Fraley v Griffin

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NO. COA11-300 NORTH CAROLINA COURT OF APPEALS Filed: 20 December 2011 MALINDA FRALEY and DAVID FRALEY, Co-Administrators of the Estate of ATLAS FRALEY, Plaintiffs v. Orange County No. 10 CVS 150 JAMES GRIFFIN, in his individual capacity, Defendant Appeal 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. Twiggs, Beskind, Strickland & Rabenau, P.A., 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. CALABRIA, Judge. -2James Griffin ( defendant ) appeals from the trial court s order denying defendant s motion for summary judgment on the basis of public official immunity. I. We affirm. Background On 12 August 2008, Atlas Fraley ( Atlas ) returned home after a high school football practice and called 911. told the operator that he was seventeen experiencing full body cramps and dehydration. years Atlas old and He also told the dispatcher that he was home alone as his parents were at work. The operator dispatched defendant, an emergency medical technician ( EMT ) employed by Orange County Emergency Services ( OCES ), to Atlas home. When defendant arrived at Atlas home, he noted that Atlas was in obvious discomfort and could not sit still. conducted a brief examination of Atlas and Defendant 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. respond to other emergency calls. Defendant proceeded to A few hours later, Atlas parents arrived home and found him lying on their living room -3floor. Atlas was unresponsive and not breathing. personnel arrived, Atlas was pronounced dead. When OCES A later autopsy could not definitely determine Atlas cause of death. On 28 January 2010, Atlas parents, as co-administrators of his estate ( plaintiffs ), initiated a wrongful death action in Orange County official and Superior individual North Carolina. waived its dismissed Court capacities, defendant, OCES, and in both Orange his County, After determining that Orange County had not sovereign all against claims immunity with for the their exception claims, of plaintiffs those against defendant in his individual capacity. On 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. II. Public Official Immunity As an initial matter, we note that the trial court s order denying defendant s interlocutory, and motion thus, not for summary generally subject judgment to is immediate appeal. Snyder v. Learning Servs. Corp., 187 N.C. App. 480, 482, 653 S.E.2d 548, 550 (2007). Orders denying summary judgment based on public official immunity, however, affect a substantial -4right and are immediately appealable. Dempsey v. Halford, 183 N.C. App. 637, 638, 645 S.E.2d 201, 203 (2007). Thus, defendant s appeal is properly before this Court. Defendant s 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. It is well established that [p]ublic officers are shielded from liability unless their actions are corrupt or malicious[;] 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. Murray v. County of Person, 191 N.C. App. 575, 579-80, 664 S.E.2d 58, 61 (2008)(internal quotations and citations omitted). A. Position Created by Statute Defendant first created by statute. contends that the position of EMT is This Court has noted that cases which have recognized the existence of a public officer did so when either the officer s position had a clear statutory basis or the -5officer had been delegated a statutory duty by a person or organization created by statute. 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. §§ 131E-155, 131E-158, 143-507, and 143-517 (2009) support his argument that the position of EMT is created by statute. N.C. Gen. Stat. § 131-155 simply contains the definitions which are to be applied in Article 7 of Chapter 131E, which governs the Regulation of Emergency Medical Services. N.C. Gen. Stat. § 131E-155 (6) defines an EMT as used in that article and differentiates EMTs from other positions defined in the statute such as emergency medical dispatcher, N.C. Gen. Stat. § 131E-155 (5), and mobile intensive care nurse, N.C. Gen. Stat. § 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. § 115C-325 (a)(6) defines a teacher as used in that section, as opposed to a career employee, case manager, or school administrator; it does not create the position of public school teacher. ). Likewise, the remaining statutes cited by defendant do not create the position of EMT. N.C. Gen. Stat. § 131E-158 -6regulates private, the by operation requiring patient . . . of all [e]very ambulances, ambulance either when public or transporting a [to] be occupied . . . by . . . at least one emergency medical technician . . . [and] one medical responder. N.C. Gen. Stat. § 143-507 establishes a comprehensive Statewide Emergency Medical Services System in the Department of Health and Human Services, and N.C. Gen. Stat. § 143-517 requires each North Carolina county to ensure that emergency medical services are provided to its citizens. 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. B. Discretion Defendant also contends that his work involves the exercise of discretion and cannot be characterized as ministerial work. Our Supreme Court has explained that [d]iscretionary acts are those requiring personal deliberation, decision and judgment. -7Ministerial duties, on the other hand, are absolute and involve merely [the] execution of a specific duty arising from fixed and designated facts. S.E.2d 121, omitted). enough 127 Isenhour v. Hutto, 350 N.C. 601, 610, 517 (1999)(internal quotations and citations However, the mere use of judgment, by itself, is not to elevate discretionary acts. an employee s ministerial duties to There is some inherent use of judgment involved in virtually every position of employment. As our Supreme Court has stated: Of 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 -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. Miller v. Jones, 224 N.C. 783, 787, 32 S.E.2d 594, 597 (1945). In the instant case, defendant, as an EMT, was required to follow an Carolina established Administrative treatment Code specifying the diagnostic medication administration, protocol, defines as procedures, and a which the document treatment North . . . procedures, patient-care-related policies that shall be completed by EMS personnel or medical crew members based upon the assessment of a patient. 13P.0102 (73) (2010)(emphasis added). 10A N.C.A.C. § Thus, defendant, as an -8EMT, was required to execute the specific protocols which were indicated by fixed and designated facts. at 610, 517 S.E.2d at 127. Moreover, Isenhour, 350 N.C. defendant could not deviate from these written protocols without the approval of a physician. See 10A N.C.A.C. § 13P.0401 physicians may deviate from written Consequently, ministerial defendant s in the work context of (5)(b) (2010)( Only treatment protocols[.] ). must be characterized determining public as official immunity. Since defendant s 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. 682 S.E.2d at 229. See Farrell, 199 N.C. App. at 179, This argument is overruled. III. Conclusion Defendant is not entitled to public official immunity and may be held personally liable for any negligence in his position as an EMT. harm caused by his Thus, the trial court properly denied defendant s motion for summary judgment. trial court s order is affirmed. Affirmed. Chief Judge MARTIN and Judge BRYANT concur. The

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