{ "id": 11092543, "name": "ANNIE MITCHELL REID, and JAMES DONALD REID, Plaintiffs/Appellees v. TOWN OF MADISON, and RICHARD KEITH TUCKER, Defendants/Appellants", "name_abbreviation": "Reid v. Town of Madison", "decision_date": "2000-03-21", "docket_number": "No. COA99-489", "first_page": "168", "last_page": "172", "citations": [ { "type": "official", "cite": "137 N.C. App. 168" } ], "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": "517 S.E.2d 670", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "opinion_index": 0 }, { "cite": "134 N.C. App. 332", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11144408 ], "year": 1999, "opinion_index": 0, "case_paths": [ "/nc-app/134/0332-01" ] }, { "cite": "495 S.E.2d 721", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 6, "year": 1998, "pin_cites": [ { "page": "724" }, { "page": "724-25" }, { "page": "725" }, { "page": "725" } ], "opinion_index": 0 }, { "cite": "347 N.C. 548", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 551074 ], "weight": 5, "year": 1998, "pin_cites": [ { "page": "554" }, { "page": "554" }, { "page": "554" }, { "page": "554" } ], "opinion_index": 0, "case_paths": [ "/nc/347/0548-01" ] }, { "cite": "516 S.E.2d 610", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "opinion_index": 0 }, { "cite": "349 N.C. 241", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 571558, 571657, 571536, 571508, 571643 ], "year": 1998, "opinion_index": 0, "case_paths": [ "/nc/349/0241-05", "/nc/349/0241-01", "/nc/349/0241-04", "/nc/349/0241-03", "/nc/349/0241-02" ] }, { "cite": "500 S.E.2d 470", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 1998, "pin_cites": [ { "page": "472" }, { "page": "472" } ], "opinion_index": 0 }, { "cite": "129 N.C. App. 836", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11653533 ], "weight": 4, "year": 1998, "pin_cites": [ { "page": "838" }, { "page": "839" }, { "page": "839" } ], "opinion_index": 0, "case_paths": [ "/nc-app/129/0836-01" ] }, { "cite": "489 S.E.2d 880", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 1997, "pin_cites": [ { "page": "887" }, { "page": "888" }, { "page": "888" }, { "page": "887" } ], "opinion_index": 0 }, { "cite": "347 N.C. 97", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 551301 ], "weight": 3, "year": 1997, "pin_cites": [ { "page": "110" }, { "page": "111" }, { "page": "112" } ], "opinion_index": 0, "case_paths": [ "/nc/347/0097-01" ] }, { "cite": "517 S.E.2d 121", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "opinion_index": 0 }, { "cite": "350 N.C. 601", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 132031 ], "weight": 2, "year": 1999, "pin_cites": [ { "page": "609" } ], "opinion_index": 0, "case_paths": [ "/nc/350/0601-01" ] }, { "cite": "399 S.E.2d 121", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "opinion_index": 0 }, { "cite": "327 N.C. 634", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2495648, 2499943, 2496788, 2493082, 2500123 ], "year": 1990, "opinion_index": 0, "case_paths": [ "/nc/327/0634-02", "/nc/327/0634-03", "/nc/327/0634-04", "/nc/327/0634-05", "/nc/327/0634-01" ] }, { "cite": "394 S.E.2d 231", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "235" } ], "opinion_index": 0 }, { "cite": "99 N.C. App. 693", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524694 ], "year": 1990, "pin_cites": [ { "page": "698" } ], "opinion_index": 0, "case_paths": [ "/nc-app/99/0693-01" ] }, { "cite": "517 S.E.2d 171", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "pin_cites": [ { "page": "175", "parenthetical": "citing Hare v. Butler, 99 N.C. App. 693, 698, 394 S.E.2d 231, 235, disc. review denied, 327 N.C. 634, 399 S.E.2d 121 (1990)" } ], "opinion_index": 0 }, { "cite": "134 N.C. App. 248", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11143856 ], "year": 1999, "pin_cites": [ { "page": "253", "parenthetical": "citing Hare v. Butler, 99 N.C. App. 693, 698, 394 S.E.2d 231, 235, disc. review denied, 327 N.C. 634, 399 S.E.2d 121 (1990)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/134/0248-01" ] }, { "cite": "359 S.E.2d 792", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "page": "797" } ], "opinion_index": 0 }, { "cite": "320 N.C. 549", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4731518 ], "year": 1987, "pin_cites": [ { "page": "556-57" } ], "opinion_index": 0, "case_paths": [ "/nc/320/0549-01" ] }, { "cite": "449 S.E.2d 227", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 1994, "pin_cites": [ { "page": "230" }, { "page": "230" }, { "page": "230" } ], "opinion_index": 0 }, { "cite": "116 N.C. App. 676", "category": "reporters:state", "reporter": "N.C. 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App.", "case_ids": [ 11239233 ], "year": 1999, "pin_cites": [ { "page": "558-59", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/132/0556-01" ] } ], "analysis": { "cardinality": 507, "char_count": 10170, "ocr_confidence": 0.781, "pagerank": { "raw": 2.256307364558933e-07, "percentile": 0.7821309273243343 }, "sha256": "bf854b0d407f5e2cf8d3c325b58fbfd256113ed9dce42de9d9246d8ccbd4eb91", "simhash": "1:a090d4f23e8f4d46", "word_count": 1652 }, "last_updated": "2023-07-14T18:42:18.277293+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges WALKER and SMITH concur." ], "parties": [ "ANNIE MITCHELL REID, and JAMES DONALD REID, Plaintiffs/Appellees v. TOWN OF MADISON, and RICHARD KEITH TUCKER, Defendants/Appellants" ], "opinions": [ { "text": "EAGLES, Chief Judge.\nThis case presents the question of whether the Town of Madison and its employee are entitled to immunity from plaintiffs\u2019 suit for negligence.\nPlaintiffs filed this action on or about 14 September 1998 seeking damages for personal injuries allegedly suffered by Annie Mitchell Reid in a motor vehicle accident and for the subsequent loss of consortium suffered by her husband, James Donald Reid. Plaintiffs alleged that Ms. Reid was driving her automobile on 7 September 1995 in Madison, North Carolina, when she saw one of the defendant Town of Madison\u2019s (\u201cthe Town\u201d) garbage trucks. Defendant Richard Keith Tucker, an employee of the Town, was driving the garbage truck. Ms. Reid alleged that the garbage truck started backing up toward her car. She contended that she steered her vehicle to the edge of the roadway and came to a stop, but the truck did not stop and crashed into her before she could take any further evasive action.\nOn 4 February 1999, defendants moved for judgment on the pleadings on the grounds that plaintiffs\u2019 claims were barred by governmental immunity. On 24 March 1999, the trial court denied defendants\u2019 motion. Defendants appeal.\nAt the outset, we note that the order denying defendants\u2019 motion for judgment on the pleadings is an interlocutory order. However, \u201cwhile, as a general rule, such orders are not immediately appealable, this Court has repeatedly held that appeals raising issues of governmental or sovereign immunity affect a substantial right sufficient to warrant immediate appellate review.\u201d Price v. Davis, 132 N.C. App. 556, 558-59, 512 S.E.2d 783, 785 (1999) (citations omitted). Accordingly, defendants\u2019 appeal is properly before this Court.\nDefendants\u2019 sole argument is that the trial court erred in denying their motion for judgment on the pleadings because they were protected by governmental immunity and plaintiffs did not allege a waiver of immunity through the purchase of insurance. Mullins v. Friend, 116 N.C. App. 676, 449 S.E.2d 227 (1994).\nWe first consider the defendants\u2019 argument as to the Town of Madison. The allegations in plaintiffs\u2019 complaint are deemed admitted for the purpose of deciding the motion for judgment on the pleadings. Cheape v. Town of Chapel Hill, 320 N.C. 549, 556-57, 359 S.E.2d 792, 797 (1987). Under the doctrine of governmental immunity, a municipality is immune from suit for torts committed by officers or employees while performing a governmental function. Mullins, 116 N.C. App. at 680, 449 S.E.2d at 230. We note that garbage collection is a governmental function. Schmidt v. Breeden, 134 N.C. App. 248, 253, 517 S.E.2d 171, 175 (1999) (citing Hare v. Butler, 99 N.C. App. 693, 698, 394 S.E.2d 231, 235, disc. review denied, 327 N.C. 634, 399 S.E.2d 121 (1990)). However, a city can waive its immunity by purchasing liability insurance. Mullins, 116 N.C. App. at 680, 449 S.E.2d at 230. The city waives immunity only to the extent the insurance contract indemnifies it from liability for the alleged acts. Id. at 681, 449 S.E.2d at 230. \u201cIf a plaintiff does not allege a waiver of immunity by the purchase of insurance, the plaintiff has failed to state a claim against the governmental unit.\u201d Id. Here, plaintiffs have failed to allege the waiver of liability through the purchase of insurance. Accordingly, the trial court should have dismissed plaintiffs\u2019 claim against the Town of Madison on the basis of governmental immunity.\nNext, we consider plaintiffs\u2019 claim against defendant Richard Keith Tucker. All parties agree that defendant Tucker is a public employee rather than a public official. In order to determine whether Tucker is immune from suit, we must determine whether the complaint seeks recovery from Tucker in his official or individual capacity or both. Isenhour v. Hutto, 350 N.C. 601, 517 S.E.2d 121 (1999).\n\u201cA suit against a defendant in his individual capacity means that the plaintiff seeks recovery from the defendant directly; a suit against a defendant in his official capacity means that the plaintiff seeks recovery from the entity of which the public servant defendant is an agent.\u201d Meyer v. Walls, 347 N.C. 97, 110, 489 S.E.2d 880, 887 (1997). The term \u201cofficial capacity\u201d is not synonymous with the term \u201cofficial duties.\u201d Id. at 111, 489 S.E.2d at 888. Indeed, the performance of an employee\u2019s \u201cduties\u201d is irrelevant to the determination of whether a defendant is being sued in an official or individual capacity. Isenhour, 350 N.C. at 609, 517 S.E.2d at 126. In fact, it is questionable that an employee even has official duties, because official duties are reserved for public officers. The term \u201cofficial capacity\u201d is in actuality \u201ca legal term of art with a narrow meaning \u2014 the suit is in effect one against the entity.\u201d Meyer, 347 N.C. at 111, 489 S.E.2d at 888 (citing Anita R. Brown-Graham & Jeffrey S. Koeze, Immunity from Personal Liability under State Law for Public Officials and Employees: An Update, Loc. Gov\u2019t L. Bull. 67 at 7 (Inst. Of Gov\u2019t Univ. Of N.C. at Chapel Hill) Apr. 1995). Accordingly, in a suit against a public employee in his official capacity, the law entitles the employee to the same protection as that of the entity. Warren v. Guilford County, 129 N.C. App. 836, 838, 500 S.E.2d 470, 472, disc. review denied, 349 N.C. 241, 516 S.E.2d 610 (1998). In contrast, a public employee sued in his individual capacity is liable for mere negligence. Meyer, 347 N.C. at 112, 489 S.E.2d at 888.\nThe crucial question for determining whether a defendant is sued in an individual or official capacity is the nature of the relief sought, not the nature of the act or omission alleged. If the plaintiff seeks an injunction requiring the defendant to take an action involving the exercise of a governmental power, the defendant is named in an official capacity. If money damages are sought the court must ascertain whether the complaint indicates that the damages are sought from the government or from the pocket of the individual defendant. If the former, it is an official-capacity claim; if the latter, it is an individual-capacity claim; and if it is both, then the claims proceed in both capacities.\nId. at 110, 489 S.E.2d at 887. Our Supreme Court has expounded on this point by holding that \u201ca pleading should clearly state the capacity in which the defendant is being sued.\u201d Warren, 129 N.C. App. at 839, 500 S.E.2d at 472 (citing Mullis v. Sechrest, 347 N.C. 548, 554, 495 S.E.2d 721, 724 (1998)). The plaintiffs should include this statement of \u201ccapacity\u201d in the caption, the allegations, and the prayer for relief. Mullis, 347 N.C. at 554, 495 S.E.2d at 724-25. According to our Supreme Court, this statement will allow defendants to have an opportunity to prepare for a proper defense and eliminate the unnecessary litigation that arises when parties fail to specify the capacity. Id. Our courts since Mullis, have held that in the absence of a clear statement of defendant\u2019s capacity a plaintiff is deemed to have sued a defendant in his official capacity. Mullis, 347 N.C. 548, 495 S.E.2d 721; Warren, 129 N.C. App. 836, 500 S.E.2d 470; Johnson v. York, 134 N.C. App. 332, 517 S.E.2d 670 (1999).\nHere, neither the caption, allegations, nor the prayer for relief contain any suggestion as to whether the plaintiffs are suing the defendant in an official or individual capacity. See Mullis, 347 N.C. at 554, 495 S.E.2d at 725; Warren, 129 N.C. App. at 839, 500 S.E.2d at 472. Our precedent binds us to treat the complaint as a suit against the individual defendant in his official capacity. Id. As we noted previously, a suit in an official capacity is another way of \u201cpleading an action against the governmental entity.\u201d Mullis, 347 N.C. at 554, 495 S.E.2d at 725. Since the Town of Madison was immune from this suit, Tucker is as well. Accordingly, the trial court should have granted defendants\u2019 motion for judgment on the pleadings as to Defendant Tucker. We note that if the plaintiffs had sued the employee individually, the result might have been different.\nFor the foregoing reasons we reverse the decision of the Superior Court and remand for action consistent with this opinion.\nReversed and remanded.\nJudges WALKER and SMITH concur.", "type": "majority", "author": "EAGLES, Chief Judge." } ], "attorneys": [ "No brief filed by plaintiff-appellees.", "McCall Doughton & Blancato, PLLC, by William A. Blancato, for defendant-appellants." ], "corrections": "", "head_matter": "ANNIE MITCHELL REID, and JAMES DONALD REID, Plaintiffs/Appellees v. TOWN OF MADISON, and RICHARD KEITH TUCKER, Defendants/Appellants\nNo. COA99-489\n(Filed 21 March 2000)\n1. Appeal and Error\u2014 appealability \u2014 interlocutory order\u2014 governmental immunity \u2014 substantial right\nAlthough the trial court\u2019s denial of defendants\u2019 motion for summary judgment is an interlocutory order, appeals raising issues of governmental or sovereign immunity affect a substantial right warranting immediate appellate review.\n2. Immunity\u2014 governmental \u2014 town\u2014garbage collection \u2014 no allegation of waiver\nIn an action seeking damages for personal injuries arising out of an accident involving plaintiffs\u2019 vehicle and one of defendant Town of Madison\u2019s garbage trucks, the trial court erred in failing to dismiss plaintiffs\u2019 claim against the town on the basis of governmental immunity because garbage collection is a governmental function and plaintiffs failed to allege the town\u2019s waiver of immunity through the purchase of insurance.\n3. Immunity\u2014 governmental \u2014 public employee \u2014 official capacity\nIn an action seeking damages for personal injuries arising out of an accident involving plaintiffs\u2019 vehicle and one of defendant Town of Madison\u2019s garbage trucks, the trial court erred in failing to grant defendants\u2019 motion for judgment on the pleadings as to defendant public employee driver of the garbage truck because in the absence of a clear statement indicating the capacity in which this defendant is being sued, a plaintiff is deemed to have sued the public employee in his official capacity, and therefore, this defendant is entitled to the same immunity as the Town of Madison.\nAppeal by defendants from order entered 24 March 1999 by Judge James M. Webb in Rockingham County Superior Court. Heard in the Court of Appeals 21 February 2000.\nNo brief filed by plaintiff-appellees.\nMcCall Doughton & Blancato, PLLC, by William A. Blancato, for defendant-appellants." }, "file_name": "0168-01", "first_page_order": 200, "last_page_order": 204 }