{ "id": 4347555, "name": "MALINDA FRALEY and DAVID FRALEY, Co-Administrators of the Estate of ATLAS FRALEY, Plaintiffs v. JAMES GRIFFIN, in his individual capacity, Defendant", "name_abbreviation": "Fraley v. Griffin", "decision_date": "2011-12-20", "docket_number": "No. COA11-300", "first_page": "624", "last_page": "629", "citations": [ { "type": "official", "cite": "217 N.C. App. 624" } ], "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": "664 S.E.2d 58", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12641633 ], "year": 2008, "pin_cites": [ { "page": "61", "parenthetical": "internal quotations and citations omitted" } ], "opinion_index": 0, "case_paths": [ "/se2d/664/0058-01" ] }, { "cite": "645 S.E.2d 201", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12638457 ], "year": 2007, "pin_cites": [ { "page": "203" } ], "opinion_index": 0, "case_paths": [ "/se2d/645/0201-01" ] }, { "cite": "653 S.E.2d 548", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12639966 ], "year": 2007, "pin_cites": [ { "page": "550" } ], "opinion_index": 0, "case_paths": [ "/se2d/653/0548-01" ] }, { "cite": "32 S.E.2d 594", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1945, "pin_cites": [ { "page": "597" } ], "opinion_index": 0 }, { "cite": "224 N.C. 783", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8615147 ], "year": 1945, "pin_cites": [ { "page": "787" } ], "opinion_index": 0, "case_paths": [ "/nc/224/0783-01" ] }, { "cite": "517 S.E.2d 121", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1999, "pin_cites": [ { "page": "127", "parenthetical": "inter-nal quotations and citations omitted" }, { "page": "127" } ], "opinion_index": 0 }, { "cite": "350 N.C. 601", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 132031 ], "weight": 2, "year": 1999, "pin_cites": [ { "page": "610", "parenthetical": "inter-nal quotations and citations omitted" }, { "page": "610" } ], "opinion_index": 0, "case_paths": [ "/nc/350/0601-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 143-517", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 143-507", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 131-155", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "opinion_index": 0 }, { "cite": "682 S.E.2d 224", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 2009, "pin_cites": [ { "page": "228-29" }, { "page": "228" }, { "page": "229" } ], "opinion_index": 0 }, { "cite": "199 N.C. App. 173", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4169820 ], "weight": 3, "year": 2009, "pin_cites": [ { "page": "177-79" }, { "page": "177" }, { "page": "179" } ], "opinion_index": 0, "case_paths": [ "/nc-app/199/0173-01" ] }, { "cite": "191 N.C. App. 575", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4159033 ], "year": 2008, "pin_cites": [ { "page": "579-80", "parenthetical": "internal quotations and citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/191/0575-01" ] }, { "cite": "183 N.C. App. 637", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8205221 ], "year": 2007, "pin_cites": [ { "page": "638" } ], "opinion_index": 0, "case_paths": [ "/nc-app/183/0637-01" ] }, { "cite": "187 N.C. App. 480", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8374908 ], "year": 2007, "pin_cites": [ { "page": "482" } ], "opinion_index": 0, "case_paths": [ "/nc-app/187/0480-01" ] } ], "analysis": { "cardinality": 611, "char_count": 10788, "ocr_confidence": 0.731, "pagerank": { "raw": 6.887054022679479e-08, "percentile": 0.4189161221368505 }, "sha256": "515bf9efb89255a079049479564efc16a5b381b86deae1c1a851477d699e402b", "simhash": "1:81095d2ed2fb7750", "word_count": 1684 }, "last_updated": "2023-07-14T22:07:22.966851+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Chief Judge MARTIN and Judge BRYANT concur." ], "parties": [ "MALINDA FRALEY and DAVID FRALEY, Co-Administrators of the Estate of ATLAS FRALEY, Plaintiffs v. JAMES GRIFFIN, in his individual capacity, Defendant" ], "opinions": [ { "text": "CALABRIA, Judge.\nJames Griffin (\u201cdefendant\u201d) appeals from the trial court\u2019s order denying defendant\u2019s motion for summary judgment on the basis of public official immunity. We affirm.\nI. Background\nOn 12 August 2008, Atlas Fraley (\u201cAtlas\u201d) returned home after a high school football practice and called 911. Atlas told the operator that he was seventeen years old and experiencing full body cramps and dehydration. He also told the dispatcher that he was home alone as his parents were at work. The operator dispatched defendant, an emergency medical technician (\u201cEMT\u201d) employed by Orange County Emergency Services (\u201cOCES\u201d), to Atlas\u2019 home.\nWhen defendant arrived at Atlas\u2019 home, he noted that Atlas was in obvious discomfort and could not sit still. Defendant conducted a brief examination of Atlas and determined his condition was not serious and that his pain was not severe. Defendant advised Atlas to orally hydrate and watched him do so successfully. Defendant then gave Atlas oral and written instructions to contact his parents and 911 if his symptoms worsened and left Atlas home alone. Defendant proceeded to respond to other emergency calls. A few hours later, Atlas\u2019 parents arrived home and found him lying on their living room floor. Atlas was unresponsive and not breathing. When OCES personnel arrived, Atlas was pronounced dead. A later autopsy could not definitely determine Atlas\u2019 cause of death.\nOn 28 January 2010, Atlas\u2019 parents, as co-administrators of his estate (\u201cplaintiffs\u201d), initiated a wrongful death action in Orange County Superior Court against defendant, in both his official and individual capacities, OCES, and Orange County, North Carolina. After determining that Orange County had not waived its sovereign immunity for their claims, plaintiffs dismissed all claims with the exception of those against defendant in his individual capacity.\nOn 29 October 2010, defendant filed a motion for summary judgment on the basis of, inter alia, public official immunity. After a hearing, this motion was denied by the trial court on 12 November 2010. Defendant appeals.\nII. Public Official Immunity\nAs an initial matter, we note that the trial court\u2019s order denying defendant\u2019s motion for summary judgment is interlocutory, and thus, not generally subject to immediate appeal. Snyder v. Learning Servs. Corp., 187 N.C. App. 480, 482, 653 S.E.2d 548, 550 (2007). \u201cOrders denying summary judgment based on public official immunity, however, affect a substantial right and are immediately appealable.\u201d Dempsey v. Halford, 183 N.C. App. 637, 638, 645 S.E.2d 201, 203 (2007). Thus, defendant\u2019s appeal is properly before this Court.\nDefendant\u2019s sole argument on appeal is that the trial court erred by denying his motion for summary judgment. Defendant asserts that, as an EMT for Orange County, he is entitled to public official immunity. We disagree.\nIt is well established that [p]ublic officers are shielded from liability unless their actions are corrupt or maliciousf;] however, public employees can be held personally liable for mere negligence. In distinguishing between a public official and a public employee, our courts have held that (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. Additionally, an officer is generally required to take an oath of office while an agent or employee is not required to do so.\nMurray v. County of Person, 191 N.C. App. 575, 579-80, 664 S.E.2d 58, 61 (2008)(internal quotations and citations omitted).\nA. Position Created bv Statute\nDefendant first contends that the position of EMT is created by statute. This Court has noted that cases which have recognized the existence of a public officer did so when either the officer\u2019s position had \u201ca clear statutory basis\u201d or the officer had been \u201cdelegated a statutory duty by a person or organization created by statute.\u201d Farrell v. Transylvania Cty. Bd. of Educ., 199 N.C. App. 173, 177-79, 682 S.E.2d 224, 228-29 (2009). Defendant contends that N.C. Gen. Stat. \u00a7\u00a7 131E-155, 131E-158, 143-507, and 143-517 (2009) support his argument that the position of EMT is created by statute.\nN.C. Gen. Stat. \u00a7 131-155 simply contains the definitions which are to be applied in Article 7 of Chapter 13 IE, which governs the \u201cRegulation of Emergency Medical Services.\u201d N.C. Gen. Stat. \u00a7 131E-155 (6) defines an EMT as used in that article and differentiates EMTs from other positions defined in the statute such as \u201cemergency medical dispatcher,\u201d N.C. Gen. Stat. \u00a7 131E-155 (5), and \u201cmobile intensive care nurse,\u201d N.C. Gen. Stat. \u00a7 131E-155 (15). The existence of this statutory definition does not constitute creating the position of EMT. See Farrell, 199 N.C. App. at 177, 682 S.E.2d at 228 (N.C. Gen. Stat. \u00a7 115C-325 (a)(6) \u201cdefines a \u2018teacher\u2019 as used in that section, as opposed to a \u2018career employee,\u2019 \u2018case manager,\u2019 or \u2018school administrator;\u2019 it does not create the position of public school teacher.\u201d).\nLikewise, the remaining statutes cited by defendant do not create the position of EMT. N.C. Gen. Stat. \u00a7 131E-158 regulates the operation of all ambulances, either public or private, by requiring \u201c[e]very ambulance when transporting a patient... [to] be occupied... by... at least one emergency medical technician . . . [and] one medical responder.\u201d N.C. Gen. Stat. \u00a7 143-507 establishes \u201ca comprehensive Statewide Emergency Medical Services System in the Department of Health and Human Services,\u201d and N.C. Gen. Stat. \u00a7 143-517 requires each North Carolina county to \u201censure that emergency medical services are provided to its citizens.\u201d These various statutes operate to create and regulate different aspects of emergency medical services in North Carolina. None of these statutes, either singly or in combination, operate to create the position of EMT. Since the statutes cited by defendant neither provide a clear statutory basis for the position of EMT nor allow a person or organization created by statute to delegate any statutory duties to EMTs, defendant has failed to establish that the position of EMT was created by statute.\nB. Discretion\nDefendant also contends that his work involves the exercise of discretion and cannot be characterized as ministerial work. Our Supreme Court has explained that \u201c[discretionary acts are those requiring personal deliberation, decision and judgment. Ministerial duties, on the other hand, are absolute and involve merely [the] execution of a specific duty arising from fixed and designated facts.\u201d Isenhour v. Hutto, 350 N.C. 601, 610, 517 S.E.2d 121, 127 (1999)(inter-nal quotations and citations omitted). However, the mere use of judgment, by itself, is not enough to elevate an employee\u2019s ministerial duties to discretionary acts. There is some inherent use of judgment involved in virtually every position of employment. As our Supreme Court has stated:\nOf course, a mere employee doing a mechanical job, as were the defendants here, must exercise some sort of judgment in plying his shovel or driving his truck \u2014 but he is in no sense invested with a discretion which attends a public officer in the discharge of public or governmental duties, not ministerial in their character.\nMiller v. Jones, 224 N.C. 783, 787, 32 S.E.2d 594, 597 (1945).\nIn the instant case, defendant, as an EMT, was required to follow an established treatment protocol, which the North Carolina Administrative Code defines as \u201ca document. . . specifying the diagnostic procedures, treatment procedures, medication administration, and patient-care-related policies that shall be completed by EMS personnel or medical crew members based upon the assessment of a patient. \u201d 10A N.C.A.C. \u00a7 13P.0102 (73) (2010)(emphasis added). Thus, defendant, as an EMT, was required to execute the specific protocols which were indicated by \u201cfixed and designated facts.\u201d Isenhour, 350 N.C. at 610, 517 S.E.2d at 127. Moreover, defendant could not deviate from these written protocols without the approval of a physician. See 10A N.C.A.C. \u00a7 13P.0401 (5)(b) (2010)(\u201cOnly physicians may deviate from written treatment protocols[.]\u201d). Consequently, defendant\u2019s work must be characterized as ministerial in the context of determining public official immunity.\nSince defendant\u2019s position was not created by statute and his duties were best characterized as ministerial, as that term has been defined by our Supreme Court, he is not entitled to public official immunity. See Farrell, 199 N.C. App. at 179, 682 S.E.2d at 229. This argument is overruled.\nIII. Conclusion\nDefendant is not entitled to public official immunity and may be held personally liable for any harm caused by his negligence in his position as an EMT. Thus, the trial court properly denied defendant\u2019s motion for summary judgment. The trial court\u2019s order is affirmed.\nAffirmed.\nChief Judge MARTIN and Judge BRYANT concur.", "type": "majority", "author": "CALABRIA, Judge." } ], "attorneys": [ "Twiggs, Beskind, Strickland & Rabenau, RA., by Donald R. Strickland, Karen M. Rabenau, and Jesse H. Rigsby, IV, for plaintiff-appellees.", "Teague Campbell Dennis & Gorham, L.L.P., by Henry W. Gorham, Carrie E. Meigs, and Leslie B. Price, for defendant-appellant.", "Glenn, Mills, Fisher & Mahoney, P.A., by William S. Mills and Carlos Mahoney, for North Carolina Advocates for Justice, amicus curiae.", "Walker, Allen, Grice, Ammons & Foy, L.L.P., by Jerry A. Allen, Jr., for The North Carolina Association of Rescue and EMS and North Carolina Association of EMS Administrators, amici curiae." ], "corrections": "", "head_matter": "MALINDA FRALEY and DAVID FRALEY, Co-Administrators of the Estate of ATLAS FRALEY, Plaintiffs v. JAMES GRIFFIN, in his individual capacity, Defendant\nNo. COA11-300\n(Filed 20 December 2011)\n1. Appeal and Error \u2014 denial of summary judgment \u2014 public official immunity \u2014 immediately appealable\nOrders denying summary judgment based on public official immunity affect a substantial right and are immediately appealable. 2. Immunity \u2014 public official \u2014 EMT\u2014position not created by statute\nAn emergency medical technician (EMT) was not entitled to public official immunity where he did not establish that the position of EMT was created by statute. The statutes cited by defendant neither provide a clear statutory basis for the position of EMT nor allow a person or organization created by statute to delegate statutory duties to EMTs. \u2022\n3. Immunity \u2014 public official \u2014 EMT\u2014ministerial work\nAn EMT was not entitled to public official immunity because he was required to follow an established treatment protocol and his work was ministerial in this context.\nAppeal by defendant from order entered 12 November 2010 by Judge Carl R. Fox in Orange County Superior Court. Heard in the Court of Appeals 12 September 2011.\nTwiggs, Beskind, Strickland & Rabenau, RA., by Donald R. Strickland, Karen M. Rabenau, and Jesse H. Rigsby, IV, for plaintiff-appellees.\nTeague Campbell Dennis & Gorham, L.L.P., by Henry W. Gorham, Carrie E. Meigs, and Leslie B. Price, for defendant-appellant.\nGlenn, Mills, Fisher & Mahoney, P.A., by William S. Mills and Carlos Mahoney, for North Carolina Advocates for Justice, amicus curiae.\nWalker, Allen, Grice, Ammons & Foy, L.L.P., by Jerry A. Allen, Jr., for The North Carolina Association of Rescue and EMS and North Carolina Association of EMS Administrators, amici curiae." }, "file_name": "0624-01", "first_page_order": 634, "last_page_order": 639 }