May 1996
May 1996
The doctrine of sovereign immunity protects the State from suit unless it consents to be sued. Although the State of North Carolina has adopted a limited waiver of sovereign immunity, public officials may not be held personally liable for mere negligence in the performance of governmental duties involving the exercise of judgment and discretion. A public official may be held personally liable, however, it the official's "act, or failure to act, was corrupt or malicious." Smith v. State, 289 N.C. 303, 222 S.E.2d 412, 430 (1976) (quoting Smith v. Hefner, 235 N.C. 1, 68 S.E.2d 783, 787 (1952).
In Hawkins v. State, 117 N.C. App. 615, 453 S.E.2d 233 (1995), rev. granted, 340 N.C. 112, 455 S.E.2d 661 (1995) the North Carolina Court of Appeals held that if a party alleges an intentional tort claim, the doctrine of qualified immunity does not immunize public officials from suit in their individual capacities. The court, therefore, upheld the trial court's refusal to dismiss a claim of intentional infliction of emotional distress brought by a former Developmental Technician at Western Carolina Center arising out of his discharge for refusal to submit to a urine test for drugs. The court reasoned that, "[b]ecause malice encompasses intent," a claim that a public official's actions constituted intentional infliction of emotional distress did not fall within the applicable qualified immunity.
John F. Buckley IV
Senior Attorney
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