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Meyer v. Walls9/5/1997
6, 114 S.E. 693, 696 (1922)).
The immunity thus extended to officers in the performance of a public duty grows out of a public policy which is fully explained in the two cases cited. Hipp v. Ferrall, [173 N.C. 167, 91 S.E. 831 (1917)]; Templeton v. Beard, [159 N.C. 63, 74 S.E. 735 (1912)], and cases cited. One reason for the existence of such a rule is that it would be difficult to find those who would accept public office or engage in the administration of public affairs if they were to be held personally liable for acts or omissions involved in the exercise of discretion and sound judgment which they had performed to the best of their ability, and without any malevolent intention toward anyone who might be affected thereby. However, in proper cases even public officers may be liable for misfeasance in the performance of their ministerial duties where injury has ensued.
Miller v. Jones, 224 N.C. at 787, 32 S.E.2d at 597.
The [public official] immunity has never been extended to a mere employee of a governmental agency upon this principle, although employed upon public works, since the compelling reasons for the nonliability of a public officer, clothed with discretion, are entirely absent. . . . The mere fact that a person charged with negligence is an employee of others to whom immunity from liability is extended on grounds of public policy does not thereby excuse him from liability for negligence in the manner in which his duties are performed, or for performing a lawful act in an unlawful manner. The authorities generally hold the employee individually liable for negligence in the performance of his duties, notwithstanding the immunity of his employer, although such negligence may not be imputed to the employer on the principle of respondeat superior, when such employer is clothed with a governmental immunity under the rule.
Id.
As the Court of Appeals noted, when categorizing a public servant as either a public officer or a public employee, this Court has recognized several basic distinctions:
A public officer is someone whose position is created by the constitution or statutes of the sovereign. State v. Hord, 264 N.C. 149, 155, 141 S.E.2d 241, 245 (1965). "An essential difference between a public office and mere employment is the fact that the duties of the incumbent of an office shall involve the exercise of some portion of sovereign power." Id. Officers exercise a certain amount of discretion, while employees perform ministerial duties. Discretionary acts are those requiring personal deliberation, decision and judgment; duties are ministerial when they are "absolute, certain, and imperative, involving merely the execution of a specific duty arising from fixed and designated facts." Jensen v. S.C. Dept. of Social Services, 297 S.C. 323, [322,] 377 S.E.2d 102[, 107] (1988) [, aff'd, 304 S.C. 195, 403 S.E.2d 615 (1991)].
Hare v. Butler, 99 N.C. App. 693, 700, 394 S.E.2d 231, 235-36, disc. rev. denied, 327 N.C. 634, 399 S.E.2d 121 (1990).
In the case before us, the Court of Appeals concluded that Underwood was a public official and that Barrow and Miller were public employees. The Court of Appeals also held that the allegations in the complaint that Underwood's conduct was "willful, wanton and in reckless disregard of the rights of Clearman Frisbee" were sufficient to pierce his public-official immunity. Therefore, the court held that dismissal of the individual-capacity claim against Underwood was improper. The Court of Appeals also held that as public employees, Barrow and Miller were not entitled to any immunity defense. Therefore, the court held that dismissal of the individual-capacity claims against Bar
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