Beck v. City of Durham12/3/2002
remaining claims against the City (with the exception of his due process and equal protection claim) were erroneously dismissed because the City waived its governmental immunity by purchasing liability insurance or participating in a local government risk pool. Yet defendants, in moving for dismissal of the case, presented to the court Henderson's affidavit stating that the City did not waive its immunity. Once defendants, as the moving party, made and supported their motion for summary judgment, the burden once again shifted to plaintiff, as the non-moving party, to introduce evidence in opposition to the motion that set forth "specific facts showing that there is a genuine issue for trial." See N.C. Gen. Stat. ยง 1A-1, Rule 56(e). Plaintiff failed to come forward with a forecast of his own evidence of specific facts demonstrating that this immunity was waived. See Amoco Oil Co. v. Griffin, 78 N.C. App. 716, 718, 338 S.E.2d 601, 602 (1986). Thus, the court's dismissal of the remaining claims against the City was proper because defendants met their burden of showing that there was no genuine issue of a material fact regarding immunity. See Moore v. Coachmen Industries, Inc., 129 N.C. App. 389, 393-94, 499 S.E.2d 772, 775 (1998).
Furthermore, as stated previously, the doctrine of governmental immunity also bars actions against "public officials sued in their official capacity." Messick v. Catawba County, 110 N.C. App. 707, 714, 431 S.E.2d 489, 493 (1993) (citations omitted). The chief of police and the city manager are both considered public officials. See generally Thompson Cadillac-Oldsmobile, Inc. v. Silk Hope Automobile, Inc., 87 N.C. App. 467, 471-72, 361 S.E.2d 418, 421 (1987). Thus, McNeil, Powell, and Ewell are also immune from suit for tortious acts allegedly committed in their official capacity.
IV.
Having determined that defendants Ewell and McNeil are entitled to governmental immunity for acts performed in their official capacity, we next examine whether either or both of these defendants are potentially liable to plaintiff individually on the remaining claims against them.
Despite public officials being shielded from liability in their official capacities, "they remain personally liable for any actions which may have been corrupt, malicious or perpetrated outside and beyond the scope of official duties." Locus v. Fayetteville State University, 102 N.C. App. 522, 526, 402 S.E.2d 862, 865 (1991). Thus, in order to sustain a personal or individual capacity suit, "the plaintiff must initially make a prima facie showing that the defendant-official's tortious conduct falls within one of the immunity exceptions, i.e., that the official's conduct is malicious, corrupt, or outside the scope of official authority." Trantham v. Lane, 127 N.C. App. 304, 307, 488 S.E.2d 625, 627 (1997). However, "if the plaintiff alleges an intentional tort claim, a determination [of governmental immunity] is unnecessary since, in such cases, neither a public official nor a public employee is immunized from suit in his individual capacity." Wells v. North Carolina Dept. of Correction, ___ N.C. App. ___, ___, 567 S.E.2d 803, 813 (2002).
The remaining claim against McNeil asserts constructive willful discharge. The remaining claims against Ewell assert IIED, tortious interference with contract, and tortious interference with prospective advantage. Since these are all intentional tort claims, McNeil and Ewell are potentially liable to plaintiff individually. Accordingly, we must now determine whether the trial court erred in granting summary judgment on plaintiff's claims alleging individual liability against (A) McNeil for constructive discharge, (B) Ewell for IIED, and (C) Ew
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