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Propst v. North Carolina Dept. of Health and Human Services

Court of Appeals of North Carolina

June 3, 2014

GRETCHEN J. PROPST, Plaintiff,
v.
NORTH CAROLINA DEPARTMENT OF HEALTH AND HUMAN SERVICES, Defendant

Heard in the Court of Appeals February 20, 2014.

North Carolina Industrial Commission. I.C. No. TA-20853.

Rabon Law Firm, PLLC by Charles H. Rabon, Jr., and Marshall P. Walker, for plaintiff-appellant.

Attorney General Roy A. Cooper, III, by Special Deputy Attorney General Olga Vysotskaya, for the State.

STROUD, Judge. Judges CALABRIA and DAVIS concur.

OPINION

Page 893

Appeal by plaintiff from Order entered 18 May 2012 by the North Carolina Industrial Commission.

STROUD, Judge.

Gretchen Propst (" plaintiff" ) appeals from an order entered 18 May 2012 by the Full Commission granting summary judgment in favor of the North Carolina Department of Health and Human Services (" defendant" ). We affirm.

I. Background

Plaintiff filed a claim for damages under the Tort Claims Act on 9 September 2008. In that claim, she alleged that Dr. Bruce Flitt, the Gaston County Medical Examiner, negligently failed to perform his duties as medical examiner on 11 September 2005 when he signed a Medical Examiner's Report (" ME Report" ) that stated he had examined the body of plaintiff's son and included several inaccurate statements regarding her son's body. The ME Report stated that plaintiff's son's body was warm when examined and that he had brown eyes. Plaintiff claimed that these statements caused her substantial emotional distress because her son's eyes were blue and she had been told by the

Page 894

funeral home that her son's body had been stored in a refrigeration unit. She worried that the body she and her family had buried may not have been that of her son.

When they exhumed the body, they discovered that it was in fact plaintiff's son, but that her son had not been dressed in the burial attire she chose. She alleged that this discrepancy shows that Dr. Flitt and his assistants never actually viewed or examined her son's body, in violation of their duties. Plaintiff claimed that the failure of Dr. Flitt and his assistants to perform their duties in examining her son's body caused her severe emotional distress and " post traumatic stress syndrome." She sought $200,000 in damages.

On 30 July 2010, defendant filed a motion for summary judgment, contending that plaintiff's claim was barred by collateral estoppel because plaintiff had previously filed a negligence action against Dr. Flitt in his official and individual capacities in superior court. The superior court had granted summary judgment in favor of Dr. Flitt on grounds of immunity and the public duty doctrine by order entered 28 April 2010. Plaintiff did not appeal from the superior court's order. Defendant attached the pleadings, motions, and order from the prior suit to its summary judgment motion. Defendant further argued that even if the prior determination by the superior court did not preclude the issue from being contested in the present suit, defendant owed plaintiff no individual duty under the public duty doctrine.

The summary judgment motion was heard by Deputy Commissioner Glenn on 16 August 2010. Deputy Commissioner Glenn entered an order on 6 July 2011 denying defendant's motion for summary judgment. Defendant appealed to the Full Commission on 6 July 2011. The Full Commission granted defendant's motion for summary judgment by order entered 18 May 2012. It concluded that plaintiff's claim was barred by collateral estoppel because the superior court had already determined that Dr. Flitt did not owe plaintiff any individual duty. It further concluded that even if it were not barred, plaintiff's claim fails because she has failed to show that Dr. Flitt owed her an individual duty, distinct from his duty to the ...


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