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    "judges": [
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    "parties": [
      "JOY B. MURRAY, Plaintiff v. COUNTY OF PERSON; et al., Defendants"
    ],
    "opinions": [
      {
        "text": "WYNN, Judge.\nThe standard of review for a motion for summary judgment is whether there is any genuine issue of material fact and whether the moving party is entitled to a judgment as a matter of law. Here, the defendants argue the trial court erred by partially denying their motion for summary judgment because they are entitled to the protection of the public duty doctrine and public officers\u2019 immunity. Because we hold that neither the public duty doctrine nor public officers\u2019 immunity protects the defendants from liability, we affirm the trial court\u2019s partial denial of the defendants\u2019 motion for summary judgment.\nOn 4 September 2002, Herman Rouse, Plaintiff Joy Murray\u2019s contractor and builder, applied for an improvement permit from the Person County Health Department. On 6 November 2002, Defendant Adam Sarver, an Environmental Health Specialist for the Person County Health Department, conducted a site evaluation on Ms. Murray\u2019s property and issued an improvement permit approving the installation of an innovative wastewater treatment system on the property. The improvement permit stated that \u201c[n]either Person County nor the Environmental Health Specialist warrants that the septic tank system will continue to function satisfactorily in the future or that the water supply will remain potable.\u201d\nOn 13 March 2003, an innovative wastewater treatment system was installed on Ms. Murray\u2019s property. On 19 March 2003, Mr. Sarver issued an Operation Permit, indicating that the system had been installed in compliance with statutory law.\nThe construction of Ms. Murray\u2019s home was completed in March 2003 and she moved into the home in April 2003. Shortly after she moved in, Ms. Murray noticed water surfacing on her property and she notified Mr. Rouse. Mr. Rouse visited Ms. Murray\u2019s property and informed her that she had a problem with her septic system.\nMs. Murray reported the problems with her wastewater system to the county, and over the next several months, Mr. Sarver, along with Defendant Harold Kelly, another Environmental Health Specialist, and Defendant Janet Clayton, an Environmental Health Supervisor, made numerous unsuccessful attempts to repair Ms. Murray\u2019s waste-water system. These attempts involved multiple inspections and observations of the wastewater system, the issuance of permits for the installation of a new line, and eventually, the installation of a new innovative system. However, the new innovative wastewater treatment system, installed in February 2004, also failed.\nOn 15 June 2006, Ms. Murray initiated this action against Person County and the Person County Health Department; and against Mr. Sarver, Ms. Clayton, and Mr. Kelly, individually and in their official capacities. She alleged negligence, negligent misrepresentation, and negligent infliction of emotional distress in the issuance of permits for the installation and repair of her wastewater treatment system.\nOn 29 May 2007, Defendants filed a motion for summary judgment as to all of Ms. Murray\u2019s claims. The trial court heard Defendants\u2019 motion on 24 July 2007 and granted Defendants\u2019 motion as to all claims against Person County and the Person County Health Department; and Mr. Sarver, Ms. Clayton, and Mr. Kelly in their official capacities. The trial court also granted summary judgment on Ms. Murray\u2019s claim of negligent infliction of emotional distress. However, the trial court denied summary judgment as to Ms. Murray\u2019s claims for negligence and negligent misrepresentation against Mr. Sarver, Ms. Clayton, and Mr. Kelly in their individual capacities.\nOn appeal, Mr. Sarver, Ms. Clayton, and Mr. Kelly (collectively \u201cDefendants\u201d) argue the trial court erred by partially denying their motion for summary judgment. Specifically, Defendants contend that they are entitled to the protection of the public duty doctrine and public officers\u2019 immunity. Though interlocutory, Defendants\u2019 appeal from the denial of summary judgment is properly before this Court because appeals which present defenses of governmental or sovereign immunity, like the public duty doctrine or public officers\u2019 immunity, have been held by this Court to be immediately appealable as affecting a substantial right. Schlossberg v. Goins, 141 N.C. App. 436, 439, 540 S.E.2d 49, 52 (2000), disc. review denied, 355 N.C. 215, 560 S.E.2d 136 (2002); Derwort v. Polk County, 129 N.C. App. 789, 790-91, 501 S.E.2d 379, 380 (1998).\nThe standard of review from the denial of summary judgment is de novo. Moody v. Able Outdoor, Inc., 169 N.C. App. 80, 83, 609 S.E.2d 259, 261 (2005). We review whether there is any genuine issue of material fact and whether the moving party is entitled to a judgment as a matter of law. Bruce-Terminix Co. v. Zurich Ins. Co., 130 N.C. App. 729, 733, 504 S.E.2d 574, 577 (1998). Though we view the evidence presented by the parties in the light most favorable to the nonmovant, summary judgment is appropriate when \u201c(1) an essential element of plaintiff\u2019s claim is nonexistent!,] (2) plaintiff cannot produce evidence to support an essential element of his claim, or (3) plaintiff cannot surmount an affirmative defense which would bar the claim.\u201d Gibson v. Mutual Life Ins. Co. of New York, 121 N.C. App. 284, 286, 465 S.E.2d 56, 58 (1996).\nDefendants first argue the trial court erred by denying summary judgment on the claims of negligence and negligent misrepresentation in their individual capacities because they are protected from liability by the public duty doctrine. We disagree.\nThe public duty doctrine \u201cprovides that governmental entities and their agents owe duties only to the general public, not to individuals, absent a \u2018special relationship\u2019 or \u2018special duty\u2019 between the entity and the injured party.\u201d Stone v. North Carolina Dept. of Labor, 347 N.C. 473, 477-78, 495 S.E.2d 711, 714 (citation omitted), cert. denied, 525 U.S. 1016, 142 L. Ed. 2d 449 (1998). \u201cBecause the governmental entity owes no particular duty to any individual claimant, it cannot be held liable for negligence . . . .\u201d Id. at 482, 495 S.E.2d at 716. The purpose of the public duty doctrine is \u201cto prevent an overwhelming burden of liability on governmental agencies with limited resources.\u201d Id. at 481, 495 S.E.2d at 716 (internal citations omitted).\nAlthough the public duty doctrine was initially adopted in the context of municipal law enforcement, Braswell v. Braswell, 330 N.C. 363, 410 S.E.2d 897 (1991), reh\u2019g denied, 330 N.C. 854, 413 S.E.2d 550 (1992), our Supreme Court has extended the public duty doctrine \u201cto claims against the State under the Tort Claims Act,\u201d Stone, 347 N.C. at 482, 495 S.E.2d at 716, and \u201cto state agencies required by statute to conduct inspections for the public\u2019s general protection.\u201d Lovelace v. City of Shelby, 351 N.C. 458, 461, 526 S.E.2d 652, 654, reh\u2019g denied, 352 N.C. 157, 544 S.E.2d 225 (2000). Additionally, this Court has held that \u201cthe Health Department, an agent of [North Carolina Department of Environment and Natural Resources], is a state agency required [by statute] to inspect site for suitability of wastewater treatment systems before issuing improvement permits ... and therefore may avail itself of the protection afforded by the public duty doctrine.\u201d Watts v. North Carolina Dept. of Env\u2019t. and Natural Resources, 182 N.C. App. 178, 182, 641 S.E.2d 811, 816 (2007), disc. review granted,-N.C. -, 660 S.E.2d 899.\nHowever, our review of North Carolina case law has revealed no cases in which our courts have held that an employee of a health department is entitled to the protection of the public duty doctrine when sued only in his or her individual capacity in Superior Court. Our Supreme Court has explained: \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).\nHere, the only claims remaining against Defendants are in their individual capacities. Where a governmental worker is sued in his individual capacity, rather than applying the public duty doctrine, our courts have consistently applied public officers\u2019 immunity. See Isenhour v. Hutto, 350 N.C. 601, 609, 517 S.E.2d 121, 127 (1999) (\u201cOnce we determine the aggrieved party has sufficiently pled a claim against defendant in his or her individual capacity, we must determine whether that defendant is a public official or a public employee.\u201d); Epps v. Duke Univ., Inc., 122 N.C. App. 198, 205, 468 S.E.2d 846, 851-52 (1996) (\u201cTo 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 exceptionsf.]\u201d); EEE-ZZZ Lay Drain Co. v. North Carolina Dept. of Human Res., 108 N.C. App. 24, 28, 422 S.E.2d 338, 341 (1992) (\u201cWhen a governmental worker is sued in his individual capacity, our courts have distinguished between whether the worker is an officer or an employee when assessing liability.\u201d). We hold that the public duty doctrine does not extend to government workers sued only in their individual capacities. Accordingly, this assignment of error is overruled, and we now turn to a discussion of public officers\u2019 immunity.\nDefendants next argue the trial court erred by denying summary judgment on the claims of negligence and negligent misrepresentation in their individual capacities because they are entitled to public officers\u2019 immunity. We disagree.\nIt is well established that \u201cfp]ublic officers are shielded from liability unless their actions are corrupt or maliciousf;]\u201d however, public employees can be held personally liable for mere negligence. EEE-ZZZ Lay Drain Co., 108 N.C. App. at 28-29, 422 S.E.2d at 341 (citing Smith v. State, 289 N.C. 303, 331, 222 S.E.2d 412, 430 (1976)), overruled on other grounds, Meyer v. Walls, 347 N.C. 97, 489 S.E.2d 880 (1997). In distinguishing between a public official and a public employee, our courts have held that \u201c(1) a public office is a position created by the constitution or statutes; (2) a public official exercises a portion of the sovereign power; and (3) a public official exercises discretion, while public employees perform ministerial duties.\u201d Isenhour, 350 N.C. at 610, 517 S.E.2d at 127. Additionally, \u201can officer is generally required to take an oath of office while an agent or employee is not required to do so.\u201d Pigott v. City of Wilmington, 50 N.C. App. 401, 403-04, 273 S.E.2d 752, 754, cert. denied, 303 N.C. 181, 280 S.E.2d 453 (1981).\nThis Court has previously determined that the positions of an Environmental Health Specialist and an Environmental Health Supervisor are public employees because the positions are not created by statute and they do not exercise sovereign power; rather, their duties are ministerial. Block v. Cty. of Person, 141 N.C. App. 273, 281-82, 540 S.E.2d 415, 421-22 (2000). Although Block was an appeal from the denial of a motion to dismiss and the current case is an appeal from a partial denial of a motion for summary judgment, we find the reasoning in Block persuasive. See Northern Nat. Life Ins. Co. v. Lacy J. Miller Mach. Co., Inc., 311 N.C. 62, 76, 316 S.E.2d 256, 265 (1984) (holding that the Court of Appeals was not bound by the doctrine of stare decisis because the procedural issues in the case were substantially different from those in a similar case).\nIn Block, this Court stated:\nAlthough defendants cite a number of statutes contained in Chapter 130A (Public Health) of the North Carolina General Statutes, there is no statutory or constitutional scheme that creates the positions of Environmental Health Specialist or Environmental Health Supervisor for a county health department. Only the position of Director of a county health department is set forth by statute. Nor does it appear that defendants . . . exercise any sovereign power; rather, their duties are ministerial. Our courts have held that a supervisor of the Department of Social Services is a public employee. Similarly, a supervisor for the Health Department is a public employee, as is a specialist, who is a subordinate of the supervisor.\n141 N.C. App. at 281-82, 540 S.E.2d at 421-22.\nAlthough Defendants argue that they were acting as Regist\u00e9red Sanitarians, a position created by statute, we agree with the reasoning in Block, that \u201cthere is no statutory or constitutional scheme that creates the positions of Environmental Health Specialist or Environmental Health Supervisor for a county health department.\u201d Id.) see also Hare v. Butler, 99 N.C. App. 693, 700, 394 S.E.2d 231, 236 (1990) (holding that three Department of Social Services positions\u2014 Protective Services Investigation Supervisor, Program Administrator for Child and Family Services, and Assistant Director \u2014 were public employees because their positions were not created by statute nor did they exercise any sovereign power). Additionally, there is no evidence in the record that Defendants took oaths of office. See Pigott, 50 N.C. App. at 403-04, 273 S.E.2d at 754. Accordingly, this assignment of error is overruled.\nAffirmed.\nJudges BRYANT and JACKSON concur.\n. Bruce-Terminix Co. v. Zurich Ins. Co., 130 N.C. App. 729, 733, 504 S.E.2d 574, 577 (1998).\n. We note that in Watts, the action was brought before the Industrial Commission against an employee of the Health Department, the Health Department, and North Carolina Department of Environment and Natural Resources; however, the Deputy Commissioner dismissed the claim against the employee, as he was not a proper party. Watts, 182 N.C. App. at 180, 641 S.E.2d at 815.",
        "type": "majority",
        "author": "WYNN, Judge."
      }
    ],
    "attorneys": [
      "Alan S. Hicks, P.A., by Alan S. Hicks, for plaintiff-appellee.",
      "Womble Carlyle Sandridge & Rice, PLLC, by James R. Morgan, Jr. and Robert T. Numbers, II, for defendants-appellants Clayton, Kelly, and Sarver."
    ],
    "corrections": "",
    "head_matter": "JOY B. MURRAY, Plaintiff v. COUNTY OF PERSON; et al., Defendants\nNo. COA07-1260\n(Filed 5 August 2008)\n1. Appeal and Error\u2014 appealability \u2014 interlocutory orders \u2014 partial denial of summary judgment \u2014 governmental immunity\nAn appeal from the denial of summary judgment involving governmental immunity was interlocutory but properly before the Court of Appeals.\n2. Immunity\u2014 public duty doctrine \u2014 suit in individual capacity\nThe public duty doctrine does not extend to government workers sued only in their individual capacities, and summary judgment was properly denied to defendants on that ground in an action against employees of a county health department arising from the failure of a septic system.\n3. Immunity\u2014 public officers \u2014 health department employees not available\nPublic officers immunity was not available to health department employees in the positions of Environmental Health Specialist and Environmental Health Supervisor, and the trial court correctly denied summary judgment for defendants on that issue in an action arising from the failure of a septic system.\nAppeal by defendants from judgment entered 24 July 2007 by Judge Richard W. Stone in Superior Court, Person County. Heard in the Court of Appeals 18 March 2008.\nAlan S. Hicks, P.A., by Alan S. Hicks, for plaintiff-appellee.\nWomble Carlyle Sandridge & Rice, PLLC, by James R. Morgan, Jr. and Robert T. Numbers, II, for defendants-appellants Clayton, Kelly, and Sarver."
  },
  "file_name": "0575-01",
  "first_page_order": 607,
  "last_page_order": 613
}
