant", "name_abbreviation": "Whitaker v. NC Department of Human Resources", "decision_date": "1996-02-20", "docket_number": "No. COA95-164", "first_page": "602", "last_page": "606", "citations": [ { "type": "official", "cite": "121 N.C. App. 602" } ], "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": "89 N.C. App. 188", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521115 ], "opinion_index": 0, "case_paths": [ "/nc-app/89/0188-01" ] }, { "cite": "159 S.E.2d 28", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1968, "pin_cites": [ { "parenthetical": "remand required to consider evidence in its true legal light" } ], "opinion_index": 0 }, { "cite": "272 N.C. 680", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574296 ], "year": 1968, "pin_cites": [ { "parenthetical": "remand required to consider evidence in its true legal light" } ], "opinion_index": 0, "case_paths": [ "/nc/272/0680-01" ] }, { "cite": "439 S.E.2d 185", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "189" } ], "opinion_index": 0 }, { "cite": "113 N.C. App. 440", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522851 ], "year": 1994, "pin_cites": [ { "page": "446" } ], "opinion_index": 0, "case_paths": [ "/nc-app/113/0440-01" ] }, { "cite": "463 S.E.2d 235", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "opinion_index": 0 }, { "cite": "342 N.C. 191", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 796106, 796012, 796081, 795953, 796029 ], "year": 1995, "opinion_index": 0, "case_paths": [ "/nc/342/0191-02", "/nc/342/0191-03", "/nc/342/0191-05", "/nc/342/0191-01", "/nc/342/0191-04" ] }, { "cite": "459 S.E.2d 295", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1995, "pin_cites": [ { "page": "297" } ], "opinion_index": 0 }, { "cite": "119 N.C.App. 589", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11916721 ], "year": 1995, "opinion_index": 0, "case_paths": [ "/nc-app/119/0589-01" ] }, { "cite": "408 S.E.2d 517", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "opinion_index": 0 }, { "cite": "329 N.C. 786", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2554116, 2554596, 2555557, 2554553, 2557083 ], "year": 1991, "opinion_index": 0, "case_paths": [ "/nc/329/0786-01", "/nc/329/0786-05", "/nc/329/0786-03", "/nc/329/0786-02", "/nc/329/0786-04" ] }, { "cite": "403 S.E.2d 577", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1991, "pin_cites": [ { "page": "580" }, { "page": "658" }, { "page": "581-582" } ], "opinion_index": 0 }, { "cite": "102 N.C. App. 660", "category": "reporters:state", "reporter": "N.C. App.", "weight": 2, "year": 1991, "pin_cites": [ { "page": "653" } ], "opinion_index": 0 }, { "cite": "252 S.E.2d 792", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "opinion_index": 0 }, { "cite": "296 N.C. 683", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8570021 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/nc/296/0683-01" ] } ], "analysis": { "cardinality": 487, "char_count": 9168, "ocr_confidence": 0.754, "pagerank": { "raw": 2.0446031217563963e-07, "percentile": 0.7490525509402286 }, "sha256": "b32e1cffb6adf84ece8aa202e2ab1e192ef998827c522f5c077714e52eaa9fc5", "simhash": "1:22e318682d29acd4", "word_count": 1508 }, "last_updated": "2023-07-14T20:54:48.563497+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges EAGLES and MARTIN, John C., concur." ], "parties": [ "GINGER YORK WHITAKER (RUTLEDGE), Administratrix of the Estate of JONATHAN WESLEY WHITAKER, a Minor, Plaintiff v. NC DEPARTMENT OF HUMAN RESOURCES, SOCIAL SERVICES COMMISSION, Defendant" ], "opinions": [ { "text": "ARNOLD, Chief Judge.\nPlaintiff argues that the Commission erred by granting defendant\u2019s motion for summary judgment. We agree.\nIn Vaughn v. Dept. of Human Resources, 296 N.C. 683, 252 S.E.2d 792 (1979), the North Carolina Supreme Court found an agency relationship between the DHR and the Durham County DSS and allowed the plaintiff to recover on the theory of negligence. Plaintiff brought an action under the Tort Claims Act against the DHR for the negligence of the Director of the Durham County DSS and his staff. She asserted that the director and his staff were negligent by placing a foster child in her home who was a carrier of the cytomegalo virus when they knew the claimant was trying to become pregnant. She became pregnant and was infected with the cytomegalo virus which forced her to have an abortion. The Court concluded that the DHR was liable for the negligent acts of the DSS based upon the amount of control the DHR exercised over the DSS. Id. at 692, 262 S.E.2d at 798. The Court specifically limited its holding to the obligation of the DSS to place children in foster homes. Id.\nIn Coleman v. Cooper, 102 N.C. App. 660, 403 S.E.2d 577, disc. review denied, 329 N.C. 786, 408 S.E.2d 517 (1991), plaintiff brought a wrongful death action in superior court against the Wake County DSS and a DSS worker. This Court held that the Wake County DSS was an agent of the DHR when providing child protective services. This holding was based on a number of factors. First, N.C. Gen. Stat. \u00a7 108A-1 (1994) requires that \u201c[e]very county shall have a board of social services which shall establish county policies for the programs established by this Chapter in conformity with the rules and regulations of the Social Services Commission and under the supervision of the Department of Human Resources.\u201d Secondly, N.C. Gen. Stat. \u00a7 108A-14(5) (1994) provides that the director of social services shall \u201cact as agent of the Social Services Commission and Department of Human Resources in relation to work required by the Social Services Commission and Department of Human Resources in the county[.]\u201d N.C. Gen. Stat. \u00a7 108A-14(11) (1994) provides that the director of social services shall \u201cinvestigate reports of child abuse and neglect and to take the appropriate action to protect such children pursuant to the Child Abuse Reporting Law, Article 44 of Chapter 7A[.]\u201d \u201cThe Director of the Department of Social Services shall submit a report of alleged abuse or neglect to the central registry under the policies adopted by the Social Services Commission.\u201d N.C. Gen. Stat. \u00a7 7A-548 (1993). The trial court dismissed the action on the grounds that it lacked subject matter jurisdiction. Coleman, 102 N.C. App. at 653, 403 S.E.2d at 580. In affirming this determination, this Court held that:\n[the] Wake County [Department of Social Services] was acting as an agent of the Social Services Commission and the Department of Human Resources in its delivery of protective services to the decedents. A cause of action originating under the Tort Claims Act against Wake County [Department of Social Services] as a subordinate division of the State, must be brought before the Industrial Commission.\nId. at 658, 403 S.E.2d at 581-582.\nIn Gammons v. Department of Human Res., 119 N.C.App. 589, 459 S.E.2d 295, disc. review allowed, 342 N.C. 191, 463 S.E.2d 235 (1995), plaintiff brought an action against the DHR for negligence allegedly committed by the director and staff of the Cleveland County DSS. Plaintiff alleged that the Cleveland County DSS was aware that plaintiff was being physically abused by his stepfather, and negligently failed to investigate the claims regarding the physical abuse. This Court found Coleman to be the controlling law, and held that despite the fact that the DHR was not a party to the action in the Coleman case, the Cleveland County DSS was acting as the agent of the DHR in delivering child protective services. Id., at 592, 459 S.E.2d at 297.\nAppellate review of the Industrial Commission is limited to a determination of whether the findings of the Commission are supported by the evidence and whether the findings in turn support the legal conclusions of the Commission. Radica v. Carolina Mills, 113 N.C. App. 440, 446, 439 S.E.2d 185, 189 (1994). However, if the findings are predicated on an erroneous view of the law or a misapplication of the law, they are not conclusive on appeal. Bailey v. Dept. of Mental Health, 272 N.C. 680, 159 S.E.2d 28 (1968) (remand required to consider evidence in its true legal light).\nThe Commission granted defendant\u2019s motion for summary judgment on the grounds that no issue of material fact existed as to the existence of an agency relationship between the DHR and the Davie County DSS. The Commission concluded:\nIf the Davie County Department of Social Services is an agent of the North Carolina Department of Human Resources, then pursuant to the holding by the North Carolina Court of Appeals in Coleman v. Cooper, 89 N.C. App. 188, a violation of the provisions of N.C.G.S. 7A-544 by a Department of Social Services would give rise to an action for negligence.... No such meaning, will be read into the statute, even though the North Carolina [Court of Appeals] stated in Coleman v. Cooper, that in the delivery of child protective services, the Wake County Department of Social Services was acting as agent of the Department of Human Resources and the Social Services Commission.\nThe facts in the instant case are not distinguishable from those in Coleman or Gammons. Plaintiff has alleged that, (1) she and others on her behalf made reports to the Davie County DSS regarding Whitaker\u2019s alcohol abuse, and his tendency to drive while intoxicated with decedent as a passenger in his car; (2) the Davie County DSS had a duty to investigate these reports of child abuse, and they were negligent by failing to properly investigate and take action regarding the reports; (3) the Davie County DSS was acting as an agent of the DHR and; (4) the negligence of the Davie County DSS was a proximate cause of the death of decedent. Plaintiff\u2019s forecast of evidence is sufficient to satisfy the burden of meeting the essential elements of her claim. The Commission misapplied the law by concluding that in light of this Court\u2019s holdings in Coleman and Gammons, the Davie County DSS was not an agent of the DHR in its delivery of child protective services. Therefore, the Commission erroneously granted defendant\u2019s motion for summary judgment.\nReversed.\nJudges EAGLES and MARTIN, John C., concur.", "type": "majority", "author": "ARNOLD, Chief Judge." } ], "attorneys": [ "Attorney General Michael F. Easley, by Special Deputy Attorney General, Gayl M. Manthei, and Assistant Attorney General D. Sigsbee Miller, for defendants appellees.", "Hall, Vogler & Fleming, by E. Edward Vogler, Jr. and Beverly S. Murphy, for plaintiff appellant." ], "corrections": "", "head_matter": "GINGER YORK WHITAKER (RUTLEDGE), Administratrix of the Estate of JONATHAN WESLEY WHITAKER, a Minor, Plaintiff v. NC DEPARTMENT OF HUMAN RESOURCES, SOCIAL SERVICES COMMISSION, Defendant\nNo. COA95-164\n(Filed 20 February 1996)\nState \u00a7 33 (NCI4th)\u2014 child protective services \u2014 county DSS as agent of Department of Human Resources\nThe trial court erred in dismissing plaintiffs claim under the Tort Claims Act on the ground that the Davie County Department of Social Services was not an agent of the Department of Human Resources in its delivery of child protective services.\nAm Jur 2d, Municipal Corporations, Counties, and Other Political Subdivisions \u00a7 234.\nAppeal by plaintiff from Decision and Order entered 2 November 1994 by the North Carolina Industrial Commission. Heard in the Court of Appeals 13 November 1995.\nGinger York Whitaker, Administratrix of decedent\u2019s estate, and Brace Earl Whitaker, Sr. are the parents of Jonathan Wesley Whitaker, decedent. In June of 1990 a consent order was issued whereby plaintiff and her former husband were to share joint custody of decedent. In August of 1990 plaintiff filed a motion for modification and amended motion for show cause order alleging that Whitaker abused alcohol, causing him to have violent tendencies and that he physically abused decedent. From May of 1990 until April of 1991 plaintiff, and others on her behalf, made numerous reports to the Davie County Department of Social Services, (DSS), of child abuse, neglect and alcohol abuse by Whitaker. Decedent died in a car accident while riding in a car driven by Whitaker, who lost control of the car. A toxicology report showed that at the time of the accident Whitaker had a blood alcohol content of three and a half times the legal level of intoxication.\nPlaintiff filed a claim under the Tort Claims Act against the North Carolina Department of Human Resources, (DHR), and the Social Services Commission for damages resulting from the negligence of the Davie County DSS. The plaintiff named the Director of the Davie County DSS and three of its employees. Deputy Commissioner Dillard dismissed plaintiffs complaint and granted defendant\u2019s motion for summary judgment. Plaintiff appealed to the Full Commission, who by Decision and Order upheld the Decision and Order and dismissed plaintiff\u2019s complaint. Plaintiff appeals.\nAttorney General Michael F. Easley, by Special Deputy Attorney General, Gayl M. Manthei, and Assistant Attorney General D. Sigsbee Miller, for defendants appellees.\nHall, Vogler & Fleming, by E. Edward Vogler, Jr. and Beverly S. Murphy, for plaintiff appellant." }, "file_name": "0602-01", "first_page_order": 636, "last_page_order": 640 }