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McCoy v. Coker11/1/2005
unity on those claims. Whether plaintiff states claims against defendant Wade in his individual capacity sufficient to withstand a Rule 12(b)(6) motion to dismiss hinges on whether defendant Wade was acting as a public official or a public employee. "'It is settled in this jurisdiction that a public official, engaged in the performance of governmental duties involving the exercise of judgment and discretion, may not be held personally liable for mere negligence in respect thereto.' 'An employee, on the other hand, is personally liable for negligence in the performance of his or her duties proximately causing an injury.'" Isenhour v. Hutto, 350 N.C. 601, 609-10, 517 S.E.2d 121, 127 (1999)(citations omitted).
Our courts have recognized several basic distinctions between a public official and a public employee, including: (1) a public office is a position created by the constitution or statutes; (2) a public official exercises a portion of the sovereign power; and (3) a public official exercises discretion, while public employees perform ministerial duties. "Discretionary acts are those requiring personal deliberation, decision and judgment." Ministerial duties, on the other hand, are absolute and involve "merely execution of a specific duty arising from fixed and designated facts."
Id. at 610, 517 S.E.2d at 127 (internal citations omitted). In Pigott v. Wilmington, 50 N.C. App. 401, 404-05, 273 S.E.2d 752, 754-55 (1981), this Court determined that the chief building inspector of the City of Wilmington was a public official, not a public employee, based on the following analysis:
First, the position of chief building inspector is "created . . . by legislation" which authorizes every city in North Carolina to create a building inspection department, to appoint inspectors and to give the inspectorsso appointed titles "generally descriptive of the duties assigned." G.S. 160A-411 (Supp. 1979). Second, the chief building inspector is "required to take an oath of office." Third, the chief building inspector performs "public functions delegated to him as part of the sovereign power of the state"; "official trust or responsibility is imposed by law" on him; "the law prescribes and imposes the duties" he must perform; and he is "charged with fixed, public duties" and "empowered to act in the discharge of a duty or legal authority in official life." See G.S. 160A-411 to -438; Fourth, the chief building inspector is "vested with a certain measure of discretion." North Carolina General Statutes, Chapter 160A, part 5 contains numerous provisions which can only be interpreted as placing discretionary powers in the inspectors designated and appropriately entitled by the cities of this State.
In the instant case, Wade is not the chief building inspector, and there is no evidence from which to determine whether he was required to take an oath of office. However, when we apply the test laid out in Isenhour, guided by our holding in Pigott, we hold that as a building inspector for the County of Wayne, Wade was a public official. His position was created by statute, in that position he exercises a portion of the sovereign power delegated to him, through Wayne County, by statute, and work in his official capacity requires that he exercise discretion.
The general rule regarding official immunity is: "'As long as a public officer lawfully exercises the judgment and discretion with which he is invested by virtue of his office, . . . keeps within the scope of his official authority, and acts without malice or corruption, he is protected from liability .'" This Court has also held that, while "named defendants may be shielded from liability in their official capacities, they remain p
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