COA: EMTs do not have public officer's immunity

This week, a panel of the North Carolina Court of Appeals (Calabria, Martin, Bryant) held in Fraley v. Griffin that emergency medical technicians (EMTs) are not entitled to public officer's immunity and can be personally liable for claims brought against them.

In January 2010, after returning home from football practice, 17-year-old Atlas Fraley called 911 and reported that he was experiencing full body cramps and dehydration. His parents were at work at the time. Defendant James Griffin, an EMT, went to Atlas's home. Griffin conducted a brief examination of Atlas and determined his condition was not serious and that his pain was not severe. Defendant advised Atlas to orally hydrate and watched him do so successfully. Griffin then gave Atlas oral and written instructions to contact his parents and 911 if his symptoms worsened and left Atlas home alone. A few hours later, Atlas’s parents arrived home and found him lying on their living room. Orange County Emergency Services personnel responded and pronounced him dead. A cause of death could not be determined. Atlas's parents, as administrators of his estate, sued Griffin for wrongful death.

The issue before the Court was whether Griffin was entitled to public officer's immunity. In North Carolina, "public officers" are shielded from liability unless their actions are corrupt or malicious, whereas "public employees" can be held personally liable for mere negligence. In distinguishing between a public officer 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.

Here, the Court determined that North Carolina statutes do not create the position of EMT. The Court also concluded that because EMTs are required to execute specific treatment protocol and cannot deviate from such protocol without physician approval, an EMT's duties are ministerial rather than discretionary. Therefore, the Court concluded, EMTs are not public officers, and Griffin could be liable in his individual capacity.

Related links: Record on appeal (vol. 1, vol. 2, vol. 3); Fraleys' brief; Griffin's brief; amicus brief (NC Advocates for Justice); amicus brief (NC Ass'n of Rescue and EMS and NC Ass'n of EMS Administrators).

COA Opinions Today

Today the COA released 28 published opinions, 19 of them civil. We will report further on some of these cases shortly.

COA: Divorce under Islamic law is not a valid divorce in North Carolina

Last week, a divided panel of the Court of Appeals (Calabria and Martin, majority; Bryant, dissenting) held in Mussa v. Palmer-Mussa that a woman's divorce pursuant to Islamic law was not a valid divorce under North Carolina law.

In 1997, Nikki Palmer-Mussa participated in a wedding ceremony with Khalil Braswell. The couple consented to become husband and wife, but they did not obtain a marriage license because they only sought to comply with Islamic marriage requirements. A friend of the couple, who was not an imam, conducted the ceremony. Afterward, the couple lived together in Maryland, but the marriage was never consummated. Palmer-Mussa divorced Braswell in the manner required by Islamic law by returning the dowry and declaring that she was divorced from her husband. At the time, she believed she was divorced since the marriage was entered into under Islamic law and ended under Islamic law. However, she never sought a judicial divorce or annulment.

Palmer-Mussa subsequently returned to North Carolina, where she met and married Juma Mussa in November 1997. During their marriage, the parties had three children, purchased property as husband and wife, and filed joint tax returns, and Palmer-Mussa was listed as Mussa's wife on his insurance policy. In 2008, Palmer-Mussa filed for divorce and was awarded child support, postseparation support, and attorney’s fees. Mussa later sought an annulment based on bigamy. He argued that his marriage was void from the start because Palmer-Mussa was still married to Braswell when she married Mussa.

The Court of Appeals held that because Palmer-Mussa and Braswell did not have a marriage license and the ceremony failed to meet statutory requirements, their marriage was merely voidable--not void. A voidable marriage is valid until a tribunal annuls the marriage in a direct proceeding, in contrast to a void marriage, which is a nullity and impeachable at any time. In North Carolina, the only type of marriage that is absolutley void is a bigamous marriage.

Although Palmer-Mussa claimed she and Braswell were divorced according to the laws of Islam, the Court held that under North Carolina law, there is no authority supporting the dissolution of a marriage by religious means that can be deemed to be the equivalent of a judicial determination regarding the validity of a marriage. Therefore, at the time of Palmer-Mussa's marriage to Mussa, she was still married to Braswell, rendering the marriage between Palmer-Mussa and Mussa bigamous and void.

Related links: Record on appeal; Mussa's brief; Palmer-Mussa's brief.

Supreme Court Opinions (12/9/11)

Today the North Carolina Supreme Court released six opinions.  This group of opinions is likely the last of the year.  We will post on any decisions of interest later.

COA: Stamp Evidencing Transfer of Note Must Be Signed In Order to Be Effective

In another foreclosure-related ruling issued by the COA today, the Court held that a stamp evidencing the transfer of a note must be signed by someone with authority to transfer it in order to be effective. The case is In re Bass.

Here the borrower claimed that the foreclosing party, U.S. Bank National Association, was not the legal holder of the Note and could thus not foreclose on her property. The Note was transferred several times before coming into the possession of U.S. Bank. The evidence of transfer of the Note between previous holders Mortgage Lenders and Emax Financial Group included a stamp but did not include a signature of an authorized representative transferring it. Emax then transferred the Note to Residential Funding Corporation, and Residential transferred it to U.S. Bank. All other stamps showing transfers of the Note between various parties bore handwritten signatures of the individuals with authority to effect the transfers.

The COA held that a stamp may constitute a valid indorsement of a note, but only if the stamp is executed by a person having the intent and authority to do so. U.S. Bank did not introduce any evidence to establish that the stamp purportedly indorsing and transferring the Note from Mortgage Lenders to Emax was an authorized signature. U.S. Bank introduced only the Note itself which bore a stamp stating "PAY TO THE ORDER OF: EMAX FINANCIAL GROUP, LLC, WITHOUT RECOURSE, BY: MORTGAGE LENDERS NETWORK USA, INC. This stamp was unsigned. The stamp itself did not count as a signature because the person placing the stamp must act with authorization and with the intent to indorse the instrument in order to effect a valid transfer. The stamp at issue only showed the name of Mortgage Lenders, but did not contain a countersignature indicating the capacity in which the signor acted in executing the stamp on behalf of Mortgage Lenders. The COA deemed the lack of signature evidencing of authority of an individual executing the stamp "a troublesome omission," and held that U.S. Bank had thus not presented sufficient evidence that it was the holder of the Note.

COA: Upon Merger, Surviving Bank Becomes Holder of Note By Operation of Law

Today the COA held that when evidence is presented that a merger between two banks took place, the surviving bank succeeds by operation of law to the status of holder of the previous bank's note. The case is In re Carver Pond I.

This was a foreclosure case in which the borrower claimed that Bank of America was not the holder of the Note and thus had no power to foreclose. BoA had merged with LaSalle Bank, who was the previous holder of the Note.

BoA presented three documents to evidence the merger between it and LaSalle: an Affidavit executed by the loan servicer stating that BoA was successor by merger to LaSalle; a certified statement from the assistant secretary of BoA that the merger took place; and a letter from the Comptroller of the Currency Administrator of National Banks certifying that LaSalle merged with BoA. The COA held that these documents were sufficient evidence of the merger between LaSalle and BoA, and as the surviving corporation, BoA succeeded by operation of law as the holder of the Note, and had standing to enforce the Note in its own name.