{ "id": 9189770, "name": "LARRY TABOR, AMANDA TABOR, HENRY ALVIN TABOR, and NORMA JEAN TABOR, Plaintiffs v. COUNTY OF ORANGE, ORANGE COUNTY HEALTH DEPARTMENT, ORANGE COUNTY PLANNING DEPARTMENT, DAVID HECHT in his capacity as Environmental Health Specialist of the Orange County Health Department, Defendants", "name_abbreviation": "Tabor v. County of Orange", "decision_date": "2003-02-04", "docket_number": "No. COA02-423", "first_page": "88", "last_page": "91", "citations": [ { "type": "official", "cite": "156 N.C. App. 88" } ], "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": "451 S.E.2d 358", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "365", "parenthetical": "holding that sovereign immunity applies to the tort of negligent misrepresentation" } ], "opinion_index": 0 }, { "cite": "117 N.C. App. 340", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525320 ], "year": 1994, "pin_cites": [ { "page": "349", "parenthetical": "holding that sovereign immunity applies to the tort of negligent misrepresentation" } ], "opinion_index": 0, "case_paths": [ "/nc-app/117/0340-01" ] }, { "cite": "489 S.E.2d 880", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "pin_cites": [ { "parenthetical": "recognizing the local health departments as the agencies responsible for approving or rejecting improvement permits and regulating sanitary sewage systems" } ], "opinion_index": 0 }, { "cite": "347 N.C. 97", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 551301 ], "year": 1997, "pin_cites": [ { "parenthetical": "recognizing the local health departments as the agencies responsible for approving or rejecting improvement permits and regulating sanitary sewage systems" } ], "opinion_index": 0, "case_paths": [ "/nc/347/0097-01" ] }, { "cite": "422 S.E.2d 338", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "pin_cites": [ { "page": "341" } ], "opinion_index": 0 }, { "cite": "108 N.C. App. 24", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522165 ], "year": 1992, "pin_cites": [ { "page": "28" } ], "opinion_index": 0, "case_paths": [ "/nc-app/108/0024-01" ] }, { "cite": "422 S.E.2d 449", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1992, "pin_cites": [ { "page": "451", "parenthetical": "stating \"governmental immunity does not apply when the municipality engages in a proprietary function\"" }, { "page": "451" } ], "opinion_index": 0 }, { "cite": "108 N.C. App. 80", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522588 ], "weight": 2, "year": 1992, "pin_cites": [ { "page": "83", "parenthetical": "stating \"governmental immunity does not apply when the municipality engages in a proprietary function\"" }, { "page": "83" } ], "opinion_index": 0, "case_paths": [ "/nc-app/108/0080-01" ] }, { "cite": "450 S.E.2d 747", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "parenthetical": "explaining that \"absent an allegation to the effect that immunity has been waived, the complaint fails to state a cause of action against the county\"" } ], "opinion_index": 0 }, { "cite": "117 N.C. App. 85", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524171 ], "year": 1994, "pin_cites": [ { "parenthetical": "explaining that \"absent an allegation to the effect that immunity has been waived, the complaint fails to state a cause of action against the county\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/117/0085-01" ] }, { "cite": "431 S.E.2d 489", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1993, "pin_cites": [ { "page": "493" }, { "page": "493-94" }, { "page": "494" } ], "opinion_index": 0 }, { "cite": "110 N.C. App. 707", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526342 ], "weight": 3, "year": 1993, "pin_cites": [ { "page": "714" }, { "page": "714" }, { "page": "714" } ], "opinion_index": 0, "case_paths": [ "/nc-app/110/0707-01" ] }, { "cite": "527 S.E.2d 87", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "89" } ], "opinion_index": 0 }, { "cite": "137 N.C. App. 168", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11092543 ], "year": 2000, "pin_cites": [ { "page": "170" } ], "opinion_index": 0, "case_paths": [ "/nc-app/137/0168-01" ] } ], "analysis": { "cardinality": 447, "char_count": 7827, "ocr_confidence": 0.735, "pagerank": { "raw": 6.280817767324628e-08, "percentile": 0.38715191503442864 }, "sha256": "406c13f996a4d3d374dab89dd2c5ca6a19802ac86542f87f977b81e847ba61d1", "simhash": "1:836c6d74753c2e52", "word_count": 1185 }, "last_updated": "2023-07-14T21:05:49.893248+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges BRYANT and GEER concur." ], "parties": [ "LARRY TABOR, AMANDA TABOR, HENRY ALVIN TABOR, and NORMA JEAN TABOR, Plaintiffs v. COUNTY OF ORANGE, ORANGE COUNTY HEALTH DEPARTMENT, ORANGE COUNTY PLANNING DEPARTMENT, DAVID HECHT in his capacity as Environmental Health Specialist of the Orange County Health Department, Defendants" ], "opinions": [ { "text": "WYNN, Judge.\nIn North Carolina, the doctrine of sovereign immunity generally bars actions against governmental entities and public officers for acts arising out of their performance of governmental functions. The plaintiffs brought the subject action alleging that defendants negligently misrepresented whether certain property was suitable for supporting a septic tank for a mobile home. Because we hold that the function of approving or denying septic tank permits is a governmental function, we reverse the trial court\u2019s denial of summary judgment, and remand for entry of summary judgment in favor of defendants.\nThe underlying facts to this appeal show that Larry Tabor and his wife, Amanda, wanted to subdivide their property in Orange County and place a mobile home on the property for their parents, Henry Alvin Tabor and his wife Norma Jean. Before embarking upon the approval process with the Orange County Planning Department, the Tabors submitted an improvement permit application to the Orange County Health Department for a determination of whether the soil could support another septic system. David Hecht, an Environmental Health Specialist for the Orange County Health Department, conducted the site evaluation. The results of Mr. Hecht\u2019s analysis are in dispute. Whereas the Tabors contend Mr. Hecht represented the septic tank permit would be approved, the governmental-entity defendants contend Mr. Hecht informed them he would need certain information from the survey before a determination could be made.\nNevertheless, the Tabors continued with their plans by starting the approval process with the planning department, constructing a road, and buying a mobile home for the property. The planning department sent a letter to the Tabors containing a list of preconditions for the approval of their minor subdivision application, which included the approval of the final plat by the Orange County Health Department. Afterwards however, the Health Department denied their application giving rise to this action against defendants for negligent misrepresentation. In response, defendants claimed sovereign immunity and on their motion for summary judgment, the trial court dismissed all claims except for the Tabors\u2019 negligent misrepresentation claim. Defendants appeal.\nAs an initial matter, we note defendants\u2019 appeal of the order partially denying summary judgment is interlocutory. However \u201cappeals raising issues of governmental or sovereign immunity affect a substantial right sufficient to warrant immediate appellate review.\u201d Reid v. Town of Madison, 137 N.C. App. 168, 170, 527 S.E.2d 87, 89 (2000). Accordingly, defendants\u2019 appeal is properly before this court.\n\u201cAs a general rule, the doctrine of governmental, or sovereign, immunity bars actions against, inter alia, the state, its counties, and its public officials sued in their official capacity.\u201d Messick v. Catawba County, North Carolina, 110 N.C. App. 707, 714, 431 S.E.2d 489, 493 (1993). \u201cThis doctrine applies where the entity sued is being sued for the performance of a governmental, rather than a proprietary, function.\u201d Id. \u201cIt is inapplicable, however, where the state has consented to suit or has waived its immunity through the purchase of liability insurance.\u201d Messick, 110 N.C. App. at 714, 431 S.E.2d at 493-94. \u201cAbsent consent or waiver, the immunity provided by the doctrine is absolute and unqualified.\u201d Messick, 110 N.C. App. at 714, 431 S.E.2d at 494.\nPlaintiffs have not alleged defendants consented to suit or waived their immunity. Therefore, for plaintiffs\u2019 suit to proceed, defendants must have been engaged in a proprietary, rather than a governmental, function. See Clark v. Burke Cty., 117 N.C. App. 85, 450 S.E.2d 747 (1994) (explaining that \u201cabsent an allegation to the effect that immunity has been waived, the complaint fails to state a cause of action against the county\u201d); Hickman v. Fuqua, 108 N.C. App. 80, 83, 422 S.E.2d 449, 451 (1992) (stating \u201cgovernmental immunity does not apply when the municipality engages in a proprietary function\u201d). Indeed, on appeal, plaintiffs contend that defendants are not entitled to the benefits of sovereign immunity because they engaged in proprietary functions rather than governmental functions.\nThe test for determining whether an activity is governmental or proprietary is \u201cif the undertaking of the municipality is one in which only a governmental agency could engage, it is governmental in nature. It is proprietary and \u2018private\u2019 when any corporation, individual, or group of individuals could do the same thing.\u201d Hickman, 108 N.C. App. at 83, 422 S.E.2d at 451. Plaintiffs argue that although permit approval or denial may be governmental, the specific duties performed by sanitarians, including those outlined in N.C. Gen. Stat. \u00a7 130A-336 et seq., should be classified as proprietary because a fee was charged and because private soil scientists could advise whether the soil is suitable for a septic system. We disagree.\nPlaintiffs stated goal was to obtain an opinion as to whether a permit for septic tank installation would be approved by the county health department prior to making any changes to their property; thus, the present lawsuit for negligent misrepresentation arises out of defendants\u2019 alleged opinion as to whether the permit would be approved. Our legislature has vested the Department of Health and Human Services via the local boards of health with the authority to approve and regulate wastewater systems, including septic tank systems. See N.C. Gen. Stat. \u00a7 130A-334 et seq. (2001); EEE-ZZZ Lay Drain Go. v. North Carolina Dept. of Human Resources, 108 N.C. App. 24, 28, 422 S.E.2d 338, 341 (1992), overruled on other grounds by Meyer v. Walls, 347 N.C. 97, 489 S.E.2d 880 (1997) (recognizing the local health departments as the agencies responsible for approving or rejecting improvement permits and regulating sanitary sewage systems). Thus, we conclude that the function of approving or denying permits for septic tank systems is a governmental function. Accordingly, plaintiffs\u2019 misrepresentation claim against the subject defendants is barred by sovereign immunity. See City of Winston-Salem v. Yarbrough, 117 N.C. App. 340, 349, 451 S.E.2d 358, 365 (1994) (holding that sovereign immunity applies to the tort of negligent misrepresentation).\nReversed and remanded.\nJudges BRYANT and GEER concur.", "type": "majority", "author": "WYNN, Judge." } ], "attorneys": [ "Steffan & Associates, P.C., by Kim K. Steffan for plaintiffs.", "Womble Carlyle Sandridge & Rice, PLLC, by Mark A. Davis and Tamara P.W. Desai for defendants." ], "corrections": "", "head_matter": "LARRY TABOR, AMANDA TABOR, HENRY ALVIN TABOR, and NORMA JEAN TABOR, Plaintiffs v. COUNTY OF ORANGE, ORANGE COUNTY HEALTH DEPARTMENT, ORANGE COUNTY PLANNING DEPARTMENT, DAVID HECHT in his capacity as Environmental Health Specialist of the Orange County Health Department, Defendants\nNo. COA02-423\n(Filed 4 February 2003)\n1. Appeal and Error\u2014 appealability \u2014 interlocutory order\u2014 denial of summary judgment \u2014 substantial right \u2014 sovereign immunity\nAlthough defendants\u2019 appeal from the partial denial of summary judgment is an appeal from an interlocutory order, appeals raising issues of governmental or sovereign immunity affect a substantial right sufficient to warrant immediate appellate review.\n2. Immunity\u2014 sovereign \u2014 approval or denial of septic tank permits \u2014 governmental function\nThe trial court erred in a negligent misrepresentation case concerning whether certain property was suitable for supporting a septic tank for a mobile home by denying defendants\u2019 motion for summary judgment on the basis of sovereign immunity, because the function of approving or denying septic tank permits is a governmental function.\nAppeal by defendants from order entered 21 February 2002 by Judge Wade Barber, Superior Court, Orange County. Heard in the Court of Appeals 7 January 2003.\nSteffan & Associates, P.C., by Kim K. Steffan for plaintiffs.\nWomble Carlyle Sandridge & Rice, PLLC, by Mark A. Davis and Tamara P.W. Desai for defendants." }, "file_name": "0088-01", "first_page_order": 118, "last_page_order": 121 }