On the Civil Side

A UNC School of Government Blog

https://civil.sog.unc.edu

  • Public Official Immunity for Intentional Torts? The Split Continues

    This entry was contributed by Trey Allen on June 20, 2019 at 9:00 am and is filed under Civil Practice.

    Elected officials, law enforcement officers, tax collectors, zoning inspectors and other public officials sometimes face lawsuits over decisions they have made or actions they have taken. To prevent the fear of lawsuits from unduly influencing the judgment of public officials, the law extends personal liability protection to them in the form of public official immunity (“POI”).

    POI will usually shield public officials from claims of negligent conduct, so long as they acted within the scope of their duties and without malice or corruption. The state’s case law is split, though, over whether POI can ever protect public officials from intentional tort claims such as assault, battery, and trespass. One line of cases answers that question in the negative. In the other line, public officials have successfully invoked POI to defeat intentional tort claims.

    The North Carolina Court of Appeals recently issued a decision that comes down firmly on one side of the divide, keeping the split alive. After setting out POI’s basic features, this blog post briefly reviews that case and then examines the split in more detail, concluding that POI probably should be understood to bar some intentional tort claims. The post refers in several places to a 2016 Local Government Law Bulletin published by the School of Government and found online here. Continue Reading

  • Extra! Extra! Read All About It! New Juvenile Law Bulletin – Delinquency and DSS Custody without Abuse, Neglect, or Dependency: How Does that Work?

    This entry was contributed by Sara DePasquale on June 12, 2019 at 10:59 am and is filed under Child Welfare Law, Juvenile Justice, Juvenile Law.

    Did you know that in a juvenile delinquency court case the juvenile may be placed in the custody of a county’s child welfare department (usually a department of social services (DSS))? A DSS placement through a delinquency action may happen in one of three ways:

    With each of these types of delinquency orders, there is not an allegation, substantiation, or adjudication that the juvenile is abused, neglected, or dependent (see my last blog post, here, discussing  delinquency as it relates to abuse, neglect, or dependency). Instead, the juvenile’s court involvement is a result of his or her alleged acts of delinquency rather than circumstances created by a parent, guardian, custodian, or caretaker. Each of these three custody orders is a type of delinquency order and not an order related to a juvenile’s abuse, neglect, or dependency. However, at times, as a result of the order placing the juvenile in DSS custody, pieces of abuse, neglect, and dependency law apply in the delinquency case.

    The legal implications of placing a juvenile into DSS custody and resulting foster care as part of a delinquency mat­ter are complex – so complex, that a blog post will not do. Instead, my colleague, Jacquelyn (Jacqui) Greene and I wrote a new extensive juvenile law bulletin discussing these orders and the issues that arise with each type of order. You can access the bulletin, Delinquency and DSS Custody without Abuse, Neglect, or Dependency: How Does that Work? here. Continue Reading

  • Amending the Defendant’s Name: Correcting a Misnomer or Adding a New Defendant?

    This entry was contributed by Ann Anderson on June 7, 2019 at 4:01 pm and is filed under Civil Procedure-General.

    A hypothetical:  Mr. Stone filed a tort action against a nearby grocery store after he was injured in the dairy aisle. A week later—just after the statute of limitations expired—Mr. Stone’s attorney discovered that the complaint and summons misstated Defendant’s name. The attorney moved to amend the complaint and summons to change the store’s name from “Brightline Foods, Inc.” to “Brightline Foods NC, Inc.,” and the court allowed it.  Now Brightline Foods, NC, Inc. moves to dismiss the suit, arguing that Mr. Stone did not sue it before the statute of limitations expired. Should the trial court grant the dismissal?  The answer lies in whether Mr. Stone actually corrected a “misnomer” of the original Defendant or named a new Defendant altogether. Continue Reading

  • When Does Delinquency Result in Abuse, Neglect, or Dependency?

    This entry was contributed by Sara DePasquale on May 28, 2019 at 6:42 am and is filed under Child Welfare Law, Juvenile Justice.

    A juvenile may be involved with both the juvenile justice and child welfare systems. These youth are sometimes referred to as “dual jurisdiction” or “crossover youth.” Two of the ways a juvenile in North Carolina may be involved with both systems is when the juvenile is the subject of a delinquency action, and

    • in that action, the court orders the juvenile placed in DSS custody or guardianship (G.S. 7B-1902‒1907; -2506(1)c.; -2001); and/or
    • there is also cause to suspect that the juvenile is abused, neglected, or dependent, which if substantiated by a county child welfare agency (hereinafter “DSS”) may result in a separate abuse, neglect, or dependency action that the juvenile is the subject of.

    Both of these ways applied to one of the very few appellate opinions that address these dual jurisdiction youth: In re K.G., 817 S.E.2d 790 (2018). In that case, K.G. was adjudicated delinquent and placed in DSS custody through an order entered in the delinquency action. DSS then initiated a separate dependency action, which was based largely on the juvenile’s conduct and refusal to live with his parents. In that new action, K.G. was adjudicated dependent. That adjudication was appealed and reversed by the court of appeals, which held the petition failed to allege dependency and stated the juvenile’s willful acts do not determine a parent’s ability to care for their child.

    So, when does delinquency result in abuse, neglect, or dependency? Continue Reading

  • Apply Now! Elder Abuse Workshop at the School of Government

    This entry was contributed by Meredith Smith on May 23, 2019 at 2:41 pm and is filed under Guardianship.

     

    Yesterday, the application period opened for a free workshop we will be hosting September 26-27, 2019 at the School of Government in Chapel Hill.* The purpose of the workshop is to bring together stakeholders from around North Carolina to create and grow multidisciplinary teams (MDTs) to address elder abuse in their respective communities.  You can learn details about the workshop and apply here.  Only teams will be accepted to attend the workshop.  This post provides additional information to consider if you and others in your community are interested in forming a team and submitting an application. Continue Reading

  • No Kids in Court?

    This entry was contributed by Cheryl Howell, Jeff Welty on May 22, 2019 at 9:00 am and is filed under Judicial Authority.

    **This post was written by SOG faculty member Jeff Welty (although I made a few very minor edits) and posted on the NC Criminal Law Blog on April 30, 2019.

     

    A few weeks ago, WRAL reported that a courtroom deputy and district court judge told a woman waiting in district court that she needed to remove her child from the courtroom. According to the report, the judge and deputy told the woman that no children under 12 were allowed in the courtroom.

    Continue Reading

  • Default and Summary Judgment in ‘Divorce’ Cases

    This entry was contributed by Cheryl Howell on May 17, 2019 at 1:57 pm and is filed under Family Law.

    In a recent opinion, the court of appeals held that a trial court has no authority to annul a marriage by summary judgment. Hill v. Durette, (N.C. App, March 19, 2019). This case reminds us that while the Rules of Civil Procedure apply to domestic relations cases generally, there are significant limitations on the use of rules that relieve the court of the obligation to make findings of fact based on evidence presented to the court before entering certain types of domestic orders.

    Continue Reading

  •  A Lease or a License?

    This entry was contributed by Dona Lewandowski on May 9, 2019 at 12:23 pm and is filed under Small Claims Law.

    Every small claims magistrate knows that a “simple landlord-tenant relationship” is a jurisdictional requirement in summary ejectment actions. In most cases the existence of such a relationship is quite clear, but that’s not always so. When the property in question is something other than a home or business, questions sometimes arise. For example, what if an agreement involves a boat slip? A stall at a flea market? A horse stall in a stable? A chair in a beauty salon? In these situations and countless others, the legal issue is whether the agreement between the parties should be characterized as a lease or a license.

    Continue Reading

  • Eight Common Mistakes by Guardians of an Incompetent Adult’s Estate

    This entry was contributed by Meredith Smith on May 1, 2019 at 12:00 pm and is filed under Guardianship, Uncategorized.

    In connection with an upcoming class on guardianship, I recently surveyed a number of clerks of superior court (judicial officials who preside over guardianship cases in NC) about common post-appointment problems among guardians.  My questions focused on non-attorney individuals serving as general guardians and guardians of the estate.  Here are some specific issues identified related to those guardians charged with managing an incompetent adult’s property under G.S. Chapter 35A of the NC General Statutes.  For purposes of this post, “guardian” means a guardian of the estate or general guardian.

    Continue Reading

  • Who Can Access a Delinquency or Undisciplined Juvenile Court Record?

    This entry was contributed by Jacquelyn Greene on April 23, 2019 at 1:10 pm and is filed under Juvenile Law.

    I have had the pleasure of working here at the School of Government for eight months now. In that time I have gotten some interesting questions about North Carolina’s delinquency laws. Most often, those questions relate to the confidentiality of juvenile court records. When I first read the statute – G.S. 7B-3000 – I thought it was an open and shut case. Unless you are on the list of people allowed access without a court order, access can only be allowed pursuant to a court order. But then the questions started to come in. Who exactly is the juvenile’s attorney under this statute? Can any prosecutor access juvenile records any time? Can a federal court order disclosure of a North Carolina juvenile record? On what basis can courts order release of juvenile records? It turns out that it’s not open and shut at all. Here is what I have learned so far. Continue Reading

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