CHAPEL HILL -- The death of a high school football player two years ago has renewed a long-running debate about whether people can sue the government.
Atlas Fraley's family recently dropped its lawsuit against Orange County over his death because their lawyer did not think it could overcome a governmental immunity defense.
Orange County pays more than $700,000 a year for its liability coverage, which covers law-enforcement negligence up to $2 million, health care malpractice up to $1 million, and other accidents or "wrongful acts" up to $4 million. But the policy has an exemption and won't pay out if the county can claim governmental immunity, a common-law principle dating back centuries.
The county still needs insurance because immunity might not cover negligence outside official functions - for example, if someone were injured on county property because of poor upkeep - even though it would cover an employee doing his or her job in good faith. The courts would have to determine actual immunity case by case, and insurance offers a second layer of protection.
Trial lawyers like the Fraleys' attorney, Don Strickland, want to see the law changed.
But Kevin Leonard, government relations director for the N.C. Association of County Commissioners, said suing the government is really suing the taxpayers.
"The government is providing these services because no one else will, and there has to be some level of immunity or else no one will provide these core services," he said.
The Fraleys are pursuing their suit against former Orange County paramedic James Griffin, who responded to the 17-year-old Chapel Hill High School football player's 911 call, spent 22 minutes with him and advised him to drink fluids to treat his dehydration. The Fraleys found their son dead later that day.
The Fraleys have voluntarily dismissed their claims against the county, its emergency-services department and against Griffin in his "official capacity." They are maintaining their suit against Griffin as an individual.
"I would be surprised if the county commissioners knew that they were paying hefty premiums with taxpayer dollars and the taxpayers were not covered for injuries or deaths," Strickland said.
County insurance
Valerie Foushee, chairwoman of the Orange County Board of Commissioners, said the board had not discussed the immunity exemption in the county's insurance policy, but she thinks the current coverage and the legal immunity are appropriate.
N.C. Advocates for Justice, a coalition of trial attorneys, has lobbied for a Local Government Tort Claims Act, to match the State Tort Claims Act of 1951, which partially waived the state's immunity. It provides damages up to $1,000,000 at the discretion of the N.C. Industrial Commission.
"North Carolina citizens reasonably expect that a person injured by the negligence of a government employee should have the right to receive compensation," states an advocacy paper by the coalition.
A Senate bill to limit local government immunity did not pass through the Judiciary Committee last year.
Griffin is covered by the county's liability insurance policy, and, as an individual, he is not immune, according to Strickland. A judge could award damages, which the county's insurance policy would pay, he said.
Dropping the suits against the county "simplifies the case and targets James Griffin who is the paramedic who left Atlas Fraley home to die and breached a number of policies, procedures and protocols in doing so," Strickland said.
Griffin and the Fraleys are due to finish mediation next month and could go to trial by the end of November.
Negligence denied
In court filings, Griffin has denied any negligence.
"After a careful evaluation ... Griffin determined that Atlas Fraley did not meet the criteria for emergency transport," according to Griffin's answer to the Fraleys' complaint.
The document also says a medical student shadowing Griffin had advised the paramedic that Fraley did not need an IV because he was able to drink water or Gatorade by himself.
"Griffin did not start an IV as it was not medically indicated," the document states.
The county claims it can't be held responsible even if Griffin made mistakes.
"Defendants were performing their duties and acting in good faith," James Morgan, the county's consulting attorney, states in his answer to the lawsuit.
The autopsy
An autopsy report suggested Fraley's dehydration and cramping may have led to a fatal heart attack, though the autopsy could provide no definitive explanation for his death
Dr. Jane Brice, the Orange County EMS medical director, revoked Griffin's paramedic privileges 10 days after Fraley's death. Griffin resigned days later under threat of termination.
The state Office of Emergency Medical Services decided not to revoke Griffin's license. State EMS officials found Griffin had violated some Orange County protocols in his response to Fraley but had not acted incompetently under state law.
Orange County's internal investigation found that Griffin failed to:
Take Fraley's vital signs while he was both sitting and standing.
Take his temperature.
Transport him for treatment of hyperthermia.
Tell him how soon to see a doctor.
Contact his parents.
Seek a doctor's opinion.
