Crump v N.C. Dep't of Env't & Natural Res.
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NO. COA10-1138 NORTH CAROLINA COURT OF APPEALS Filed: 20 September 2011 DAVID CRUMP and wife, SHARON CRUMP, Plaintiffs, North Carolina Industrial Commission I.C. No. TA-20205 v. NORTH CAROLINA DEPARTMENT OF ENVIRONMENT AND NATURAL RESOURCES and CALDWELL COUNTY HEALTH DEPARTMENT, Defendants. Appeal by Environment and entered 28 Commission. defendant Natural June 2010 North Carolina Resources by the from North Department of Decision and Order Carolina Industrial Heard in the Court of Appeals 10 February 2011. Wake Forest University School of Law Appellate Advocacy Clinic, by John J. Korzen; and Todd, Vanderbloemen & Brady, P.A., by Charles A. Brady, III, for plaintiffs-appellees. Attorney General Roy Cooper, by Assistant Attorney General Donna B. Wojcik, for defendant-appellant. GEER, Judge. Defendant Natural North Resources Commission's Carolina ("NCDENR") Decision and Department appeals Order $28,300.00 to David and Sharon Crump. of from requiring Environment the and Industrial NCDENR to pay NCDENR was ordered to pay -2this sum to the Crumps due to the negligent actions of Michael Beane, an environmental health specialist who intentionally certified incorrect soil depths and issued a wastewater system construction permit to the Crumps even though the property that Beane inspected was not suitable for any type of septic system. NCDENR primarily argues that the Crumps' claim does not fall within the State intentionally. Tort Claims Act since Beane acted Because, however, the evidence did not establish that Beane intended to injure the Crumps, the Commission could still conclude, as it did, that the Crumps' claim was within the jurisdiction of the State Tort Claims Act. Therefore, we affirm the Decision and Order. Facts The Crumps contracted to purchase Lot 38 in a subdivision in Caldwell County, North Carolina. A condition precedent for the purchase was that the property be suitable for a septic system, which was to be determined by certification property by the Caldwell County Health Department. 2001, of the On 13 July the Crumps applied for an improvement permit, and the application was randomly assigned to Beane. Beane conducted an on-site evaluation of Lot 38 and concluded that the lot was suitable for a traditional wastewater septic system. The Commission found that Beane "visited the -3site, bored test holes as required, and rendered calculations concluding that the lot was wastewater septic system. calculations all appear suitable for a traditional Beane's field notes, drawings and to have complied with applicable administrative standards for performing the analysis." July 2001, Beane Wastewater issued System "Improvement to plaintiffs Construction Permit (Site Soil an On 23 "Authorization Permit" together Evaluation)." for with These an permits certified Lot 38 for installation of a traditional wastewater septic system. In reliance on the issuance of the wastewater system construction permit, the Crumps purchased Lot 38 on 14 August 2001 for $80,000.00. They then made various improvements to the lot, including grading and land clearing where the septic system was to be placed. NCDENR eventually became aware that Beane had made a certification of a septic system for an unrelated property that, according to the Commission, "gave Defendants reason to believe that Beane was not performing inspections in accordance with administrative rules." NCDENR and the Caldwell County Health Department, therefore, reinspected 25 other properties inspected by Beane. On 23 of those lots, they found the soil conditions "entirely inadequate" for the septic systems Beane had -4certified. On two of the lots, septic systems could be installed as certified by Beane with minor modifications. On 14 November 2004, the Caldwell County Health Department mailed a letter to the Crumps, which informed them that their improvement permit and wastewater system construction permit may have been determined improperly that the issued. lot Defendants was not suitable retested Lot for type any 38, of wastewater septic system, and revoked the Crumps' permit. The Crumps then began investigating alternatives in order to lawfully provide a wastewater septic system to service Lot 38. The Crumps discovered that their only option was to purchase a lot across the street from Lot 38 and use it for the sole purpose of installing a wastewater septic system. They purchased the lot for $20,000.00. In order to use this lot to treat pumping wastewater additional from $8,300.00, Lot 38, a was required in system, costing an conjunction with the septic system, which by itself would have cost only $2,800.00 to install. Joe Lynn, a regional soil scientist with defendant NCDENR, retested Lot 38. Although Beane had certified that the lot had a soil depth of 48 inches, Lynn conducted nine separate bore tests that found only 17, 8, 5, 27, 11, 5, 6, 10, and 8 inches of soil respectively. Lynn concluded that Beane's findings were -5so inconsistent with Lynn's that either (1) soil had been removed from the property subsequent to Beane's evaluation or (2) Beane did not comply with the administrative rules regarding soil testing. Because there was no evidence that plaintiffs had removed in soil discrepancy and a sufficient because testing amount of to two account properties for the in the immediate vicinity of Lot 38 also resulted in substantially less than 48 inches of soil, the Commission found that "[t]he greater weight of the evidence establishes that, having performed some of the required tests on Lot 38, Beane intentionally certified incorrect soil depths." Ultimately, Beane was criminally charged and pled guilty to bribery of a public official in connection with some of the septic permits he issued. Lot 38 was not included in the charges resulting in Beane's guilty plea, and the Commission found that "the evidence fails to establish circumstantially that the developers who owned Lot 38 were involved in a criminal conspiracy with Beane." On 20 July 2007, the Crumps filed a claim pursuant to the North Carolina State Tort Claims Act against Beane, the North Carolina Department of Health and Human Services ("NCDHHS"), and -6the Caldwell County Health Department.1 On 15 December 2009, the deputy commissioner filed a Decision and Order finding in favor of the Crumps and ordering the State to pay amount of $28,300.00. damages in the The Decision and Order dismissed with prejudice the claims against Beane, in his individual capacity, and the Caldwell County Health Department. On 17 December 2009, NCDENR filed notice of appeal to the Full Commission. On 28 June 2010, the Full Commission entered its Decision and Order adopting the Decision and Order of the deputy commissioner with modifications. NCDENR timely appealed to this Court. Discussion When this Commission, we Court are reviews "'limited a Decision to two and Order questions: (1) from the whether competent evidence exists to support the Commission's findings of fact, and (2) whether the Commission's justify its conclusions of law and decision.'" findings of fact Gonzales v. N.C. State Univ., 189 N.C. App. 740, 744, 659 S.E.2d 9, 12 (2008) (quoting Simmons v. Columbus Cnty. Bd. of Educ., 171 N.C. App. 725, 728, 615 S.E.2d 69, 72 (2005)). See also N.C. Gen. Stat. § 143-293 (2009) ("[A]ppeal shall be for errors of law only under 1 The Crumps originally filed their claim against NCDHHS, and the deputy commissioner's Decision and Order refers to NCDHHS. The Full Commission's Decision and Order, however, substitutes NCDENR for NCDHHS. The record does not indicate how the caption came to be changed, although it is apparent that NCDENR is, in fact, the proper defendant. -7the same terms and conditions as govern appeals in ordinary civil actions, and the findings of fact of the Commission shall be conclusive if there is any competent evidence to support them."). As long as the Commission's decision is supported by competent evidence, it does not matter if some of the evidence could support a conflicting finding. 728, 615 S.E.2d at 72. Simmons, 171 N.C. App. at The Commission's conclusions of law are, however, reviewed de novo. Holloway v. N.C. Dep't of Crime Control & Pub. Safety/N.C. Highway Patrol, 197 N.C. App. 165, 169, 676 S.E.2d 573, 576 (2009). Under the State Tort Claims Act, N.C. Gen. Stat. § 143291(a) (2009), the Industrial Commission has jurisdiction over claims that "arose as a result of the negligence of any . . . agent of the State while acting within the scope of his . . . employment . . . under circumstances where the State of North Carolina, if a private person, would be liable to the claimant . . . ." The Supreme Court has explained that "[u]nder the Tort Claims Act, jurisdiction is vested in the Industrial Commission to hear claims against the State of North Carolina for personal injuries sustained by any person as a result of the negligence of a State employee while acting within the scope of his -8employment." Guthrie v. N.C. State Ports Auth., 307 N.C. 522, 536, 299 S.E.2d 618, 626 (1983). NCDENR, in arguing that the Commission lacked subject matter jurisdiction, first contends that Beane was not acting as an agent of the environmental State. NCDENR acknowledges specialists/sanitarians that "[c]ounty conducting soil evaluations for septic systems are considered to be agents of [NCDENR] when they have been authorized pursuant to 15A NCAC 010.0101-.0103, and if they are enforcing N.C.G.S. § 130A-333 et. [sic] seq. . . ." See Carter v. Stanly Cnty., 123 N.C. App. 235, 238, 472 S.E.2d 378, 381 (1996) (holding that local health departments, their directors, and registered sanitarians act as State agents "[w]ith regard to sewage treatment and disposal and the issuance of improvement permits"), aff'd per curiam, 345 N.C. 491, 480 S.E.2d 51 (1997). See also 15A N.C. Admin. Code § 18A.1938 (2010) ("The permitting of a wastewater system shall be the responsibility of agents authorized by the State . . . and registered with the State of North Carolina Board of Sanitarian Examiners . . . ."). The Commission's conclusion, citing Carter, that "the Caldwell County Health Department and its employee, Beane, are considered agents of the state with respect to this claim," was supported by the Commission's finding that "[a]t all times -9pertinent hereto, Beane was acting in the course and scope of his employment and in his official capacity as an inspector for the purpose of evaluating suitability for waste water septic systems." NCDENR contends, however, that "the evidence shows that Beane was not acting as an agent of [NCDENR] when he issued the improvement permit for Lot 38, because he was not enforcing the rules of the Health Commission. He was acting outside the scope of his authority." In support of this contention, NCDENR relies on Cates v. N.C. Dep't of Justice, 346 N.C. 781, 786, 487 S.E.2d 723, 726 (1997), pointing to registered sanitarian Department was not preliminary soil Commission [did] the Supreme employed enforcing evaluation not by the and require preliminary soil evaluations." Court's the Durham rules when when or holding "[t]he make any County he that a Health conducted rules a of the provision for Because the State rules did not encompass preliminary soil evaluations, the Court concluded that "a local sanitarian who conducts a preliminary soil evaluation is providing a local service and is not enforcing the rules of the Commission." Id. NCDENR contends that Beane, like the sanitarian in Cates, was not actually enforcing the State regulations and, therefore, was not acting as an agent of the State. NCDENR's reliance on -10Cates is misplaced. The basis for the decision in Cates was the fact that the State's "rules provide for the issuance or denial of an improvements permit but not for the assurance of future permitability." Id. The sanitarian was not acting for the State because he was assuring future permitability -- not a State function -- and not issuing or denying an improvements permit. permit. Indeed, no one had even applied for an improvements Id. Here, however, the Crumps filed an application for a permit for a wastewater septic system, Beane performed the inspection, and Beane issued a permit to the Crumps for a wastewater septic system on Lot 38. Thus, Beane was acting within the scope of the authority set out in 15A N.C. Admin. Code § 18A.1938 to issue or deny improvements permits and, under Cates, he was acting as an agent of the State. NCDENR next contends that the Crumps' claim does not fall under the State Tort Claims intentionally and not negligently. Act because Beane acted The Supreme Court has held that "[i]njuries intentionally inflicted by employees of a State agency are not compensable under the North Carolina Tort Claims Act." (1968). Givens v. Sellars, 273 N.C. 44, 50, 159 S.E.2d 530, 535 NCDENR points to the Commission's finding that Beane "intentionally certified incorrect soil depths" and argues that -11this finding precludes any award under the State Tort Claims Act. While the Commission, in this case, found that Beane had intentionally certified incorrect soil depths, it concluded that "Beane, as agent of [NCDENR], was negligent in issuing Plaintiffs' Wastewater System Construction Permit number 017666 and the Improvement Permit (Site direct agent, and proximate Plaintiffs result have of been $28,300.00." (Emphasis added.) "[n]egligence is a mixed Soil Evaluation), and as a the negligence damaged in of the [NCDENR's] amount of Our Supreme Court has held that question of law and fact, and the reviewing court must determine whether the Commission's findings support its conclusions." Bolkhir v. N.C. State Univ., 321 N.C. 706, 709, 365 S.E.2d 898, 900 (1988). Under the State Tort Claims Act, "negligence is determined by the same rules as those applicable to private parties." Id. NCDENR overlooks the fact that the focus is not on whether Beane's actions were intentional, but intended to injure or damage the Crumps. rather on whether he As the Supreme Court explained in Givens, 273 N.C. at 50, 159 S.E.2d at 535 (emphasis added) (quoting Foster v. Hyman, 197 N.C. 189, 191, 148 S.E. 36, 38 (1929)), "'[a] breach of duty may be wanton and wilful while -12the act is yet negligent; the idea of negligence is eliminated only when the injury or damage is intentional.'" The leading North Carolina case addressing when an intentional act may still amount to negligence is Pleasant v. Johnson, 312 N.C. 710, 325 S.E.2d 244 (1985). In that decision, the Supreme Court wrote: Defining "willful negligence" has been more difficult. At first glance the phrase appears to be a contradiction in terms. The term "willful negligence" has been defined as the intentional failure to carry out some duty imposed by law or contract which is necessary to the safety of the person or property to which it is owed. A breach of duty may be willful while the resulting injury is still negligent. Only when the injury is intentional does the concept of negligence cease to play a part. We have noted the distinction between the willfulness which refers to a breach of duty and the willfulness which refers to the injury. In the former only the negligence is willful, while in the latter the injury is intentional. Id. at 714-15, 325 S.E.2d at 248 (internal citations omitted). This Court has similarly explained: Willful negligence arises from the tortfeasor's willful breach of a duty arising by operation of law. The tort-feasor must have a deliberate purpose not to discharge a legal duty necessary to the safety of the person or property of another. This willful and deliberate purpose not to discharge a duty differs crucially for our purposes from the willful and deliberate purpose to inflict injury -- the latter amounting to an intentional tort. -13Siders v. Gibbs, 39 N.C. App. 183, 187, 249 S.E.2d 858, 860 (1978) (internal citations omitted). See also Britt v. Hayes, 142 N.C. App. 190, 193, 541 S.E.2d 761, 763 (2001) ("Based on this precedent we now restate the principle that defendant's conduct precludes an action for negligence only when defendant intended to injure the plaintiff."). The Commission properly based its award to the Crumps on these principles. The Commission noted that NCDENR had contended -- just as it argues on appeal -- "that proof of Beane's criminal conviction for bribery of a public official, his highly inaccurate soil measurements, and [NCDENR's expert witness'] opinion that Beane's highly inaccurate report must be fraudulent, intentional all prove act." that The Beane's survey Commission then of Lot 38 was acknowledged an that "[i]ntentional injuries are not within the jurisdiction of the Act[;] only claims for negligence are covered." The Commission concluded, however, relying upon Pleasant, that "[t]he evidence in the present case establishes that Beane's breach of [his] duty to perform the soil test was intentional, but the evidence does not compel a conclusion that Beane intended to cause injury to Plaintiffs." We agree with the Commission's analysis. While the Commission found that Beane's certification of inaccurate soil -14depths was intentional, it determined that his issuance of the two permits to the Crumps constituted negligence. The evidence cited by NCDENR is sufficient to prove an intentional failure to carry out the duty imposed on Beane regarding site inspections and issuing permits. NCDENR, however, cites no evidence and the Commission found none that required the Commission to find that Beane intended to injure the Crumps. -- and the evidence supporting The Commission's findings those findings -- willful negligence rather than intentional injury. establish See Lynn v. Burnette, 138 N.C. App. 435, 443, 531 S.E.2d 275, 281 (2000) (holding that when defendant intentionally shot at tire on plaintiff's vehicle but bullet struck plaintiff, plaintiff could proceed with claim for negligence). NCDENR argues, misrepresentation "[n]either however, and intentional that that our Beane Supreme misrepresentation made Court nor a has fraudulent held conspiracy that to defraud is negligence, and injuries intentionally inflicted are not compensable under the Torts Claim [sic] Act." Davis v. N.C. State Highway Comm'n, 271 N.C. 405, 408, 156 S.E.2d 685, 687 (1967). While this language in Davis appears to be dicta since the case did not involve a State Tort Claims Act claim, the Davis Court nonetheless recognized the need for an intentional injury. In Davis, the plaintiffs alleged that the defendants -15made their misrepresentation specifically in order to induce the plaintiffs to vacate their home. Id. at 406, 156 S.E.2d at 686. Since the plaintiffs' alleged injury was the vacating of their property, the purpose of the misrepresentation was in fact to cause the injury, making the injury intentional. Id. In contrast to Davis, nothing in the record in this case suggests that Beane intended, through his misrepresentations, to cause the Crumps' injury, which was their purchase of a property on which a septic system could not be installed. The Commission, therefore, properly concluded that the Crumps were entitled to recover for negligence. Since NCDENR asserts no other basis for reversal of the Commission's Decision and Order, we affirm. Affirmed. Judges STEPHENS and McCULLOUGH concur.
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