The state’s second highest court ruled last month that a homeowner can sue health department employees for negligence for improperly certifying a septic system.
The ruling Aug. 5, involving a case from Person County by the N.C. Court of Appeals, comes despite the employees’ status as registered sanitarians.
Joy Murray contracted to have a house built in Person County. In September 2002, her contractor applied for an improvement permit for a septic tank with the Person County Health Department. Adam Sarver, an environmental health specialist for the department, inspected the site two months later and issued the improvement permit. The system was installed in March 2003, and Sarver issued an operation permit, indicating that the system had been installed in accordance with state law.
Soon thereafter, Murray moved into her new house. Almost immediately she noticed water surfacing on her property. Repeated attempts to fix the problem by Sarver; Harold Kelly, another environmental health specialist; and Janet Clayton proved unsuccessful. The attempts extended to installing another septic system.
Murray eventually sued both the county and health department as well as the three Health Department employees in their official capacities and personally. In May 2007, Superior Court Judge Richard Stone dismissed all of Murray’s claims except those against Clayton, Kelly, and Sarver for negligence and negligent misrepresentation.
Upon appeal, Clayton, Kelly, and Sarver argued that Murray’s suit should be thrown out before it comes to trial because, they said, they are immune from being sued. They based their claim of immunity on two related but distinct legal doctrines, the public duty doctrine and public officers’ immunity.
The public duty doctrine holds that “governmental entities and their agents owe duties only to the general public, not to individuals, absent a ‘special relationship’ or ‘special duty’ between the entity and the injured party.” It follows from this that local governments generally owe no particular duty to an individual citizen and can’t be sued for negligence.
The public duty doctrine was originally applied in the context of municipal law enforcement, but since has extended it to claims against the state under Tort Claims Act, and state agencies required to conducting inspections for the public’s protection, including the Health Department.
The Court of Appeals found this legal theory not to apply in this case.
“…Our review of North Carolina case law has revealed no cases in which our courts have held that an employee of a health department is entitled to the protection of the public duty doctrine when sued only in his or her individual capacity in Superior Court,” Judge James Wynn wrote for the appeals court.
“Where a governmental worker is sued in his individual capacity, rather than applying the public duty doctrine, our courts have consistently applied public officers’ immunity,” Wynn wrote.
The appeals court rejected the defendants’ claim that they were entitled to public officers’ immunity. Public officers’ immunity shields certain types of officials from lawsuits unless their actions are “corrupt” or “malicious.” This immunity, however, does not apply to regular public employees.
The state’s courts have previously defined the distinction between a public official and a public employee as involving:
“(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.”
In addition, “an officer is generally required to take an oath of office while an agent or employee is not required to do so.”
In a 2000 case called Block v. County of Person, the Court of Appeals held that those holding the positions of environmental health specialist and environmental health supervisor were public employees and not public officials because the positions were not created by statute and performed ministerial duties.
To get around the ruling, Sarver, Clayton, and Kelly argued that they were acting as registered sanitarians, a position created by statute. The Court of Appeals was unimpressed with the distinction, finding that the reasoning in Block was correct. The appeals court also noted that the three defendants were not required to take an oath of office.
Court of Appeals rulings are controlling interpretations of state law unless over-ruled by the N.C. Supreme Court. Because the ruling by the three-judge panel of the Court of Appeals was unanimous, the high court is not required to hear the case should Sarver, Clayton, and Kelly further appeal.
The case is Murray v. County of Person (07-1260).
Michael Lowrey is an associate editor of Carolina Journal.