Tort/Negligence – Sovereign Immunity – Governmental Function – Individual Capacity

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Wright v. Gaston County. (Lawyers Weekly No. 10-07-0696, 16 pp.) (Donna S. Stroud, J.) Appealed from Gaston County Superior Court. (Timothy S. Kincaid, J.). N.C. App.

Holding: Where a plaintiff sued 911 operators in their individual capacities, the trial court erred in granting the 911 operators’ motion to dismiss solely on the grounds of governmental immunity.

Facts

A mother called 911 to report that her son was not breathing. A paramedic unit and basic EMT unit were dispatched simultaneously.

The paramedic unit was cleared 11 seconds later.

After picking up the mother and son, the basic EMT unit requested assistance from the paramedic unit. The paramedic unit met the basic EMT unit in a bank parking lot less than 2 miles from the hospital.

Efforts to restore the child’s breathing failed both in the parking lot and later at the hospital.

The mother sued the basic EMT and paramedic services, the county and the county’s emergency medical services, and the 911 dispatchers in their individual and official capacities, alleging wrongful death, medical malpractice and reckless and negligent infliction of emotional distress.

The claims against the basic EMT and paramedic services were dismissed voluntarily. The county filed a motion for summary judgment, and the dispatchers filed a motion to dismiss based on N.C. R. Civ. P. 12(b)(1), (2) and (6).

The trial court granted the motions to dismiss on the basis of governmental immunity and dismissed the mother’s action.

Analysis

In the absence of a statute that subjects them to liability, the state and its governmental subsidiaries are immune from tort liability when discharging a duty imposed for the public benefit.

If the governmental entity was acting in a government function, there can be no recovery unless the county waives its governmental immunity; but if the operations were proprietary rather than governmental, the county is not protected.

Here the 911 call center was established to provide for “the health and welfare of its citizens” and is a governmental function regardless of any fees charged in order to defray operating costs.

While the 911 call center was providing a service that a private individual, corporation or company could provide, the focus is on the nature of the service, not the provider of the service.

The 911 call center operated to “ensure the health and welfare of its citizens.” The trial court did not err by holding as a matter of law that the county 911 call center performs a governmental function.

The plaintiff argued that the trial court erred by granting the county’s motion for summary judgment because the county waived governmental immunity by purchasing insurance.

A county may waive sovereign immunity by purchasing liability insurance, but only to the extent of coverage provided.

A liability insurance policy for the county was in effect at the time of the events in this case. However, a governmental entity does not waive sovereign immunity where, as here, the action brought against it is excluded from coverage under the policy.

The trial court properly granted the county’s motion for summary judgment on the basis of governmental immunity. It also did not err in dismissing claims against the 911 operators in their official capacities.

Finally, the 911 operators were put on notice that they were being sued individually both in the plaintiff’s motion to amend its complaint and in the amended complaint itself.

The trial court erred in granting the 911 operators’ motion to dismiss solely on the grounds of governmental immunity.

The case is remanded for further proceedings regarding only those claims.

Affirmed in part; reversed in part.