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Ginger York Whitaker v. Clark3/16/1993
" capacity.
Since the plaintiff has made no such distinction in the present case, we must examine the text of the complaint to determine whether the defendants were sued individually or solely as officials. See Lynn v. Clark, 254 N.C. 460, 119 S.E.2d 187 (1961). The complaint never employs the words "individual" or "individual capacity"; however, the phrases "in the performance of their official duties," and "in their official capacity" are used. Furthermore, the overall tenor of the complaint indicates that plaintiff's allegations are centered solely on the defendants' official duties as employees of the DSS. Plaintiff has failed to advance any allegations against defendants other than those relating to their official duties as employees of the DSS. In Stancill v. City of Washington, 29 N.C. App. 707, 225 S.E.2d 834 (1976), this Court upheld the trial court's dismissal of a complaint in which the defendant was sued in an "individual" capacity, but the language of the complaint revealed only allegations based on an "official" capacity. The analysis used in Stancill is instructive in the present case. Plaintiff urges us to find that she has sued defendants as individuals, yet after careful review of the complaint, we find that she has asserted claims against defendants in an official capacity alone. Absent any allegations in the complaint separate and apart from official duties which would
hold a nonofficial liable for negligence, the complaint cannot be found to sufficiently state a claim against defendants individually.
As noted, if defendants are found to have been sued only in an official capacity, the doctrine of sovereign immunity would be applicable. Plaintiff admits to having failed to allege a waiver of sovereign immunity by the purchase of insurance. As required by law, if the plaintiff fails to allege a waiver of immunity by the purchase of insurance, the plaintiff has failed to state a claim against a governmental unit or employee . See Fields v. Durham City Bd. of Educ., 251 N.C. 699, 701, 111 S.E.2d 910, 912 (1960). Accordingly, the defendants were entitled to a judgment on the pleadings as a matter of law, and the trial court erred in denying their motion.
The trial court's order denying defendants' motion is reversed and the matter is remanded for entry of judgment for defendants.
Reversed and remanded.
Judges WELLS and LEWIS concur.
Disposition
Reversed and remanded.
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