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Home / Courts / Tort/Negligence – Sovereign Immunity – Insurance – Interlocutory Appeal – Bond – Negligence – Negligent Infliction of Emotional Distress

Tort/Negligence – Sovereign Immunity – Insurance – Interlocutory Appeal – Bond – Negligence – Negligent Infliction of Emotional Distress

Johnson v. Causey. (Lawyers Weekly No. 10-16-1070, 23 pp.) (Sanford L. Steelman Jr., J.) Appealed from New Hanover County Superior Court (Allen W. Cobb, J.) N.C. App. Unpub. Click here for the full text of the opinion.

Holding: Because a sheriff’s deputy was acting outside the scope of his employment when he allegedly sexually assaulted an inmate, he was not a “covered person” under the county’s liability insurance policy such that sovereign immunity had been waived to the extent of the policy. Summary judgment in favor of the sheriff was proper where the plaintiff failed to forecast evidence sufficient to sustain a claim of negligence. The county was not liable for the actions of the deputy because G.S. § 153A-103(1) vests the exclusive right to hire, discharge and supervise deputies with the sheriff.

Facts

Plaintiff was arrested on outstanding warrants for failing to appear in court. During her brief incarceration, a deputy, defendant Gattison, allegedly forced her to engage in vaginal intercourse in a stairwell.

Plaintiff reported the incident. Gattison was terminated and pled guilty to a charge of sexual activity by a custodian. He denied raping plaintiff.

Plaintiff sued Gattison individually and in his official capacity, as well as the sheriff, defendant Causey, in his official capacity, and the county and its insurer, alleging misconduct, negligence, negligent retention and supervision, negligent infliction of emotional distress, state constitutional claims, liability of the sheriff based on respondeat superior and alter ego and liability on the part of the insurer based on Gattison’s conduct and the sheriff’s negligence under the sheriff’s bond.

The defendants answered and moved for summary judgment, arguing that sovereign immunity barred the plaintiff’s action and that plaintiff had failed to forecast evidence to support all of the elements of her claims against the defendants.

The trial court granted summary judgment for the defendants as to all claims except false imprisonment, detention, and assault and battery by Gattison in his official capacity.

Gattison appealed and plaintiff cross-appealed.

Analysis

The denial of a motion made on the grounds of sovereign and qualified immunity is immediately appealable, because to force a defendant to proceed with a trial from which he should be immune would vitiate the doctrine of sovereign immunity. The appeal is thus properly before the court despite its interlocutory nature.

In general, in the absence of some 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.

The doctrine of sovereign immunity generally bars recovery in actions against deputy sheriffs sued in their official capacity.

A sheriff may be sued in his official capacity in two ways in North Carolina. First, under G.S. § 58-76-5, a plaintiff may sue a sheriff and the surety on his official bond for acts of negligence in the performance of official duties. Secondly, a sheriff may be sued in his official capacity under G.S.§ 153A-435, which permits a county to purchase liability insurance, which includes participating in a local government risk pool, for negligence caused by an act or omission of the county or any of its officers, agents, or employees when performing government functions.

New Hanover County participated in a local government risk pool which contained provisions governing claims against Sheriff Causey and law enforcement employees.

Gattison’s Appeal

The plaintiff’s claims against Gattison in his individual capacity remain pending before the trial court, and this discussion relates only to the plaintiff’s claims against him in his official capacity.

Gattison argued that he was not a “covered person” under New Hanover County’s policy because his conduct was outside the scope of his employment. The policy defines “covered person” as each individual law enforcement officer, “but only in furtherance of the official pursuits of the law enforcement department.”

Clearly, the policy was intended to provide coverage for officers performing law enforcement duties in furtherance of the official pursuits of the law enforcement department. Gattison’s conduct was not in furtherance of the official pursuits of the law enforcement department; rather, he was acting to further his own personal and reprehensible purposes.

Gattison’s conduct was outside of the scope of his employment. Hence, there was no coverage for Gattison’s sexual assaults upon plaintiff under the insurance policy.

The trial court erred in holding that the language of the policy was ambiguous and that sovereign immunity had been waived as to the actions of Gattison in his official capacity based upon the county’s purchase of insurance.

This portion of the trial court’s order is reversed.

Sheriff Causey’s Bond

Plaintiff contends that the trial court erred in granting summary judgment in favor of Sheriff Causey in his official capacity and his surety on the ground that Sheriff Causey waived sovereign immunity to the extent of the sheriff’s surety bond.

Waiver of a sheriff’s sovereign immunity may be shown by the existence of an official bond pursuant to G.S. § 58-76-5. However, immunity is only waived to the extent of the amount of that bond.

In this case, the sheriff’s bond was in the amount of $25,000. Sheriff Causey waived immunity to the extent of that bond.

Summary judgment in favor of Sheriff Causey, in his official capacity, on the basis of sovereign immunity would be improper. We must next determine whether genuine issues of material fact existed as to Sheriff Causey, in his official capacity, on any legal theory set forth in plaintiff’s complaint.

Legal Theories Against the Sheriff

Plaintiff argued that the trial court erred in granting Sheriff Causey summary judgment because he was liable for Gattison’s conduct under the doctrine of respondeat superior or alter ego.

A deputy sheriff is authorized to act only in ministerial matters; in respect to these matters, he acts as vice principal or alter ego of the sheriff because the sheriff and his deputy are, in contemplation of law, one person.

Where the doctrine of respondeat superior is relied upon as a basis for recovery by a third person, the tortious act of the servant must be committed in the scope of his employment.

Gattison was not acting within the scope of his employment when he sexually assaulted plaintiff, so the respondeat superior argument is without merit.

Plaintiff argued that the trial court erred in granting summary judgment in favor of Sheriff Causey because genuine issues of material fact existed as to whether he negligently hired, trained, retained and supervised Gattison.

In order to establish a claim for negligent hiring or retention, plaintiff must show (1) the employee committed a tortuous act, (2) the employee was incompetent or unfit, (3) the employer had actual or constructive notice of the employee’s incompetency or unfitness and (4) injury resulting from the employee’s incompetency or unfitness.

The only element at issue in the instant case is whether Sheriff Causey had actual or constructive knowledge of Gattison’s unfitness. Plaintiff pointed to nothing in Gattison’s background which should have put Sheriff Causey on actual or constructive notice to alert him to Gattison’s unfitness. Plaintiff failed to forecast evidence that Sheriff Causey was negligent in training Gattison.

Plaintiff also argued that the trial court erred by granting summary judgment in favor of Sheriff Causey because genuine issues of material fact exist as to her claim of negligent infliction of emotional distress.

In order to establish a claim for negligent infliction of emotional distress, plaintiff must show that (1) the defendant negligently engaged in conduct, (2) it was reasonably foreseeable that such conduct would cause her severe emotional distress and (3) the conduct did in fact cause her severe emotional distress.

Gattison intentionally engaged in a sexual assault against her, but plaintiff failed to forecast any evidence that Sheriff Causey was negligent. The trial court did not err by granting summary judgment in favor of Sheriff Causey in his official capacity.

Claims Against County

Plaintiff argued that the trial court erred by granting summary judgment in favor of New Hanover County.

However, G.S. § 153A-103(1) provides, in part, that “each sheriff and register of deeds elected by the people has the exclusive right to hire, discharge, and supervise the employees in his office.” Control of the employees hired by the sheriff is vested exclusively in the sheriff, not with the county.

Any injury resulting from Gattison’s actions in this case cannot result in liability for the county.

Reversed in part; affirmed in part.


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