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NO. COA11-300 NORTH CAROLINA COURT OF APPEALS Filed: MALINDA FRALEY and DAVID FRALEY, Co-Administrators of the Estate of ATLAS FRALEY, Plaintiffs v. JAMES GRIFFIN, in his individual capacity, Defendant Orange County No. 10 CVS 150 20 December 2011

Appeal by defendant from order entered 12 November 2010 by Judge Carl R. Fox in Orange County Superior Court. Court of Appeals 12 September 2011. Twiggs, Beskind, Strickland & Rabenau, P.A., by Donald R. Strickland, Karen M. Rabenau, and Jesse H. Rigsby, IV, for plaintiff-appellees. Teague Campbell Dennis & Gorham, L.L.P., by Henry W. Gorham, Carrie E. Meigs, and Leslie B. Price, for defendant-appellant. Glenn, Mills, Fisher & Mahoney, P.A., by William S. Mills and Carlos Mahoney, for North Carolina Advocates for Justice, amicus curiae. Walker, Allen, Grice, Ammons & Foy, L.L.P., by Jerry A. Allen, Jr., for The North Carolina Association of Rescue and EMS and North Carolina Association of EMS Administrators, amici curiae. CALABRIA, Judge. Heard in the

-2James Griffin ("defendant") appeals from the trial court's order denying defendant's motion for summary judgment on the basis of public official immunity. I. We affirm.

Background

On 12 August 2008, Atlas Fraley ("Atlas") returned home after a high school football practice and called 911. told the operator that he was seventeen years old Atlas and

experiencing full body cramps and dehydration.

He also told the

dispatcher that he was home alone as his parents were at work. The operator dispatched defendant, an emergency medical

technician ("EMT") employed by Orange County Emergency Services ("OCES"), to Atlas' home. When defendant arrived at Atlas' home, he noted that Atlas was in obvious discomfort and could not sit still. conducted a brief examination of Atlas and Defendant his

determined

condition was not serious and that his pain was not severe. Defendant advised Atlas to orally hydrate and watched him do so successfully. Defendant then gave Atlas oral and written

instructions to contact his parents and 911 if his symptoms worsened and left Atlas home alone. respond to other emergency calls. Defendant proceeded to

A few hours later, Atlas'

parents arrived home and found him lying on their living room

-3floor. Atlas was unresponsive and not breathing. When OCES

personnel arrived, Atlas was pronounced dead.

A later autopsy

could not definitely determine Atlas' cause of death. On 28 January 2010, Atlas' parents, as co-administrators of his estate ("plaintiffs"), initiated a wrongful death action in Orange County and Superior individual Court against defendant, and in both his

official

capacities,

OCES,

Orange

County,

North Carolina. waived its

After determining that Orange County had not immunity with the for their claims, of plaintiffs against

sovereign all claims

dismissed

exception

those

defendant in his individual capacity. On 29 October 2010, defendant filed a motion for summary judgment on the basis of, inter alia, public official immunity. After a hearing, this motion was denied by the trial court on 12 November 2010. Defendant appeals. II. Public Official Immunity

As an initial matter, we note that the trial court's order denying defendant's and motion not for summary subject judgment to is

interlocutory,

thus,

generally

immediate

appeal. Snyder v. Learning Servs. Corp., 187 N.C. App. 480, 482, 653 S.E.2d 548, 550 (2007). "Orders denying summary judgment

based on public official immunity, however, affect a substantial

-4right and are immediately appealable." Dempsey v. Halford, 183 N.C. App. 637, 638, 645 S.E.2d 201, 203 (2007). Thus,

defendant's appeal is properly before this Court. Defendant's sole argument on appeal is that the trial court erred by denying his motion for summary judgment. Defendant

asserts that, as an EMT for Orange County, he is entitled to public official immunity. We disagree.

It is well established that [p]ublic officers are shielded from liability unless their actions are corrupt or malicious[;] however, public employees can be held personally liable for mere negligence. In distinguishing between a public official and a public employee, our courts have held that (1) a public office is a position created by the constitution or statutes; (2) a public official exercises a portion of the sovereign power; and (3) a public official exercises discretion, while public employees perform ministerial duties. Additionally, an officer is generally required to take an oath of office while an agent or employee is not required to do so. Murray v. County of Person, 191 N.C. App. 575, 579-80, 664

S.E.2d 58, 61 (2008)(internal quotations and citations omitted). A. Position Created by Statute first contends that the position of EMT is

Defendant

created by statute.

This Court has noted that cases which have

recognized the existence of a public officer did so when either the officer's position had "a clear statutory basis" or the

-5officer had been "delegated a statutory duty by a person or organization created by statute." Farrell v. Transylvania Cty.

Bd. of Educ., 199 N.C. App. 173, 177-79, 682 S.E.2d 224, 228-29 (2009). Defendant contends that N.C. Gen. Stat.

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