IN THE SUPREME COURT OF NORTH CAROLINA

2021-NCSC-81

No. 303A20

Filed 13 August 2021

ESTATE OF MELVIN JOSEPH LONG, by and through MARLA HUDSON LONG, 

Administratrix

v.

JAMES D. FOWLER, Individually, DAVID A. MATTHEWS, Individually, DENNIS 

F. KINSLER, Individually, ROBERT J. BURNS, Individually, MICHAEL T. 

VANCOUR, Individually, and MICHAEL S. SCARBOROUGH, Individually

Appeal pursuant to N.C.G.S. § 7A-30(2) from the decision of a divided panel of 

the Court of Appeals, 270 N.C. App. 241 (2020), reversing an order entered on 3 May 

2019 by Judge Josephine K. Davis in Superior Court, Person County, and remanding 

to the trial court. Heard in the Supreme Court on 18 May 2021. 

Hardison & Cochran, PLLC, by John Paul Godwin; and Sanford Thompson, 

PLLC, by Sanford Thompson IV, for plaintiff-appellee.

Parker Poe Adams & Bernstein LLP, by Jonathan E. Hall and Patrick M. 

Meacham; and Joshua H. Stein, Attorney General, by Melissa K. Walker, 

Assistant Attorney General, Shannon Cassell, Civil Bureau Chief, and Sarah 

G. Boyce, Deputy Solicitor General, for defendant-appellants.

EARLS, Justice.

¶ 1 This case raises the question of whether the estate of an individual killed by 

the allegedly negligent acts of State employees can proceed in state court to assert 

wrongful death claims against those employees in their individual capacities or 

whether such a suit is barred by the doctrine of sovereign immunity. Following our 
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precedent, sovereign immunity does not apply to suits against state employees in 

their individual capacities. We therefore hold that the trial court erred in dismissing

the complaint on those grounds. 

¶ 2 The tragic event giving rise to plaintiff’s claims occurred on the morning of 20 

January 2017, when Melvin Joseph Long was working to reconnect a trailer-mounted

chiller on the campus of North Carolina State University (NCSU). To do so, he needed 

to remove metal flanges that capped two water pipes on the chiller. However, 

unbeknownst to Mr. Long, the pipes had become filled with pressurized gas after 

water in the pipes froze and the pipes cracked. As he began to loosen one of the metal 

flanges, it shot off the water pipe and hit him in the face with great force. Mr. Long 

died from his injuries five days later, on 25 January 2017.

¶ 3 Following his death, Mr. Long’s estate brought the present action against 

James D. Fowler, David A. Matthews, Dennis F. Kinsler, Robert J. Burns, Michael T. 

Vancour, and Michael S. Scarborough (defendants), NCSU employees who had 

worked on the chiller during the months before Mr. Long’s injury and, according to 

plaintiff’s allegations, caused his injury. In addition to arguing that the complaint 

failed to allege substantive elements of Mr. Long’s claims, defendants have asked us 

to hold that Mr. Long’s claims are brought against defendants in their official 

capacities or, in the alternative, that claims such as those brought by Mr. Long are 

necessarily claims against the State that cannot be brought against defendants in 

their individual capacities. Doing so would require us to overturn several decades of 
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this Court’s precedent establishing that claims brought against State employees in 

their individual capacities are not subject to the doctrine of sovereign immunity. 

However, we are constrained to promote the “stability in the law and uniformity in 

its application” which may only be achieved through “respect for the opinions of our 

predecessors.” Wiles v. Welparnel Constr. Co., 295 N.C. 81, 85 (1978). 

¶ 4 The tie between injury and remedy is so fundamental to our law that it is 

enshrined in the first article of our state constitution—“every person for an injury 

done him in his lands, goods, person, or reputation shall have remedy by due course 

of law.” N.C. Const. art. I, § 18. Hewing close to our precedent in this case maintains 

the general principle that the law provides remedies to injured persons. Cf. Wirth v. 

Bracey, 258 N.C. 505, 508 (1963) (“The obvious intention of the General Assembly in 

enacting the Tort Claims Act was to enlarge the rights and remedies of a person 

injured by the actionable negligence of an employee of a State agency while acting in 

the course of his employment.”). By preserving remedies in tort, we “deter certain 

kinds of conduct by imposing liability when that conduct causes harm.” Haarhuis v. 

Cheek, 255 N.C. App. 471, 480 (2017) (quoting Dan B. Dobbs, Paul T. Hayden & Ellen 

M. Bublick, The Law of Torts § 14 (2d ed. 2011)). As we have previously stated, 

“[t]here can be little doubt that immunity fosters neglect and breeds irresponsibility, 

while liability promotes care and caution.” Rabon v. Rowan Mem’l Hosp., Inc., 269 

N.C. 1, 13 (1967). Defendants in this case were sued in their individual capacities,

and the complaint adequately stated claims for the tort relief sought by Mr. Long’s 
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estate. As a result, the trial court erroneously granted defendant’s motion to dismiss, 

and we affirm the decision of the Court of Appeals reversing that order.

I. Background

¶ 5 Since this case comes to us on the trial court’s order granting a motion to 

dismiss pursuant to Rules 12(b)(1), 12(b)(2), and 12(b)(6) of the North Carolina Rules 

of Civil Procedure, we accept the allegations in the complaint as true. Corwin v. 

British Am. Tobacco PLC, 371 N.C. 605, 611 (2018) (Rule 12(b)(1)); Parker v. Town of 

Erwin, 243 N.C. App. 84, 96 (2015) (Rule 12(b)(2)); Bridges v. Parrish, 366 N.C. 539, 

541 (2013) (Rule 12(b)(6)). 

¶ 6 The Complaint alleges that in December 2016, NCSU owned, operated, and 

used a large, trailer-mounted chiller. Around 21 December 2016, one or more of 

defendants, pursuant to a work order completed during the course of their 

employment, shut the chiller down, disconnecting its power and water sources. At 

that time, they drained water from the chiller. However, two signs on the chiller 

contained a warning indicating that it was “not possible to drain all water” from the 

chiller and that the chiller “must be drained and refilled with” antifreeze solution 

“[f]or freeze protection during shut-down.” Similarly, the chiller’s operating manual 

instructed that the chiller should be filled with antifreeze to “prevent freeze-up 

damage to the cooler tubes.” Defendants did not put antifreeze into the chiller. 

¶ 7 Almost two weeks later, on 3 January 2017, one or more defendants tightly 

secured heavy metal flanges, weighing approximately 13.1 pounds, to the ends of the
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chiller’s water pipes to cap the pipes. A few days after that, the area experienced a 

hard freeze, with temperatures falling as low as nine degrees Fahrenheit. Water

remaining in the pipes froze and ruptured the pipes, which caused the pipes to fill 

with a pressurized refrigerant gas. The gas built up in the pipes behind the metal 

flanges, and the pipes became pressurized. 

¶ 8 On 20 January 2017, Mr. Long attempted to loosen the flanges on the chiller 

pipes so that the chiller could be reconnected. As he began doing so, one of the flanges

flew off the end of the pipe, propelled by the pressurized refrigerant gas, and struck 

him in the face. The flange knocked off part of Mr. Long’s skull, and he died five days 

later. 

¶ 9 Marla Hudson Long, Mr. Long’s wife and the personal representative of Mr. 

Long’s estate, filed the instant action in Superior Court, Person County, on 13 

November 2018. On 19 February 2019, defendants filed a motion to dismiss pursuant 

to Rules 12(b)(1), 12(b)(2), and 12(b)(6) of the North Carolina Rules of Civil Procedure, 

arguing that the trial court lacked jurisdiction over the subject matter and over the 

person of defendants and that the complaint failed to state a claim upon which relief 

could be granted. On 21 February 2019, defendants filed their answer and defenses. 

Following a hearing on 8 April 2019, the trial court granted defendants’ motion to 

dismiss in an order filed 3 May 2019. 

¶ 10 Following the trial court’s order granting defendants’ motion to dismiss, the 

estate appealed to the Court of Appeals. The Court of Appeals reversed the trial 
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court’s order in a divided decision, holding that defendants, employees of NCSU, had 

been sued in their individual capacities and were therefore not entitled to the defense 

of sovereign immunity and that the complaint had adequately stated claims for 

negligence and gross negligence. Estate of Long v. Fowler, 270 N.C. App. 241, 250, 

252–53 (2020). The dissent, on the other hand, would have held that the complaint 

failed to adequately plead negligence or gross negligence and that defendants were 

entitled to sovereign immunity because the allegedly negligent actions occurred 

within the scope of their employment as public employees. Id. at 254–55, 257 (Tyson, 

J., dissenting). 

¶ 11 Before this Court, defendants assert that they are being sued in their official 

capacities and that the suit is actually one against NCSU, which is entitled to 

sovereign immunity. They also argue that the complaint fails to state claims for 

negligence and gross negligence because it does not allege facts establishing 

proximate cause, and that the complaint fails to adequately allege claims for punitive 

damages. We reject these arguments and affirm the Court of Appeals. A suit against 

State employees is not subject to the doctrine of sovereign immunity when brought 

against the employees in their individual capacities. The complaint in this case 

indicates that it is brought against defendants in their individual capacities.

Moreover, the complaint adequately alleges that Mr. Long’s injury was proximately 

caused by defendants’ conduct and adequately alleges that defendants acted with the 

requisite willful or wanton conduct to support a claim for punitive damages.
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II. Analysis

A. Sovereign immunity

¶ 12 When reviewing a trial court’s order granting a motion to dismiss pursuant to 

Rule 12(b)(1), “we apply de novo review, accepting the allegations in the complaint as 

true and viewing them in the light most favorable to the non-moving party.” Corwin, 

371 N.C. at 611.

1 We review de novo “[q]uestions of law regarding the applicability of 

sovereign or governmental immunity.” Wray v. City of Greensboro, 370 N.C. 41, 47 

(2017) (alteration in original) (quoting Irving v. Charlotte-Mecklenburg Bd. of Educ., 

368 N.C. 609, 611 (2016)). 

¶ 13 Defendants are not entitled to the defense of sovereign immunity merely 

because they are State employees, even when the tortious conduct is alleged to have 

occurred during the scope of their employment. Miller v. Jones, 224 N.C. 783, 787 

(1945) (“The mere fact that a person charged with negligence is an employee of others 

to whom immunity from liability is extended on grounds of public policy does not 

thereby excuse him from liability for negligence in the manner in which his duties 

are performed, or for performing a lawful act in an unlawful manner.”); see also 

Isenhour v. Hutto, 350 N.C. 601, 609 (1999) (stating that it is irrelevant whether 

1 As was the case in Teachy v. Coble Dairies, Inc., we need not decide whether a motion 

to dismiss on the basis of sovereign immunity is properly designated as a Rule 12(b)(1) motion 

or a Rule 12(b)(2) motion. See Teachy v. Coble Dairies, Inc., 306 N.C. 324, 328 (1982) (stating 

that “the distinction becomes crucial in North Carolina because” a denial of a Rule 12(b)(2) 

motion is immediately appealable by statute while a denial of a Rule 12(b)(1) motion is not). 

Here, the motion to dismiss was granted, and neither Ms. Long’s appeal to the Court of 

Appeals nor defendants’ appeal to this Court was an interlocutory appeal. 
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allegations of tortious conduct relate to a public employee defendant’s official duties 

“[b]ecause public employees are individually liable for negligence in the performance 

of their duties”); Meyer v. Walls, 347 N.C. 97, 108 (1997) (“Therefore, the fact that 

defendants may have been acting as agents of the State does not preclude a claim 

against defendants.”).2 However, as defendants correctly note, a suit against a State 

employee in that employee’s official capacity is a suit against the State and therefore 

subject to the doctrine of sovereign immunity. See Isenhour, 350 N.C. at 608 (“A suit 

against a defendant in his individual capacity means that the plaintiff seeks recovery 

from the defendant directly; a suit against a defendant in his official capacity means 

that the plaintiff seeks recovery from the entity of which the public servant defendant 

is an agent.” (quoting Meyer, 347 N.C. at 110)). As a result, as defendants 

acknowledge, the threshold question in this case is whether defendants are being 

sued in their individual or in their official capacities. 3

2 It is inconsistent with a fair reading of any of our precedents establishing that 

sovereign immunity is unavailable to a State employee sued in his or her individual capacity 

to suggest that the law is “less than clear,” on this point. See, e.g., Mullis, v. Sechrest, 347 

N.C. 548, 551 (1998) (“[T]he threshold issue to be determined” when evaluating what 

immunity defense are available “is whether [the] defendant [ ] is being sued in his official 

capacity, individual capacity, or both”); see also Trey Allen, Local Government Immunity to 

Lawsuits in North Carolina, (Inst. of Gov’t, Univ. of N.C. at Chapel Hill, Oct. 2018, at 5–6) 

(“Under current case law, governmental immunity is not a defense to tort claims alleged 

against officers or employees in their individual capacities.”).

3 The dissent wrongly posits that “the distinction between official and individual 

capacity conflicts with the concept of waiver of the State’s sovereign immunity.” In fact, the 

distinction between an “official” and “individual capacity” suit has been recognized as 

determinative when examining assertions of sovereign immunity by both the State of North 

Carolina under State law, as detailed above, and in claims arising under federal law. As we 

explained in Corum,
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B. Individual or official capacity

¶ 14 It is abundantly clear from the complaint that defendants are being sued in 

their individual capacities. “It is a simple matter for attorneys to clarify the capacity 

in which a defendant is being sued. Pleadings should indicate in the caption the 

capacity in which a plaintiff intends to hold a defendant liable.” Mullis v. Sechrest, 

347 N.C. 548, 554 (1998). Here, the caption of the complaint lists each named 

defendant followed by “Individually” after each name. Moreover, the first line of the 

complaint indicates that the plaintiff is “complaining of the defendants in their 

individual capacities, jointly and severally.” The prayer for relief seeks relief against 

defendants “jointly and/or severally” after “having stated claims against the 

defendants, individually and jointly.” This is further indication that the complaint 

[S]tate governmental officials can be sued in their individual capacities for 

damages under [42 U.S.C. §] 1983. . . . [U]nlike a suit against a state official in 

his official capacity, which is basically a suit against the official office and 

therefore against the State itself, a suit against an individual who happens to 

be a governmental official but is not acting in his official capacity is not 

imputed to the State. Such individuals are sued as individuals, not as 

governmental employees. Presumably, they are personally liable for payment 

of any damages awarded.

Corum v. Univ. of N. Carolina Through Bd. of Governors, 330 N.C. 761, 772 (1992); cf. Lewis 

v. Clarke, 137 S. Ct. 1285, 1291 (2017) (“The identity of the real party in interest dictates 

what immunities may be available. Defendants in an official-capacity action may assert 

sovereign immunity. . . . But sovereign immunity does not erect a barrier against suits to 

impose individual and personal liability.”) (internal quotation marks omitted). Recognizing 

the distinction between official and individual capacity claims in no way “conflicts with the 

concept of waiver of the State’s sovereign immunity” because there is no sovereign immunity 

to assert when the defendant is sued in his or her individual capacity.
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states claims against defendants in their individual capacities. See id. (“Finally, in 

the prayer for relief, plaintiffs should indicate whether they seek to recover damages 

from the defendant individually or as an agent of the governmental entity.”). 

¶ 15 Importantly, the prayer for relief does not seek injunctive relief implicating the 

exercise of governmental power—it instead seeks only compensatory and punitive 

damages against the individual defendants. See id. at 552 (discussing the distinction 

between official and individual capacity claims and noting that “seek[ing] an 

injunction requiring the defendant to take an action involving the exercise of a 

governmental power” is indicative of an official capacity suit (quoting Meyer, 347 N.C. 

at 110)). When, as in the instant case, the complaint seeks monetary damages, the 

claim “is an individual-capacity claim” if “the complaint indicates that the damages 

are sought . . . from the pocket of the individual defendant.” Meyer, 347 N.C. at 110

(quoting Anita R. Brown-Graham & Jeffrey S. Koeze, Immunity from Personal 

Liability under State Law for Public Officials and Employees: An Update, Loc. Gov’t 

L. Bull. 67 (Inst. of Gov’t, Univ. of N.C. at Chapel Hill), Apr. 1995, at 7). 

¶ 16 Defendants have argued that they are being sued in their official capacities, 

and not in their individual capacities, because their allegedly tortious conduct was 

performed in the scope and course of their employment. However, 

[w]hether the allegations relate to actions outside the scope 

of defendant’s official duties is not relevant in determining 

whether the defendant is being sued in his or her official or 

individual capacity. To hold otherwise would contradict 

North Carolina Supreme Court cases that have held or 
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stated that public employees may be held individually 

liable for mere negligence in the performance of their 

duties. 

Meyer, 347 N.C. at 111. 

¶ 17 Defendants have also argued that “the course of proceedings” indicates that 

the suit is brought against defendants in their official capacities, not in their 

individual capacities. However, we need not look to “the course of proceedings” when 

“the complaint . . . clearly specif[ies] whether the defendants are being sued in their 

individual or official capacities.” Mullis, 347 N.C. at 552 (quoting Kentucky v. 

Graham, 473 U.S. 159, 167 n.14 (1985)). As indicated above, the complaint in this 

case clearly indicates that defendants are being sued in their individual capacities. 

There is no ambiguity in the complaint which would require us to look to the course 

of proceedings to determine in what capacity defendants are being sued.

¶ 18 Essentially, defendants assert that this suit is one against the State because 

Ms. Long has also sued NCSU in the Industrial Commission. However, “the fact that 

the Tort Claims Act provides for subject matter jurisdiction in the Industrial 

Commission over a negligence claim against the State does not preclude a claim 

against defendants in Superior Court.” Meyer, 347 N.C. at 108. “A plaintiff may 

maintain both a suit against a state agency in the Industrial Commission under the 

Tort Claims Act and a suit against the negligent agent or employee in the General 

Court of Justice for common-law negligence.” Id. (citing Wirth, 258 N.C. at 507–08). 

¶ 19 Finally, defendants asserted at oral argument that regardless of whether the 
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complaint attempts to state claims against defendants in their individual capacities, 

the General Assembly has “taken off the table” suits against individual employees for 

conduct within the scope of their employment. Defendants assert that the suit is 

actually brought against them in their official capacities because the General 

Assembly has passed a law of general applicability which causes the State to pay 

judgments in actions brought against State employees. In defendants’ view, any other 

conclusion would “subvert the General Assembly’s efforts to route these kinds of tort 

claims to the Industrial Commission.” We can divine no such intent from the statutes

that defendants cite.

¶ 20 By statute, the General Assembly has provided that “upon request of an 

employee or former employee, the State may provide for the defense of any civil or 

criminal action or proceeding brought against him in his official or individual 

capacity, or both, on account of an act done or omission made in the scope and course 

of his employment as a State employee.” N.C.G.S. § 143-300.3 (2019). In such a case, 

the State has set out its intention to “pay (i) a final judgment awarded in a court of 

competent jurisdiction against a State employee or (ii) the amount due under a 

settlement of the action under this section.” N.C.G.S. § 143-300.6(a) (2019). 

Defendants argue that these two statutes indicate that an action against a State 

employee which the State chooses to defend is in actuality an action against the State 

entitled to sovereign immunity and required to be brought in the Industrial 

Commission pursuant to the State Tort Claims Act. See N.C.G.S. § 143-291(a) (2019) 
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(“The North Carolina Industrial Commission is hereby constituted a court for the 

purpose of hearing and passing upon tort claims against the State Board of 

Education, the Board of Transportation, and all other departments, institutions and 

agencies of the State.”). 

¶ 21 The interpretation urged by defendants is belied by the text of the statutes 

themselves. The provision permitting the payment of judgments and settlements 

against State employees expressly provides that “[t]his section does not waive the 

sovereign immunity of the State with respect to any claim.” N.C.G.S. § 143-300.6(a). 

If, as defendants claim, actions against State employees which the State has elected 

to defend are entitled to sovereign immunity protections and may only proceed in the 

Industrial Commission, there would have been no need for the General Assembly to 

specify that judgments or settlements paid in that context are not a waiver of the 

State’s sovereign immunity. If defendants were correct, there would be no danger that 

the payment of a judgment or settlement in such an action could constitute a waiver 

of the State’s sovereign immunity—the payment would have been made in an 

Industrial Commission action pursuant to the State’s limited waiver of immunity in 

the State Tort Claims Act. The General Assembly would have had no reason to specify 

that the payment of a judgment or settlement on behalf of a State employee “does not 

waive the sovereign immunity of the State with respect to any claim.” See N.C.G.S. 

§ 143-300.6(a). Adopting defendants’ argument would necessitate the conclusion that 

section 143-300.6 contains superfluous language—this conclusion is fatal to their 
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claim. See State v. Morgan, 372 N.C. 609, 614 (2019) (“[A] statute may not be 

interpreted ‘in a manner which would render any of its words superfluous.’ ” (quoting 

State v. Coffey, 336 N.C. 412, 417 (1994))).

¶ 22 More broadly, the statutory scheme referenced by defendants would not exist 

if actions against State employees in their individual capacities were subject to the 

doctrine of sovereign immunity. “[T]he Tort Claims Act applies only to actions against 

state departments, institutions, and agencies and does not apply to claims against 

officers, employees, involuntary servants, and agents of the State.” Meyer, 347 N.C. 

at 107. As a result, no action could be maintained in the Industrial Commission 

against the individual defendants being sued in the instant action. However, section 

143-300.6 of our General Statutes contemplates the payment by the State of “a final 

judgment awarded in a court of competent jurisdiction against a State employee.” 

N.C.G.S. § 143-300.6(a). If these actions could only be brought in the Industrial 

Commission, which has no jurisdiction over the individual defendants, there would 

have been no need for the General Assembly to provide for the payment of judgments 

against State employees in any “court of competent jurisdiction”—no such judgments 

would exist. Id. If the General Assembly had intended that tort claims against State 

employees be decided in the Industrial Commission, it would not have written a 

statute that specifically allowed for the State to pay “a final judgment awarded in a 

court of competent jurisdiction against a State employee.” Id.

¶ 23 Two more considerations guide our decision on this point. First, adopting 
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defendants’ argument would require overruling our prior decisions holding that 

actions against public employees are not subject to the doctrine of sovereign 

immunity—decisions issued both before and after the enactment of statutory 

provisions providing for defense by the State of actions against State employees and 

the payment by the State of judgments against State employees. See Wirth, 258 N.C. 

at 508 (stating in 1963 that the Tort Claims Act permits a suit against a state agency 

in the Industrial Commission without abrogating a plaintiff’s right to bring an action 

against the employee of such an agency, who remains “personally liable for his own 

actionable negligence”); Meyer, 347 N.C. at 108 (“Furthermore, the fact that the Tort 

Claims Act provides for subject matter jurisdiction in the Industrial Commission over 

a negligence claim against the State does not preclude a claim against defendants in 

Superior Court.”). 

¶ 24 Second, we note that the State’s decision to defend a State employee for actions 

in the scope and course of employment is discretionary. See N.C.G.S. § 143-300.3. We 

decline to adopt an interpretation of our statutes which would create serious notice 

problems for plaintiffs who cannot know whether the State will choose to defend an 

action against a particular employee, which defendants assert would trigger 

sovereign immunity and preclude a remedy in superior court. Even assuming that 

defendants’ interpretation was reasonable, we would avoid it. See In re Arthur, 291 

N.C. 640, 642 (1977) (“Where one of two reasonable constructions will raise a serious 

constitutional question, the construction which avoids this question should be 
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adopted.”). For all of these reasons, we conclude that the trial court erred by granting 

defendants’ motion to dismiss pursuant to Rules 12(b)(1) and 12(b)(2) on the basis of 

defendants’ arguments pertaining to sovereign immunity.

C. Failure to state a claim

¶ 25 “Our review of the grant of a motion to dismiss under Rule 12(b)(6) of the North 

Carolina Rules of Civil Procedure is de novo.” Bridges, 366 N.C. at 541. Our task is 

to determine “whether the allegations of the complaint, if treated as true, are 

sufficient to state a claim upon which relief can be granted under some legal theory.” 

Id. (quoting Coley v. State, 360 N.C. 493, 494–95 (2006)). Defendants argue that Mr. 

Long failed to allege that his injury was a reasonably foreseeable result of their 

conduct and that the complaint therefore did not sufficiently establish the element of 

proximate cause. Defendants also argue that the complaint did not adequately allege 

the willful or wanton conduct needed to support a claim for punitive damages. We 

reject both arguments and hold that the trial court erred in granting defendants’

motion to dismiss pursuant to Rule 12(b)(6).

1. Proximate cause

¶ 26 Defendants argue that the complaint fails to allege that Mr. Long’s injury was 

a reasonably foreseeable consequence of defendants’ actions. At oral argument, 

defendants asserted that there is nothing in the complaint suggesting that they 

should have known that their conduct could possibly result in the chiller freezing up 

and pressurizing, thereby causing injury. We conclude that the complaint sufficiently 
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alleges that defendants’ actions proximately caused Mr. Long’s injury.

¶ 27 In a common law negligence claim, “[i]t is sufficient if by the exercise of 

reasonable care the defendant might have foreseen that some injury would result 

from his conduct or that consequences of a generally injurious nature might have 

been expected. Usually the question of foreseeability is one for the jury.” Fussell v. 

N.C. Farm Bureau Mut. Ins. Co., 364 N.C. 222, 226 (2010) (alteration in original) 

(quoting Slaughter v. Slaughter, 264 N.C. 732, 735 (1965)).

¶ 28 Defendants argue that the complaint “failed to include requisite allegations of 

fact that a reasonably foreseeable consequence of defendants’ alleged failure to 

properly drain water from the chiller unit’s pipes would be a chemical reaction that 

could lead to a pressurized explosion of sufficient force to propel a 13-pound metal 

flange at a person’s head.” However, there is nothing surprising about the fact that 

water left in pipes that are subjected to freezing temperatures may freeze and cause 

the pipes to burst. Defendants’ description of this phenomenon as “a chemical 

reaction” does not make the result any less foreseeable. This unsurprising fact is 

underscored by two signs on the outside of the chiller that read

FREEZE WARNING!

It is not possible to drain

all water from this heat

exchanger! For freeze

protection during shutdown, exchanger must

be drained and refilled 

with 5 gals Glycol min.

80GX504736-
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TRAPPED WATER!

¶ 29 By comparison, the work order attached to the complaint indicates that 

defendants were instructed to “drain and secure carrier chiller for relocation.” Given 

that the work order instructed defendants to “drain” the chiller, and that the notice 

on the chiller specified that it could not be completely drained and it “must be drained 

and refilled” with antifreeze, defendants were on notice that a necessary part of the 

task they were instructed to complete was ensuring that antifreeze was added to the 

chiller. As a result, it is irrelevant that the work order did not specifically instruct 

defendants to “winterize” the chiller—the complaint alleges sufficient facts that, if 

true, indicate defendants were on notice that they must refill the chiller with 

antifreeze after draining it. The work order did not need to set out every step required 

to execute the task properly and safely.

¶ 30 The complaint alleges that each defendant improperly drained water from the 

chiller, leaving water inside. It alleges that notices on the chiller warned that it was 

not possible to drain all water from the chiller and that the chiller must be filled with 

antifreeze to prevent freezing. The complaint alleges that defendants failed to fill the 

chiller with antifreeze. The complaint alleges that as a result of this failure, the pipes 

froze and ruptured. The complaint further alleges that each defendant knew or 

should have known that this could happen and that the pipes would become 

pressurized as a result. Finally, the complaint alleges that the pressure in the pipes 

caused one of the 13-pound metal flanges that defendants allegedly placed on the 
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ends of the pipes to fly off, resulting in injuries that caused Mr. Long’s death. 

¶ 31 The complaint adequately alleged that defendants either knew or should have

known that their conduct would cause damage to the chiller that might leave it in a 

dangerous state, that defendants in fact caused the damage through their actions, 

and that injury in fact resulted. This was sufficient, under principles of notice 

pleading, to “give the substantive elements of a legally recognized claim.” Estate of 

Savino v. Charlotte-Mecklenburg Hosp. Auth., 375 N.C. 288, 297 (2020) (quoting 

Raritan River Steel Co. v. Cherry, Bekaert & Holland, 322 N.C. 200, 205 (1988)). 

“[P]roximate cause is ordinarily a question of fact for the jury, to be solved by the 

exercise of good common sense in the consideration of the evidence of each particular 

case.” McAllister v. Khie Sem Ha, 347 N.C. 638, 645 (1998) (alteration in original) 

(quoting Williams v. Carolina Power & Light Co., 296 N.C. 400, 403 (1979)). At this 

stage of the trial, dismissal is not warranted and plaintiff is entitled to proceed in the 

litigation which will determine whether the evidence bears out the allegations of 

proximate cause contained in the complaint.

2. Punitive damages

¶ 32 As an initial matter, we need to be clear about the statutory standards for 

recovery of punitive damages applicable here. See N.C.G.S. § 1D-15 (2019). There is 

some suggestion in the briefs that for purposes of punitive damages, gross negligence 

is equivalent to willful or wanton conduct. However, our law now provides that 

“[p]unitive damages may be awarded only if the claimant proves” that either fraud, 
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malice, or “[w]illful or wanton conduct” occurred and related to the injury. N.C.G.S. 

§ 1D-15(a). As used here, “ ‘[w]illful or wanton conduct’ means more than gross 

negligence” and is defined as “the conscious and intentional disregard of and 

indifference to the rights and safety of others, which the defendant knows or should 

know is reasonably likely to result in injury, damage, or other harm.” N.C.G.S. § 1D5 (2019). The complaint alleges that each defendant is liable in negligence and gross 

negligence for compensatory damages and separately that punitive damages should 

be awarded. As to the punitive damages claims, we consider whether the complaint 

“gives sufficient notice of events or transactions to allow the adverse party to 

understand the nature and basis for the claim[s] [of punitive damages for willful or 

wanton conduct], to allow him to prepare for trial, and to allow for the application of 

res judicata.” Henry v. Deen, 310 N.C. 75, 85 (1984). We conclude that it does. Because 

willful or wanton conduct is a higher standard than gross negligence, this inquiry 

obviates any need to separately determine whether the complaint adequately states 

a claim for gross negligence. See Estate of Savino, 375 N.C. at 300 (“[W]illful and 

wanton and reckless conduct is still a higher degree of negligence or a greater degree 

of negligence than the negligence of gross negligence . . . .” (quoting Crow v. Ballard, 

263 N.C. 475, 477 (1965)).

¶ 33 In their brief, defendants argue that the allegations in the complaint do not 

rise to the level of “willful or wanton conduct” necessary to sustain a claim for punitive 

damages in the absence of fraud or malice. See N.C.G.S. § 1D-15(a). They argue that 
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the complaint contains no allegations creating a factual basis for the “inference that 

NCSU’s employees knew or should have known about the risk of pressurized gas 

build-up in the chiller’s water pipes.” In defendants’ view, the allegations of the 

complaint fail to state a claim for punitive damages because they do not establish 

that defendants were on notice that their actions might cause injury. 

¶ 34 Defendants went further at oral argument, contending that because the 

allegations in the complaint “at most” support the inference that defendants should 

have known that their conduct could cause injury, the complaint is insufficient to 

state a claim for punitive damages. Defendants argued that the “willful or wanton 

conduct” necessary to establish gross negligence requires actual knowledge of the 

possibility of injury.

¶ 35 As noted above, a claim for punitive damages may be based on allegations of 

fraud, malice, or “[w]illful or wanton conduct.” N.C.G.S. § 1D-15(a). Here, where there 

are no allegations of fraud or malice, the punitive damages claims are based on the 

aggravating factor of willful or wanton conduct. Notice pleading principles are 

applicable to claims for punitive damages. Shugar v. Guill, 304 N.C. 332, 337–38 

(1981). Under those principles, there must be “sufficient information in the complaint 

from which defendant [can] take notice and be apprised of ‘the events and 

transactions which produce the claim to enable [him] to understand the nature of it 

and the basis for it.’ ” Id. at 338 (second alteration in original) (quoting Sutton v. 

Duke, 277 N.C. 94, 104 (1970)). The complaint need not lay out the “detailed and 
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specific facts giving rise to punitive damages.” Henry, 310 N.C. at 85 (citing Sutton, 

277 N.C. at 102). 

¶ 36 As to each of the six defendants, the complaint alleges that the defendant’s 

“acts and/or omissions . . . demonstrated a conscious or intentional disregard or 

indifference to the rights and safety of others, including Joe Long, which [that 

defendant] knew, or should have known, would be reasonably likely to result in injury 

or death and as such constituted willful or wanton conduct.” The “acts and/or 

omissions” of each defendant are described as follows:

a. He improperly drained water from the Carrier 

chiller;

b. He did not fill the Carrier chiller with glycol, 

ethylene glycol or some other anti-freeze after 

draining water from it;

c. He left the Carrier chiller outside when he knew or 

should have known there was still water in the 

cooler tubes;

d. He left the Carrier chiller outside when there was 

water in the cooler tubes when the temperature 

dropped below freezing;

e. He capped the inlet water pipe and the outlet water 

pipe of the Carrier chiller with metal flanges when 

he knew or should have known the cooler tubes could

be damaged and the water tubes and pipes could 

become pressurized;

f. He allowed the inlet water pipe and the outlet water 

pipe of the Carrier chiller to remain capped when he 

knew, or should have known, pressure could build 

up inside the chiller;
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g. He did not consult the labels on the Carrier 

chiller . . . when he shut-down, disconnected, 

drained, or capped the Carrier chiller;

h. He did not follow the labels . . . when he shut-down, 

disconnected, drained, or capped the Carrier chiller;

i. He did not consult the Winter Shutdown 

instructions of the Operating Manual of the Carrier 

chiller . . . when he shut-down, disconnected, 

drained, or capped the Carrier chiller;

j. He did not follow the Winter Shutdown instructions 

of the Operating Manual . . . when he shut-down, 

disconnected, drained, or capped the Carrier chiller;

k. He ordered shut-down, disconnection, draining, and 

capping of the Carrier chiller in the wintertime 

without following the instructions on the labels, the 

Operating Instruction Manual, or otherwise 

exercising reasonable care; 

l. He directed shut-down, disconnection, draining, and 

capping of the Carrier chiller in the wintertime 

without following the instructions on the labels, the 

Operating Instruction Manual, or otherwise 

exercising reasonable care;

m. He supervised one or more of the other defendants 

in the shut-down, disconnection, draining, or 

capping of the Carrier chiller in the wintertime 

without following the instructions on the labels, the 

Operating Instruction Manual, or otherwise 

exercising reasonable care;

n. He did not warn Joe Long that the Carrier chiller 

had been shut down in the winter contrary to 

reasonable safe procedures and that there was high 

pressure gas behind the metal flanges;

o. He did not warn anyone with Joe Long’s employer, 

Quate Industrial Service, Inc., that the Carrier 
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chiller had been shut down in the winter contrary to 

reasonable safe procedures and that there was high 

pressure gas behind the metal flanges;

p. He failed to exercise reasonable care during winter

shut-down of the Carrier chiller in such a way that 

the chill water tubes were damaged by freezing and 

allowed to become pressurized and then capped the 

inlet water pipe and the outlet water pipe so that the 

Carrier chiller became ultra-hazardous;

q. He did not exercise reasonable care to prevent the 

metal flange from becoming exposed to pressure 

from the inside of the chiller;

r. He was otherwise negligent as will be shown 

through discovery and proven at the trial of this 

action.

¶ 37 As to each defendant, the complaint alleges that the defendant, either 

knowingly or with reckless disregard of the consequences of his actions, left the chiller 

in such a condition that it was likely to seriously injure the next person who came 

along to work on it. The complaint specifically alleges that each defendant knew or 

should have known that the chiller’s tubes would become damaged in cold weather

(knowledge underscored by notices attached to the chiller), and thereby become 

pressurized. The complaint further alleges that each defendant capped the pipes 

when each defendant knew or should have known that the pipes would become 

pressurized. Moreover, the complaint alleges that each defendant’s actions 

“demonstrated a conscious or intentional disregard or indifference to the rights and 

safety of others, including Joe Long, which [that defendant] knew, or should have 
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known, would be reasonably likely to result in injury or death and as such constituted 

willful or wanton conduct.” These allegations were sufficient to put defendants on 

notice of the events that the complaint asserts give rise to the claims for punitive 

damages and are sufficient to allow defendants “to understand the nature and basis 

for the claim.” See Henry, 310 N.C. at 85 (citing Sutton, 277 N.C. at 102). As a result, 

the complaint states claims for punitive damages sufficient to survive a motion to 

dismiss pursuant to Rule 12(b)(6). 

III. Conclusion

¶ 38 The complaint in this case makes clear that it is a suit brought against State 

employees in their individual capacities. Under our prior decisions, it is not subject 

to the doctrine of sovereign immunity. The State’s voluntary election to defend State 

employees for conduct performed in the course of their employment does not change 

this analysis, nor does the State’s payment of judgments entered against such 

employees. The complaint adequately alleges facts from which, if true, a jury could 

find that Mr. Long’s injury was proximately caused by defendants’ conduct and 

further alleges facts sufficient to state claims for punitive damages against 

defendants. As a result, we affirm the decision of the Court of Appeals.

AFFIRMED.
Justice BERGER dissenting.

¶ 39 The State can only act through its officers and employees. The question 

presented is whether defendants were acting in their official capacity or individually. 

The statute waiving sovereign immunity grants the Industrial Commission exclusive 

jurisdiction to make this determination. The majority’s holding removes this 

responsibility from the Industrial Commission and places it in the hands of a plaintiff, 

which could lead to double recovery by allowing plaintiff to pursue the same claim, 

for the same conduct, and the same injury, in both the Industrial Commission and 

superior court. Because the complaint in this case, when fully considered, indicates 

that plaintiff is suing defendants in their official capacities – the only capacity in 

which they performed their task – the Industrial Commission has exclusive 

jurisdiction over this case. Furthermore, the majority’s holding constitutes a drastic 

departure from our requirements to plead facts sufficient to establish both proximate 

cause and willful or wanton conduct. Therefore, I respectfully dissent. 

¶ 40 “Sovereign immunity is a legal principle which states in its broadest terms that 

the sovereign will not be subject to any form of judicial action without its express 

consent.” Guthrie v. N.C. State Ports Auth., 307 N.C. 522, 535, 299 S.E.2d 618, 625 

(1983) (quoting 12 Wake Forest L. Rev. 1082, 1083 (1976)). “It has long been 

established that an action cannot be maintained against the State of North Carolina 

or an agency thereof unless it consents to be sued or upon its waiver of immunity, and 

that this immunity is absolute and unqualified.” Guthrie, 307 N.C. at 534, 299 S.E.2d 
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at 625 (citations omitted) (emphasis in original) (“The State has absolute immunity 

in tort actions . . . except insofar as it has consented to be sued or otherwise expressly 

waived its immunity.”). Since the State can only act through individuals, its officers 

and employees enjoy the protection of the State’s sovereign immunity as they perform 

their official duties.

¶ 41 In N.C.G.S. § 143-291, the General Assembly enacted the State Tort Claims 

Act (STCA) which partially waived the State’s sovereign immunity in tort actions “to 

enlarge the rights and remedies of a person injured by the actionable negligence of 

an employee of a State agency while acting in the course of his employment.” Meyer 

v. Walls, 347 N.C. 97, 109, 489 S.E.2d 880, 887 (1997) (quoting Wirth v. Bracey, 258 

N.C. 505, 507–08, 128 S.E.2d 810, 813 (1963)). Subsection 143-291(a) states in 

relevant part:

The North Carolina Industrial Commission is hereby 

constituted a court for the purpose of hearing and passing 

upon tort claims against the State Board of Education, the 

Board of Transportation, and all other departments, 

institutions and agencies of the State. The Industrial 

Commission shall determine whether or not each individual 

claim arose as a result of the negligence of any officer, 

employee, involuntary servant or agent of the State while 

acting within the scope of his office, employment, service, 

agency or authority, under circumstances where the State 

of North Carolina, if a private person, would be liable to the 

claimant in accordance with the laws of North Carolina. 

N.C.G.S. § 143-291(a) (2019) (emphases added). 

¶ 42 A plain reading of N.C.G.S. § 143-291(a) makes it clear that the Industrial 
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Commission maintains exclusive jurisdiction over tort claims against “the State 

Board of Education, the Board of Transportation, and all other departments, 

institutions and agencies of the State.” Id.; see Meyer, 347 N.C. at 105, 489 S.E.2d at 

884 (“The only claim authorized by the Tort Claims Act is a claim against the State 

agency. True, recovery, if any, must be based upon the actionable negligence of an 

employee of such agency while acting within the scope of his employment.” (quoting 

Wirth, 258 N.C. at 507–08, 128 S.E.2d at 813)). 

¶ 43 Here, plaintiff sued defendants as employees of North Carolina State 

University (NCSU). According to the majority, a plaintiff may sue a defendant in 

their individual capacity in superior court for ordinary negligence that arose during 

the course and scope of their employment. However, the distinction between official 

capacity and individual capacity conflicts with both the concept of waiver of sovereign 

immunity and the plain language of N.C.G.S. § 143-291(a).1

¶ 44 First, N.C.G.S. § 143-291(a) states that the Industrial Commission “shall 

determine whether or not each individual claim arose as a result of the negligence of 

any officer, employee, involuntary servant or agent of the State while acting within 

the scope of his office, employment, service, agency or authority[.]” N.C.G.S. § 143-

1 We readily acknowledge that our precedent in this area is less than clear and that 

there has been little discussion on the purpose of the STCA, the plain language of N.C.G.S. § 

143-291(a), or the exclusive jurisdiction of the Industrial Commission to make course and 

scope determinations. The approach taken by the majority, however, is inconsistent with the 

jurisdiction vested in the Industrial Commission, the limited waiver of the State’s sovereign 

immunity, and the plain language of N.C.G.S. § 143-291(a).
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291(a). The plain language of N.C.G.S. § 143-291(a) makes it clear that the Industrial 

Commission is vested with the power to determine whether the negligence of 

employees of the State occurred during the course and scope of their employment. 

However, under the majority’s reasoning, a plaintiff is allowed to make this 

determination simply by including the words “in their individual capacity” in the 

complaint. In effect, this allows a plaintiff to take away the Industrial Commission’s 

jurisdiction, while at the same time creating jurisdiction in superior court.2

¶ 45 Second, because the State can only act through officers and employees, the 

distinction between official capacity and individual capacity conflicts with the concept 

of waiver of the State’s sovereign immunity. The STCA narrowly waived the State’s 

sovereign immunity for ordinary negligence of a State employee that occurred within 

the course and scope of their employment. In this limited waiver of sovereign 

immunity, the STCA gave the Industrial Commission exclusive jurisdiction over 

2 Allowing plaintiffs to create jurisdiction in superior court by simply using the words 

“in their individual capacity” in the complaint implicates N.C.G.S. § 143-300.3. N.C.G.S. § 

143-300.3 states in relevant part, “upon request of an employee or former employee, the State 

may provide for the defense of any civil or criminal action or proceeding brought against him 

in his official or individual capacity, or both, on account of an act done or omission made in 

the scope and course of his employment as a State employee.” N.C.G.S. § 143-300.3 (2019). 

While the majority is correct that the State’s decision to pay is discretionary, this 

discretionary determination has far reaching consequences. If the State chooses not to 

provide for the defense of a State employee acting within the course and scope of their 

employment, State employees could potentially lose their homes and other assets simply 

because a plaintiff included the words “in their individual capacity” in the complaint. On the 

other hand, if the State chooses to defend an employee, a plaintiff who uses the words “in 

their individual capacity” has, in essence, circumvented the Industrial Commission’s 

jurisdiction, and is now bringing a suit against the State in superior court, creating the 

potential of a double recovery for the same injury.
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these types of cases. See N.C.G.S. § 143-291(a) (“The North Carolina Industrial 

Commission is hereby constituted a court for the purpose of hearing and passing upon 

tort claims against the State Board of Education, the Board of Transportation, and 

all other departments, institutions and agencies of the State.”). To allow a plaintiff 

to bring suit in superior court against an employee of the State for ordinary 

negligence that arose during the course and scope of their employment contravenes 

the purpose of the STCA. 

¶ 46 This situation is similar to cases arising in the workers’ compensation context. 

This Court has stated that

[t]he North Carolina Industrial Commission has a special 

or limited jurisdiction created by statute, and confined to 

its terms. Viewed as a court, it is one of limited jurisdiction, 

and it is a universal rule of law that parties cannot, by 

consent, give a court, as such, jurisdiction over subject 

matter of which it would otherwise not have jurisdiction. 

Jurisdiction in this sense cannot be obtained by consent of 

the parties, waiver, or estoppel.

Hart v. Thomasville Motors, Inc., 244 N.C. 84, 88, 92 S.E.2d 673, 676 (1956) (citations 

omitted). “The Workmen’s Compensation Act, in [N.C.]G.S. [§] 97-9, provides that 

the sole remedy for a covered employee against his employer or those conducting the 

employer’s business is to seek compensation under the Act. Thus, an employee 

subject to the Act whose injuries arise out of and in the course of his employment may 

not maintain” an action for negligence. Strickland v. King, 293 N.C. 731, 733, 239 

S.E.2d 243, 244 (1977) (citation omitted) (emphasis added). However, in Pleasant v. 
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Johnson, 312 N.C. 710, 325 S.E.2d 244 (1985), we held that “the Workers’ 

Compensation Act does not shield a co-employee from common law liability for willful, 

wanton and reckless negligence.” Id. at 716, 325 S.E.2d at 249. 

¶ 47 Thus, in the realm of workers’ compensation, a plaintiff cannot create 

jurisdiction and bring a common law negligence action in superior court unless they 

can show that a defendant’s actions rose to the level of willful and wanton conduct. 

Turning to this case, because N.C.G.S. § 143-291(a) gives the Industrial Commission 

exclusive jurisdiction over claims against the State and vests the power to determine 

whether alleged negligence occurred during the course and scope of a defendant’s 

employment, a plaintiff should not be allowed to create jurisdiction in superior court 

merely by claiming they are suing a defendant “in their individual capacity.”

¶ 48 Nevertheless, even assuming that plaintiff can bring this action in superior 

court, plaintiff’s complaint shows that she is suing defendants in their official 

capacities. 

In ruling on the individual defendants’ motions to 

dismiss, the first step is to determine whether the 

complaint seeks recovery from the individuals in their 

official or individual capacities, or both. . . . A suit against 

a defendant in his individual capacity means that the 

plaintiff seeks recovery from the defendant directly; a suit 

against a defendant in his official capacity means that the 

plaintiff seeks recovery from the entity of which the public 

servant defendant is an agent.

Meyer, 347 N.C. at 110, 489 S.E.2d at 887; see also White v. Trew, 366 N.C. 360, 363, 

736 S.E.2d 166, 168 (2013) (“A suit against a public official in his official capacity ‘is 
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a suit against the State.’ ” (quoting Harwood v. Johnson, 326 N.C. 231, 238, 388 

S.E.2d 439, 443 (1990))). 

¶ 49 When determining whether a defendant is being sued in their official or 

individual capacity

[t]he crucial question . . . is the nature of the relief sought, 

not the nature of the act or omission alleged. If the plaintiff 

seeks an injunction requiring the defendant to take an 

action involving the exercise of a governmental power, the 

defendant is named in an official capacity. If money 

damages are sought, the court must ascertain whether the 

complaint indicates that the damages are sought from the 

government or from the pocket of the individual defendant. 

If the former, it is an official-capacity claim; if the latter, it 

is an individual-capacity claim; and if it is both, then the 

claims proceed in both capacities.

Mullis v. Sechrest, 347 N.C. 548, 552, 495 S.E.2d 721, 723 (1998) (emphasis added) 

(quoting Meyer, 347 N.C. at 110, 489 S.E.2d at 887). 

¶ 50 The majority contends that it is “abundantly clear from the complaint that 

defendants are being sued in their individual capacities” because the caption and 

prayer for relief state that plaintiff is suing defendants in their individual capacities. 

While it is true that “including the words . . . ‘in his individual capacity’ after a 

defendant’s name obviously clarifies the defendant’s status[,]” Mullis makes clear 

that “the allegations as to the extent of liability claimed should provide further 

evidence of capacity.” Mullis, 347 N.C. at 554, 495 S.E.2d at 724–25. Therefore, the 

allegations in the complaint itself must provide further evidence that plaintiff is 

suing defendants in their individual capacities. 
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¶ 51 By the majority’s reasoning, plaintiffs who simply assert that they are suing 

defendants in their individual capacity can always bring suit in superior court. As 

illustrated above, this reasoning would allow plaintiffs to circumvent the Industrial 

Commission’s jurisdiction to “determine whether or not each individual claim arose 

as a result of the negligence of any officer, employee, involuntary servant or agent of 

the State while acting within the scope of his office, employment, service, agency or 

authority[.]” N.C.G.S. § 143-291(a). If the majority is correct, any plaintiff may strip 

the Industrial Commission of its jurisdiction and create jurisdiction in superior court 

by simply adding “in their individual capacity” to their complaint. This reasoning 

discards the “ ‘crucial question’ ” outlined in Mullis: whether monetary damages are 

being “ ‘sought from the government or from the pocket of the individual defendant.’ ” 

Mullis, 347 N.C. at 552, 495 S.E.2d at 723 (quoting Meyer, 347 N.C. at 110, 489 S.E.2d 

at 887). Simply put, the capacity listed by a plaintiff in their complaint is not 

dispositive. 

¶ 52 Further, the majority relies on Mullis for the proposition that this Court can 

only examine the course of proceedings when “the complaint does not clearly specify 

whether the defendants are being sued in their individual or official capacities.” 

However, nowhere in Mullis did this Court claim that when a complaint clearly states 

the capacity in which the defendant is being sued, we are barred from looking to the 

“course of proceedings.”
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¶ 53 Rather, this Court stated “[t]he ‘course of proceedings’ . . . typically will indicate 

the nature of the liability sought to be imposed.” Mullis, 347 N.C. at 552, 495 S.E.2d 

at 723 (alterations in original) (quoting Kentucky v. Graham, 473 U.S. 159, 167 n.14 

(1985)). If this Court is barred from looking to the course of proceedings, any plaintiff 

can circumvent the Industrial Commission by merely listing the defendants as being 

sued in their individual capacities in the complaint. Thus, the course of proceedings 

is helpful in determining the capacity in which a defendant is being sued, regardless 

of the capacity alleged in a complaint by an interested party. 

¶ 54 Lastly, Mullis makes it clear that, 

it is often not clear in which capacity the plaintiff seeks to 

sue the defendant. In such cases it is appropriate for the 

court to either look to the allegations contained in the 

complaint to determine plaintiff’s intentions or assume 

that the plaintiff meant to bring the action against the 

defendant in his or her official capacity. 

Mullis, 347 N.C. at 552, 495 S.E.2d at 723 (quoting Anita R. Brown-Graham & Jeffrey 

S. Koeze, Immunity from Personal Liability under State Law for Public Officials and 

Employees: An Update, Loc. Gov’t L. Bull. 67, at 7 (Inst. Of Gov’t, Univ. of N.C. at 

Chapel Hill), Apr. 1995). Because the capacity listed in a complaint is not dispositive, 

this Court should consider the allegations in the complaint when making a capacity 

determination. 

¶ 55 Therefore, “our analysis begins with answering the ‘crucial question’ of what 

type of relief is sought.” Mullis, 347 N.C. at 552, 495 S.E.2d at 723. Here, plaintiff 
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is seeking to recover monetary damages. As illustrated above, “[i]f money damages 

are sought, the court must ascertain whether the complaint indicates that the 

damages are sought from the government or from the pocket of the individual 

defendant.” Id. (quoting Meyer, 347 N.C. at 110, 489 S.E.2d at 887). To make this 

determination, it is appropriate for us to consider the allegations contained in the 

complaint and the course of proceedings to determine whether defendants are being 

sued in their official or individual capacities.

¶ 56 Here, the allegations in the complaint and the course of the proceedings 

indicate that plaintiff is suing defendants in their official capacities. 

¶ 57 First, plaintiff alleges that “[a]t all times pertinent to this action, each 

defendant was employed by NCSU.” This establishes that defendants are agents of 

NCSU. See Mullis, 347 N.C. at 553, 495 S.E.2d at 724 (finding that because the 

plaintiffs alleged that the defendant was an employee of the Charlotte-Mecklenburg 

Board of Education “[t]his allegation establishes that defendant . . . is an agent of 

defendant Board”). Next, plaintiff alleges that the tasks to drain and maintenance 

the water pipes on the chiller “were done pursuant to NCSU Facilities Operations 

Work Order # 17-037848.” Specifically, the work order states, “Please Drain and 

Secure Carrier Chiller For Relocation.” Nowhere in the work order is it stated that 

defendants were required to refill the chiller with antifreeze upon completion of their 

maintenance. Therefore, the substance of plaintiff’s allegations show that the alleged 

negligence arose from defendants carrying out a work order directed by NCSU. 
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¶ 58 This situation is similar to this Court’s analysis in Mullis. In Mullis this Court 

stated 

plaintiffs set forth only one claim for relief in their 

complaint. In the beginning of their claim for relief, 

plaintiffs allege that “the Defendant Charlotte[–

]Mecklenburg School System provided, permitted and 

directed the operation of a Rockwell tilting arbor saw, 

model # 34–399 in its industrial arts class.” Later in the 

complaint, plaintiffs specifically allege that defendant 

Sechrest negligently failed to give reasonable or adequate 

instructions or warnings concerning the dangers inherent 

in the use of the saw and provided a machine that was 

unsafe. However, we note that it was necessary to allege 

defendant Sechrest’s negligence in the complaint because 

he was acting as an agent of defendant Board in performing 

his duties. The fact that there is only one claim for relief is 

also indicative of plaintiffs’ intention to sue defendant 

Sechrest in his official capacity, as an agent of defendant 

Board.

Mullis, 347 N.C. at 553, 495 S.E.2d at 724 (alteration in original) (citation omitted). 

Here, plaintiff’s only real claim for relief is that defendants were negligent in carrying 

out a work order issued by NCSU. While plaintiff alleged defendants’ negligence in 

failing to properly refill the chiller and warn Mr. Long, this was necessary to allege 

defendants’ negligence in the complaint because these employees were acting as 

agents of NCSU. See id. (“[I]t [is] necessary to allege defendant[’s] . . . negligence in 

the complaint because he was acting as an agent of defendant Board in performing 

his duties.”). In essence, there is only one claim for relief because it is readily 

apparent that plaintiff was suing defendants in their official capacities for the work 

performed pursuant to the work order.
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¶ 59 Further, the fact that plaintiff’s complaints in the Industrial Commission and 

superior court are largely duplicative is indicative that plaintiff is suing defendants 

in their official capacities. In both complaints, plaintiff alleges that defendants failed 

to properly follow protocols when performing maintenance on the chiller before 

moving it outside, that they negligently put metal flanges on the ends of the water 

lines, and that they failed to warn Mr. Long of their failure to follow protocol. The 

only major difference between the complaints is that the Industrial Commission 

complaint listed NCSU and “John Doe” as defendants and the superior court 

complaint listed defendants as individuals. As illustrated above, a plaintiff should 

not be able to circumvent the Industrial Commission’s jurisdiction and create 

jurisdiction in superior court by simply alleging they are suing defendants in their 

individual capacities. Accordingly, the duplicative nature of plaintiff’s complaints 

further illustrates that this suit is against defendants in their official capacities. 

¶ 60 Thus, “the [allegations in the] complaint, along with the course of proceedings 

in the present case,” indicate that this case is really an official-capacity claim couched 

under the heading of an individual capacity suit. Mullis, 347 N.C. at 554, 495 S.E.2d 

at 725. As such, this suit is effectively one against the State. See White, 366 N.C. at 

363, 736 S.E.2d at 168 (“A suit against a public official in his official capacity ‘is a suit 

against the State.’ ” (quoting Harwood, 326 N.C. at 238, 388 S.E.2d at 443)). Thus, 

the Industrial Commission has exclusive jurisdiction to resolve this dispute, and 

plaintiff should be precluded from bringing this action in superior court. 
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¶ 61 Nevertheless, even assuming plaintiff’s suit was against defendants in their 

individual capacity and the superior court had jurisdiction to hear it, plaintiff has 

failed to allege facts sufficient to show that defendants’ actions were the proximate 

cause of Mr. Long’s injuries. Plaintiff also failed to allege facts sufficient to state a 

claim for punitive damages.

This Court reviews a trial court’s order on a motion to 

dismiss de novo and considers “whether the allegations of 

the complaint, if treated as true, are sufficient to state a 

claim upon which relief can be granted under some legal 

theory[.]”

Cheryl Lloyd Humphrey Land Inv. Co., LLC v. Resco Prods., Inc., 2021-NCSC-56, ¶ 8 

(citation omitted) (quoting Coley v. State, 360 N.C. 493, 494–95, 631 S.E.2d 121, 123 

(2006)).

Dismissal under Rule 12(b)(6) is proper when one of the 

following three conditions is satisfied: (1) the complaint on 

its face reveals that no law supports the plaintiff’s claim; 

(2) the complaint on its face reveals the absence of facts 

sufficient to make a good claim; or (3) the complaint 

discloses some fact that necessarily defeats the plaintiff’s 

claim.

Id. (citation and quotation marks omitted).

An allegation of negligence must be sufficiently specific to 

give information of the particular acts complained of; a 

general allegation without such particularity does not set 

out the nature of plaintiff’s demand sufficiently to enable 

the defendant to prepare his defense. 

The complaint must show that the particular facts 

charged as negligence were the efficient and proximate 

cause, or one of such causes, of the injury of which the 
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plaintiff complains. 

Stamey v. Rutherfordton Elec. Membership Corp., 247 N.C. 640, 645, 101 S.E.2d 814, 

818 (1958) (cleaned up).

¶ 62 This Court has stated

[t]he fact that the defendant has been guilty of negligence, 

followed by an injury, does not make him liable for that 

injury, which is sought to be referred to the negligence, 

unless the connection of cause and effect is established; and 

the negligent act of the defendant must not only be the 

cause, but the proximate cause, of the injury. The burden 

was therefore upon the plaintiff to show that defendant’s 

alleged negligence proximately caused his intestate’s 

death, and the proof should have been of such a character 

as reasonably to warrant the inference of the fact required 

to be established, and not merely sufficient to raise a 

surmise or conjecture as to the existence of the essential fact.

Byrd v. S. Express Co., 139 N.C. 273, 275, 51 S.E. 851, 851–52 (1905) (emphasis 

added) (citation omitted). In defining proximate cause, we have said 

[p]roximate cause is a cause which in natural and 

continuous sequence, unbroken by any new and 

independent cause, produced the plaintiff’s injuries, and 

without which the injuries would not have occurred, and 

one from which a person of ordinary prudence could have 

reasonably foreseen that such a result, or consequences of 

a generally injurious nature, was probable under all the 

facts as they existed. Foreseeability is thus a requisite of 

proximate cause, which is, in turn, a requisite for 

actionable negligence. 

Hairston v. Alexander Tank & Equip. Co., 310 N.C. 227, 233, 311 S.E.2d 559, 565 

(1984) (emphasis added) (citations omitted). 

To establish foreseeability, the plaintiff must prove that 
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defendant, in the exercise of reasonable care, might have 

foreseen that its actions would cause some injury. The 

defendant must exercise reasonable prevision in order to 

avoid liability. The law does not require a defendant to 

anticipate events which are merely possible but only those 

which are reasonably foreseeable.

Bolkhir v. N.C. State Univ., 321 N.C. 706, 710, 365 S.E.2d 898, 901 (1988) (cleaned 

up) (emphasis added). Further, “[p]roximate cause is an inference of fact to be drawn 

from other facts and circumstances.” Hairston, 310 N.C. at 234, 311 S.E.2d at 566. 

¶ 63 As an initial matter, the majority diminishes the pleading requirements to 

sufficiently allege proximate cause. In her complaint, plaintiff asserted that 

“[defendants] capped the inlet water pipe and the outlet water pipe of the Carrier 

chiller with metal flanges when [they] knew or should have known the cooler tubes 

could be damaged and the water tubes and pipes could become pressurized[.]” 

Additionally, plaintiff alleged that “[defendants] allowed the inlet water pipe and the 

outlet water pipe of the Carrier chiller to remain capped when [they] knew, or should 

have known, pressure could build up inside the chiller[.]” However, outside of a 

cursory allegation that defendants’ negligence was a “direct and proximate result” of 

Mr. Long’s injuries, plaintiff failed to adequately allege that the foreseeable 

consequence of this negligence was that the chiller would pressurize, explode, and 

blow the metal flange into Mr. Long causing injury. 

¶ 64 As the majority notes, a sign on the chiller contained a warning indicating that 

it was “not possible to drain all water” from the chiller and that the chiller “must be 
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drained and refilled with” antifreeze solution “[f]or freeze protection during shutdown.” Similarly, the chiller’s operating manual instructed that the chiller should be 

filled with antifreeze to “prevent freeze-up damage to the cooler tubes[.]” It appears 

that the majority is correct that defendants did not put antifreeze into the chiller. 

However, nothing in the work order or on the labels contained on the outside of the 

chiller mentioned that failing to refill the chiller with antifreeze would create a 

possibility of a pressurized buildup that could cause injury. In fact, the only warning 

mentioned on the labels was that failure to fill the chiller with antifreeze could cause 

“damage to the cooler tubes.” Thus, the foreseeable consequence of failing to follow 

the chiller’s warning labels is damage to the machinery itself. 

¶ 65 Accordingly, plaintiff has failed allege facts sufficient to establish that 

defendants “in the exercise of reasonable care, might have foreseen that [their] 

actions” in failing to refill the chiller with antifreeze would cause some injury. 

Bolkhir, 321 N.C. at 710, 365 S.E.2d at 901. Simply put, it was not reasonably 

foreseeable that, in the face of the instructions on the work order and the labels on 

the chiller, defendants’ actions would cause injury to Mr. Long. Because “[t]he law 

does not require a defendant to anticipate events which are merely possible but only 

those which are reasonably foreseeable[,]” id., plaintiff has failed allege facts 

sufficient to establish that defendants’ actions were the proximate cause of Mr. Long’s 

injuries. 
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¶ 66 Lastly, the majority’s holding that plaintiff adequately alleged willful or 

wanton conduct to bring a claim for punitive damages constitutes a dangerous 

reduction of the pleading requirements necessary for punitive damages in this State. 

Section 1D-15(a) of our General Statutes states that

[p]unitive damages may be awarded only if the claimant 

proves that the defendant is liable for compensatory 

damages and that one of the following aggravating factors 

was present and was related to the injury for which 

compensatory damages were awarded:

(1) Fraud.

(2) Malice.

(3) Willful or wanton conduct.

N.C.G.S. § 1D-15(a) (2019). Section 1D-5 defines “[w]illful or wanton conduct” as

the conscious and intentional disregard of and indifference 

to the rights and safety of others, which the defendant 

knows or should know is reasonably likely to result in 

injury, damage, or other harm. “Willful or wanton conduct” 

means more than gross negligence.

N.C.G.S. § 1D-5(7) (2019). “[T]his Court held that it was not sufficient to state a cause 

of action for punitive damages to allege that the defendant’s conduct was ‘willful, 

wanton and gross’ . . . . ” Shugar v. Guill, 304 N.C. 332, 336, 283 S.E.2d 507, 509 

(1981) (quoting Clemmons v. Life Ins. Co. of Ga., 274 N.C. 416, 424, 163 S.E.2d 761, 

767 (1968)). Rather, a “plaintiff’s complaint must allege facts or elements showing 

the aggravating circumstances which would justify the award of punitive damages.” 

Shugar, 304 N.C. at 336, 283 S.E.2d at 510 (citation omitted).
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¶ 67 Here, plaintiff alleged “[s]ome or all of the acts and/or omissions of defendant[s] 

. . . constituted gross negligence” and that “[s]ome or all of the acts and/or omissions 

of defendant[s] . . . demonstrated a conscious or intentional disregard or indifference 

to the rights and safety of others, including Joe Long, which defendant[s] . . . knew, 

or should have known, would be reasonably likely to result in injury or death and as 

such constituted willful or wanton conduct.” Outside of these allegations, plaintiff

failed to set out the facts and circumstances to illustrate that defendants’ actions 

constituted a “conscious and intentional disregard of and indifference to the rights 

and safety of others.” Hinson v. Dawson, 244 N.C. 23, 28, 92 S.E.2d 393, 397 (1956). 

Plaintiff’s complaint, at most, alleges that defendants negligently failed to follow the 

warning signs on the chiller which ultimately lead to Mr. Long’s injuries. Nothing in 

the complaint points to any conscious disregard for the safety of others to rise to the 

level of willful or wanton conduct. As such, plaintiff failed to adequately allege willful 

or wanton conduct. 

¶ 68 The allegations in the complaint, coupled with the course of proceedings, make 

it clear that plaintiff is suing defendants in their official capacities, and the Industrial 

Commission has exclusive jurisdiction over this case. Even assuming the superior 

court had jurisdiction to hear this case, plaintiff has failed to allege facts sufficient to 

show that defendants’ conduct proximately caused Mr. Long’s injuries. Plaintiff has 

also failed to state a claim for punitive damages. Therefore, the decision of the Court 

of Appeals should be reversed, and I respectfully dissent from the majority’s opinion. 
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Berger, J., dissenting

Chief Justice NEWBY and Justice BARRINGER join in this dissenting 

opinion.