waiver of governmental immunity in North Carolina

2025“Because in contract actions the doctrine of sovereign immunity will not be a defense, a waiver of governmental immunity is implied, and effectively alleged, when the plaintiff pleads a contract claim.” Wray, 370 N.C. at 48 (cleaned up).

2024No particular language is required to allege a waiver of governmental immunity, but the complaint must allege facts that, if 6 Defendants do not contest the trial court’s denial of their motion to dismiss the breach of contract claim on the basis of their assertion of sovereign immunity because “[a] State or local government . . . waives that immunity when it enters into a valid contract, to the extent of that contract.” Wray, 370 N.C. at 47 , 802 S.E.2d at 899 (citations omitted).

2006See Paquette v. County of Durham, 155 N.C.App. 415 , 418, 573 S.E.2d 715 , 717 (2002) (citation omitted) (stating that, "[i]n order to overcome a defense of governmental immunity, the complaint must specifically allege a waiver of governmental immunity.

2006See Paquette v. County of Durham, 155 N.C.App. 415 , 418, 573 S.E.2d 715 , 717 (2002) (citation omitted) (stating that, "[i]n order to overcome a defense of governmental immunity, the complaint must specifically allege a waiver of governmental immunity.

1994The authority for requiring such a pleading, and relied upon by the defendants and this Court, was a decision made before the enactment of the North Carolina Rules of Civil Procedure (Fields v. Board of Education, 251 N.C. 699 , 111 S.E.2d 910 (1960)), and not long after the statute was enacted authorizing the waiver of governmental immunity.

1994The authority for requiring such a pleading, and relied upon by the defendants and this Court, was a decision made before the enactment of the North Carolina Rules of Civil Procedure (Fields v. Board of Education, 251 N.C. 699 , 111 S.E.2d 910 (1960)), and not long after the statute was enacted authorizing the waiver of governmental immunity.

2022Our system of notice pleading means the bar to plead a valid contract is “low.” Wray, 370 N.C. at 50 , 802 S.E.2d at 900 (explaining there is a “low bar for notice pleading under Rule 12(b)(6), as well as the waiver of governmental immunity that is inferred from the pleading of a contract claim”). ¶ 54 While our caselaw does not explicitly set out the requirements to plead a valid implied in fact contract,8 we can use the pleading requirements for an express contract as a starting point because an implied in fact contract “is valid and enforceable as if it were express or written.” See Snyder,

2022Our system of notice pleading means the bar to plead a valid contract is “low.” Wray, 370 N.C. at 50 , 802 S.E.2d at 900 (explaining there is a “low bar for notice pleading under Rule 12(b)(6), as well as the waiver of governmental immunity that is inferred from the pleading of a contract claim”). ¶ 54 While our caselaw does not explicitly set out the requirements to plead a valid implied in fact contract,8 we can use the pleading requirements for an express contract as a starting point because an implied in fact contract “is valid and enforceable as if it were express or written.” See Snyder,

2013App. 380, 385 , 677 S.E.2d 203, 207 (2009). {18} “With respect to a motion to dismiss based on sovereign immunity, the question is whether the complaint ‘specifically allege[s] a waiver of governmental immunity.

2013App. 380, 385 , 677 S.E.2d 203, 207 (2009). {18} “With respect to a motion to dismiss based on sovereign immunity, the question is whether the complaint ‘specifically allege[s] a waiver of governmental immunity.

2016We are further unpersuaded by the City's argument that Plaintiff failed to "specifically allege a waiver of governmental immunity." Fabrikant v. Currituck County, 174 N.C.App. 30 , 38, 621 S.E.2d 19 , 25 (2005).

2016We are further unpersuaded by the City's argument that Plaintiff failed to "specifically allege a waiver of governmental immunity." Fabrikant v. Currituck County, 174 N.C.App. 30 , 38, 621 S.E.2d 19 , 25 (2005).

2014See Clark v. Burke Cty., 117 N.C.

2004Clark v. Burke County, 117 N.C.

2017See Smith , 289 N.C. at 320 , 222 S.E.2d at 423-24 ("[W]henever the State of North Carolina ... enters into a valid contract, the State implicitly consents to be sued for damages on the contract in the event it breaches the contract." (emphasis added)).

2017See Smith , 289 N.C. at 320 , 222 S.E.2d at 423-24 ("[W]henever the State of North Carolina ... enters into a valid contract, the State implicitly consents to be sued for damages on the contract in the event it breaches the contract." (emphasis added)).

2017In order to state a valid express contract claim, the plaintiff "must allege the existence of a contract between plaintiff and defendant, the specific provisions breached, the facts constituting the breach, and the amount of damages resulting to plaintiff from such breach." RGK , 292 N.C. at 675 , 235 S.E.2d at 238 (emphasis omitted) (quoting Cantrell v. Woodhill Enters . , Inc . 273 N.C. 490 , 497, 160 S.E.2d 476 , 481 (1968) ).

2017In order to state a valid express contract claim, the plaintiff "must allege the existence of a contract between plaintiff and defendant, the specific provisions breached, the facts constituting the breach, and the amount of damages resulting to plaintiff from such breach." RGK , 292 N.C. at 675 , 235 S.E.2d at 238 (emphasis omitted) (quoting Cantrell v. Woodhill Enters . , Inc . 273 N.C. 490 , 497, 160 S.E.2d 476 , 481 (1968) ).

2017See Dickens v. Thorne , 110 N.C.App. 39 , 47, 429 S.E.2d 176 , 181 (1993) (rejecting the argument that an employee's employment contract with a county was sufficient to trigger a waiver of governmental immunity for tort liability on a libel claim because the complaint was not based on a breach of contract).

2017See Dickens v. Thorne , 110 N.C.App. 39 , 47, 429 S.E.2d 176 , 181 (1993) (rejecting the argument that an employee's employment contract with a county was sufficient to trigger a waiver of governmental immunity for tort liability on a libel claim because the complaint was not based on a breach of contract).

2017For that reason, the Court correctly notes that "a waiver of governmental immunity is implied, and effectively alleged, when the plaintiff pleads a contract claim," so that, in other words, "an allegation of a valid contract is an allegation of waiver of governmental immunity." On the other hand, in the absence of allegations that *903 the parties entered into "both an express contract and a valid contract, the State has not waived its sovereign immunity." Eastway Wrecker Serv., Inc. v. City of Charlotte , 165 N.C.App. 639 , 644, 599 S.E.2d 410 , 413 (2004), aff'd per curium , 360 N.C. 167 , 6

2017For that reason, the Court correctly notes that "a waiver of governmental immunity is implied, and effectively alleged, when the plaintiff pleads a contract claim," so that, in other words, "an allegation of a valid contract is an allegation of waiver of governmental immunity." On the other hand, in the absence of allegations that *903 the parties entered into "both an express contract and a valid contract, the State has not waived its sovereign immunity." Eastway Wrecker Serv., Inc. v. City of Charlotte , 165 N.C.App. 639 , 644, 599 S.E.2d 410 , 413 (2004), aff'd per curium , 360 N.C. 167 , 6

2017For that reason, the Court correctly notes that "a waiver of governmental immunity is implied, and effectively alleged, when the plaintiff pleads a contract claim," so that, in other words, "an allegation of a valid contract is an allegation of waiver of governmental immunity." On the other hand, in the absence of allegations that *903 the parties entered into "both an express contract and a valid contract, the State has not waived its sovereign immunity." Eastway Wrecker Serv., Inc. v. City of Charlotte , 165 N.C.App. 639 , 644, 599 S.E.2d 410 , 413 (2004), aff'd per curium , 360 N.C. 167 , 6

2017For that reason, the Court correctly notes that "a waiver of governmental immunity is implied, and effectively alleged, when the plaintiff pleads a contract claim," so that, in other words, "an allegation of a valid contract is an allegation of waiver of governmental immunity." On the other hand, in the absence of allegations that *903 the parties entered into "both an express contract and a valid contract, the State has not waived its sovereign immunity." Eastway Wrecker Serv., Inc. v. City of Charlotte , 165 N.C.App. 639 , 644, 599 S.E.2d 410 , 413 (2004), aff'd per curium , 360 N.C. 167 , 6

2017Absent such an allegation, the complaint fails to state a cause of action." Fabrikant v. Currituck County , 174 N.C.App. 30 , 38, 621 S.E.2d 19 , 25 (2005) (quoting Paquette v. County of Durham , 155 N.C.App. 415 , 418, 573 S.E.2d 715 , 717 (2002) (citations omitted), disc. rev. denied , 357 N.C. 165 , 580 S.E.2d 695 (2003) ); accord **48 Hinson v. City of Greensboro , 232 N.C.App. 204 , 210, 753 S.E.2d 822 , 827 (2014).

2017Absent such an allegation, the complaint fails to state a cause of action." Fabrikant v. Currituck County , 174 N.C.App. 30 , 38, 621 S.E.2d 19 , 25 (2005) (quoting Paquette v. County of Durham , 155 N.C.App. 415 , 418, 573 S.E.2d 715 , 717 (2002) (citations omitted), disc. rev. denied , 357 N.C. 165 , 580 S.E.2d 695 (2003) ); accord **48 Hinson v. City of Greensboro , 232 N.C.App. 204 , 210, 753 S.E.2d 822 , 827 (2014).

2011Asssn v. Bd. of Trs. of Guilford Technical Cmty. Coll., 364 N.C. 102, 104 , 691 S.E.2d 694, 695 (2010) ("we conclude that N.C.G.S. § 97-7 of the Workers' Compensation Act is a plain and unmistakable waiver of sovereign immunity....") "With respect to a motion to dismiss based on sovereign immunity, the question is whether the complaint `specifically allege[s] a waiver of governmental immunity.

2011Asssn v. Bd. of Trs. of Guilford Technical Cmty. Coll., 364 N.C. 102, 104 , 691 S.E.2d 694, 695 (2010) ("we conclude that N.C.G.S. § 97-7 of the Workers' Compensation Act is a plain and unmistakable waiver of sovereign immunity....") "With respect to a motion to dismiss based on sovereign immunity, the question is whether the complaint `specifically allege[s] a waiver of governmental immunity.

2008“It [is] well-settled that when an action is brought against individual officers in their official capacities the action is one against the state for the purposes of applying the doctrine of sovereign immunity.” Whitaker v. Clark, 109 N.C, App. 379, 381-82, 427 S.E.2d 142, 143-44 (1993).

2004App. ___, ___, 590 S.E.2d 412 , 422 (2004) ("Since the complaint in this case does not include any allegations that the County has purchased liability insurance or otherwise waived its immunity, the trial court properly dismissed the negligence claim against the County.").

2003Absent such an allegation, the complaint fails to state a cause of action." Paquette , ___ N.C.App. at ___, 573 S.E.2d at 717 (holding trial court did not err in dismissing complaint where it failed to specifically allege county waived its sovereign immunity); see also, e.g., Vest v. Easley, 145 N.C.App. 70, 74 , 549 S.E.2d 568, 573 (2001) ("It is well-established law that with no allegation of waiver in a plaintiff's complaint, the plaintiff is absolutely barred from suing the state and its public officials in their official capacities in an action for negligence.").

2003Absent such an allegation, the complaint fails to state a cause of action." Paquette , ___ N.C.App. at ___, 573 S.E.2d at 717 (holding trial court did not err in dismissing complaint where it failed to specifically allege county waived its sovereign immunity); see also, e.g., Vest v. Easley, 145 N.C.App. 70, 74 , 549 S.E.2d 568, 573 (2001) ("It is well-established law that with no allegation of waiver in a plaintiff's complaint, the plaintiff is absolutely barred from suing the state and its public officials in their official capacities in an action for negligence.").

2002See Stafford v. Barker, 129 N.C.