               IN THE COURT OF APPEALS OF NORTH CAROLINA

                                    No. COA17-99

                               Filed: 20 February 2018

Wake County, No. 16 CVS 004423

LATONYA A. TAYLOR, Individually, and as the Administratrix of the Estates of
SYLVESTER TAYLOR and ANGELA TAYLOR; and as Guardian Ad Litem of J.T.,
N.H. and A.H., minor children, Plaintiff,

              v.

WAKE COUNTY, d/b/a THE DIVISION OF SOCIAL SERVICES, Defendant.


        Appeal by Plaintiff from an order entered 7 November 2016 by Judge Paul C.

Ridgeway in Wake County Superior Court. Heard in the Court of Appeals 22 August

2017.


        Kennedy, Kennedy, Kennedy and Kennedy, LLP, by Harvey L. Kennedy and
        Harold L. Kennedy, III, for Plaintiff-Appellant.

        Office of the Wake County Attorney, by Senior Assistant County Attorney
        Jennifer Jones and Senior Deputy County Attorney Roger Askew, for
        Defendant-Appellee.


        INMAN, Judge.


        This case concerns the scope of a common law doctrine, named for the seminal

case Corum v. University of North Carolina, 330 N.C. 761, 413 S.E.2d 276, cert.

denied, 506 U.S. 985, 121 L.Ed.2d 431 (1992), which allows a plaintiff to sue the State

for a violation the North Carolina Constitution. Such claims, colloquially termed

Corum claims, may be asserted when a plaintiff has suffered a violation of her state
                                    TAYLOR V. WAKE CTY.

                                       Opinion of the Court



constitutional rights and otherwise lacks an adequate remedy under state law. Id.

at 782, 413 S.E.2d at 289. At issue is whether the adequacy of a remedy depends

upon a plaintiff’s ability to recover for a particular injury or to recover from a

particular defendant.        We hold that adequacy depends upon recovery for the

plaintiff’s injury, without regard to the party from whom recovery may be obtained.

       Latonya A. Taylor (“Plaintiff”), individually, and as the administratrix of the

estates of Sylvester Taylor and Anglia1 Taylor, and as the Guardian ad Litem of her

three minor children, J.T., N.H., and A.H., appeals from the trial court’s order

granting summary judgment in favor of the Wake County Division of Social Services

(“Wake County DSS” or “Defendant”) on her claims for ordinary negligence, negligent

supervision, negligent infliction of emotional distress, wrongful death, willful and

wanton negligence, and denial of due process under Article I, Section 19 of the North

Carolina Constitution. Plaintiff argues the trial court erred when it concluded she

had an adequate remedy under state law by bringing a claim in the North Carolina

Industrial Commission against the North Carolina Department of Health and

Human Services (“DHHS”), thereby precluding her from asserting her direct

constitutional claim under Corum against Defendant.

       After careful review, we affirm the trial court.



       1   We note the spelling of Anglia Taylor differs between the trial court’s order from which
Plaintiff appeals—“Angela”—and the complaint and briefs before this Court—“Anglia”. We adopt the
spelling from the complaint and briefs.

                                               -2-
                                TAYLOR V. WAKE CTY.

                                  Opinion of the Court



                         Factual and Procedural History

      This case arises from a tragic series of events, which ended in the deaths of

Sylvester and Anglia Taylor, Plaintiff’s parents, and the attempted murder of

Plaintiff in front her minor children. The undisputed facts establish the following:

      In January of 2014, Wake County DSS became involved with the affairs of

Plaintiff and her children after reports of domestic violence led Plaintiff to obtain a

Domestic Violence Protective Order (the “DVPO”) against Nathan Lorenzo Holden

(“Holden”), Plaintiff’s estranged husband.

      The DVPO process began on 2 January 2014, when Plaintiff obtained an Ex

Parte Domestic Violence Protective Order (the “Ex Parte Order”) following a report

that Holden threatened to kill Plaintiff and her minor children. The next day, Kathy

Sutehall (“Sutehall”), the Wake County DSS caseworker initially assigned to

Plaintiff’s case, met with Plaintiff at her residence and discussed the allegations. At

the time, Plaintiff was residing with her children at her parents’ residence. A hearing

for the DVPO was scheduled for 9 January 2014, but was continued and the Ex Parte

Order remained in place. On 21 January 2014, Holden consented to the DVPO, which

prohibited him from having any contact with Plaintiff and ordered that he not

threaten any member of Plaintiff’s family or household.




                                         -3-
                                 TAYLOR V. WAKE CTY.

                                   Opinion of the Court



        On 27 January 2014, Sutehall visited one of Plaintiff’s minor children’s school.

As Sutehall was leaving the school, she learned that Holden was outside the school

and she asked the school resource officer to escort her safely to her vehicle.

        On 28 January 2014, Sutehall conducted a home visit of Plaintiff’s residence,

where she found that Plaintiff’s father, whom Holden had claimed was dangerous,

was not a threat to the minor children. Both of Plaintiff’s parents signed a “Safety

Assessment” at Sutehall’s request, indicating that firearms would not be kept in the

home.

        Two days later, on 30 January 2014, Holden, through his attorney, alleged that

there were firearms present at Plaintiff’s parents’ house, that Plaintiff’s father

slapped and pulled a gun on one of the minor children, J.T., and as a result, obtained

custody of the minor children following an Emergency Ex Parte hearing before a

Wake County District Family Court judge. On 2 February 2014, the Wake County

Family Court faxed a copy of the Ex Parte Custody Order (the “Emergency Custody

Order”) to Sutehall. On 10 February 2014, the Wake County Family Court conducted

a hearing concerning the facts alleged in the Emergency Custody Order.

        Sometime shortly thereafter, Larna Lea Haddix (“Haddix”) took over as

Plaintiff’s Wake County DSS caseworker. Haddix conducted two home visits with

Plaintiff at her residence and one with Holden. Haddix had two additional home




                                          -4-
                                TAYLOR V. WAKE CTY.

                                  Opinion of the Court



visits scheduled with Holden in early April 2014, but Holden was not home when she

arrived either time.

      On 9 April 2014, Holden went to Plaintiff’s residence and shot and killed

Plaintiff’s parents and shot Plaintiff in front of their children. Holden was later

arrested and charged with two counts of murder, assault with a deadly weapon

inflicting serious injury with the intent to kill, and attempted first degree murder.

      On 4 April 2016, Plaintiff filed a complaint against Wake County DSS in

superior court for ordinary negligence, negligent supervision, negligent infliction of

emotional distress, and wrongful death. At the same time, Plaintiff filed a complaint,

pursuant to the Tort Claims Act, against North Carolina DHHS in the North Carolina

Industrial Commission, alleging the same facts and damages as asserted in her suit

against Wake County DSS. Plaintiff later amended her complaint against Wake

County DSS to include a claim for willful and wanton negligence and a claim under

Article I, Section 19 of the North Carolina Constitution.

      On 9 September 2016, Defendant filed its answer, along with a motion to

dismiss Plaintiff’s claims pursuant to Rule 12(b)(6) of the North Carolina Rules of

Civil Procedure. On 16 September 2016, Defendant filed a motion for summary

judgment. The trial court granted Defendant’s motions to dismiss and for summary

judgment, concluding:

             3. . . . [T]hat each of the claims of the Plaintiff, with the
             exception of the claim asserting deprivation of the


                                         -5-
                                     TAYLOR V. WAKE CTY.

                                        Opinion of the Court



               Plaintiff’s constitutional rights, is barred by the doctrine of
               governmental immunity, and that the Defendant has not
               waived its immunity, and that therefore, . . . each of these
               claims must be dismissed.

               4.   With respect to the Plaintiff’s claim asserting
               deprivation of constitutional rights under the North
               Carolina Constitution, the Court concludes that the
               Plaintiff has an adequate remedy under state law before
               the Industrial Commission, and that therefore, . . . this
               claim must also be dismissed.

Plaintiff timely appealed.

                                            Analysis

       Plaintiff’s appeal raises the question of whether an action against DHHS in

the North Carolina Industrial Commission pursuant to the Tort Claims Act is an

adequate remedy under state law so that Plaintiff is barred from asserting a Corum

claim against Wake County DSS in superior court, when both claims arise out of the

same facts and seek to recover for the same injuries.2 Plaintiff argues that her claim

against DHHS is not an adequate remedy because her claim against DHHS does not

provide a remedy against Wake County DSS, and, even if she were to recover in the

Industrial Commission, her recovery is limited because damages in that forum are

capped at one million dollars per person injured and exclude punitive damages.

Plaintiff relies upon the North Carolina Supreme Court’s decision in Meyer v. Walls,



       2  Plaintiff does not challenge the trial court’s ruling that her common law negligence claims
are barred by the doctrine of governmental immunity, and has therefore abandoned any arguments to
this issue on appeal.

                                                -6-
                                 TAYLOR V. WAKE CTY.

                                   Opinion of the Court



347 N.C. 97, 489 S.E.2d 880 (1997), which held that a plaintiff may simultaneously

bring an action against DHHS in the Industrial Commission and an action against a

county DSS agency in superior court.

         Because our precedent following Corum defines the adequacy of a remedy as a

plaintiff’s ability to recover for a particular harm and not as a plaintiff’s ability to

recover against a particular defendant, and because the Meyer decision did not

expand the definition of an adequate remedy, we hold Plaintiff’s argument is without

merit.

         We begin our analysis by examining the principles underlying the recognition

of state constitutional claims in Corum and its progeny. In 1992, the North Carolina

Supreme Court issued its decision in Corum v. University of North Carolina, which

permitted a university faculty member to bring a “direct cause of action under the

State Constitution against [the Vice Chancellor for Academic Affairs] in his official

capacity for alleged violations of [the] plaintiff’s free speech rights.” 330 N.C. at 783,

413 S.E.2d at 290.      The Court reasoned that, because freedom of speech is a

guaranteed right under the State Constitution, “the common law, which provides a

remedy for every wrong, will furnish the appropriate action for the adequate redress

of a violation of that right” when no other remedy exists. Id. at 782, 413 S.E.2d at

289. This direct cause of action, the Court held, may not be barred by the doctrine of

sovereign immunity because “when there is a clash between these constitutional



                                          -7-
                                       TAYLOR V. WAKE CTY.

                                          Opinion of the Court



rights and sovereign immunity, the constitutional rights must prevail.” Id. at 786,

413 S.E.2d at 292. In reaching the conclusion that “in the absence of an adequate

state remedy, one whose state constitutional rights have been abridged has a direct

claim against the State under the Constitution[,]” id. at 782, 413 S.E.2d at 289, the

Court relied primarily on two cases: Sale v. State Highway & Public Works Comm’n,

242 N.C. 612, 89 S.E.2d 290 (1955), and Midgett v. N.C. State Highway Comm’n, 260

N.C. 241, 132 S.E.2d 599 (1963), overruled on other grounds by Lea Co. v. N.C. Bd. of

Transp., 308 N.C. 603, 616, 304 S.E.2d 164, 174 (1983). Corum, 330 N.C. at 781-82,

413 S.E.2d at 289-90.

        In Sale, the plaintiff sued the State Highway Commission after several of the

plaintiff’s buildings were destroyed by a fire during the removal and reconstruction

process related to a state highway right-of-way project. 242 N.C. at 620, 89 S.E.2d at

297. The Highway Commission contended it could not be sued under statute, in

contract, or in tort—the last due to immunity at common law. Id. at 620, 89 S.E.2d

at 297. The plaintiff asserted, inter alia, a claim under Article I, Section 17 of the

North Carolina Constitution, id. at 618, 89 S.E.2d at 296, which at the time, provided

in part that “[n]o person shall be . . . in any manner deprived of his life, liberty, or

property, but by the law of the land[,]” N.C. Const. of 1868 art. I, § 19.3 The Court,


        3 The 1868 North Carolina Constitution was revised in 1970. The applicable Article and
Section under the current North Carolina Constitution is Article I, Section 19, which echoes the same
language: “[n]o person shall be . . . in any manner deprived of his life, liberty, or property, but by the
law of the land.” N.C. Const. of 1970 art. I, § 19.

                                                  -8-
                                TAYLOR V. WAKE CTY.

                                  Opinion of the Court



faced with a plaintiff whose constitutional rights had been abridged, and who would

receive no just compensation for this violation, fashioned a remedy—a direct

constitutional claim against the State—through which the plaintiff was ensured an

opportunity to be heard on the merits of his case, and if successful, would receive

redress for his injury. Sale, 242 N.C. at 620, 89 S.E.2d at 297-98.

      In Midgett, the plaintiffs brought suit against the State Highway Commission

alleging an unconstitutional taking after the agency constructed a highway altering

the natural flow of water and flooding the plaintiffs’ property. 260 N.C. at 242-43,

132 S.E.2d at 602-04. Ordinarily under those circumstances, a plaintiff was limited

to a statutory remedy that was exclusive when available. Id. at 250, 132 S.E.2d at

608. However, because the plaintiffs’ damages accrued after the date by which the

plaintiffs could bring a statutory cause of action, the Court held that the plaintiffs

had no adequate remedy at law and allowed the plaintiffs to proceed with a direct

claim under the State Constitution for just compensation. Id. at 249-50, 132 S.E.2d

at 607-08.

      A Corum claim allows a plaintiff to recover compensation for a violation of a

state constitutional right for which there is either no common law or statutory

remedy, or when the common law or statutory remedy that would be available is

inaccessible to the plaintiff. By allowing an otherwise common law or statutory claim

to proceed as a direct constitutional claim, the North Carolina Supreme Court



                                         -9-
                                    TAYLOR V. WAKE CTY.

                                       Opinion of the Court



fashioned an avenue to bypass certain defenses such as sovereign or governmental

immunity. A Corum claim is available to a plaintiff who is able to establish that (1)

her state constitutional rights have been violated, and (2) she lacks any sort of

“adequate state remedy.” Corum, 330 N.C. at 782, 413 S.E.2d at 289. The question

left in the wake of Corum is: what qualifies as an “adequate state remedy?”

       The North Carolina Supreme Court has considered this notion of adequacy in

the context of the interplay between a remedy and sovereign immunity. Craig v. New

Hanover Cty. Bd. of Educ., 363 N.C. 334, 678 S.E.2d 351 (2009). In Craig, the plaintiff

sought to recover monetary damages from the New Hanover County Board of

Education (the “Board”) and the principal of one of the county middle schools, both in

her official and individual capacities. Id. at 335, 678 S.E.2d at 352. The plaintiff

asserted a common law negligence claim and three violations of the North Carolina

Constitution: “Article I, Section 15 (right to the privilege of education); Article I,

Section 19 (no deprivation of a liberty interest or privilege but by the law of the land);

and Article IX, Section 1 (schools and means of education shall be encouraged).” Id.

at 335, 678 S.E.2d at 352. This Court held that the doctrine of sovereign immunity4

defeated the plaintiff’s common law negligence claim because the Board did not carry



       4  The North Carolina Supreme Court rightly distinguished that the Board was a county
agency, and therefore “the immunity it possess[ed] [was] more precisely identified as governmental
immunity[.]” Craig, 363 N.C. at 335 n.3, 678 S.E.2d at 353 n.3 (citing Meyer, 347 N.C. at 104, 489
S.E.2d at 884). Similarly here, Wake County DSS is a county agency and any immunity it possesses
is more properly termed governmental immunity. However, as in Craig, this distinction is immaterial
in the present case.

                                              - 10 -
                                TAYLOR V. WAKE CTY.

                                  Opinion of the Court



insurance that covered such claims, and therefore had not waived its immunity.

Craig v. New Hanover Cty. Bd. of Educ., 185 N.C. App. 651, 654-55, 648 S.E.2d 923,

925-26 (2007), rev’d by Craig, 363 N.C. at 342, 678 S.E.2d at 357. This Court also

held that the plaintiff was not permitted to bring his direct constitutional claims

because his common law negligence claim was an adequate state remedy. Id. at 655-

56, 648 S.E.2d at 926-27.

      The North Carolina Supreme Court reversed, holding that the plaintiff’s

“common law negligence claim [was] not an ‘adequate remedy at state law’ because it

[was] entirely precluded by the application of the doctrine of sovereign immunity.”

Craig, 363 N.C. at 342, 678 S.E.2d at 356-57. The Court explained that “to be

considered adequate in redressing a constitutional wrong, a plaintiff must have at

least the opportunity to enter the courthouse doors and present his claim.” Id. at 339-

40, 678 S.E.2d at 355. Because the plaintiff’s common law negligence claim was

absolutely barred by governmental immunity, the Court allowed the plaintiff to

“move forward in the alternative, bring his colorable claims directly under our State

Constitution based on the same facts that formed the basis for his common law

negligence claim.” Id. at 340, 678 S.E.2d at 355. The Court highlighted that, similar

to the plaintiff in Midgett, “the facts [the] plaintiff allege[d] and the damages he

[sought] [were] . . . the same under either his common law negligence claim or his

direct colorable constitutional claim.” Id. at 342, 678 S.E.2d at 356 (citing Midgett,



                                         - 11 -
                                 TAYLOR V. WAKE CTY.

                                    Opinion of the Court



260 N.C. at 251, 132 S.E.2d at 608-09). The Court concluded that to hold a claim

barred by immunity as adequate “would be contrary to our opinion in Corum and

inconsistent with the spirit of our long-standing emphasis on ensuring redress for

every constitutional injury.” Id. at 342, 678 S.E.2d at 357.

      A year later, the North Carolina Supreme Court addressed the issue of

adequacy again in a case involving school suspensions. Copper v. Denlinger, 363 N.C.

784, 688 S.E.2d 426 (2010). In Copper, the plaintiffs sought various damages against,

among others, the Durham Public Schools Board of Education (the “Board”), and the

Durham Public Schools Superintendent in both her official and individual capacities.

Id. at 786, 688 S.E.2d at 427. The plaintiffs alleged, inter alia, that the Board violated

the plaintiffs’ right to due process of law by denying a student a hearing before issuing

a long-term suspension. Id. at 786, 688 S.E.2d at 427. The Court rejected the

plaintiffs’ argument, noting that

             [u]nder [N.C. Gen. Stat.] §§ 115C-45(c) and 391(e), the
             student here always had the statutory right to appeal;
             thus, the complaint’s allegation that he “was never given”
             that opportunity fails. As we recently observed in Craig, “to
             be considered adequate in redressing a constitutional
             wrong, a plaintiff must have at least the opportunity to
             enter the courthouse doors and present his claim.” 363 N.C.
             at 339-40, 678 S.E.2d at 355. Here, the complaint contains
             no allegations suggesting that the student was somehow
             barred from the doors of either the courthouse or the Board.
             Nor does the complaint allege that he exhausted his
             administrative remedies, or even that it would have been
             futile to attempt to appeal his suspension to the Board.
             Thus, under our holdings in both Corum and Craig, an


                                           - 12 -
                               TAYLOR V. WAKE CTY.

                                 Opinion of the Court



             adequate remedy exists at state law to redress the alleged
             injury, and this direct constitutional claim is barred.

Id. at 789, 688 S.E.2d at 429 (emphasis added).

      In sum, the North Carolina Supreme Court’s definition of adequacy is twofold:

(1) that the remedy addresses the alleged constitutional injury, Copper, 363 N.C. at

789, 688 S.E.2d at 429, and (2) that the remedy provides the plaintiff an opportunity

to “enter the courthouse doors,” Craig, 363 N.C. 339-40, 678 S.E.2d at 355; Copper,

363 N.C. at 789, 688 S.E.2d at 429. The Court in Copper extended the scope of an

adequate remedy beyond the doors of the superior court, holding that an

administrative remedy—appeal to the local board of education—may satisfy the

opportunity requirement under Craig. Copper, 363 N.C. at 789, 688 S.E.2d at 429.

      We must consider these precedents in the context of the legislative intent of

the Tort Claims Act. The General Assembly explicitly granted authority to the North

Carolina Industrial Commission to function as a court for claims within its

jurisdiction, providing: “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.” N.C. Gen. Stat. § 143-291(a)

(2015) (emphasis added). Plaintiff’s assertion that she has been denied access to the

“courthouse doors” is unavailing in light of such an unequivocal designation.




                                        - 13 -
                                 TAYLOR V. WAKE CTY.

                                   Opinion of the Court



      Our Court has provided additional guidance regarding the types of remedies

deemed adequate to bar the assertion of a Corum claim—specifically, those involving

administrative remedies and alternative defendants. In Wilcox v. City of Asheville,

222 N.C. App. 285, 286-87, 730 S.E.2d 226, 229 (2012), the plaintiff brought suit

against the Asheville Police Department and several of its officers, in their official

and individual capacities, for an unreasonable use of force that resulted in the

plaintiff sustaining two gunshot wounds. The plaintiff’s complaint asserted claims

for (1) negligence, gross negligence, recklessness, and willful and wanton conduct on

the part of the officers for shooting her and on the part of the City of Asheville and

the Chief of Police for failing to adequately train and supervise the officers; (2)

imputed liability against the City of Asheville for its officers’ actions; (3) a violation

of the plaintiff’s state constitutional rights; and (4) punitive damages for egregiously

wrongful, malicious, willful and/or wanton conduct of the individual defendants. Id.

at 287, 730 S.E.2d at 229. The trial court dismissed all claims against the City of

Asheville and the individual defendants in their official capacities on the basis of

governmental immunity. Id. at 287, 730 S.E.2d at 229. The defendants then filed a

motion for summary judgment seeking dismissal of the remaining claims on two

grounds: “(1) public official immunity as barring all claims against the [i]ndividual

defendants in their individual capacities; and (2) the existence of an adequate state

remedy as barring the claims arising under the North Carolina Constitution.” Id. at



                                          - 14 -
                                TAYLOR V. WAKE CTY.

                                  Opinion of the Court



287, 730 S.E.2d at 229. The trial court granted the motion only as far as dismissing

the constitutional claims, leaving the plaintiff with her claims against the individual

defendants in their individual capacities. Id. at 287, 730 S.E.2d at 229.

      In reviewing the trial court’s partial grant of summary judgment, we answered

the question whether, based on the plaintiff having viable claims against the

individual defendants in their individual capacities, she could still pursue her

constitutional claims against the State under Corum. Id. at 298, 730 S.E.2d at 236.

The plaintiff argued that her claims against the individual defendants were not

adequate because it was uncertain whether those claims were subject to public official

immunity—a decision left to the jury—and success on these claims required the

plaintiff to prove an additional element than what was required for her other

constitutional claims—i.e., the plaintiff would have to prove that the individual

defendants “acted with a ‘subjective bad motive,’ or malice.” Id. at 301, 730 S.E.2d

at 238. Our Court started with the premise that “[d]irect claims against the State

arising under the North Carolina Constitution ‘[are] permitted only “in the absence

of an adequate state remedy,” ’ and where an adequate state remedy exists, those

direct constitutional claims must be dismissed.” Id. at 298, 730 S.E.2d at 236 (second

alteration in original) (emphasis in original) (quoting Davis v. Town of S. Pines, 116

N.C. App. 663, 675-76, 449 S.E.2d 240, 247-48 (1994)). We reasoned that because

“adequacy is found not in success, but in chance[,]” and there was “a genuine issue of



                                         - 15 -
                                 TAYLOR V. WAKE CTY.

                                   Opinion of the Court



material fact as to the applicability of public official immunity,” the plaintiff “still

ha[d] a chance to obtain relief[,]” regardless of the heightened burden. Id. at 299-300,

730 S.E.2d at 237. We upheld the trial court’s dismissal of the plaintiff’s Corum

claims because her ability to assert claims against the defendants in their individual

capacities provided an adequate avenue for redress of her alleged injuries. Id. at 302,

730 S.E.2d at 238-39.

      Our decision in Wilcox is derived from a line of cases from our Court beginning

with Alt v. Parker, 112 N.C. App. 307, 435 S.E.2d 773 (1993). The plaintiff in Alt was

pursing, inter alia, a claim for the deprivation of his constitutional rights by the State

arising from his alleged unlawful restraint and seclusion at a state mental hospital.

Id. at 310, 317-18, 435 S.E.2d at 775, 779-80. Our Court held that the plaintiff had

two alternative remedies: a common law claim for false imprisonment and “the

administrative grievance procedure provided for in the [Department of Human

Resources] Rules[,]” under which the plaintiff “could have filed a grievance with the

Department of Mental Health.” Id. at 318, 435 S.E.2d at 779. The Court rejected the

plaintiff’s constitutional claim, holding that “[s]ince there is no evidence that [the]

plaintiff ever filed a grievance action and received an unfavorable result and since

[the] plaintiff had the common law tort action for false imprisonment available to

him, we cannot say that [the] plaintiff is without adequate state remedy.” Id. at 318,

435 S.E.2d at 779.



                                          - 16 -
                                 TAYLOR V. WAKE CTY.

                                   Opinion of the Court



      We next addressed the adequacy of a state law claim in Rousselo v. Starling,

128 N.C. App. 439, 495 S.E.2d 725 (1998), in which the plaintiff sued a State Highway

Patrolman in both his official and individual capacities for, inter alia, an

unreasonable search. Id. at 447-48, 495 S.E.2d at 730-31. The plaintiff argued that

“common law immunity would defeat any common law tort claim that he brought

against the State” and that therefore “there is no adequate state law remedy for his

claim and . . . he is entitled to bring a claim under the North Carolina Constitution.”

Id. at 448, 495 S.E.2d at 731. Rejecting this argument, our Court held that “the

existence of an adequate alternate remedy is premised on whether there is a remedy

available to [the] plaintiff for the violation, not on whether there is a right to obtain

that remedy from the State in a common law tort action.” Id. at 448, 495 S.E.2d at

731. The plaintiff also argued that his common law tort claim against the defendant

in his individual capacity was inadequate because the plaintiff would have to show

that the defendant “acted with malice, corruption, or beyond the scope of his duty.”

Id. at 448-49, 495 S.E.2d at 731 (citation omitted). Portending our holding in Wilcox,

we again rejected the plaintiff’s argument, declining to hold that he “has no adequate

remedy merely because the existing common law claim might require more of him.”

Id. at 449, 495 S.E.2d at 732.

      In Estate of Fennell v. Stephenson, 137 N.C. App. 430, 528 S.E.2d 911, (2000),

rev’d on other grounds by, 354 N.C. 327, 554 S.E.2d 629 (2001), the plaintiffs argued



                                          - 17 -
                                TAYLOR V. WAKE CTY.

                                  Opinion of the Court



that a common law claim of false imprisonment on behalf of a deceased victim did not

provide an adequate remedy for an unconstitutional detention or seizure because “[a]

cause of action for false imprisonment . . . does not survive the death of a decedent.”

137 N.C. App. at 437, 528 S.E.2d at 916 (citing N.C. Gen. Stat. § 28A-18-1(b)(2)

(1999)). Our Court, agreeing with the plaintiffs, held that “[b]ecause the test for

whether an adequate state remedy exists is ‘whether there is a remedy available to

[the] plaintiff for the violation,’ [the] [p]laintiffs did not have an adequate state

remedy.”   Id. at 437, 528 S.E.2d at 916 (second alteration in original) (quoting

Rousselo, 128 N.C. App. at 448, 495 S.E.2d at 731). The Court noted that “[a]n

adequate state remedy exists if, assuming the plaintiff’s claim is successful, the

remedy would compensate the plaintiff for the same injury alleged in the direct

constitutional claim.” Id. at 437, 528 S.E.2d at 915-16 (emphasis in original) (citing

Rousselo, 128 N.C. App. at 447, 495 S.E.2d at 731).

      From these cases it follows that adequacy of a state law remedy depends upon

the injury alleged by a plaintiff, rather than upon the party from whom a plaintiff

seeks recovery. While the law generally allows plaintiffs to select the defendant(s)

from whom they wish to obtain relief, such is not the case when doing so requires the

extraordinary exercise of the judiciary’s constitutional power necessary to permit a

Corum claim. See, e.g., Wilcox, 222 N.C. App. at 301-02, 730 S.E.2d at 238-39 (holding

that suit against a defendant in his individual capacity is sufficient to preclude the



                                         - 18 -
                                 TAYLOR V. WAKE CTY.

                                   Opinion of the Court



plaintiff from asserting a Corum claim against the defendant in his official capacity);

Phillips v. Gray, 163 N.C. App. 52, 57-58, 592 S.E.2d 229, 233 (2004) (holding that a

plaintiff’s rights were adequately protected by a wrongful discharge claim against a

Sheriff in his individual capacity so that dismissal of the plaintiff’s free speech claim

against the Sheriff in his official capacity was appropriate). So long as a plaintiff has

a means of recovering for the alleged constitutional injury, the plaintiff may not use

Corum to assert a direct constitutional claim against the State as a means of

bypassing some fatal defense.

      Here, Plaintiff, in her amended complaint against Wake County DSS in

superior court, alleges one count each of ordinary negligence, negligent supervision,

negligent infliction of emotional distress, wrongful death, and willful and wanton

negligence. Following these allegations, Plaintiff asserts her direct claim under the

North Carolina Constitution: “In the alternative, the conduct of the Defendant as

alleged above constituted a violation of Article I, Section 19 of the North Carolina

Constitution.” Plaintiff explicitly alleges that “the State Constitutional claims are

based on the same facts that formed the basis for the common law negligence claims.”

Plaintiff’s ability to recover for the negligence claims is thereby necessarily related to

her ability to assert her direct constitutional claims.

      Defendant included Plaintiff’s complaint filed against DHHS in the Industrial

Commission with its motion for summary judgment.                  Plaintiff’s Industrial



                                          - 19 -
                                TAYLOR V. WAKE CTY.

                                   Opinion of the Court



Commission complaint asserts claims against DHHS, acting by and through its agent

Wake County DSS, for ordinary negligence, negligent supervision, negligent infliction

of emotional distress, and wrongful death. Plaintiff’s asserted injuries and basis of

fact for her Industrial Commission claims are the same as those asserted in her suit

against Wake County DSS in superior court.

      The adequacy of a state remedy requires only the opportunity to be heard, and

if successful to recover for the injuries alleged in the direct constitutional claim. If

successful in the Industrial Commission, Plaintiff will be compensated for the same

injuries as alleged in her direct constitutional claim. We are, therefore, compelled to

hold that Plaintiff has an adequate remedy under state law for the alleged violations

of her constitutional rights.    Absent Plaintiff establishing that her Industrial

Commission claims are impossible, Plaintiff may not assert her direct constitutional

claims under Corum against Wake County DSS in superior court. See, e.g., Davis,

116 N.C. App. at 675-76, 449 S.E.2d at 248 (holding that a false imprisonment claim

is an adequate remedy because “[i]f [the] plaintiff’s false imprisonment claim is

successful, she will be compensated for the injury she claims in her direct

constitutional claim” (emphasis added) (citing Alt, 112 N.C. App. at 317-18, 435

S.E.2d at 779)). The limited scope of damages available to Plaintiff in the Industrial

Commission, as compared to damages available in superior court, results from the




                                          - 20 -
                                     TAYLOR V. WAKE CTY.

                                       Opinion of the Court



General Assembly’s determination of what amount of recovery, and what type of

recovery, is adequate for claims within the jurisdiction of the Industrial Commission.

       Plaintiff argues that this holding is inconsistent with the North Carolina

Supreme Court’s decision in Meyer v. Walls. We disagree. In Meyer, the Court

addressed whether a county DSS agency was subject to the Tort Claims Act, thereby

vesting the North Carolina Industrial Commission with sole jurisdiction over tort

claims filed against the agency. 347 N.C. at 104, 489 S.E.2d at 884. The Court drew

the distinction that “[a]n agent of the State and a state agency are fundamentally

different and are treated differently by the Tort Claims Act.” Id. at 107, 489 S.E.2d

at 885. By classifying county DSS agencies as agents of the State—the Department

of Human Resources5—as opposed to state agencies themselves,6 the Court held that

the Tort Claims Act does not apply to county DSS agencies and that the trial court’s

dismissal of a negligence claim for lack of subject matter jurisdiction was improper.

Id. at 108, 489 S.E.2d at 886 (citations omitted). The Court went on to note that

“[a]lthough a plaintiff may not receive a double recovery, he may seek a judgment

against the agent or the principal or both.” Id. at 108, 489 S.E.2d at 886. The Court

explained that

               the fact that the Tort Claims Act provides for subject

       5 Now the Department of Health and Human Resources. N.C. Gen. Stat. § 143B-138.1 (2015).
       6 The Court reiterated its holdings in Vaughn v. N.C. Dep’t of Human Resources, 296 N.C. 683,
690, 252 S.E.2d 792, 797 (1979), and Gammons v. N.C. Dep’t of Human Resources, 344 N.C. 51, 54, 472
S.E.2d 722, 723 (1996), “that the county departments of social services were agents of DHR.” Meyer,
347 N.C. at 107, 489 S.E.2d at 885.

                                              - 21 -
                                TAYLOR V. WAKE CTY.

                                  Opinion of the Court



             matter jurisdiction in the Industrial Commission over a
             negligence claim against the State does not preclude a
             claim against [a county DSS agency] in Superior Court. 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. at 108, 489 S.E.2d at 886 (citing Wirth v. Bracey, 258 N.C. 505, 507-08, 128 S.E.2d

810, 813 (1963)).

      Plaintiff argues that because the North Carolina Supreme Court held that a

plaintiff may maintain both a Tort Claims Act action against DHHS in the Industrial

Commission and a common law negligence action against a county DSS agency in the

superior court, Plaintiff is permitted to assert her direct constitutional claim under

Corum as well. This reasoning, however, ignores the finding in Meyer that the county

agency “waived immunity pursuant to [N.C. Gen. Stat.] § 153A-435(a) through the

purchase of liability insurance.” Meyer, 347 N.C. at 108, 489 S.E.2d at 886. Our

holding today does not preclude Plaintiff from maintaining a negligence action

against Wake County DSS in superior court concurrently with her Tort Claims Act

action against DHHS in the Industrial Commission if Wake County DSS has waived

immunity; such a holding would certainly be contrary to Meyer. Rather, our holding

goes only so far as to prevent Plaintiff from elevating her negligence claims by way of

Corum to bypass governmental immunity, when she has an alternate remedy where,




                                         - 22 -
                                TAYLOR V. WAKE CTY.

                                  Opinion of the Court



if successful, she will be compensated for the injuries she has alleged in her direct

constitutional claim.

      As instructed by the Court in Corum,

             [w]hen called upon to exercise its inherent constitutional
             power to fashion a common law remedy for a violation of a
             particular constitutional right, . . . the judiciary must
             recognize two critical limitations. First, it must bow to
             established claims and remedies where these provide an
             alternative to the extraordinary exercise of its inherent
             constitutional power. Second, in exercising that power, the
             judiciary must minimize the encroachment upon other
             branches of government—in appearance and in fact—by
             seeking the least intrusive remedy available and necessary
             to right the wrong.

Corum, 330 N.C. at 784, 413 S.E.2d at 291 (emphasis added) (internal citations

omitted). In keeping true to this language, it follows that Plaintiff’s ability to seek

redress for the exact injury underlying her direct constitutional claim prevents us

from allowing her to pursue a Corum claim. To hold otherwise would run contrary to

Corum’s instruction that we must give way to established remedies and would

unnecessarily encroach on the General Assembly’s ability to direct actions against

the State.

      Ultimately, the implementation of the constitutional mechanism used to allow

a Corum claim to proceed is extraordinary. Plaintiff’s Tort Claims Act proceeding is

less intrusive than a direct constitutional claim and, if successful, still provides a

remedy capable of righting the alleged constitutional wrong. Accordingly, we hold



                                         - 23 -
                                 TAYLOR V. WAKE CTY.

                                   Opinion of the Court



that Plaintiff’s Tort Claims Act action against DHHS is an adequate remedy under

state law such that Plaintiff is unable to purse a direct constitutional claim against

Wake County DSS in superior court.

                                     Conclusion

      For the foregoing reasons, we conclude that the purpose of allowing direct

constitutional claims is to provide plaintiffs the ability to seek redress for particular

injuries for which no state law remedy exists, and because Plaintiff has an adequate

state law remedy—e.g., a claim under the Tort Claims Act against a State agency for

the same injuries complained of in her direct constitutional claim—her direct

constitutional claim must be dismissed; accordingly, we affirm the trial court’s order.

      AFFIRMED.

      Judges BRYANT and DAVIS concur.




                                          - 24 -
