Social services : a law bulletin

              Social Services
Law Bulletin
Number 42 June 2007
LEGAL LIABILITY OF SOCIAL SERVICES
AGENCIES, OFFICIALS, AND EMPLOYEES
  John L. Saxon*
State and county social services agencies, officials, and employees often are concerned about
their potential legal liability.
The expense and the trouble of lawsuits are unavoidable costs of doing [the] … government’s
business. [Eventually, a government agency, official, or employee will, in the course of the
government’s activities,] … cause damage to something or somebody. Indeed, even without
any legitimate basis, a … government [agency] and its employees may still be made
defendants to a … lawsuit. The challenge for [government agencies] … is therefore not the
impossible task of eliminating lawsuits. Rather, the challenge is the difficult task of providing
[public] services while minimizing the cost and disruption that lawsuits bring. The first step
in accomplishing that task is learning the basic legal principles that [govern] … the liability
of [government agencies] … and … public servants.1
This Social Services Law Bulletin summarizes the legal principles that govern the liability
of state and county social services agencies, officials, and employees in lawsuits brought under
North Carolina’s tort law and under 42 U.S.C. § 1983.
What Does “Liability” Mean?
In the law, the term “liability” generally refers to
• an obligation, sanction, or responsibility (for example, the obligation to pay damages to
compensate a person for injury to his or her person or property)
* Mr. Saxon is an Institute of Government faculty member. His areas of responsibility include social
services law and policy. He may be contacted at 919.966.4289 or saxon@sog.unc.edu.
1 Anita R. Brown-Graham, “Civil Liability of the Local Government and Its Officials and
Employees,” Article 12 in David M. Lawrence (ed.) County and Municipal Government in North
Carolina (Chapel Hill: Institute of Government, The University of North Carolina at Chapel Hill, 2007),
2 (available at: www.sog.unc.edu/pubs/cmg/cmg12.pdf).
Social Services Law Bulletin No. 42 June 2007
2
• that is imposed pursuant to federal, state, or
local law (including the federal and state
constitutions; federal and state statutes,
administrative rules, and regulations; local
ordinances; and the common law)2
• by a court or quasi-judicial agency
• in a civil, criminal, or administrative
proceeding or lawsuit
• on a person (including a local government
official or employee) or other legal entity
(including a local government or local
government agency)
• in connection that person’s or entity’s actions
or omissions or the acts or omissions of
persons acting on behalf of that person or
entity.3
Establishing Liability: Legal Proceedings
The person or entity against whom liability is asserted
in a legal proceeding generally is referred to as the
“defendant” or “respondent.” In a civil or administra-tive
proceeding, the person who brings the proceeding
and seeks to impose liability on the defendant
generally is referred to as the “plaintiff” or
“petitioner.” Criminal proceedings against defendants
are brought by the State.
In order to bring a legal proceeding against a
defendant, the plaintiff must have “standing,” that is,
legal authority to assert a particular legal claim or to
seek a particular legal remedy. “Standing” generally
requires that the plaintiff have been injured in some
way by the defendant. In addition, to impose liability
on a defendant, a court must have “jurisdiction,” that
is, legal authority to hear and decide the case.
A plaintiff who brings a lawsuit against a
defendant has the burden of proving the plaintiff’s
2 Liability also be imposed with respect to legal
obligations that are voluntarily assumed under a contract or
other legal agreement.
3 The legal liability of North Carolina local
governments and local government officials and employees
is discussed in detail in Anita R. Brown-Graham, A Practical
Guide to the Liability of North Carolina Cities and Towns
(Chapel Hill: Institute of Government: The University of
North Carolina at Chapel Hill, 1999) and Brown-Graham,
“Civil Liability of the Local Government and Its Officials
and Employees.” See also Thomas H. Thornburg, An
Introduction to Law for North Carolinians (Chapel Hill:
Institute of Government, The University of North Carolina at
Chapel Hill, 2nd ed. 2000).
legal claim against the defendant. This means that the
plaintiff must present sufficient, legally-admissible
evidence to establish a factual basis for each element
of the plaintiff’s legal claim. In a civil lawsuit or
administrative proceeding, the plaintiff’s burden
generally is to prove facts to support his or her claim
by a preponderance of the evidence. In a criminal
proceeding, the State’s burden is to prove the elements
of the offense beyond a reasonable doubt. A defendant
may avoid liability by asserting a valid legal defense or
claiming legal immunity from liability.
Civil and Criminal Liability
Liability may be imposed in connection with several
different types of legal claims. Criminal liability, for
example, results from a defendant’s violation of federal
or state criminal laws.4 Civil liability may result from a
defendant’s breach of a contract between the defendant
and the plaintiff.5 Civil liability also may result from a
defendant’s violation of civil statutes or rules.6
Tort Liability
Civil liability also may be imposed in connection with
a defendant’s “tortious” conduct.7 A “tort” is a wrong-ful
act or omission, other than a criminal act or breach
of contract, that causes personal injury or damage to
4 A defendant who is found criminally liable may be
incarcerated in jail or prison, placed on probation, or ordered
to pay a fine. State and county social services officials and
employees may be held criminally liable if they violate
federal or state criminal laws (for example, by embezzling
public funds, misusing public property, disclosing
confidential information, or engaging in conflicts of interest)
in connection with their public duties.
5 If a defendant is found liable for breaching a contract,
the court may enter a judgment against the defendant
requiring him or her to compensate the plaintiff for the
plaintiff’s losses resulting from the breach. The State or a
county may be held civilly liable if a state or county social
services agency enters into a valid, legal contract and the
agency or an official or employee of the agency breaches the
contract.
6 The civil liability of state and county social services
agencies, officials, and employees under one federal statute,
42 U.S.C. §1983, is discussed in the penultimate section of
this bulletin.
7 This bulletin focuses primarily on the tort liability of
state and county social services agencies, officials, and
employees.
June 2007 Social Services Law Bulletin No. 42
3
property and with respect to which the law provides a
legal cause of action and a legal remedy.
Tort law serves to protect a person’s interest in
his or her bodily security, tangible property,
financial resources, or reputation. Unlike contract
law, in which the appropriate standard of conduct
is set by specific promises made between two
parties, in tort law the defendant is being held to
a standard of conduct (or duty) that is imposed by
law. To succeed in the lawsuit, the plaintiff must
demonstrate that the defendant violated that duty
and that the violation caused an injury.
Compensation is the primary concern of tort law.
This area of law is premised on the belief that
individuals who [have been harmed by the
wrongful conduct of others] … should not be
required to bear the loss; instead, the person
whose wrongful act caused the harm must pay to
restore the injured party to where [he or she] …
was before the harm. Another purpose of tort law
is to deter people from engaging in conduct likely
to cause personal injury or property damage. Tort
law assumes that people will be more careful in
conducting their day-to-day activities if they have
to pay for any harm that results.8
There are two broad categories of torts:
1. intentional torts, and
2. unintentional torts or negligence.
“Intentional torts are deliberate wrongful acts that
cause personal injury or property damage.”9 A
defendant may be held liable for an intentional tort if he
or she “deliberately engaged in the wrongful act”
regardless of whether he or she “intended the
consequences of the act [or] … the particular damages
caused.”10 The tort of “battery,” which the law defines
as the “intentional touching or striking of another person
without … that person’s consent or a legally recognized
authorization,” is one example of an intentional tort.11
Defamation (slander or libel) is another.
By contrast, a defendant may be held civilly liable
for negligence if
8 Brown-Graham, “Civil Liability of the Local
Government and Its Officials and Employees,” 2.
9 Brown-Graham, “Civil Liability of the Local
Government and Its Officials and Employees,” 3.
10 Brown-Graham, “Civil Liability of the Local
Government and Its Officials and Employees,” 3.
11 Brown-Graham, “Civil Liability of the Local
Government and Its Officials and Employees,” 3.
1. the defendant breaches his or her legal duty to
exercise reasonable care in connection with
his or her activities;
2. the defendant’s failure to exercise reasonable
care results in injury to another person or that
person’s property; and
3. the injury was a reasonably foreseeable result
of the defendant’s lack of care.12
One example of a negligent tort is an automobile accident
that is caused by a driver’s inattention and results in injury
to another driver or the other driver’s car.
If a defendant is found liable for an intentional tort
or for negligence, a judgment for monetary damages
may be entered against him or her. In most cases, the
damages awarded in tort claims are “compensatory”
damages (damages that are awarded to compensate the
plaintiff for his or her physical injury, the damage to
his or her property, incurred medical expenses, lost
future earnings, pain and suffering, or other losses).
Courts sometimes award “punitive” damages against a
defendant in order to “punish [the] defendant for
especially culpable conduct and to deter such conduct
in the future.”13 Punitive damages, however,
“generally are not recoverable from a governmental
body or agency,” though they may be assessed against
a “public employee or official in an ‘individual-capacity’
lawsuit.”14
Tort Liability of Social Services
Agencies, Officials, and Employees
State and county social services agencies, officials, and
employees may be sued, and sometimes held liable, for
intentional torts or negligence. For example, they
might be sued by:
• the mother of a deceased child who alleges
that her child died as a result of a social
worker’s failure to promptly and thoroughly
investigate a report regarding the child’s
abuse or neglect by the child’s father and
12 Brown-Graham, “Civil Liability of the Local
Government and Its Officials and Employees,” 4. In North
Carolina, a defendant may avoid liability for his or her
negligent acts or omissions by proving that the plaintiff’s
injuries were caused, in part, by the plaintiff’s “contributory
negligence.”
13 Brown-Graham, A Practical Guide to the Liability of
North Carolina Cities and Counties, 5-5, citing Jones v.
McCaskill, 99 N.C. App. 764, 394 S.E.2d 254 (1990).
14 Brown-Graham, A Practical Guide to the Liability of
North Carolina Cities and Counties, 5-6.
Social Services Law Bulletin No. 42 June 2007
4
failure to take action to protect the child from
that abuse or neglect;15
• by foster parents who allege that a foster child
sexually abused their daughter and that the
child’s injuries resulted from a social
worker’s negligence in failing to inform the
foster parents that the foster child had lived in
an environment of sexual abuse and was
likely to reenact that abuse on younger, more
vulnerable children;16
• a child who was placed in a foster home by
the county social services department and was
injured by the foster parent’s alleged
negligence;17
• a parent who claims that he or she was falsely
accused of child abuse or neglect by a county
social services department;18
• the estate of a deceased, incompetent adult
who allegedly died as a result of a social
worker’s failure to discharge his or her
responsibilities as the adult’s guardian;19
• a person who is injured by slipping on a wet
floor at the county social services office;
• a social services employee who gets into an
argument with another social services
employee and is assaulted by the other
employee at work;
• a client of a social services agency who
claims that the agency unlawfully disclosed
confidential information about the client; or
• an individual who is injured in a traffic
accident involving an automobile driven by a
social services employee during the course of
the employee’s official duties.
Although many of the legal rules that apply to tort
lawsuits against private individuals, employers, and
other legal entities also apply to tort lawsuits involving
15 See Whitaker v. Clark, 109 N.C. App. 379, 427
S.E.2d 142 (1993); see also Gammons v. N.C. Dept. of
Human Resources, 344 N.C. 51, 472 S.E.2d 722 (1996) and
Coleman v. Cooper, 102 N.C. App. 650, 402 S.E.2d 577
(1991).
16 See Hobbs v. N.C. Dept. of Human Resources, 135
N.C. App. 412, 520 S.E.2d 595 (1999); see also Vaughn v.
N.C. Dept. of Human Resources, 296 N.C. 683, 252 S.E.2d
792 (1979).
17 See Creel v. N.C. Dept. of Health and Human
Services, 152 N.C. App. 200, 566 S.E.2d 832 (2002).
18 See Hare v. Butler, 99 N.C. App. 693, 394 S.E.2d
231 (1990).
19 See Meyer v. Walls, 347 N.C. 97, 489 S.E.2d 880
(1997).
state and county agencies, officials, or employees,
there are also a number of special legal rules that apply
to the tort liability of state and county agencies,
officials, and employees, including those associated
with social services.
Tort Liability of the State and
State Social Services Agencies
“Sovereign immunity” is a legal principle that protects
the State of North Carolina and its agencies, including
the state Department of Health and Human Services,
from tort claims unless the State waives its
immunity.20 This means that even if a person has been
injured by the negligence of a state employee in
connection with that employee’s official duties, the
person cannot sue the State and the State cannot be
held liable for the employee’s negligence unless the
State waives its sovereign immunity and allows itself
to be sued and held liable.21
The State of North Carolina has partially waived
its sovereign immunity with respect to certain tort
claims. Under the State Tort Claims Act, a person who
has been injured by the negligence of any state officer,
employee, or agent acting within the scope of the
officer’s, employee’s, or agent’s scope of office,
employment, agency, or authority may file a lawsuit
against the State or the state department, institution, or
agency under those authority the officer, employee, or
agent was acting.22
Lawsuits filed under the State Tort Claims Act are
heard and decided by the North Carolina Industrial
Commission.23 If the Industrial Commission finds that
the plaintiff’s injuries were proximately caused by a
state employee’s negligence, that the plaintiff was not
contributorily negligent, and that the State of North
Carolina would be liable to the plaintiff if the State
20 See Zimmer v. N.C. Dept. of Transportation, 87 N.C.
App. 132, 134, 360 S.E.2d 115, 117 (1987).
21 The doctrine of sovereign immunity, however, does
not protect a state employee from being sued and held liable
for a tort committed in connection with the employee’s
official duties. See Wirth v. Bracey, 258 N.C. 505, 508, 128
S.E.2d 810, 813 (1963).
22 G.S. 143-291. The State Tort Claims Act does not
apply to intentional torts committed by state officials,
employees, or agents. See Frazier v. Murray, 135 N.C. App.
43, 48, 519 S.E.2d 525, 528 (1999).
23 North Carolina’s superior courts do not have
jurisdiction to hear and decide tort claims against the State
under the State Tort Claims Act.
June 2007 Social Services Law Bulletin No. 42
5
were a private person, the Industrial Commission may
enter an order requiring the State to pay up to $500,000
in compensatory damages.24
The state Department of Health and Human
Services (DHHS), therefore, may be held liable under
the State Tort Claims Act for the negligence of DHHS
officials or employees. Furthermore, DHHS may be
held liable under the State Tort Claims Act for the
negligence of a county social services director or
employee if the county social services director or
employee was acting as an “agent of the State” when
the negligent act or omission occurred.25
Tort Liability of the County and the
County Social Services Department
As noted above, the State Tort Claims Act applies only
to the State and to state government agencies. A
county or county social services department may not
be sued under the State Tort Claims Act for the
negligence of a county social services employee even
if the employee was acting as an “agent of the State” at
the time the alleged tort occurred.26 A county,
however, may be sued in superior court for a county
employee’s tortious conduct.
Respondeat Superior: County Liability for
Torts Committed by County Employees
The doctrine of respondeat superior, when applied to a
county, means that a county (assuming it cannot claim
governmental immunity, which is discussed below) is
liable for the tortious conduct of its officials and
employees if that conduct
1. occurs within the scope of the official’s office
or the employee’s employment and in
furtherance of the county’s business, or
2. is ratified or approved by the county.27
Although committing intentional torts is not
within the scope of employment of county employees,
a county may be held liable for an intentional tort
committed by a county employee if the employee’s act
24 G.S. 143-291; G.S. 143-299.2.
25 Vaughn v. N.C. Dept. of Human Resources, 296 N.C.
683, 252 S.E.2d 792 (1979); Gammons v. N.C. Dept. of
Human Resources, 344 N.C. 51, 472 S.E.2d 722 (1996).
26 Meyer v. Walls, 347 N.C. at 105, 489 S.E.2d at 884
(overruling sub silento Coleman v. Cooper, 102 N.C. App.
650, 403 S.E.2d 577 (1991)).
27 See Brown-Graham, A Practical Guide to Liability
for North Carolina Cities and Counties, 3-3 through 3-4.
“was a means or method of doing that which he was
employed to do.”28 The doctrine of respondeat
superior, however, does not extend to tortious acts
committed by someone who is an independent
contractor, rather than an employee of a county or
county agency.29
If a person has been injured by the tortious
conduct of a county social services official or
employee, he or she may file a lawsuit against the
county,30 the county social services department,31 one
or more social services officials or employees in their
“official capacities,”32 or all or some combination of
those. A lawsuit that names a county social services
official or employee in his or her “official capacity” is
“in all respects other than name an action against the
[local government or local government agency] … for
which he or she works,”33 and any liability that is
28 See Hogan v. Forsyth Country Club, 79 N.C. App.
483, 491, 340 S.E.2d 116, 122 (1986). The “mere fact that
the act was unlawful and unauthorized will not preclude the
employer’s liability.” Brown-Graham, A Practical Guide to
Liability for North Carolina Cities and Counties, 3-5.
29 See Creel v. N.C. Dept. of Health and Human
Services, 152 N.C. App. at 202, 566 S.E.2d at 833. See also
Brown-Graham, A Practical Guide to Liability for North
Carolina Cities and Counties, 3-6 through 3-7.
30 North Carolina counties are political subdivisions of
the State and corporate entities that have the legal capacity to
“sue and be sued” in their own names and in their own right.
G.S. 153A-11; O’Neal v. Wake County, 196 N.C. 184, 145
S.E.28 (1928); Johnson v. Marrow, 228 N.C. 58, 44 S.E.2d
468 (1947).
31 The county department of social services is an agency
of the county government, not a separate or independent
public, corporate, or legal entity that has the legal capacity to
be sued in its own name. See Malloy v. Durham County Dept.
of Social Services, 58 N.C. App. 61, 66–68, 293 S.E.2d 285,
288–90 (1993); Meyer v. Walls, 347 N.C. at 104, 489 S.E.2d
at 884; Craig v. Chatham County, 143 N.C. App. 30, 31, 545
S.E.2d 455, 456 (2001). A lawsuit that names the county
department of social services as a defendant, therefore, is, in
essence, a lawsuit against the county, not a lawsuit against the
social services department per se.
32 The lawsuit also might name as a defendant one or
more county social services officials or employees in their
“individual capacities.” Lawsuits against county social
services officials or employees in their “individual capacity”
are discussed in the following section of this bulletin.
33 Brown-Graham, A Practical Guide to Liability for
North Carolina Cities and Counties, 4-3, citing Whitaker v.
Clark, 109 N.C. App. 379, 427 S.E.2d 142 (1993). See also
Social Services Law Bulletin No. 42 June 2007
6
imposed against a county official or employee in his or
her official capacity is imposed against the county
rather than the official or employee personally.
Governmental Immunity of Counties
A county may not be sued or held liable for the tortious
act of a county social services agency, official, or
employee if the doctrine of “governmental immunity”
applies and the county has not waived its governmental
immunity.34
North Carolina’s Supreme Court recognized the
doctrine of governmental immunity in 1889.35 Under
this doctrine, counties are shielded from tort liability in
connection with their performance of “governmental”
activities or functions, but not from liability with
respect to their “proprietary” activities or functions.36
Applying the rules that distinguish “governmental” and
“proprietary” functions to specific activities performed
by local governments and their employees is not
always easy.37 It seems clear, though, that most, if not
all, of the activities performed by county social
services agencies and employees in connection with
Hobbs v. N.C. Dept. of Human Resources, 135 N.C. at 420,
520 S.E.2d at 601.
34 A lawsuit against a county must specifically allege
that the county is not entitled to governmental immunity or
has waived its governmental immunity by obtaining liability
insurance. See Whitaker v. Clark, 109 N.C. App. at 384, 427
S.E.2d at 145.
35 Moffitt v. City of Asheville, 103 N.C. 237, 9 S.E.
695 (1889). The governmental immunity of North Carolina
counties and municipalities is similar to, but different from,
the State’s sovereign immunity.
36 The tests for determining whether a function or
activity is “governmental” or “proprietary” are discussed in
detail in Brown-Graham, A Practical Guide to Liability for
North Carolina Cities and Counties, 3-8 through 3-18 and 3-
20 through 3-21. Governmental immunity applies with
respect to all activities that are reasonably related to the
performance of a governmental function. For example, it
would protect a county social services agency from liability
with respect to a social worker’s alleged negligence in
driving a car while investigating a report of suspected child
abuse or neglect as well as the social worker’s alleged
negligence in making a determination with respect to
whether a child has been abused or neglected and needs
protection. See Lewis v. Hunter, 212 N.C. 504, 193 S.E. 814
(1937).
37 See Millar v. Town of Wilson, 222 N.C. 340, 341, 23
S.E.2d 42, 44 (1942) and Koontz v. City of Winston-Salem,
280 N.C. 513, 528, 186 S.E.2d 897, 907 (1972).
the administration of public assistance and social
services programs are “governmental” in nature and
that governmental immunity, therefore, shields the
county from liability in connection with allegedly
tortious conduct by county social services employees
who are engaged in the administration of those
programs.38
A county, however, may waive its governmental
immunity and, if it does, may be sued and held liable
for torts committed by county social services
employees in connection with their employment.
Under state law, a county waives its governmental
immunity by obtaining liability insurance.39
Governmental immunity, however, is waived only to
the extent of the county’s insurance coverage.40 Thus,
if a plaintiff’s damages exceed the amount of the
county’s insurance coverage, the plaintiff “may not
recover damages for injuries in excess of the policy
amount ….”41 And similarly, if a county’s insurance
policy has a deductible or does not cover claims below
a certain amount, the county “retains governmental
38 See Hare v. Butler, 99 N.C. App. at 698, 394 S.E.2d
at 235; Whitaker v. Clark, 109 N.C. App. at 381, 427 S.E.2d
at 143.
39 G.S. 153A-435. “There are three basic ways that a
local government can waive its governmental immunity
through insurance coverage. First, insurance includes liability
coverage provided by companies licensed to [issue] …
[liability] insurance [policies] in [North Carolina] …. Second,
participation in a local government risk pool [as defined in
G.S. 58-23-1 through G.S. 58-23-45] is considered to be the
equivalent of purchasing insurance. Third, a local government
may [“self insure” by] explicitly [setting aside money] … to
pay claims against it.” Brown-Graham, “Civil Liability of the
Local Government and Its Officials and Employees,” 9. Many,
if not most, North Carolina counties have purchased liability
insurance, participate in a local government risk pool, or
established a “self insurance” fund. Some of the reasons that
counties may decide to waive their governmental immunity
through the purchase of liability insurance are discussed in
Brown-Graham, “Civil Liability of the Local Government and
Its Officials and Employees,” 8–9.
40 If a county obtains liability insurance, the county has
the authority to determine what torts it will choose to cover
or exclude under its insurance, the maximum amount of
claims that will be covered through the insurance, and any
deductible. A county, however, may not obtain liability
insurance that purports to cover only claims arising from the
performance of “proprietary,” rather than “governmental,”
functions.
41 Brown-Graham, A Practical Guide to Liability for
North Carolina Cities and Counties, 3-19.
June 2007 Social Services Law Bulletin No. 42
7
immunity for damages that fall within the amount of
the deductible” or below the coverage threshold.42
The “Public Duty” Defense
A defendant may not be held liable for negligence
unless he or she has breached a legal duty of care that
he or she owed to the plaintiff. The “public duty”
defense allows some government agencies to avoid
liability for negligence because their legal duties of
care are owed to the general public rather than to any
particular person who may have been injured as a
result of their breach of those duties.
The public duty doctrine holds that certain …
government activities do not create liability to
individual members of the public. Under the
public duty doctrine, there are circumstances in
which [government agencies and employees
have] … no legal duty to protect an individual
citizen from harm caused by a third person.
Although the government may undertake a duty
to protect the public at large, that duty does not
extend to any specific individual.43
In a 1999 decision, the North Carolina Court of
Appeals held that the county could raise the “public
duty” doctrine as a defense in a case involving the
alleged negligence of a county social services
department in connection with an investigation of
reported child abuse or neglect, but that the “special
relationship” and “special duty” exceptions to the
public duty doctrine might apply.44 But in a different
case decided a year later, the North Carolina Supreme
Court held that, in lawsuits against local governments,
the “public duty” defense applies only to “law
enforcement departments when they are exercising
their general duty to protect the public.”45 Counties,
therefore, may not use the “public duty” doctrine as a
defense in lawsuits involving the alleged negligence of
county social services employees.
42 Brown-Graham, A Practical Guide to Liability for
North Carolina Cities and Counties, 3-22.
43 Brown-Graham, “Civil Liability of the Local
Government and Its Officials and Employees,” 10.
44 Hobbs v. N.C. Dept. of Human Resources, 135 N.C.
App. at 418–19, 520 S.E.2d at 600–01 (1999).
45 Lovelace v. City of Shelby, 351 N.C. 458, 461, 526
S.E.2d 652, 654 (2000).
Personal Tort Liability of County
Social Services Directors and Employees
A person who has been injured by the tortious conduct
of a social services director or employee who was
engaging in official duties may sue the director or
employee in the director’s or employee’s “individual
capacity.”46 A lawsuit that is filed against a social
services director or employee in his or her individual
capacity seeks to hold the director or employee
personally liable for the damages the plaintiff has
suffered.47
It is not always easy to determine, however,
whether a public official or employee is being sued in
his or her official capacity, in his or her individual
capacity, or in both capacities.
The crucial question for determining whether a
[public official or employee] … is sued in an
individual or official capacity is the nature of the
relief sought, not the nature of the act or omission
alleged. If the plaintiff seeks an injunction
requiring the defendant to take an action involving
the exercise of a government power, the defendant
is [sued] … in an official capacity. If money
damages are sought, the court must ascertain
whether the complaint indicates that the damages
are sought from the government or from the pocket
of the individual defendant. If the former, it is an
official-capacity claim; if the latter, it is an
individual-capacity claim; and if it is both, then the
claims proceed in both capacities.48
In ascertaining the capacity in which the plaintiff
seeks to sue [a public official or employee] …, the
court will typically look first to the caption of the
complaint [which should indicate the capacity or
capacities in which the defendant is being sued]. If
the [caption doesn’t clearly indicate the capacity in
which the defendant is being sued] …, the court
will look to the allegations of the complaint and
46 See Meyer v. Walls, 347 N.C. at 110, 489 S.E.2d at
887. Cf. McCarn v. Beach, 128 N.C. App. 435, 496 S.E.2d
402 (1998). A county social services director or employee
also may be sued in his or her official capacity or in his or
her official and individual capacities. Lawsuits against
county social services officials and employees in their
official capacities are, in essence, lawsuits against the county
and are discussed in the preceding sections of this bulletin.
47 See Hare v. Butler, 99 N.C. App. at 700, 394 S.E.2d
at 236; Meyer v. Walls, 347 N.C. at 110, 489 S.E.2d at 887.
48 Meyer v. Walls, 347 N.C. at 110, 489 S.E.2d at 887.
Social Services Law Bulletin No. 42 June 2007
8
then to the course of the proceedings. Absent some
clear indication in the allegations or the procedural
history of the case, the court will not presume that
the plaintiff sought to impose personal liability on
the defendant. Instead the presumption will operate
in favor of finding only official-capacity liability.49
Public Official Immunity
Local government officials and employees are not
entitled to governmental immunity when they are sued
in their individual, rather than official, capacities.50
Public officials, however, are protected by a
limited immunity when they are sued in their
individual capacities for alleged negligence.51 This
“public official immunity” protects a public official
from liability for his or her alleged negligence in “the
exercise of a discretionary act while engaged in a
governmental activity, unless the officer acted with
malice, for corrupt reasons, or outside the scope of his
or her official duties.”52 A “discretionary” act is one
that requires personal deliberation, decision, and
judgment, contrasted with a “ministerial” act that is
“absolute, certain, and imperative, and involve[s]
merely the execution of a specific duty arising from
fixed and designated facts.”53
Unlike public officials, public employees are not
entitled to public official immunity.54 North Carolina’s
courts generally have employed a four-factor test to
49 Brown-Graham, A Practical Guide to Liability for
North Carolina Cities and Counties, 4-5.
50 Brown-Graham, A Practical Guide to Liability for
North Carolina Cities and Counties, 4-7. Cf. Cherry v.
Harris, 110 N.C. App. 478, 480, 429 S.E.2d 771, 772 (1993).
51 This immunity does not apply when a public official
is sued for an intentional tort. A public official or employee,
however, may assert a separate, limited immunity if he or she
is sued for the intentional tort of defamation in connection
with conduct that was not malicious. See Brown-Graham,
“Civil Liability of the Local Government and Its Officials
and Employees,” 4.
52 Brown-Graham, A Practical Guide to Liability for
North Carolina Cities and Counties, 4-8, citing Wiggins v.
City of Monroe, 73 N.C. App. 44, 49, 326 S.E.2d 39, 43
(1985).
53 Brown-Graham, A Practical Guide to Liability for
North Carolina Cities and Counties, 4-8, citing Hare v.
Butler, 99 N.C. App. at 700, 394 S.E.2d at 236.
54 Brown-Graham, A Practical Guide to Liability for
North Carolina Cities and Counties, 4-10. See also Meyer v.
Walls, 347 N.C. at 112, 489 S.E.2d at 888.
determine whether a government defendant is a public
official or a public employee:
• whether the defendant’s position was created
by statute (if it was, the defendant is more
likely to be considered a public official rather
than a public employee);
• whether the defendant’s position required the
defendant to take an oath of office (if it did,
the defendant is more likely to be considered
a public official rather than a public
employee);
• whether the defendant performs legally
imposed public duties (if he or she does, he or
she is more likely to be considered a public
official rather than a public employee);
• whether the defendant exercises a certain
amount of discretion in performing his or her
job (if he or she does, he or she is more likely
to be considered a public official rather than a
public employee).55
It is clear that the county social services director is
a public official.56 Before 1999, a number of appellate
court decisions held that assistant social services
directors, social services supervisors, social workers,
and other county social services staff were public
employees, not public officials, and therefore were not
entitled to public official immunity.57 In 1999,
however, the North Carolina Court of Appeals decided
that when a county social services employee is
performing a discretionary activity pursuant to a
delegation of legal authority from the county social
services director, the employee acts as a public official,
not as a public employee, and is therefore entitled to
“public official immunity.”58
55 Piggott v. City of Wilmington, 50 N.C. App. 401,
403–04, 273 S.E.2d 752, 754 (1981). Public employees, by
contrast, generally act at the direction of others and their
duties are “more administrative or ministerial than
discretionary in nature.” Brown-Graham, A Practical Guide
to Liability for North Carolina Cities and Counties, 4-10.
56 Hare v. Butler, 99 N.C. App. at 700, 394 S.E.2d at
236.
57 Hare v. Butler, 99 N.C. App. at 700, 394 S.E.2d at
236; Coleman v. Cooper, 89 N.C. App. 188, 197, 366 S.E.2d
2, 8 (1988); Meyer v. Walls, 347 N.C. at 114, 489 S.E.2d at
889.
58 Hobbs v. N.C. Dept. of Human Resources, 135 N.C.
App. at 421–23, 520 S.E.2d at 602–03. See also Dalenko v.
Wake County Dept. of Human Services, 157 N.C. App. 49,
55–56, 578 S.E.2d 599, 603 (2003).
June 2007 Social Services Law Bulletin No. 42
9
Personal Tort Liability of County
Social Services Board Members
County social services board members are public
officials and, therefore, are entitled to “public official
immunity” to the same extent and under the same
circumstances as the county social services director. In
addition, county social services board members may be
immune from tort liability with respect to any “quasi-legislative”
or “quasi-judicial” functions of the social
services board.59
Personal Tort Liability of
Social Services Volunteers
The federal Volunteer Protection Act (VPA) of 1997
protects volunteers from liability for injuries caused by
their negligent acts or omissions while working with
state or county social services agencies.60 The VPA,
however, does not protect volunteers from liability for
criminal, intentional, or reckless conduct; gross
negligence; activities that are not within the scope of
their volunteer duties; injuries caused by their
operation of vehicles for which the State requires a
license or insurance; injuries caused while they are
under the influence of alcohol or drugs; or misconduct
that violates federal or state civil rights laws.
Liability of Social Services Agencies
and Employees Under Federal Law
State and county social services agencies are subject to a
number of federal laws, including but not limited to the
“due process” provisions of the U.S. Constitution; the
nondiscrimination requirements of Title VI of the Civil
Rights Act of 1964; the prohibitions on employment
discrimination in Title VII of the 1964 Civil Rights Act,
the Age Discrimination in Employment Act of 1967,
and the Rehabilitation Act of 1973; the compensation
requirements of the Fair Labor Standards Act and the
Equal Pay Act; and the requirements of the Americans
with Disabilities Act of 1990 and the Family and
Medical Leave Act. In some instances, these or other
federal statutes authorize a person to sue a social
services agency or employee for injunctive relief or
monetary damages based on the agency’s or employee’s
alleged violation of federal law.
59 See Vereen v. Holden, 121 N.C. App. 779, 468
S.E.2d 471 (1996); Fugual Springs v. Rowland, 234 N.C.
299, 79 S.E.2d 774 (1954).
60 42 U.S.C. §§ 14501–14505. See also G.S. 1-539.10.
Liability Under 42 U.S.C. § 1983
Another federal statute, 42 U.S.C. § 1983, authorizes a
person to sue and recover damages from a local
government or local government employee if the
government’s or employee’s official conduct violates
the person’s legal rights under the U.S. Constitution or
a federal statute.61
Liability under section 1983 is distinct from
liability under North Carolina’s tort law. Section 1983,
therefore, may allow for a finding of liability in some
cases in which there is none under state law and, in
other cases, an official action may result in liability
under both state law and section 1983.
Although some of the section 1983 lawsuits filed
against state or county social services agencies involve
alleged violations of a person’s constitutional rights,
most claim that a social services agency has violated a
person’s legal rights under a federal statute.62
State and county social services agencies were
sued frequently under section 1983 during the 1960s,
1970s, and 1980s by persons who had applied for or
were receiving public assistance or social services and
alleged that the agencies had violated the plaintiffs’
legal rights by failing to comply with the requirements
of the federal Social Security Act or other federal
social services statutes.63 Recent decisions of the U.S.
61 The liability of local governments and local
government employees under this statute (“section 1983”) is
discussed in detail in chapters 6, 7, 8, and 10 of Brown-
Graham, A Practical Guide to Liability for North Carolina
Cities and Counties, and in Brown-Graham, “Civil Liability
of the Local Government and Its Officials and Employees,”
14–18.
62 See Maine v. Thiboutot, 448 U.S. 1 (1980). Section
1983, however, may not be used in cases in which the federal
statute in question does not create a legal right that is
enforceable by the plaintiff or if the statute provides an
exclusive remedy for its own enforcement. Pennhurst State
School and Hospital v. Halderman, 451 U.S. 1 (1981);
Middlesex County Sewerage Authority v National Sea
Clammers Assn., 453 U.S. 1 (1981).
63 See King v. Smith, 392 U.S. 309 (1968); Shapiro v.
Thompson, 394 U.S. 618 (1969); Rosado v. Wyman, 397
U.S. 397 (1970); Lewis v. Martin, 397 U.S. 552 (1970);
Wyman v. James, 400 U.S. 309 (1971); Townsend v. Swank,
404 U.S. 282 (1971); Jefferson v. Hackney, 406 U.S. 525
(1972); Carleson v. Remillard, 406 U.S. 598 (1972); New
York State Dept. of Social Services v. Dublino, 413 U.S. 405
(1973); U.S. Dept. of Agriculture v. Moreno, 413 U.S. 528
(1973); Maine v. Thiboutot, 448 U.S. 1 (1980). Legal aid
attorneys have filed a number of section 1983 lawsuits
Social Services Law Bulletin No. 42 June 2007
10
Supreme Court, however, have limited somewhat the
ability of social services clients and others to bring
section 1983 lawsuits against state and county social
services agencies for alleged violations of federal
social services statutes.64
State and county social services agencies,
officials, and employees may be sued for prospective
injunctive relief under section 1983. The State of North
Carolina and state social services agencies, however,
are not liable for monetary damages in lawsuits
brought under section 1983 unless the State has waived
its sovereign immunity or Congress has abrogated the
State’s immunity from suit.65 By contrast, county
social services agencies (or, more precisely, the
counties of which social services departments are a
part) may be held liable for monetary damages in
section 1983 lawsuits.66
The doctrine of governmental immunity does not
protect a county from liability under section 1983.
Instead, a county may be held liable for monetary
damages under section 1983 if
1. the county or a county agency, acting through
its public officials, officially adopts an
ordinance, policy, rule, or decision that
violates a person’s federal constitutional or
statutory rights, or
2. a person’s federal constitutional or statutory
rights are violated by the persistent and
widespread practices or customs of the
county’s officials or employees that are so
against North Carolina social services agencies. See Carter v.
Morrow, 526 F.Supp. 1225 (W.D.N.C. 1981) (denial of child
support enforcement services); Alexander v. Hill, 549
F.Supp. 1355 (W.D.N.C. 1982) (failure to process Medicaid
applications in a timely manner); Morris v. Morrow, 783
F.2d 454 (4th Cir. 1986) (Medicaid eligibility rules); Wilson
v. Lyng, 662 F.Supp. 1391 (1987) (food stamp eligibility
rules); Warren v. N.C. Dept. of Human Resources, 65 F.3d
385 (4th Cir. 1995) (food stamp eligibility rules).
64 See Deshaney v. Winnebago County Dept. of Social
Services, 489 U.S. 189 (1989); Suter v. Artist M., 503 U.S.
347 (1992) (child welfare services); Blessing v. Freestone,
520 U.S. 329 (1997) (child support enforcement services).
65 See Anita R. Brown-Graham, “When You Can’t Sue
the State: State Sovereign Immunity,” Popular Government
65(4): 2–14 (2000).
66 See Monell v. New York City Dept. of Social
Services, 436 U.S. 658 (1978). Local governments are not
liable for punitive damages in section 1983 lawsuits. City of
Newport v. Fact Concerts, Inc., 453 U.S. 247 (1981).
permanent and well-settled that they have the
force and effect of law.67
The doctrine of respondeat superior does not apply
in section 1983 lawsuits.68 A county social services
employee’s violation of a person’s federal civil rights,
therefore, will not necessarily make the county liable for
monetary damages under section 1983.69
State and county social services officials and
employees may be held liable for monetary damages
under section 1983 when they are sued in their
“individual capacities.” They are entitled, however, to
a “qualified” immunity that protects them from
personal liability unless their conduct “violates clearly
established statutory or constitutional rights about
which a reasonable person in similar circumstances
would have known.”70
State and county social services agencies and
employees also may be liable for paying a plaintiff’s
attorneys fees in a section 1983 lawsuit.71
Protecting County Social Services
Agencies, Officials, and Employees
from Civil Liability
Obtaining Liability Insurance for Counties
and County Officials and Employees
State law authorizes “counties … to purchase
insurance to protect themselves and any of their
67 Monell v. New York City Dept. of Social Services,
436 U.S. at 690–92.
68 See Bryan County Board of County Commissioners
v. Brown, 520 U.S. 397 (1997).
69 The improper hiring, inadequate training, or
inadequate supervision of county social services employees,
however, may constitute a county policy or custom if it
exhibits a “deliberate indifference” by county policy-makers
or administrators to the federal constitutional or statutory
rights of individuals. See Brown-Graham, A Practical Guide
to Liability for North Carolina Cities and Counties, 6-17
through 6-19.
70 Brown-Graham, “Civil Liability of the Local
Government and Its Officials and Employees,” 18, citing
Wood v. Strickland, 420 U.S. 308 (1975) and Anderson v.
Creighton, 483 U.S. 635 (1987). Punitive damages may be
awarded against a county social services employee if he or
she is held personally liable under section 1983 and the court
finds that his or her conduct was reckless or deliberately
indifferent to the plaintiff’s legal rights. Smith v. Wade, 461
U.S. 30 (1983).
71 Brown-Graham, A Practical Guide to Liability for
North Carolina Cities and Counties, 10-5 through 10-6.
June 2007 Social Services Law Bulletin No. 42
11
officers, agents, or employees from civil liability for
damages.”72 The board of county commissioners “has
absolute discretion in deciding which liabilities and
which … [county officials and employees], if any, will
be covered by this insurance” and in deciding whether
it will cover claims under federal, as well as state, law
and cover claims against officials and employees in
their individual, as well as official, capacities.73
Defending Lawsuits Against County
Officials and Employees
Counties are “authorized, but not required, to provide
for the defense of any civil or criminal action brought
against current or former … [county social services
officials or employees] in state or federal court on
account of alleged acts or omissions committed in the
scope and course of their employment” or office.74
The county may defend the official or employee
through the county attorney, the attorney who
represents the county social services department, an
attorney retained by the county, or, if the county has
purchased liability insurance that requires the insurer
to defend lawsuits brought against county officials or
employees, an attorney retained by the county’s
liability insurance company.
Paying Judgments Against County
Officials and Employees
State law authorizes, but does not require, counties to
pay all or part of any settlement or judgment entered in
a lawsuit that is brought against a county official or
employee in the official’s or employee’s individual
capacity for an act committed within the scope of the
official’s office or employee’s employment.75
No statutory limit is placed on the amount of
money that a local government may appropriate
72 Brown-Graham, “Civil Liability of the Local
Government and Its Officials and Employees,” 18. See G.S.
160A-485. As discussed above, a county’s purchase of
liability insurance constitutes a waiver of its governmental
immunity.
73 Brown-Graham, “Civil Liability of the Local
Government and Its Officials and Employees,” 18.
74 Brown-Graham, “Civil Liability of the Local
Government and Its Officials and Employees,” 19. See G.S.
153A-97.
75 G.S. 160A-167.
to pay a settlement or judgment [against a local
government employee]. However, funds may not
be appropriated to pay … [the] settlement or
judgment if the … [official or employee] acted or
failed to act because of fraud, corruption, or
malice.76
In addition, a county may not pay a settlement or
judgment against a county official or employee unless,
before the settlement is reached or the judgment is
entered, the county has adopted a set of uniform
standards under which settlements or judgments
against county officials and employees will be paid,
and the official or employee gives the county notice of
the claim.77
Summary
Although lawsuits against state and county social
services agencies, officials, and employees are
unavoidable, state and federal law provides some legal
protection or immunity from liability for social
services agencies, officials, and employees.
76 Brown-Graham, “Civil Liability of the Local
Government and Its Officials and Employees,” 19. See G.S.
160A-167.
77 G.S. 160A-167.
Social Services Law Bulletin No. 42 June 2007
12
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School of Government. The University of North Carolina at Chapel Hill