The general rule in North Carolina is that local government employees may be held personally liable for their on-the-job negligence or deliberate misconduct. However, public officials within local government are afforded protection from individual liability for certain negligent acts within the scope of their official duties. This blog post provides an overview of the doctrine of public official immunity and includes a new “quick-reference guide” capturing how North Carolina appellate courts have categorized the eligibility (and ineligibility) of various positions for public official immunity in the local government context. You can access the resource at “Public Official Immunity: Public Official v. Public Employee Distinction.”
Defining Public Official Immunity
Public official immunity is a “derivative form” of governmental immunity. Epps v. Duke Univ., Inc., 122 N.C. App. 198, 203 (1996). As such, it is helpful to begin with a discussion of governmental immunity, its application to certain types of claims, and how the two doctrines differ.
Governmental immunity bars tort claims (i.e. negligence, assault, trespass, etc.) against local governments for personal injuries or property damage caused by their employees in the performance of governmental functions. A lawsuit against a public servant in his or her “official capacity” also amounts to an action against the local government. See Mullis v. Sechrest, 347 N.C. 548, 554-55 (1998). On an official capacity claim, the local government, not the official or employee, would be responsible for any damages awarded. In this way, governmental immunity bars claims against public officials and employees in their official capacities to the same degree it would bar those claims against the local government itself. On the other hand, an action against a public servant in his or her “individual capacity” seeks to hold the public official or employee personally liable. See, e.g., Williams v. Holsclaw, 128 N.C. App. 205, 208-09 (1998). While governmental immunity may foreclose official capacity claims, it does not apply to claims against officials or employees in their individual capacities.
Enter public official immunity. Public official immunity, by contrast, protects public officials, but not public employees, from individual liability for negligence claims, unless the official’s actions are malicious, corrupt, or outside the scope of their official duties. Smith v. Hefner, 235 N.C. 1, 7 (1952). (Under tort law, negligence is the failure to exercise the level of care that a reasonable person would have exercised under the same circumstances. To succeed in a negligence lawsuit, a plaintiff must generally demonstrate that the defendant violated a duty of care owed to the plaintiff and that the violation caused harm to the plaintiff or the plaintiff’s property.)
Whereas governmental immunity shields the local government unit (as well as officials and employees sued in their official capacities), public official immunity protects individual public officers (but not employees) from personal liability. For this reason, public official immunity is sometimes referred to as an “individual immunity,” alongside legislative and quasi-judicial immunities. Public official immunity is an affirmative defense, meaning the defendant must properly assert it to receive its protection. Bartley v. City of High Point, 381 N.C. 287, 295 (2022).
The public official immunity doctrine serves a few policy ends. First, public official immunity promotes the “fearless, vigorous, and effective administration of government policies.” Estate of Graham v. Lambert, 385 N.C. 644, 654 (2024). That is, public officials who exercise discretion might be hesitant to take necessary actions or make hard policy decisions, if they could be personally responsible for harm caused by mere negligence. Second, the protection “dampens trepidation about personal liability that may deter competent people from taking office.” Id.
Actions Not Covered by Public Official Immunity
As explained above, public official immunity can shield public officers from personal liability for conduct within the scope of their duties, except when they act maliciously or corruptly.
When does an official act outside the scope of his or her official duties?
To answer this question, courts typically assess whether the alleged conduct falls within the authority conferred upon the official by law. For example, in one case, the North Carolina Court of Appeals held that the plaintiffs could proceed with their wrongful autopsy claim against a medical examiner because the complaint successfully alleged that the examiner had exceeded his statutory authority by, among other things, supervising an autopsy involving excessive mutilation. Epps v. Duke Univ., Inc., 116 N.C. App. 305, 311 (1994). In another case, the State’s Supreme Court concluded that a principal who sexually assaulted a student in his office was not entitled to public official immunity because his actions “were beyond the course and scope of his employment as a matter of law.” Medlin v. Bass, 327 N.C. 587, 594 (1990).
The courts also tend to regard intentional wrongdoing as outside the scope of a public official’s authority. See, e.g., McCullers v. Lewis, 265 N.C. App. 216, 222 (2019). But see Barnett v. Karpinos, 119 N.C. App. 719, 729 (1995) (holding that a town attorney and law enforcement officers accused of assault, battery, false imprisonment, and malicious prosecution following a drug raid had not exceeded their authority for purposes of public official immunity). This is because no public policy interest supports shielding public officials from liability when they intentionally act to harm others. (Trey Allen wrote about the intersection of intentional torts and public official immunity at length in Do Intentional Tort Claims Always Defeat Public Official Immunity? and Public Official Immunity for Intentional Torts? The Split Continues.)
What constitutes malicious or corrupt conduct that does not qualify for public official immunity?
North Carolina courts have held that a public official acts with malice if the act is: “(1) done wantonly, (2) contrary to the actor’s duty, and (3) intended to be injurious to another.” Wilcox v. City of Asheville, 222 N.C. App. 285, 289 (2012). In cases involving physical safety, a court may determine constructive intent to injure if the official’s conduct was “so reckless or so manifestly indifferent to the consequences . . . as to justify a finding of willfulness and wantonness equivalent in spirit to an actual intent.” Hart v. Brienza, 246 N.C. App. 426, 431 (2016) (citation and quotations omitted). And a public officer acts corruptly when the act is done with “a wrongful design to acquire some pecuniary profit.” Green v. Howell, 274 N.C. App. 158, 167 (2020) (quoting State v. Hair, 114 N.C. App. 464, 468 (1994)). That said, courts presume that public officials discharge their duties in good faith. Brady v. Charlotte-Mecklenburg Bd. of Educ., 299 N.C. App. 560, 577 (2025) (citing Bartley, 381 N.C. at 295).
Public Official v. Public Employee Distinction
Public official immunity does not extend to public employees. Therefore, employees, unlike public officials, may be held personally liable for causing an injury by negligent conduct in the performance of their duties. See Isenhour v. Hutto, 350 N.C. 601, 610 (1999). The compelling reasons for the immunity of a public officer “are entirely absent” for a public employee, in part because employees perform mainly ministerial or administrative duties—those that are “absolute, certain, and imperative, involving merely the execution of a specific duty arising from fixed and designated facts.” Meyer v. Walls, 347 N.C. 97, 113 (1997) (citations and quotations omitted). Put differently, employees do not require the same legal protection as officials because, as a general matter, they do not exercise as much discretion or independent judgment in their roles.
In Isenhour v. Hutto, the North Carolina Supreme Court enunciated a three-part test to distinguish between public officials and public employees: (1) a public office is created by the constitution or statute; (2) a public official exercises a portion of the sovereign power; and (3) a public official exercises discretion, while public employees perform ministerial duties. Isenhour at 610. The first Isenhour factor is also satisfied if a statute expressly authorizes delegation of a duty, the duty is in fact delegated to an individual, and that individual performs the duty on behalf of the person or body with delegation authority. See, e.g., Hobbs v. N.C. Dep’t of Human Res., 135 N.C. App. 412, 421-22 (1999). The individual asserting public official immunity must demonstrate all three elements. Orsbon for Bosworth-Jones v. Milazzo, 297 N.C. App. 96, 101 (2024). Taking and subscribing an oath of office also weighs in favor of a determination of public official immunity, though it is neither dispositive nor necessary. Baker v. Smith, 224 N.C. App. 423, 433-34 (2012).
Based on these factors, North Carolina courts have classified the following positions as public officials: elected officials; school district superintendents, principals, and assistant principals; police chiefs and officers; sheriffs and their deputies; fire chiefs; chief building inspector and building inspector; city and county managers; notaries; directors of county EMS, DSS, and health departments; and certain social workers. On the other hand, courts have held these positions to be public employees that do not qualify for public official immunity: teachers; a school crossing guard; an emergency medical technician; engineer project managers; and an environmental health administrator.
More on Public Official Immunity
For a more complete picture of the classifications by position type, a new “quick-reference guide” illustrates the lines North Carolina appellate courts have drawn between public servants—public officials (eligible) and public employees (ineligible)—for purposes of public official immunity. The full resource is available at “Public Official Immunity: Public Official v. Public Employee Distinction.”
The North Carolina Supreme Court weighed in on yet another category (or two) of public servants last year, this time in the university setting, in Hwang v. Cairns, 387 N.C. 448 (2025). Stay tuned for another post evaluating the court’s treatment of public official immunity in that case and the decision’s potential impacts on the doctrine.
