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Jones v. Pitt County Memorial Hospital Inc.12/3/1991
Plaintiff appeals from an order entered 6 September 1990 dismissing plaintiff's claim against defendant East Carolina University School of Medicine for lack of jurisdiction.
Plaintiff Virginia Jones, co-executor of the estate of her deceased husband Crisman S. Jones, instituted this wrongful death action on 11 June 1990 in Caldwell County Superior Court against Pitt County Memorial Hospital, Inc., East Carolina University (ECU) School of Medicine, eight physicians serving on both the faculty of ECU School of Medicine and on the staff at Pitt County Memorial Hospital, and seven residents in training at Pitt County Memorial Hospital. Plaintiff's complaint alleges negligence on the part of the named defendants in the care and treatment of her husband, who died on 10 June 1988 while a patient at Pitt County Memorial Hospital.
On 31 July 1990, defendant ECU School of Medicine filed a motion to dismiss plaintiff's claim on the grounds that the suit against it is barred by the doctrine of sovereign immunity, that
the Caldwell County Superior Court lacks jurisdiction over the action, and that the complaint fails to state a claim upon which relief can be granted. On 6 September 1990, the trial court entered an order dismissing plaintiff's claim against ECU School of Medicine. The court found that ECU School of Medicine is a constituent institution of the University of North Carolina pursuant to N.C.G.S. §§ 116-4 (1987) and 116-40.4 (1987), and this finding is not disputed by the parties. The court concluded that the North Carolina Tort Claims Act, N.C.G.S. § 143-291 (1990) et seq., applies to plaintiff's claim against this defendant and that, accordingly, exclusive original jurisdiction of the claim lies with the North Carolina Industrial Commission. The trial court's order dismissed plaintiff's claim against ECU School of Medicine without prejudice to file a new claim against said defendant within one year of the filing of the order.
The dispositive issues are whether I) a state superior court has jurisdiction to adjudicate tort claims against a constituent institution of the University of North Carolina; and II) the trial court erred in dismissing plaintiff's claim without prejudice to plaintiff to file a new claim against ECU School of Medicine within one year.
I
Plaintiff contends that the trial court erred in dismissing her claim against defendant ECU School of Medicine because N.C.G.S. § 116-3 (1987) provides that the University of North Carolina "shall be able and capable in law to sue and be sued in all courts whatsoever." Plaintiff argues that, as a constituent institution of The University of North Carolina (UNC), see N.C.G.S. § 116-2(4) (1987), Section 116-3 applies to defendant ECU School of Medicine. In plaintiff's view, Section 116-3 operates as a clear and unambiguous abolition by our General Assembly of the doctrine of sovereign immunity as it pertains to UNC and its constituent institutions, and thus allows plaintiff's tort action in the Caldwell County Superior Court. We disagree.
It is well established in North Carolina that the State is immune from suit unless and until it has expressly consented to be sued. Great Am. Ins. Co. v. Gold, Comm'r of Ins., 254 N.C. 168, 172-73, 118 S.E.2d 792, 795 (1961). It is for the General Assembly to determine when and under what circumstances the State may be sued, id., and even when legislative action is taken, statutes enacted in derogation of sovereign immunity must be strictly construed. {PA}
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