NO. COA13-1072
NORTH CAROLINA COURT OF APPEALS
Filed: 3 June 2014
GRETCHEN J. PROPST,
Plaintiff,
North Carolina
v. Industrial Commission
I.C. No. TA-20853
NORTH CAROLINA DEPARTMENT OF
HEALTH AND HUMAN SERVICES,
Defendant.
Appeal by plaintiff from Order entered 18 May 2012 by the
North Carolina Industrial Commission. Heard in the Court of
Appeals 20 February 2014.
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.
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.
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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
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.
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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
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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 public. However, due to an
apparent clerical error, the order was not served on plaintiff
until 28 May 2013. Plaintiff filed written notice of appeal to
this Court on 25 June 2013.
II. Standard of Review
The standard of review for an appeal from
the Full Commission’s decision under the
Tort Claims Act shall be for errors of law
only under the same terms and conditions as
govern appeals in ordinary civil actions,
and the findings of fact of the Commission
shall be conclusive if there is any
competent evidence to support them.
Dawson v. N.C. Dept. of Environment and Natural Resources, 204
N.C. App. 524, 527, 694 S.E.2d 427, 430 (2010) (citation and
quotation marks omitted).
Summary judgment is appropriate if “the
pleadings, depositions, answers to
interrogatories, and admissions on file,
together with the affidavits, if any, show
that there is no genuine issue as to any
material fact and that any party is entitled
to a judgment as a matter of law.” N.C. R.
Civ. P. 56(c). The trial court may not
resolve issues of fact and must deny the
motion if there is a genuine issue as to any
material fact. Moreover, all inferences of
fact must be drawn against the movant and in
favor of the party opposing the motion. The
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standard of review for summary judgment is
de novo.
Forbis v. Neal, 361 N.C. 519, 523-24, 649 S.E.2d 382, 385 (2007)
(citations, quotation marks, and ellipses omitted).
III. Summary Judgment
The Industrial Commission granted summary judgment in favor
of defendant because it concluded that plaintiff’s claim was
defeated by collateral estoppel and that Dr. Flitt did not owe
any duty to plaintiff individually. Plaintiff argues that both
of these conclusions were in error.
Collateral estoppel applies when the
following requirements are met: (1) the
issues to be concluded must be the same as
those involved in the prior action; (2) in
the prior action, the issues must have been
raised and actually litigated; (3) the
issues must have been material and relevant
to the disposition of the prior action; and
(4) the determination made of those issues
in the prior action must have been necessary
and essential to the resulting judgment.
Urquhart v. East Carolina School of Medicine, 211 N.C. App. 124,
128, 712 S.E.2d 200, 204 (citation and quotation marks omitted),
disc. rev. denied, 365 N.C. 335, 717 S.E.2d 389 (2011).1
1
There has been some confusion in recent years over whether the
“mutuality of parties” and privity is still required or not.
See, e.g., In re K.A., ___ N.C. App. ___, 756 S.E.2d 837 (2014)
(No. COA13-972) (acknowledging the confusion over whether
mutuality is still required or not). In any event, as discussed
below, there is no dispute that there is sufficient identity of
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An issue is actually litigated, for purposes
of collateral estoppel or issue preclusion,
if it is properly raised in the pleadings or
otherwise submitted for determination and is
in fact determined. A very close examination
of matters actually litigated must be made
in order to determine if the underlying
issues are in fact identical; if they are
not identical, then the doctrine of
collateral estoppel does not apply.
Williams v. Peabody, ___ N.C. App. ___, ___, 719 S.E.2d 88, 93
(2011) (citations, quotation marks, brackets, and footnote
omitted).
Here, there is no dispute that the prior judgment was a
final judgment on the merits,2 that the issue of the public duty
doctrine was actually litigated and decided in the prior suit,
nor that there is sufficient identity of the parties.3 However,
parties for collateral estoppel to apply here.
2
The prior suit was resolved when the superior court granted
summary judgment in favor of Dr. Flitt. “In general, a cause of
action determined by an order for summary judgment is a final
judgment on the merits.” Williams, ___ N.C. App. at ___, 719
S.E.2d at 93.
3
Plaintiff’s claims against defendant here are premised on the
alleged negligence of Dr. Flitt and those he supervised, imputed
to defendant through respondeat superior. Therefore, a judgment
in favor of Dr. Flitt on the negligence claims bars the same
claims being brought against defendant, his employer. See
Urquhart, 211 N.C. App. at 129, 712 S.E.2d at 204-05 (holding
that collateral estoppel applied where the prior judgment
involved the plaintiff’s suit against the state employee in his
individual capacity and the subsequent suit was brought under
the Tort Claims Act); Kayler v. Gallimore, 269 N.C. 405, 408,
152 S.E.2d 518, 521 (1967) (“[A] principal or master, sued for
damages by reason of the alleged negligence of his agent or
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plaintiff argues that the superior court’s determination on the
public duty issue does not preclude her from contesting that
issue in the present suit. She contends that because the
superior court granted summary judgment both on the grounds of
immunity and on the basis of the public duty doctrine, its
determination of the duty issue was not necessary to its
judgment, and therefore not entitled to preclusive effect.
The Restatement (Second) of Judgments supports plaintiff’s
position. The Second Restatement drafters comment that “[i]f a
judgment of a court of first instance is based on determinations
of two issues, either of which standing independently would be
sufficient to support the result, the judgment is not conclusive
with respect to either issue standing alone.” Restatement
(Second) of Judgments § 27, cmt. i (1982). Nevertheless,
plaintiff cites no North Carolina case adopting this rule, and
we have found none. Other appellate courts around the country
have split on whether to adopt this rule or the contrary rule
from the First Restatement of Judgments, discussed below. See
servant, may plead, in bar of such action, a judgment in favor
of the agent or servant in a former action by or against the
present plaintiff, which judgment establishes that the agent or
servant was not negligent.”); Bullock v. Crouch, 243 N.C. 40,
42, 89 S.E.2d 749, 751 (1955) (“[I]f the judgment in the action
against the servant had terminated in favor of servant, since
the defendants’ liability was only derivative, no action could
have been sustained against the defendants.”)
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Jean Alexander Cosmetics, Inc. v. L’Oreal USA, Inc., 458 F.3d
244, 251 (3d Cir. 2006) (observing that “[t]here is no consensus
among the courts of appeals as to whether the First or Second
Restatement offers the better approach”).
We decline to follow the approach of the Second Restatement
as to this issue because it is incompatible with the doctrine of
collateral estoppel as it has been applied in this state.4 The
Second Restatement drafters explain their decision to give
neither basis of a judgment with alternative bases preclusive
effect as follows:
First, a determination in the alternative
may not have been as carefully or rigorously
considered as it would have if it had been
necessary to the result, and in that sense
it has some of the characteristics of dicta.
Second, and of critical importance, the
losing party, although entitled to appeal
from both determinations, might be dissuaded
from doing so because of the likelihood that
at least one of them would be upheld and the
other one not even reached.
Id.
We are not convinced that these policy rationales justify a
departure from the general rule that issues actually litigated
4
The Restatements are persuasive, not binding authority,
“[e]xcept as specifically adopted in this jurisdiction.” Hedrick
v. Rains, 344 N.C. 729, 729, 477 S.E.2d 171, 172 (1996).
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and determined in a prior action preclude later relitigation of
those issues. We have said that
the prior judgment serves as a bar only as
to issues actually litigated and determined
in the original action. An issue is
‘actually litigated,’ for purposes of
collateral estoppel or issue preclusion, if
it is properly raised in the pleadings or
otherwise submitted for determination and is
in fact determined.
City of Asheville v. State, 192 N.C. App. 1, 17, 665 S.E.2d 103,
117 (2008) (citations, quotation marks, brackets, and emphasis
omitted), app. dismissed and disc. rev. denied, 363 N.C. 123,
672 S.E.2d 685 (2009). Under the rule urged by plaintiff and the
Second Restatement, the parties could fully litigate two issues,
either of which could independently support the trial court’s
judgment, but neither of which would have preclusive effect in a
later case. A party would be free to relitigate either issue in
a future case.
The First Restatement of Judgments suggests the opposite
conclusion. The drafters of the First Restatement noted that
when there are multiple independent grounds for a trial court’s
judgment, “it must be said either that both are material to the
judgment or that neither is material.” Restatement (First) of
Judgments § 68, cmt. n (1942). They observed that “[i]t seems
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obvious that it should not be held that neither is material, and
hence both should be held to be material.” Id.
While this conclusion may not be obvious, as evidenced by
the contrary conclusion in the later Restatement, we agree that
both independent grounds of a prior judgment should have later
preclusive effect, assuming all of the other elements of
collateral estoppel are present. As the drafters of the Second
Restatement recognized, “[t]he cases on this question of effect
of alternative determinations are not numerous, and some are
unclear in their rationale . . . . [T]he question is a close and
difficult one.” Restatement (Second) of Judgments § 27,
Reporter’s Note. To hold that a prior judgment is not preclusive
on either ground on which it was based would undermine the
entire purpose of the collateral estoppel doctrine, to
“protect[] litigants from the burden of relitigating previously
decided matters and promot[e] judicial economy by preventing
needless litigation.” City of Asheville, 192 N.C. App. at 17,
665 S.E.2d at 117 (citation and quotation marks omitted).
The illustration given by the drafters of the First
Restatement explains why they came to this conclusion:
A brings an action against B to recover
interest on a promissory note payable to A,
the principal not yet being due. B alleges
that he was induced by the fraud of A to
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execute the note, and further alleges that A
gave him a release under seal of the
obligation to pay interest. The jury in
answer to interrogatories finds that B was
induced by A’s fraud to execute the note,
and also finds that A had given him a
release under seal of the obligation to pay
interest, and gives a verdict for B on which
judgment is entered. After the note matures
A brings an action against B for the
principal of the note. The prior judgment is
a defense to the action, since the finding
that the execution of the note was procured
by fraud is conclusive.
Restatement (First) of Judgments § 68, illus. 7. The Second
Restatement uses this same illustration, but comes to the
opposite conclusion. Restatement (Second) of Judgments § 27,
illus. 15. Under the latter analysis, B would have had to
relitigate the issue of fraud, as neither of the previous
determinations would have preclusive effect. This result defeats
the purpose of collateral estoppel previously discussed.
Additionally, this state’s analysis as to what constitutes
dicta supports the adoption of the rule of the First Restatement
over that of the Second. The Second Restatement considered
alternative grounds that support a judgment to be the equivalent
of dicta. See Restatement (Second) of Judgments § 27, cmt. i.
However, alternative, independent grounds for an appellate
decision are not considered obiter dicta here. The Supreme Court
has held that
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where a case actually presents two or more
points, any one of which is sufficient to
support decision, but the reviewing Court
decides all the points, the decision becomes
a precedent in respect to every point
decided, and the opinion expressed on each
point becomes a part of the law of the case
on subsequent trial and appeal.
Hayes v. City of Wilmington, 243 N.C. 525, 537, 91 S.E.2d 673,
682 (1956).
Moreover, we are not convinced that the possibility that
the trial court erroneously decided one of the multiple grounds
relied on outweighs the interests of judicial economy and the
prevention of unnecessary relitigation. Our Supreme Court has
explained that the doctrine of collateral estoppel applies even
if the prior judgment may have been error:
To be valid a judgment need not be free from
error. Normally no matter how erroneous a
final valid judgment may be on either the
facts or the law, it has binding res
judicata and collateral estoppel effect in
all courts, Federal and State, on the
parties and their privies.
King v. Grindstaff, 284 N.C. 348, 360, 200 S.E.2d 799, 808
(1973). Therefore, we hold that where a trial court bases its
judgment on multiple independent grounds, each of which have
been fully litigated, and that judgment has not been appealed,
the trial court’s determination as to every issue actually
decided has preclusive effect in later litigation.
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Here, all elements of collateral estoppel are present.
First, the issues involved in the present action are the same as
those in the prior action. The issue of whether Dr. Flitt owed a
duty to plaintiff is vital to plaintiff’s negligence claim
against defendant here, as it was in her claim against Dr.
Flitt. Second, the issue of whether the public duty doctrine
defeated the duty element of plaintiff’s negligence claim was
raised and actually litigated in the prior action. In Dr.
Flitt’s answer, he specifically pled the public duty doctrine as
a defense. Plaintiff specifically and extensively briefed the
issue of the public duty doctrine in her memorandum in
opposition to Dr. Flitt’s summary judgment motion in the
superior court action. Further, the superior court specifically
noted that Dr. Flitt was “entitled to summary judgment based on
the public duty doctrine.” Third, the issue of whether Dr.
Flitt owed a duty to plaintiff was material to deciding
plaintiff’s negligence claim against him. See Ray v. North
Carolina Dept. of Transp., 366 N.C. 1, 5, 727 S.E.2d 675, 679
(2012) (“Because the public duty doctrine says that there is a
duty to the public generally, rather than a duty to a specific
individual, the doctrine operates to prevent plaintiffs from
establishing the first element of a negligence claim—duty to the
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individual plaintiff.”). Finally, as we held above, because the
public duty doctrine was specifically relied on to support the
trial court’s judgment, and it alone could have supported the
trial court’s judgment, that issue was necessary and essential
to the judgment.
We conclude that the superior court’s summary judgment
order collaterally estops plaintiff to contest the issue of the
public duty doctrine. As a result, plaintiff cannot show that
any duty was owed to her individually and her negligence claim
against defendant must fail. See Ray, 366 N.C. at 5, 727 S.E.2d
at 679. Therefore, we affirm the Industrial Commission’s order
granting defendant’s motion for summary judgment.
IV. Conclusion
For the foregoing reasons, we conclude that plaintiff is
precluded from contesting the issue of whether the public duty
doctrine applies. Therefore, plaintiff cannot show that
defendant or its employee, Dr. Flitt, owed her any individual
duty and her negligence claim fails as a matter of law. We
accordingly affirm the Full Commission’s order granting summary
judgment to defendant.
AFFIRMED.
Judges CALABRIA and DAVIS concur.