 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
Ginger York Whitaker v. Clark3/16/1993
COZORT, Judge.
Plaintiff filed a wrongful death action against defendants to recover damages for the death of her son. Defendants are employees of the Davie County Department of Social Services (DSS). In their answer defendants asserted the defense of governmental immunity. Defendants then filed a motion for judgment on the pleadings, which was denied by the trial court. Defendants appeal. We find the plaintiff's complaint contained allegations pertaining only to the defendants' actions or inactions in their official capacities with DSS and that defendants were entitled to judgment based on governmental immunity. We reverse.
Plaintiff Ginger York Whitaker filed a complaint against Jim Clark, Karen Smith, and Judi Casterline to recover for the wrongful death of her son, Jonathan Whitaker. Defendants were employed by the DSS when Jonathan's death occurred. Plaintiff claims that defendants' negligent failure to investigate claims of child abuse and neglect, coupled with their failure to remove her son from the custody of his abusive father, Bruce Whitaker, caused her son's death. In the complaint, plaintiff alleged that she repeatedly contacted the defendants and reported incidents of her estranged husband's drunkenness. Mr. Whitaker had custody of Jonathan. On 2 April 1991, Mr. Whitaker was involved in an automobile accident
while driving under the influence of alcohol. Both he and Jonathan died as a result of the accident.
Defendants filed a motion for judgment on the pleadings on 1 November 1991. On 26 November 1991, plaintiff voluntarily dismissed her claim pursuant to N.C. Gen. Stat. § 1A-1, Rule 41(a) against defendant Jim Clark; Ms. Smith and Ms. Casterline remained as defendants. On 3 December 1991, the trial court entered an order denying the defendants' motion for judgment on the pleadings. On appeal, defendants contend the trial court erred in denying defendants' motion on the pleadings.
Rule 12(c) of the North Carolina Rules of Civil Procedure permits any party to move for judgment on the pleadings after the pleadings are closed but within such time as not to delay the trial. N.C. Gen. Stat. § 1A-1, Rule 12(c) (1990). Judgment on the pleadings is not favored by the law and the pleadings must be liberally construed in the light most favorable to the nonmoving parties. DeTorre v. Shell Oil Co., 84 N.C. App. 501, 504, 353 S.E.2d 269, 271 (1987). The movant under section (c) must show, even when viewing the facts and permissible inferences in the light most favorable to the nonmoving party, that he is clearly entitled to judgment as a matter of law. Id. Although normally an appeal does not lie from the denial of a motion for judgment on the pleadings, Barrier v. Randolph, 260 N.C. 741, 743, 133 S.E.2d 655, 657 (1963), an immediate appeal will lie under subsection (c), as well as subsection (b), where the trial court refuses to grant a judgment on the pleadings for the state on the grounds of governmental immunity. See, i.e., Huyck Corp. v. C.C. Mangum, Inc., 58 N.C. App. 532, 293 S.E.2d 846 (1982).
Defendants claim they deserved a judgment on the pleadings because even taken in the light most favorable to the plaintiff, her complaint indicates she sued the defendants in their official capacities and not individually. Services provided by local Departments of Social Services are governmental functions to which governmental immunity applies. Hare v. Butler, 99 N.C. App. 693, 698, 394 S.E.2d 231, 235, disc.
Page 1 2 3 North Carolina DUI Attorneys
DUI Lawyers
|
| |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|