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Dawes v. Nash County2/19/2002
PUBLISHED
Appeal by plaintiff from order entered 2 November 2000 by Judge Quentin T. Sumner in Nash County Superior Court. Heard in the Court of Appeals 27 November 2001.
Plaintiff appeals the trial court's granting of defendants' motion for summary judgment based on defendants' qualification for sovereign (hereinafter, "governmental") immunity. We affirm.
On 30 May 2000, Angela Dawes, as administratrix of the estate of Effie Hendricks, filed a medical malpractice action against defendant Nash County EMS, a county-operated ambulance service, based on the alleged negligence of paramedics and emergency medical technicians ("EMTs") employed by Nash County EMS. Specifically, Plaintiff alleged that Nash County EMS was negligent in the following respects:
(a) The paramedics who arrived on the scene failed to supply Ms. Hendricks with supplemental oxygen between 3:34 p.m. and 3:48 p.m.
(b) The Valium, which was given to Ms. Hendricks, was given in too small of a dose to have the desired effect of helping the paramedics intubate Ms. Hendricks.
(c) The paramedics made repeated attempts at intubation which greatly delayed Ms. Hendricks' arrival at Nash General Hospital.
(d) Defendant's employees who cared for and treated Ms. Hendricks failed to exercise reasonable and ordinary care and diligence in the use of their skill and the application of their knowledge to Ms. Hendricks' case.
(e) Defendant's employees who cared for and treated Ms. Hendricks failed to exercise their best judgment in the treatment and care of Ms. Hendricks.
(f) Defendant's employees who cared for and treated Ms. Hendricks failed to possess the required degree of learning, skill and ability necessary to the practice of their profession which others similarly situated normally possess.
(g) Defendant was negligent in such other respects as may be shown at trial.
Nash County EMS filed an answer denying the essential allegations of the complaint and asserting, inter alia, the defenses of governmental immunity, lack of subject matter jurisdiction, and lack of personal jurisdiction. Plaintiff thereafter amended its complaint to add Nash County as a named defendant. Nash County and Nash County EMS ("Defendants") filed an answer to Plaintiff's amended complaint asserting many of the same defenses that were asserted in Nash County EMS' original answer, including governmental immunity.
On 19 September 2000, Defendants filed a motion for summary judgment based on the doctrine of governmental immunity. In support of their motion, Defendants submitted an affidavit by Lynne Anderson, Finance Officer of Nash County, stating that the only liability insurance policy in effect for Defendants at the time of Defendants' alleged negligence was an insurance policy issued to Nash County by the North Carolina Counties and Property Insurance Pool Fund ("the Policy"). Defendants also submitted a copy of the Policy with their motion for summary judgment.
On that same day, Nash County EMS moved for judgment on the pleadings pursuant to N.C. R. Civ. P. 12(c) on the ground that it was not an entity capable of being sued. Both of Defendants' motions were granted by order entered 2 November 2000. Plaintiff appealed, assigning error to the trial court's ruling on both motions. However, Plaintiff presents no argument in its brief against the trial court's grant of judgment on the pleadings in favor of Nash County EMS. Thus, the only issue on appeal is whether Nash County is entitled to summary judgment based on governmental immunity.
Summary judgment is appropriate where "the pleadings, deposi
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