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Slade v. Vernon6/1/1993
WELLS, Judge.
The sole question upon review is whether the trial court erred in denying defendants' summary judgment motion based upon public officers' immunity, governmental immunity and qualified immunity.
We first address the threshold issue of the reviewability of an order denying appellants' summary judgment motion. Generally, the denial of a motion for summary judgment is not appealable as an interlocutory order unless such order would deprive the appellant of a substantial right which would be lost if not reviewed prior to final judgment. See N.C. Gen. Stat. § 1-277; Pruitt v. Williams, 288 N.C. 368, 218 S.E.2d 348 (1975). Usually the denial of a summary judgment motion would not affect a substantial right; however, where the summary judgment motion is based on a substantial claim of immunity, an immediate appeal shall lie. Herndon v. Barrett, 101 N.C. App. 636, 400 S.E.2d 767 (1991). The justification for such an exception stems from the nature of the immunity defense. A valid claim of immunity is more than a defense in a lawsuit; it is in essence immunity from suit. Were the case to be erroneously permitted to proceed to trial, immunity would be effectively lost. Corum v. University of North Carolina, 97 N.C. App. 527, 389 S.E.2d 596 (1990), aff'd in part, rev'd in part on other grounds, 330 N.C. 761, 413 S.E.2d 276 (1992)(citing Mitchell v. Forsyth, 472 U.S. 511, 105 S. Ct. 2806, 86 L. Ed. 2d. 411 (1985)). In the case sub judice, defendants do assert a claim of immunity, and therefore their appeal is properly before this Court. Plaintiffs have brought suit against defendants in both their official capacity and individually, and defendants assert that immunity bars each of plaintiffs' claims. We therefore shall address each of plaintiffs' claims separately.
I. State Law Claims
A. Official Capacity
Defendants first argue summary judgment should have been granted as to plaintiffs' negligence claims because defendants, acting in their official capacities as public officers, are immune from suit based on sovereign immunity. It is well established that the State is immune from suit under the doctrine of sovereign immunity, until and unless it consents to be sued. Jones v. Pitt County Memorial Hospital, 104 N.C. App. 613, 410 S.E.2d 513 (1991) . Sovereign immunity also precludes suit against a county, a governmental agency exercising the police power of the State. Likewise, county employees and county officials engaged in governmental functions are also immune from suit. Baucom's Nursery Co. v. Mecklenburg Co., 89 N.C. App. 542, 366 S.E.2d 558, disc. rev. denied, 322 N.C. 834, 371 S.E.2d 274 (1988). It is uncontroverted that defendants are public officials of Rockingham County, and, as such, are entitled to sovereign immunity.
Sovereign immunity is a "common law theory or defense established by Court," to protect the sovereign or the State and its agents from suit. Corum v. University of North Carolina, 330 N.C. 761, 413 S.E.2d 276 (1992). Our courts, however, have deferred to the General Assembly to determine those circumstances in which a state or its agents may be sued. For example, under G.S. § 153A-435(a), a county waives its defense of immunity for negligence in the performance of governmental functions to the extent it has purchased liability insurance.
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