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White v. Trew

In a case decided by the North Carolina Supreme Court on January 25, 2013, the Court held that when suing a person for conduct arising in the course of his employment for the State (and presumably for counties, towns and cities also), the courts will presume that the defendant is sued in his official capacity, and not his official capacity, unless the complaint refers to the defendant's "inidividual capacity." The import of White v. Trew is that the suit will be viewed as a suit against the State, and is subject to dismissal based on "sovereign immunity."

In this case, the plaintiff worked as an engineering professor at North Carolina State University. The head of the department put negative statements in his personnel file, and the professor sued him for libel. In the Complaint, the professor did not state the "capacity" in which he was suing the department head, but he sought monetary relief. The Superior Court dismissed the action; but the Court of Appeals reversed, holding that the department head was sued in his individual capacity, and that his statements in the personnel file were not privileged, and the plaintiff's case was not barred by individual immunity.

On appeal to the North Carolina Supreme Court, the majority opinion held that the department head was sued in his official capacity, and that therefore the claim was barred by sovereign immunity (i.e. absent a waiver, the State cannot be sued for tort). In reaching this conclusion, the Court cited to a prior case (Mullis v. Sechrest) which stated, "Pleadings should indicate in the caption the capacity in which a plaintiff intends to hold a defendant liable. For example, including the words 'in his official capacity" or "in his individual capacity' after a defendant's name obviously clarifies the defendant's status. In addition, the allegations as to the extent of liability claimed should provide further evidence of capacity. Finally, in the prayer for relief, plaintiffs should indicate whether they seek to recover damages from the defendant individually or as an agent of the governmental entity." The Court then wrote, "Given the rationale underlying this language -- namely, affording the defendant proper notice to prepare a defense -- and our goal of avoiding similar uncertainty for future litigants, we conclude that Mullis's directive is mandatory, rather than precatory. Therefore, we further conclude that if such clarity is lacking, we must presume that the defendant is being sued only in his official capacity." The Court then reviewed the allegations of the Complaint, and concluded, "Because the indicia of capacity mandated by Mullis are absent from the caption, allegations, and prayer for relief, we must presume that defendant is being sued in only his official capacity. Consequently, plaintiff's claim is barred by sovereign immunity."

Two of the seven Justices dissented, arguing that the Complaint sufficiently stated a claim against the department head in his individual capacity. (If one therefore simplistically counts the votes of the appellate judges on this issue, they are evenly split at 5-5. The lower court decision was a unanimous 3-0.)

Digesting this case is rather complicated. The first issue is determining precisely what the majority held. At first blush, it seems that the Court intended to set forth a "bright-line rule," that a claim against a public employee, arising from the performance of his official duties, will be deened to be a suit against his employer, unless the complaint specifically states that the defendant is sued in his "individual capacity." The problem, however, is that the court's analysis still depends on whether the alleations "provide further evidence of capacity" and whether the prayer for relief indicates that the plaintiff seeeks "to recover damages from . . . defendant individually or as an agent of the governmental entity." Thus, we still do not have a bright-line rule to aid the practitioner and the lower courts.

The Court also did not state whether its "presumption" is a conclusive presumption, or is rebuttable. Presumably, this is a conclusive (and not rebutable) presumption.

This case is another troubling chapter in a saga of many cases in North Carolina struggling with sovereign (or governmental) immunity (as well as public official immunity and the public duty doctrine). Prior to the 1990s, no case in North Carolina focused on this issue, of whether a suit against a government employee was a suit against him individually or officially. A suit against the employee individually simply means that the plaintiff could recover a judgment against the defendant individually (i.e. against his personal assets), and a suit against the employee in his official capacity menas that the plaintiff could recover a judgment against the State (or municipality). (The prospect of injunctive relief is not addressed here.) Scores of cases prior to the 1990s addressed the liability of an agent of the State, county or town, and yet they never once made any inquiry into the "capacity" in which he was sued. The courts often analyzed the individual defendant's liability, and potential immunity under the "official immunity" doctrine, thus apparently assuming that the suit was against the official in his individual capacity; those cases never became obsessed or confused with the capacity in which he was sued.

This trail seems to have started in a 1993 case from the North Carolina Court of Appeals, Whitaker v. Clark, 109 N.C. App. 379 (1993). In this case, the plaintiff sued DSS workers for failing to protect children from harm. The appellate court wrote, "Since the plaintiff has made no such distinction in the present case, we must examine the text of the complaint to determine whether the defendants were sued individually or solely as officials. See Lynn v. Clark, 254 N.C. 460, 119 S.E.2d 187 (1961)." The court concluded that the workers were sued in their official capacity, and that the claims were therefore barred by sovereign immunity. In reaching this conclusion, however, the court seems to have relied on dubious reasoning that the allegations "are centered solely on the defendants' official duties as employees of the DSS. Plaintiff has failed to advance any allegations against defendants other than those relating to their official duties as employees of the DSS." Unfortuntely, a few cases followed this reasoning and protected State actors from their acts of negligence. Subsequent case law affirmed the clear common law doctrine that an employee, including a State actor, can be liable for negligence in the performance of his or her duty. ("Public officials cannot be held individually liable for damages caused by mere negligence in the performance of their governmental or discretionary duties; public employees can." Meyer v. Walls.) Whitaker relied in part on Stancill v. City of Washington, 29 N.C. App. 707 (1976), which used this reasoning to protect employees of a city from their failure to remove foliage, which caused an automobile accident. The Stancill case does not hold that the appellate court must examine the complaint to determine the capacity in which the defendant is sued; it simply held that a suit against a state actor individally, for actions in connection with his employment, are barred.

The other authority relied upon by the Whitaker court is Lynn v. Clark, 254 N.C. 460 (1961). This is in fact a much more instructive case addressing the duty of a court to determine the capacity in which a person is sued. In this case, the plaintiff sued the defendant for wrongful death, arising from an automobile accident. The defendant was the administrator of the estate of the tortfeasor who operated the vehicle causing the death, but the complaint did not expressly state that the the plaintiff was suing the defendants in his capacity as administrator of the estate. The caption referred to the defendant as "William L. Clark, Administrator of Charles Clark," but the complaint did not expressly allege that the defendant had been appointed as administrator. The Supreme Court unanimously and succintly held that the complaint was against the defendant as administrator, and not against the defendant individually. "Indeed, we think that the allegations of the complaint indicate with reasonable certainty that the defendant is being sued in a representative capacity, and that this is sufficient to fix the character of the action even though there is no express or specific averment thereof."

Although Lynn v. Clark involves an action against the administrator of an estate, its reasoning is useful in examining suits against state actors. The premise of Lynn v. Clark seems to be that a suit against a person is a suit against him individually, unless the context indicates otherwise. The court wrote, "While a complaint should specifically allege whether the action is brought against the defendant in his representative capacity, it is sufficient if the complaint, taken as a whole, shows that the defendant is being sued in a representative capacity, though it is not expressly so alleged." It is therefore ironic that in White v. Trew, the presumption is that a complaint against a State agent is a suit in his official capacity.

The only cases prior to White v. Trew from the North Carolina Supreme Court addressing this issue were Mullis v Sechrest and Meyer v. Walls, 347 N.C. 97 (1997). In Mullis, the Court addressed the liability of a shop teacher (high school teacher, employed by county), and ruled that he was sued officially. In engaging in this analysis, the Court cited to federal authority regarding liability arising under 42 USC 1983, and to Meyer v. Walls. In Meyer, the Court addressed the liability of county DSS workers, and cited to the same federal authority (regarding Sec. 1983 suits). Both of these cases also cited to a 1995 publication from the N.C. Institute of Government summarizing the law of various immunities. Mullis also cited to a federal 1983 case for the proposition that the presumption is that a suit against the state actor is a suit against him individually.

In this author's opinion, the decision in White v. Trew is misguided for several reasons. First, and primarily, it creates a presumption that does not make logical sense in North Carolina. If a plaintiff intends to sue a county, city or town, she can simply name that entity as the defendant; it would be illogical for a plaintiff to sue the City's police officer for negligence if she expects to recover from the City. A suit against a State actor (as presented in White v. Trew) designed to obtain recovery from the State is especially illogical as such suits against the State must be presented in the Industrial Commission, under the North Carolina Tort Claims act, and competent counsel in North Carolina would not file such a suit in court. A presumption of "official capacity" might make sense under 42 U.S.C. 1983, but the merit to applying that rule to North Carolina tort law, in view of more than one hundred years of North Caroliana common law not recognizing such a presumption, is not clear. Second, we still do not have a bright line rule on this issue. The practitioner can certainly avoid this by clearly stating in the complaint that the suit is against the defendant in his "individual capacity," but other plaintiffs are likely to be caught in this trap as well.

The majority opinion also proceeds to engage in three paragraphs of dicta, stating or suggesting that the professor could not sue the department head for making statements in the personnel file. This aspect of the case is not addressed extensively herein. It is somewhat troubling, however, that the plaintiff had alleged that "defendant's false accusations about the plaintiff . . . were willful, unjustified and malicious, and were motivated by personal hatred, spite or ill-will vis-a-vis the plaintiff." On the motion to dismiss (Rule 12(b)(6)), these allegations must be taken as true. The Court therefore seems to be saying that false allegations, made with malice and otivated by hatred, are absolutely protected speech. The Court cited to some provisions regarding the duty of the defendant to maintain a personnel file on the plaintiff, but these provisions do not suggest that supervisors making malicious and false statements are immune from suit.

John Kirby has worked defending municipalities and its employees against liability, and has pursued actions and claims against such municipalities, and has engaged in extensive legal research in these areas. Many recent cases in North Carolina, addressed on this site, address the doctrines of governmental immunity, official immunity, and the public duty doctrine.