Haas v. Caldwell Systems, Inc.

HEDRICK, Chief Judge. In its first two assignments of error, the County contends the trial court erred by concluding 1) that it lacked subject matter jurisdiction over the third-party claims and 2) that it lacked personal jurisdiction over the third-party defendants. The apparent justification for the judge’s ruling on both issues was the defense of sovereign immunity. The doctrine of sovereign immunity bars tort actions against the State of North Carolina and agencies thereof unless the State consents to be sued or otherwise waives its immunity. Guthrie v. State Ports Authority, 307 N.C. 522, 299 S.E.2d 618 (1983). Although the law in North Carolina is unsettled as to whether a defense of sovereign immunity states a lack of subject matter jurisdiction or personal jurisdiction, 6.S. 143-291, also referred to as the North Carolina Tort Claims Act, provides a specific waiver of tort immunity where an individual is injured due to the negligence of a state employee. Zimmer v. N.C. Dept. of Transportation, 87 N.C. App. 132, 360 S.E.2d 115 (1987). Furthermore, although direct tort suits against the State are not within the jurisdiction of the Superior Court, the Supreme Court, citing Rule 14(c) of the North Carolina Rules of Civil Procedure, has determined that “the State may be joined as a third-party defendant, whether in an action for contribution or in an action for indemnification, in the State courts.” Teachy v. Coble Dairies, Inc., 306 N.C. 324, 332, 293 S.E.2d 182, 187 (1982). [682] In the present case, the County’s complaint alleges that the injuries suffered by the original plaintiffs resulted from negligence on the part of DHR and NRCD officers, employees or agents while acting within the course of their employment. Such a claim clearly falls within the scope of the Tort Claims Act and is not barred by a defense of sovereign immunity. We therefore conclude that the trial court had jurisdiction to hear the County’s third-party claims as well as personal jurisdiction over third-party defendants. In their remaining assignment of error, third-party plaintiffs complain the trial court should not have dismissed the complaint pursuant to Rule 12(b)(6) for failure to state a claim upon which relief could be granted. They argue that the complaint alleges each element required to state a claim against DHR and NRCD for contribution or indemnification under the North Carolina Tort Claims Act. We agree. For purposes of ruling on a motion to dismiss for failure to state a claim, the allegations in the complaint are treated as true. Smith v. Ford Motor Co., 289 N.C. 71, 221 S.E.2d 282 (1976). A complaint may not be dismissed under Rule 12(b)(6) unless it appears beyond doubt that plaintiff can prove no set of facts which would entitle him to recovery. Pedwell v. First Union Natl. Bank, 51 N.C. App. 236, 275 S.E.2d 565 (1981). Such a situation occurs where there is an absence of law to support the claim, an absence of facts sufficient to make a good claim, or disclosure of some fact which necessarily defeats the claim. Collins v. Edwards, 54 N.C. App. 180, 282 S.E.2d 559 (1981). Legal support for this third-party claim against the State can be found, as previously discussed, in G.S. 143-291 (the North Carolina Tort Claims Act) and in Rule 14(c) of the North Carolina Rules of Civil Procedure (allowing the State to be joined as a third-party defendant in State Courts). Facts alleged which support the County’s claim include the following: 1. Third-party defendants are departments of the State. 2. DHR and NRCD had an obligation to protect the original plaintiffs by permitting, supervising, inspecting and monitoring operation of the incinerator. 3. The County relied on the permitting, supervision, inspection and monitoring done by DHR and NRCD because of statutory provisions which assigned these duties to those departments [683] and by virtue of DHR’s and NRCD’s “active assumption” of such duties. 4. Employees of these departments breached this obligation to protect by failing to properly investigate or abate the hazardous conditions existing on and near the incinerator site, by not informing the County of these conditions so that it might attempt to take action, and by negligently informing the County that there was no such hazardous condition on the property. 5. This breach of duty by DHR and NRCD is what prevented the County from taking action to abate the emissions causing damage to the original plaintiffs’ property. 6. If the County is found liable to the original plaintiffs for negligence, such negligence was either passive (with DHR and NRCD being actively negligent) or joint (with DHR and NRCD being equally negligent). 7. If the County is found passively negligent, it is entitled to indemnification to the extent permitted by law. 8. If the County is found jointly negligent, it is entitled to contribution from DHR and NRCD as joint tortfeasors to the extent permitted by law. We believe these facts, as alleged by third-party plaintiff, sufficiently support a claim for relief. Furthermore, the record discloses no fact which necessarily defeats this claim. For the reasons stated herein, the order of the Superior Court is reversed and remanded for proceedings consistent with this opinion. Reversed and Remanded. Judges Johnson and Eagles concur.