{ "id": 11916366, "name": "HAMLET EPPS, ROBERT EPPS, MARY MONTGOMERY, JENNIFER DANIEL, and HAZEL GADSON, Plaintiffs v. DUKE UNIVERSITY, INC., a North Carolina Corporation, PRIVATE DIAGNOSTIC CLINIC, a North Carolina Partnership, JOHN PETER LONGABAUGH, M.D., NATHAN PULKINGHAM, M.D., RUSSELL HJELMSTAD, M.D., MICHAEL WILSON, M.D., and KATHRYN LANE, M.D., Defendants", "name_abbreviation": "Epps v. Duke University, Inc.", "decision_date": "1996-04-16", "docket_number": "No. COA95-182", "first_page": "198", "last_page": "211", "citations": [ { "type": "official", "cite": "122 N.C. App. 198" } ], "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": "18 ALR4th 858", "category": "reporters:specialty", "reporter": "A.L.R. 4th", "opinion_index": -1 }, { "cite": "71 ALR3d 90", "category": "reporters:specialty", "reporter": "A.L.R. 3d", "opinion_index": -1 }, { "cite": "71 ALR3d 6", "category": "reporters:specialty", "reporter": "A.L.R. 3d", "opinion_index": -1 }, { "cite": "87 N.C.App. 467", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8358559 ], "opinion_index": -1, "case_paths": [ "/nc-app/87/0467-01" ] }, { "cite": "99 N.C.App. 693", "category": "reporters:state", "reporter": "N.C. 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University of North Carolina, 330 N.C. 761, 772, 413 S.E.2d 276, 283 (1992)" }, { "page": "58", "parenthetical": "cited as authority in Corum v. University of North Carolina, 330 N.C. 761, 772, 413 S.E.2d 276, 283 (1992)" } ], "opinion_index": 0, "case_paths": [ "/us/491/0058-01" ] }, { "cite": "502 U.S. 21", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6217117 ], "weight": 4, "year": 1991, "pin_cites": [ { "page": "27", "parenthetical": "quoting Will v. Michigan Dept. of St. Police, 491 U.S. 58, 71, 105 L.Ed.2d 45, 58 (1989) (cited as authority in Corum v. University of North Carolina, 330 N.C. 761, 772, 413 S.E.2d 276, 283 (1992)" }, { "page": "310", "parenthetical": "quoting Will v. Michigan Dept. of St. Police, 491 U.S. 58, 71, 105 L.Ed.2d 45, 58 (1989) (cited as authority in Corum v. 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App. 636", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8528017 ], "year": 1991, "pin_cites": [ { "page": "639" } ], "opinion_index": 0, "case_paths": [ "/nc-app/101/0636-01" ] }, { "cite": "447 S.E.2d 444", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 12, "year": 1994, "pin_cites": [ { "parenthetical": "Epps I" }, { "page": "448" }, { "page": "448" }, { "page": "448" }, { "page": "448" }, { "page": "447" }, { "page": "447" }, { "page": "447-48" }, { "page": "448" } ], "opinion_index": 0 }, { "cite": "87 N.C.App. 467", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8358559 ], "pin_cites": [ { "page": "469-70" } ], "opinion_index": 0, "case_paths": [ "/nc-app/87/0467-01" ] }, { "cite": "99 N.C.App. 693", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524694 ], "weight": 4, "pin_cites": [ { "page": "700" }, { "page": "700" }, { "page": "700" }, { "page": "701" } ], "opinion_index": 0, "case_paths": [ "/nc-app/99/0693-01" ] }, { "cite": "116 N.C.App. 305", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523648 ], "weight": 8, "pin_cites": [ { "parenthetical": "Epps I" }, { "page": "311" }, { "page": "311" }, { "page": "311" }, { "page": "309" }, { "page": "309" }, { "page": "309-10" }, { "page": "310" } ], "opinion_index": 0, "case_paths": [ "/nc-app/116/0305-01" ] } ], "analysis": { "cardinality": 1361, "char_count": 33800, "ocr_confidence": 0.758, "pagerank": { "raw": 6.786552677819394e-07, "percentile": 0.963695373745728 }, "sha256": "463d1fd915338ddba145f0b3c44959aff1dad80b82befd550dd88695c8215463", "simhash": "1:0920743accbf4e47", "word_count": 5474 }, "last_updated": "2023-07-14T15:39:52.508825+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges JOHNSON and WALKER concur." ], "parties": [ "HAMLET EPPS, ROBERT EPPS, MARY MONTGOMERY, JENNIFER DANIEL, and HAZEL GADSON, Plaintiffs v. DUKE UNIVERSITY, INC., a North Carolina Corporation, PRIVATE DIAGNOSTIC CLINIC, a North Carolina Partnership, JOHN PETER LONGABAUGH, M.D., NATHAN PULKINGHAM, M.D., RUSSELL HJELMSTAD, M.D., MICHAEL WILSON, M.D., and KATHRYN LANE, M.D., Defendants" ], "opinions": [ { "text": "SMITH, Judge.\nIn this appeal from the trial court\u2019s denial of summary judgment, defendant appellant Dr. Russell Hjelmstad (hereinafter \u201cHjelmstad\u201d) contends he is not individually liable to plaintiffs in tort, because of the doctrine of public official immunity. Defendant argues plaintiffs\u2019 complaint is defective because it asserts a claim against a state officer acting in his official capacity. Therefore, defendant contends plaintiffs\u2019 action is barred by public official immunity.\nPlaintiffs argue denial of summary judgment was proper, due to this Court\u2019s prior ruling in Epps v. Duke University, 116 N.C. App. 305, 447 S.E.2d 444 (1994) (Epps I). In Epps I, this Court held that plaintiffs had stated a \u201cvalid claim against Hjelmstad in his individual capacity as a public officer.\u201d Id. at 311, 447 S.E.2d at 448. The instant appeal poses the same official immunity issue decided in Epps I, set now against the legal standards of a summary judgment motion.\nIn disposing of defendant\u2019s arguments for summary judgment, we hold the following. First, we agree with plaintiffs that Epps I established the law of this case as it relates to the sufficiency of plaintiffs\u2019 pleadings. Plaintiffs have correctly maintained a personal or individual capacity claim against defendant Hjelmstad. Thus, defendant\u2019s arguments to the contrary are baseless in light of Epps I. In addition, we find the affidavits in the record squarely present disputed material facts, demonstrate that defendant is not entitled to judgment as a matter of law, and mandate affirmance of the trial court\u2019s denial of summary judgment against defendant.\nThe facts and posture of this case are as follows. The plaintiffs are the next of kin of Dora Epps McNair, who died in 1990, shortly after surgery involving a cardiac catheterization and attempted placement of an intra-aortic pump. The surgery was unsuccessful. Because of the manner of decedent\u2019s death, it was decided by the treating physician at Duke University Medical Center\u2019s Coronary Care Unit that an autopsy was required by state law.\nPlaintiffs\u2019 action arises from the alleged wrongful autopsy of Dora Epps McNair, which autopsy was ordered and supervised by defendant Hjelmstad. Plaintiffs allege that \u201cthe excessive mutilat[ion] of Ms. McNair\u2019s body during [the] autopsy at Duke University Medical Center (\u201cDuke\u201d) left her body disfigured and in a state that could not be embalmed and viewed as she had wished.\u201d At all times relevant to this dispute, Hjelmstad occupied dual roles as resident pathologist at Duke University Medical Center (Duke), and as Durham County Medical Examiner pursuant to N.C. Gen. Stat. \u00a7 130A-382 (1995). It is undisputed that Hjelmstad is being sued for activities performed under color of his authority as medical examiner. Defendant Hjelmstad is the only named defendant involved in this appeal.\nBecause defendant Hjelmstad performed the autopsy while acting under color of authority as medical examiner, he first moved to dismiss this case for failure to state a claim for relief on grounds of official immunity. Defendant\u2019s motion to dismiss was the basis of Epps I. The Epps I Court upheld the trial court\u2019s denial of defendant\u2019s dismissal motion by holding that,\nbecause plaintiffs\u2019 complaint contains allegations indicating that Hjelmstad acted outside the scope of his official duties, they have stated a valid claim against Hjelmstad in his individual capacity as a public officer.\nEpps I, 116 N.C. App. at 311, 447 S.E.2d at 448. On remand from the Epps I Court, defendant Hjelmstad moved for summary judgment against plaintiffs. The trial court denied this motion, which is now the subject of this appeal.\nUsually, the denial of a motion for summary judgment is not immediately appealable, as it is interlocutory. See Herndon v. Barrett, 101 N.C. App. 636, 639, 400 S.E.2d 767, 769 (1991). However, denial of a motion for summary judgment \u201c \u2018on the grounds of sovereign and qualified immunity is immediately appealable.\u2019 \u201d Id. (citation omitted). Such is the case here, where defendant Hjelmstad seeks to interpose his official immunity as a shield against liability to plaintiffs. We allow interlocutory appeals in these situations because \u201c \u2018the essence of absolute immunity is its possessor\u2019s entitlement not to have to answer for his conduct in a civil damages action.\u2019 \u201d Id. (quoting Mitchell v. Forsyth, 472 U.S. 511, 525, 86 L.Ed.2d 411, 424 (1985)).\nPlaintiffs maintain the law of the case doctrine necessitates a ruling in their favor. We have previously held, \u201c[a] decision of this Court on a prior appeal constitutes the law of the case, both in subsequent proceedings in the trial court and on a subsequent appeal. \u2018[0]ur mandate is binding upon [the trial court] and must be strictly followed without variation or departure.\u2019\u201d Lea Co. v. N.C. Board of Transportation, 323 N.C. 697, 699, 374 S.E.2d 866, 868 (1989) (citation omitted) (quoting D & W, Inc. v. Charlotte, 268 N.C. 720, 722, 152 S.E.2d 199, 202 (1966)). Thus the argument by plaintiffs is well made, for much of defendant Hjelmstad\u2019s brief addresses issues resolved by Epps I.\nIndeed, it is the law of this case that plaintiffs \u201chave stated a valid claim against Hjelmstad in his individual capacity as a public officer.\u201d Epps I, 116 N.C. App. at 311, 447 S.E.2d at 448. Thus, insofar as defendant now addresses the sufficiency of plaintiffs\u2019 complaint against Hjelmstad, that matter is settled. Id. The only remaining examination apropos to our review of this appeal is defendant\u2019s argument relevant to the legal standard for summary judgment.\nA party will prevail on a motion for summary judgment only if the moving party (here, defendant) can show no material facts are in dispute and entitlement to judgment as a matter of law. Moore v. City of Creedmoor, 120 N.C. App. 27, 36, 460 S.E.2d 899, 904 (1995). In addition, the record is to be viewed in the light most favorable to the non-movant, giving it the benefit of all inferences which reasonably arise therefrom. Id. Evidence properly considered on a motion for summary judgment \u201cincludes admissions in the pleadings, depositions on file, answers to Rule 33 interrogatories, admissions on file . . . affidavits, and any other material which would be admissible in evidence or of which judicial notice may properly be taken.\u201d Kessing v. Mortgage Corp., 278 N.C. 523, 533, 180 S.E.2d 823, 829 (1971).\nDefendant\u2019s argument and evidence fall far short of the \u201cno material fact in dispute\u201d standard long adopted by this Court. We held in Epps I that defendant Bjelmstad, acting in his capacity as a county medical examiner, is a public officer. Epps I, 116 N.C. App. at 311, 447 S.E.2d at 448. The Epps I Court also held that \u201cbecause plaintiffs\u2019 complaint contains allegations indicating that Hj elms tad acted outside the scope of his official duties, they have stated a valid claim against Bjelmstad in his individual capacity as a public officer.\u201d Id. Thus, to prevail on his motion for summary judgment, defendant must show that plaintiffs\u2019 presentation of properly considered evidence falls short of the allegations found in their complaint. This the defendant has not done.\nThe common law rules governing individual or personal capacity suits against a public official in tort have remained virtually unchanged for almost a century. See N.C. Supreme Court opinions: Lewis v. White, 287 N.C. 625, 643, 216 S.E.2d 134, 146 (1975); Williamston v. R.R., 236 N.C. 271, 275, 72 S.E.2d 609, 612 (1952); Smith v. Hefner, 235 N.C. 1, 7, 68 S.E.2d 783, 787-88 (1952); Teer v. Jordan, 232 N.C. 48, 51-52, 59 S.E.2d 359, 362 (1950); Schloss v. Highway Commission, 230 N.C. 489, 492, 53 S.E.2d 517, 518-19 (1949); Gurganious v. Simpson, 213 N.C. 613, 616, 197 S.E. 163, 164 (1938); Carpenter v. R.R., 184 N.C. 400, 404-06, 114 S.E. 693, 695-96 (1922); Templeton v. Beard, 159 N.C. 63, 65, 74 S.E. 735, 736 (1912). And, see N.C. Court of Appeals opinions: Golden Rule Ins. Co. v. Long, 113 N.C. App. 187, 193-94, 439 S.E.2d 599, 602-03, disc. review denied, 335 N.C. 555, 439 S.E.2d 145 (1993); Dickens v. Thome, 110 N.C. App. 39, 45, 429 S.E.2d 176, 180 (1993); Locus v. Fayetteville State University, 102 N.C. App. 522, 526, 402 S.E.2d 862, 865 (1991); Mazzucco v. N.C. Bd. of Medical Examiners, 31 N.C. App. 47, 49-50, 228 S.E.2d 529, 531-32, disc. review denied, 291 N.C. 323, 230 S.E.2d 676 (1976).\nA suit against a public official in Ms official capacity is basically a suit against the public entity (i.e., the state) he represents. Dickens, 110 N.C. App. 39, 45, 429 S.E.2d 176, 180 (1993); Lewis, 287 N.C. at 643, 216 S.E.2d at 146. Therefore, an official capacity suit operates against the public entity itself, as the public entity is ultimately financially responsible for the compensable conduct of its officers. Id.) see Mazzucco, 31 N.C. App. at 49, 228 S.E.2d at 531. This state\u2019s doctrine of sovereign immunity is over a century old. Steelman v. City of New Bern, 279 N.C. 589, 591-94, 184 S.E.2d 239, 241 (1971) (discussing adoption of sovereign immunity by our Supreme Court in Moffitt v. Asheville, 103 N.C. 237, 254, 9 S.E. 695, 697 (1889)).\nOfficial immumty is a derivative form of sovereign immunity. Sovereign immumty extends from feudal England\u2019s theory that the \u201cking can do no wrong.\u201d Steelman, 279 N.C. at 592, 184 S.E.2d at 242. As such, entities representing the English monarchy could not be held liable for damages to its subjects. Id. In the modem day context, sovereign immunity extricates agencies and arms of the state from liability when state officials exercise discretionary authority for public benefit. Lewis, 287 N.C. at 643, 216 S.E.2d at 146. Sovereign immunity is not a monolithic bar to tort liability, as exceptions to this form of immunity exist. See Golden Rule, 113 N.C. App. at 193, 439 S.E.2d at 603 (discussing consent and waiver as exceptions to sovereign immunity).\nThe public official immunity doctrine \u201cproscribes, among [other things], \u2018suits to prevent a State officer or Commission from performing official duties or to control the exercise of judgment on the part of State officers or agencies.\u2019 \u201d Golden Rule, 113 N.C. App. at 193, 439 S.E.2d at 602-03 (quoting Smith v. State, 289 N.C. 303, 310, 222 S.E.2d 412, 417 (1976)). If governmental officials were constantly exposed to the threat of personal liability at the hands of disgruntled or damaged citizens, the basis of our democracy might well be jeopardized. The historic rule in this state has been that:\n\u201cAs long as a public officer lawfully exercises the judgment and discretion with which he is invested by virtue of his office [viz., a medical examiner], keeps within the scope of his official authority, and acts without malice or corruption, he is protected from liability.\u201d\nGolden Rule, 113 N.C. App. at 194, 439 S.E.2d at 603 (quoting Smith, 289 N.C. at 331, 222 S.E.2d at 430). The exceptions to official immunity have expanded over the years, with bad faith and willful and deliberate conduct now operating as additional common law bases for liability. Reid v. Roberts, 112 N.C. App. 222, 224, 435 S.E.2d 116, 119, disc. review denied, 335 N.C. 559, 439 S.E.2d 151 (1993); see Dickens, 110 N.C. App. at 44-45, 429 S.E.2d at 179-80 (1993); and Wiggins v. City of Monroe, 73 N.C. App. 44, 49, 326 S.E.2d 39, 43 (1985).\nThe official immunity doctrine is deceptively simple. Actual prosecution of a tort claim against a public official, though, reveals the complex nature of the doctrine. The tort must arise from some action taken while the tortfeasor-public official is acting under color of state authority. Carpenter, 184 N.C. at 404, 114 S.E. at 695. The complainor must decide whether to sue the public official in his official capacity, in his personal/individual capacity, or both. See Golden Rule, 113 N.C. App. at 193-94, 439 S.E.2d at 603. Assuming a plaintiff .asserts a well-pleaded claim against the public officer in both official and individual capacities, the doctrine of governmental (or official) immunity interposes several barriers to liability. Id.\nFirst, the official capacity suit will be tenable only if the State consents to the suit, or a statutory waiver of immunity applies. Id.; Messick v. Catawba County, 110 N.C. App. 707, 714, 431 S.E.2d 489, 493-94, disc. review denied, 334 N.C. 621, 435 S.E.2d 336 (1993). Otherwise, sovereign or official immunity is an absolute bar, and the case is subject to dismissal. Golden Rule, 113 N.C. App. at 193, 439 S.E.2d at 603. Whether or not the official capacity suit moves forward, the plaintiff may simultaneously proceed against the official as an individual, but only in limited circumstances. Locus, 102 N.C. App. at 526, 402 S.E.2d at 865.\nIn Locus, this Court held that, while \u201cnamed defendants may be shielded from liability in their official capacities, they remain personally liable for any actions which may have been corrupt, malicious or perpetrated outside and beyond the scope of official duties.\u201d Locus, 102 N.C. App. at 526, 402 S.E.2d at 865 (this is essentially the same rule espoused in Lewis, et alia, and Golden Rule, et alia, enumerated supra). Official immunity \u201c \u2018does not extend to the individuals [acting in an official capacity] who in disregard of law invade or threaten to invade the personal or property rights of a citizen even though they assume to act under the authority of the State.\u2019 \u201d Williamston, 236 N.C. at 275, 72 S.E.2d at 609 (quoting Teer, 232 N.C. at 51, 59 S.E.2d at 362).\nProsecution of the tort suit against the official rests on a procedural legal fiction. The personal or individual capacity suit is against an official, for an act presumably done by that official, under color of official authority. \u201cThe distinction between official-capacity suits and personal-capacity suits is more than \u2018a mere pleading device.\u2019 \u201d Hafer v. Melo, 502 U.S. 21, 27, 116 L.Ed.2d 301, 310 (1991) (quoting Will v. Michigan Dept. of St. Police, 491 U.S. 58, 71, 105 L.Ed.2d 45, 58 (1989) (cited as authority in Corum v. University of North Carolina, 330 N.C. 761, 772, 413 S.E.2d 276, 283 (1992)). \u201cState officers sued for damages . . . assume the identity of the government that employs them. By contrast, officers sued in their personal capacity come to court as individuals.\u201d Hafer, 502 U.S. at 27, 116 L.Ed.2d at 310 (emphasis added).\nTo sustain the personal or individual capacity suit, the plaintiff must initially make a prima facie showing that the defendant-official\u2019s tortious conduct falls within one of the immunity exceptions, i.e., that the official\u2019s conduct is malicious, corrupt, or outside the scope of official authority. Locus, 102 N.C. App. at 526, 402 S.E.2d at 865. Once the plaintiff makes out its prima facie case that an exception applies, \u201c[o]fficers who seek to defend an action on the ground of sovereign immunity must show they are acting within the scope of their authority.\u201d Lewis, 287 N.C. at 644, 216 S.E.2d at 146 (citing Schloss, 230 N.C. at 492, 53 S.E.2d at 519).\nThe defendant must assert official immunity as an affirmative defense, because\nhe is the actor, and hence he must establish his allegations in such matters by the same degree of proof as would be required if he were plaintiff.... This is not a shifting of the burden of proof; it simply means that each party must establish his own case.\nSpeas v. Bank, 188 N.C. 524, 531, 125 S.E. 398, 402 (1924); and see 1 Kenneth S. Broun, Brandis and Broun on North Carolina Evidence \u00a7 32 n.29, at 120 (4th ed. 1993).\nIf the defendant cannot meet this burden of production, \u201che is not entitled to protection on account of his office, but is liable for his acts like anu vrivate individual.\u201d Gurganious, 213 N.C. at 616, 197 S.E. at 164 (emphasis added); see Locus, 102 N.C. App. at 526, 402 S.E.2d at 865. The public official \u201cstands, then, stripped of his official character, and confessing a personal violation of the plaintiffs rights, for which he must personally answer, he is without defense.\u201d Carpenter, 184 N.C. at 405, 114 S.E. at 695. In essence, it is as if the official never committed the tortious act, as once stripped of the cloak of office, the tortfeasor is then liable for simple negligence. The \u201cformer official,\u201d now a mere individual, is subject to the standard liabilities of a tortfeasor, and must defend accordingly.\nThe foregoing restates the law of official immunity as established by our Supreme Court. However, in the 1990\u2019s, this Court began to propound a line of cases containing language which could be construed as at odds with Supreme Court precedent. Particularly, we refer to Hare v. Butler, 99 N.C. App. 693, 700, 394 S.E.2d 231, 236, disc. review denied, 327 N.C. 634, 399 S.E.2d 121 (1990), wherein this Court commented: \u201cA public officer sued individually is normally immune from liability for \u2018mere negligence.\u2019 \u201d Id. (quoting Harwood v. Johnson, 92 N.C. App. 306, 309, 374 S.E.2d 401, 404 (1988)).\nThis \u201cmere negligence\u201d statement from Hare has been cited in to to or paraphrased by this Court in subsequent cases, including: Cherry v. Harris, 110 N.C. App. 478, 480, 429 S.E.2d 771, 772, disc. review denied, 335 N.C. 171, 436 S.E.2d 371 (1993); Reid, 112 N.C. App. at 224, 435 S.E.2d at 119; and Epps I, 116 N.C. App. at 309, 447 S.E.2d at 447. In a vacuum, the Hare Court\u2019s \u201cmere negligence\u201d statement could be read to infer that an official qua individual may not be held liable for simple negligence. Our analysis of the precise holding in Hare indicates the Court intended to act and, in fact, acted in accordance with the rule espoused by our Supreme Court in Lewis, Carpenter and Gurganious.\nClose scrutiny of the analysis in Hare, and subsequent cases employing Hare\u2019s language, compels us to conclude that this Court\u2019s comment \u201c[a] public officer sued individually is normally immune from liability for \u2018mere negligence,\u2019 \u201d was never intended to operate as a substantive revision of the historical official immunity rule. Hare, 99 N.C. App. at 700, 394 S.E.2d at 236. We read the Hare statement only as a truncated, or \u201cshorthand\u201d version of the official immunity doctrine. We acknowledge the statement is, on its face, an ambiguous explication of the rule.\nIn an \u201cas applied\u201d context, it is absque dubio that the Hare, Cherry, Reid, and Epps I Courts employed the official immunity doctrine in a manner consistent with Supreme Court precedent. When so considered, it is patent that the meaning intended by this Court was the following: a public official sued individually is not liable for \u201cmere negligence\u201d \u2014 because such negligence standing alone, is insufficient to support the \u201cpiercing\u201d (hereinafter, the \u201cpiercing\u201d exceptions) of the cloak of official immunity. Locus, 102 N.C. App. at 526, 402 S.E.2d at 865; Reid, 112 N.C. App. at 224, 435 S.E.2d at 119.\nOnce stripped of the \u201ccloak\u201d of office, the public official qua individual is undoubtedly liable just like any other private individual. This we have already established. Gurganious, 213 N.C. at 616, 197 S.E. at 164; Carpenter, 184 N.C. at 405, 114 S.E. at 695. But, if a plaintiff wishes to sue a public official in his personal or individual capacity, the plaintiff must, at the pleading stage and thereafter, demonstrate that the official\u2019s actions (under color of authority) are commensurate with one of the \u201cpiercing\u201d exceptions.\nThe plaintiff may not just allege negligent behavior and expect his personal capacity action to survive. Our recent holding in Whitaker v. Clark, 109 N.C. App. 379, 383-84, 427 S.E.2d 142, 145, disc. review denied and cert. denied, 333 N.C. 795, 431 S.E.2d 31 (1993), makes exactly this point:\nAbsent any allegations in the complaint [or an adequate later showing] separate and apart from official [actions] which would hold a nonofficial liable for negligence, the complaint cannot be found to sufficiently state a claim against defendants individually.\n(Emphasis added.) This paragraph from Whitaker means that the first order of business for a plaintiff bringing an individual capacity suit against an official is a showing of an applicable \u201cpiercing\u201d exception. Mere allegations of negligence, in and of themselves, will not suffice. For instance, in Thompson Cadillac v. Silk Hope Auto, the Court held that the plaintiff had\nalleg[ed] nothing more than mere negligence. There [were] no allegations of corrupt or malicious actions, actions outside the scope of defendants\u2019 duties ....\n* * * *\n. . . Accordingly, we find [defendant] to be a public officer, and we hold that the complaint alleging mere negligence fails to state a claim against [the public officer] ....\nThompson, 87 N.C. App. 467, 469-70, 361 S.E.2d 418, 420 (1987), disc. review denied, 321 N.C. 480, 364 S.E.2d 672 (1988).\nThe qualitative difference between the \u201cmere negligence\u201d language used in Hare, and the more illuminative but similar language in Whitaker and Thompson, is de minimis. When read in the context of Whitaker and Thompson, the statements in Hare are quite understandable and are well within the confines of our historical official immunity rule.\nThe public officer under discussion in Hare was Edwin Chapin, the Director of Mecklenburg County\u2019s Department of Social Services. Hare, 99 N.C. App. at 700, 394 S.E.2d at 234. The Hare defendants moved to dismiss pursuant to N.C. Gen. Stat. \u00a7 1A-1, Rule 12(b)(6) (1990). The Hare Court determined that the plaintiffs complaint alleged only negligence against Chapin (the plaintiff did not allege that Chapin\u2019s acts exceeded the scope of his authority, or any other piercing exception). Because the Hare plaintiff failed to allege that Chapin had committed a tortious act, performed under color of his authority, that fell within one of the exceptions rendering an official liable individually or personally, \u201cMr. Chapin [was held] immune from the negligence claim brought against him in his individual capacity.\u201d Hare, 99 N.C. App. at 701, 394 S.E.2d at 234.\nThen, in Cherry, 110 N.C. App. at 480, 429 S.E.2d at 772, this Court assessed the sufficiency of the plaintiff\u2019s pleadings (the Cherry plaintiff appealed from defendant\u2019s successful motion to dismiss) as to whether the plaintiff had properly stated a personal or individual claim against a government official. In its discussion of the official immunity doctrine, the Cherry Court quoted the Hare \u201cmere negligence\u201d language above. Cherry, 110 N.C. App. at 480, 429 S.E.2d at 772. The reason the Cherry Court denied the plaintiff\u2019s attempt to pierce defendant\u2019s cloak of official immunity was because\n[t]he [plaintiff\u2019s] materials before the trial court additionally tended to show that defendant acted in good faith and within the scope of his responsibilities .... Furthermore, there is no allegation, and we find no evidence that defendant acted with any ill will or malice toward [plaintiff]. We therefore find that defendant is entitled to the immunity afforded a public official.\nCherry, 110 N.C. App. at 481-82, 429 S.E.2d at 773 (emphasis added).\nThus, while the Cherry Court ostensibly followed Hare\u2019s mere negligence \u201cshorthand\u201d language, its analysis mirrored Thompson in its application of the piercing concept. For all intents and purposes, the \u201cmere negligence\u201d language from Hare has become an alter ego for the concept applied in Thompson and Whitaker. We are of the view that Hare, and the cases utilizing the Hare language, comport with those cases utilizing Thompson-style language, and are not contrary statements of our official immunity doctrine.\nFor instance, in 1993, the Reid Court quoted Hare\u2019s \u201cmere negligence\u201d passage in toto, and paraphrased its gist as follows: \u201cThe defendants who are public officers, rather than employees, cannot be held individually liable for mere negligence.\u201d Reid, 112 N.C. App. at 224, 435 S.E.2d at 119. In Reid, this Court determined the plaintiffs pleadings were insufficient to withstand a motion to dismiss, because the plaintiffs allegations did not state a piercing exception applicable to the defendants, and the plaintiffs allegations were only equivalent to simple negligence. See Reid, 112 N.C. App. at 225-26, 435 S.E.2d at 119-20.\nThen in Epps I, this Court repeated the Hare \u201cshorthand\u201d: \u201c[I]f a public officer is sued in his individual capacity, he is entitled to immunity for actions constituting mere negligence, Cherry, 110 N.C. App. at 480, 429 S.E.2d at [772].\u201d Epps I, 116 N.C. App. at 309, 447 S.E.2d at 447. Once again, while citing the Hare comment, the Epps I Court reviewed the sufficiency of the plaintiffs\u2019 pleadings against defendant Hjelmstad in his individual capacity. In doing so, the Epps I Court employed (without attribution) the same form of analysis applied in Thompson and Whitaker, not the facially inconsistent standard implied by Hare. Epps I, 116 N.C. App. at 309-10, 447 S.E.2d at 447-48.\nThe Epps I Court held\nthat plaintiffs did not contend malice or corruption on the part of Hjelmstad in ordering the autopsy, plaintiffs did include allegations in the complaint indicating that Hjelmstad and the other defendants exceeded the permissible scope of the autopsy.\nEpps I, 116 N.C. App. at 310, 447 S.E.2d at 448. Since plaintiffs had properly alleged that defendant Hjelmstad\u2019s autopsy exceeded the scope of his authority (and thus demonstrated a piercing exception), the Court denied the defendant\u2019s motion to dismiss. Id.\nWe now turn to the instant summary judgment analysis. In Gurganious, the Supreme Court addressed a case whose factual context and procedural posture were strikingly similar to the instant one. The Gurganious Court expressly held that a county coroner and physicians performing an autopsy under the coroner\u2019s direction may be held liable for the wrongful mutilation of a cadaver. Gurganious, 213 N.C. at 614, 197 S.E.2d at 163. The Gurganious Court observed the applicability of official immunity to the facts before it, and held:\nIt follows that an unauthorized autopsy to determine the cause of death where foul play is not suspected, though ordered by the coroner under color of his office, is in violation of the rights of the next of kin of the deceased, and that the coroner is not protected by the official capacity in which he purports to act. The duty to ascertain the limits of his authority and to observe the law, particularly where the rights of others were affected, was incumbent upon this defendant.\nThe general rule is that when an officer goes outside the scope of his duty he is not entitled to protection on account of his office, but is liable for his acts like any private individual. 46 C.J., 1043; Moffitt v. Davis, 206 N.C., 565, 172 S.E., 317; Coty v. Baughman, 50 S.D., 372; 48 A.L.R., 1205; 52 A.L.R., 1447.\nGurganious, 213 N.C. at 616, 197 S.E.2d at 164 (emphasis added).\nGiven the clarity of the rule in Gurganious (and the other Supreme Court cases discussing official immunity), and the identicality of the facts between Gurganious and the instant matter, we are compelled to apply the Supreme Court\u2019s version of the official immunity rule to our summary judgment analysis here. The remaining question is singular. Have the instant plaintiffs set forth, in their opposition to summary judgment, evidence tending to show that defendant Hjelmstad performed his duties in a fashion exposing him to liability under the tenets of Lewis, Gurganious, Carpenter, et alia? The answer to this question is manifestly yes.\nFor instance, the affidavit, in the record, of Richard Page Hudson, M.D. (formerly Chief Medical Examiner for the State of North Carolina) unequivocally states: \u201cIt is my opinion that the autopsy which was performed on Dora Epps McNair at Duke University Medical Center went far beyond the scope of a medical examiner autopsy.\u201d More particularly, Dr. Hudson explained exactly what aspects of the autopsy were beyond the scope of a medical examiner\u2019s duties. His affidavit states, in part:\n9. In my opinion, there was no reason to believe that study of the eyes would contribute to the determination of the cause or manner of Mrs. McNair\u2019s death, or provide evidence within the scope of the medical examiner\u2019s responsibilities.\n10. In my opinion, it was a departure from the standard of care for the persons performing the medical examiner autopsy on the body of Mrs. McNair to remove the eyes from her body.\n* * * *\n12. In my opinion, there was no reason to believe that study of the spinal vertebral and spinal cord would contribute to the determination of the cause or manner of Mrs. McNair\u2019s death, or provide evidence within the scope of the medical examiner\u2019s responsibilities.\n13. In my opinion, it was a departure from the standard of care for the persons performing the medical examiner autopsy on the body of Mrs. McNair to remove the spinal vertebrae and spinal cord from her body.\n(Emphasis added.)\nWe also acknowledge the affidavit of Mr. D.W. Richardson, a licensed funeral director and embalmer. In Mr. Richardson\u2019s affidavit, he describes from his personal observation of decedent\u2019s cadaver and his professional experience that: \u201cThe mutilation of Mrs. McNair\u2019s body went far beyond what I have seen in other medical examiner or hospital autopsies performed to determine cause of death.\u201d Defendant Hjelmstad\u2019s affidavit describes decedent\u2019s cause of death as \u201ca result of coronary vasospasm caused by the cardiac catheteri-zation.\u201d Defendant\u2019s affidavit described all the \u201cprocedures performed [as] necessary and appropriate components of a complete autopsy examination.\u201d Quite simply, defendant Hjelmstad\u2019s affidavit cannot meaningfully co-exist with the affidavits of Dr. Hudson and Mr. Richardson. Either removal of eyeballs and a spinal cord is within the scope of an autopsy into a death from decedent\u2019s cardiac trauma, or it is not.\nUnder our standards for summary judgment, defendant\u2019s motion is patently without merit. Material facts are in dispute, as the affidavits make evident. As the affidavits presented by plaintiffs mirror the allegations in their complaint (i.e., that the autopsy exceeded defendant\u2019s scope of authority), defendant is not entitled to judgment as a matter of law. Accordingly, we affirm the trial court\u2019s denial of summary judgment against defendant Hjelmstad.\nAffirmed.\nJudges JOHNSON and WALKER concur.", "type": "majority", "author": "SMITH, Judge." } ], "attorneys": [ "Ferguson, Stein, Wallas, Adkins, Gresham & Sumter, P.A., by Adam Stein and Ann Hubbard, for plaintiff appellees.", "Attorney General Michael F. Easley, by Special Deputy Attorney General Mabel Y Bullock, for defendant appellant." ], "corrections": "", "head_matter": "HAMLET EPPS, ROBERT EPPS, MARY MONTGOMERY, JENNIFER DANIEL, and HAZEL GADSON, Plaintiffs v. DUKE UNIVERSITY, INC., a North Carolina Corporation, PRIVATE DIAGNOSTIC CLINIC, a North Carolina Partnership, JOHN PETER LONGABAUGH, M.D., NATHAN PULKINGHAM, M.D., RUSSELL HJELMSTAD, M.D., MICHAEL WILSON, M.D., and KATHRYN LANE, M.D., Defendants\nNo. COA95-182\n(Filed 16 April 1996)\n1. Appeal and Error \u00a7 555 (NCI4th)\u2014 personal action against county medical examiners \u2014 valid claim \u2014 summary judgment for defendant properly denied\nA prior decision in this case, Epps v. Duke University, 116 N.C.App. 305, established the law of this case as it related to the sufficiency of plaintiffs\u2019 pleadings, holding that plaintiffs correctly maintained a valid claim for wrongful autopsy against defendant county medical examiner in his individual capacity as a public officer.\nAm Jur 2d, Appellate Review \u00a7\u00a7 60 et seq.\nErroneous decision as law of the case on subsequent appellate review. 87 ALR2d 271.\n2. Public Officers and Employees \u00a7 35 (NCI4th)\u2014 action against official in individual capacity \u2014 showing required\u2014 cases not inconsistent\nHare v. Butler, 99 N.C.App. 693, and the cases using Hare \u201cmere negligence\u201d language, comport with those cases using language similar to that in Thompson Cadillac v. Silk Hope Auto, 87 N.C.App. 467, and are not contrary statements of North Carolina\u2019s official immunity doctrine, which is that, as long as a public officer lawfully exercises the judgment and discretion with which he is invested by virtue of his office, keeps within the scope of his official authority, and acts without malice or corruption, he is protected from liability. A plaintiff bringing an individual capacity suit against an official must allege and prove more than mere negligence, but also some action performed under color of authority which falls within one of the exceptions rendering an official liable individually or personally.\nAm Jur 2d, Public Officers and Employees \u00a7\u00a7 358 et seq., 375.\nValidity and construction of statute authorizing or requiring governmental unit to procure liability insurance covering public officers or employees for liability arising out of performance of public duties. 71 ALR3d 6.\nValidity and construction of statute authorizing or requiring governmental unit to indemnify public officer or employee for liability arising out of performance of public duties. 71 ALR3d 90.\n3. Coroners and Medical Examiners \u00a7 32 (NCI4th)\u2014 medical examiner \u2014 wrongful autopsy \u2014 genuine issue of fact\nThe trial court properly denied defendant county medical examiner\u2019s motion for summary judgment in an action against him in his individual capacity for wrongful autopsy where plaintiffs\u2019 forecast of evidence established a genuine issue of fact as to whether defendant exceeded the scope of his official duties during an autopsy to determine the cause of death of the decedent after heart surgery when he mutilated the body by removing decedent\u2019s eyes, spinal cord and spinal vertebrae.\nAm Jur 2d, Coroners or Medical Examiners \u00a7 5.\nLiability for wrongful autopsy. 18 ALR4th 858.\nAppeal by defendant Hjelmstad from denial of summary judgment entered 6 December 1994 by Judge Henry V. Barnette, Jr., in Durham County Superior Court. Heard in the Court of Appeals 14 November 1995.\nFerguson, Stein, Wallas, Adkins, Gresham & Sumter, P.A., by Adam Stein and Ann Hubbard, for plaintiff appellees.\nAttorney General Michael F. Easley, by Special Deputy Attorney General Mabel Y Bullock, for defendant appellant." }, "file_name": "0198-01", "first_page_order": 234, "last_page_order": 247 }