Jones v. City of Durham , 168 N.C. App. 433 ( 2005 )

McCullough, Judge.

The claims and defenses raised in this case resulted in the partial summary judgment order now on appeal. Effective review of the order will best be achieved by first providing the underlying evidence before the court at the time of its entry.

On 15 September 2000, at approximately 9:00 a.m., Officer Tracy Fox (“Officer Fox”) was dispatched to investigate a domestic disturbance at 800 North Street in Durham. Soon after arriving at the scene, Officer Fox determined that she would need assistance and called for backup. Dispatch, upon receiving her call, issued a “signal 20” requiring all other officers give way for Officer Fox’s complete access to the police radio by holding all calls. Officer Joseph M. Kelly (“Officer Kelly” or “defendants” when referred to collectively with the City of Durham) was approximately 2-/ miles from North Street, as were fellow Officers H.M. Crenshaw (“Officer Crenshaw”) and R.D. Gaither (“Officer Gaither”). These officers were in their own police vehicles, but together the three were investigating a scene of suspicious activity.

In response to the first call by Officer Fox, Officers Kelly, Crenshaw, and Gaither got in their separate vehicles and began driving towards North Street on Alston Avenue and turning west onto Liberty Street. Officer Fox then made a second distress call, stating with a voice noticeably shaken, that she needed more units. Officers Kelly and Crenshaw activated their blue lights and sirens and increased the speed of their vehicles towards North Street. Officer Gaither took a different route.

At approximately 9:09 a.m. on the same morning, Linda Jones (“plaintiff’) was leaving her sister’s apartment complex at the southwest corner of the intersection of Liberty Street and Elizabeth Street (“the intersection”). The posted speed limit for motorists traveling upon Liberty Street was 35 miles per hour. At the curb of Liberty Street, plaintiff observed no vehicles approaching, but heard sirens coming from an undeterminable direction. A bystander outside the apartment complex also heard the sirens, but could not determine their direction. Plaintiff, some 95 feet west of the intersection, began to cross Liberty Street outside of any designated cross walk and against the controlling traffic signal. At this point in the road, Liberty Street had three undivided lanes: two eastbound lanes (the second or middle eastbound lane was for making northbound right turns only) and a westbound lane. Reaching the double yellow lines dividing the two eastbound lanes which she crossed, plaintiff first saw a police vehicle heading towards her in the westbound. The vehicle came over the railroad tracks on the eastern side of the intersection. Sergeant Willie Long, an eyewitness who was in his vehicle at the corner of Grace Drive and Liberty Street, and plaintiff both observed Officer Kelly’s vehicle go completely airborne over the railroad tracks. Once his vehicle crossed the railroad tracks, defendant saw plaintiff at a distance of between 300-332 feet and standing at the double-yellow lines.

Plaintiff turned and began running back in the direction from which she came, across the two eastbound lanes. Officer Kelly, crossing the intersection and accelerating, turned his vehicle with one hand into the eastbound lanes and struck plaintiff on her side as she was retreating to the curb. She was launched six feet into the air over the vehicle and landed in a gutter approximately 76 feet down along the eastbound lane of Liberty Street. Officer Kelly’s vehicle traveled approximately 160 feet after striking plaintiff and came to a complete stop in the eastbound lane of Liberty Street. Plaintiff suffered severe injuries.

While Officer Kelly was en route to Officer Fox’s two distress calls, he was aware at least four other officers were responding. Officer Crenshaw’s vehicle, behind Officer Kelly’s, videotaped Officer Kelly’s vehicle on Liberty Street going through the intersection and colliding with plaintiff. Using the videotape and the field measurements taken at the scene of the accident, an accident reconstruction expert determined Officer Kelly’s speed to have varied between 55 and 74 miles per hour.

In her initial complaint, plaintiff brought claims against Officer Kelly and the City of Durham (“defendants”) for negligence, gross negligence, and obstruction of public justice and spoliation of evidence (“spoliation claim”). Defendants’ answer included a motion to dismiss based on N.C. Gen. Stat. § 1A-1, Rule 12(b)(6) (2003) and pled the affirmative defenses of immunity and contributory negligence. Plaintiff responded alleging the doctrine of last clear chance to defendants’ defense of contributory negligence. Plaintiff then filed an amended complaint, bringing additional claims alleging that defendants’ assertion of immunity in this case violated a number of plaintiff’s rights proscribed under the N.C. Constitution. This matter, with pleadings, exhibits, affidavits, and depositions of forecast evidence, was presented before the trial court in a summary judgment hearing held on 11 December 2003 pursuant to motions brought by both parties.

In an order entered 6 January 2004, the trial court concluded the following: (1) that plaintiffs ordinary negligence claim was dismissed as a matter of law; (2) that there were issues of fact as to whether Officer Kelly was grossly negligent in his emergency response to assist and apprehend the suspect threatening Officer Fox; (3) that there were issues of fact concerning plaintiffs spoilation claim; (4) that plaintiffs claim for violation of the prohibition of exclusive emoluments based on Section 1, Article 32 of the N.C. Constitution, was dismissed¹ as a matter of law; and lastly, (5) defendants’ assertion of sovereign immunity violates the guarantees of due process and equal protection under Section 1, Article 19 of the N.C. Constitution as a matter of law. The trial court certified its order under N.C. Gen. Stat. § 1A-1, Rule 54(b) (2003) as an entry of final judgment. Both parties appealed.

In their appeal, defendants assign error to the trial court’s finding of an issue of fact supported by forecast evidence as to whether defendants were grossly negligent and argue the court should have granted summary judgment as a matter of law in their favor. Additionally, defendants allege the trial court erred when failing to rule in their favor as a matter of law on the spoilation claim and constitutional claim. Plaintiff’s only issue on appeal submits that the trial court erred in dismissing her claim of ordinary negligence, finding the standard to be inapplicable as a matter of law in light of the forecast evidence.

At the outset we note this appeal, not being a final judgment as to all claims and all parties and therefore otherwise interlocutory, was certified as a final judgment by the trial court pursuant to N.C. Gen. Stat. § 1A-1, Rule 54(b) and with a finding of no just reason for delay. Additionally, previous panels of this Court have found a substantial right in a local government’s assertion of sovereign immunity and its implications to a government body. N.C. Gen. Stat. § 1-277 (2003) (allowing appeals from superior court which affect a substantial rightf]); see, e.g., Hedrick v. Rains, 121 N.C. App. 466, 468, 466 S.E.2d 281, 283 (“orders denying dispositive motions grounded on the defense of governmental immunity are immediately reviewable as affecting a substantial right”), aff’d per curiam, 344 N.C. 729, 477 S.E.2d 171 (1996). Therefore, this appeal is properly before us for review.

I. Standard of Review

When reviewing an order of summary judgment, we discern “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to judgment as a matter of law.” N.C. Gen. Stat. § 1A-1, Rule 56(c) (2003); Parish v. Hill, 350 N.C. 231, 236, 513 S.E.2d 547, 550, reh’g denied, 350 N.C. 600, 537 S.E.2d 215 (1999) (finding as a matter of law the proper standard of care of police officer in pursuit is that of “gross negligence,” and that the forecast evidence was insufficient to survive summary judgment under that standard). In doing so, we view the evidence and allegations forecast in a light most favorable to the non-moving party. Id.

Pursuant to plaintiffs appeal, in light of the circumstances of the case at bar, we must determine as a matter of law what the proper standard of care to which defendants’ conduct will be held. Next, pursuant to defendants’ appeal, we must apply that proper standard to determine if there is an issue of fact forecast by the evidence before the trial court of whether defendants breached the proper standard.

In this opinion we hold the proper standard of care to which Officer Kelly was to adhere is that of “gross negligence,” and therefore affirm the portion of the trial court’s summary judgment order dismissing plaintiff’s ordinary negligence claim. Applying that standard, we conclude that the forecast evidence before the court was not sufficient to maintain a claim of gross negligence, and we grant summary judgment in favor of defendants on that basis. Thus, we need not consider plaintiff’s spoliation or constitutional claims as there is no longer an issue of underlying liability to which defendants may be subject, rendering moot these remaining issues. See Anderson v. Assimos, 356 N.C. 415, 416, 572 S.E.2d 101, 102 (2002) (acknowledging the long-held principle of judicial restraint that “the courts of this State will avoid constitutional questions, even if properly presented, where a case may be resolved on other grounds.”).

We now turn to consider the merits of these appeals.

II. Plaintiff’s Appeal: N.C. Gen. Stat. § 20-145

Plaintiff contends that N.C. Gen. Stat. § 20-145 (2003) is inapplicable to the facts and circumstances of this case. In the alternative, she submits that, even if this is the applicable statute, the trial court erred in applying the gross negligence standard of care to Officer Kelly’s conduct. We do not agree.

N.C. Gen. Stat. § 20-145 provides the following:

The speed limitations set forth in this Article shall not apply to vehicles when operated with due regard for safety under the direction of the police in the chase or apprehension of violators of the law or of persons charged with or suspected of any such violation, nor to fire department or fire patrol vehicles when traveling in response to a fire alarm, nor to public or private ambulances and rescue squad emergency service vehicles when traveling in emergencies, nor to vehicles operated by county fire marshals and civil preparedness coordinators when traveling in the performances of their duties. This exemption shall not, however, protect the driver of any such vehicle from the consequence of a reckless disregard of the safety of others.

(Emphasis added.) Our Supreme Court has held that the standard of care a police officer must use when acting within the contours of this statute is that of “gross negligence.” Young v. Woodall, 343 N.C. 459, 462, 471 S.E.2d 357, 359 (1996).

Before our Supreme Court’s opinion in Young, the extent of liability under N.C. Gen. Stat. § 20-145 was unclear. A previous opinion of the Court read N.C. Gen. Stat. § 20-145 to apply the gross negligence standard only to that of the police officer’s speed, stating, “the speed law exemption is effective only when the officer operates his car ‘with due regard to safety’ and does not protect him ‘from the consequences of a reckless disregard of the safety of others.” Goddard v. Williams, 251 N.C. 128, 133, 110 S.E.2d 820, 824 (1959) (emphasis added). Thus, pursuant to Goodard, an officer was held to two different standards of care, gross negligence as to his speed, and ordinary negligence for general operation of the vehicle. However, in Young our Supreme Court clarified that the gross negligence standard applied to both violations of the relevant speed limitations for the vehicle, and to the operation of the vehicle during the event of the justified increased speed. Young, 343 N.C. at 462-63, 471 S.E.2d at 359-60, overruled by Goodard, 251 N.C. at 133, 110 S.E.2d at 824 (1959). The Court stated, “We do not believe the General Assembly intended to provide two different standards of care in one section of the statute.” Young, 343 N.C. at 462, 471 S.E.2d at 359.

Plaintiff submits that Officer Kelly’s conduct was related to an “emergency response,” and thus not governed by N.C. Gen. Stat. § 20-145 which she reads to govern only cases of police pursuit. However, the statute plainly allows for increased speed “in the chase or apprehension of violators of the law or of persons charged with or suspected of any such violation[.]” N.C. Gen. Stat. § 20-145 (emphasis added). We read the statute’s use of “or” to mean an officer is exempt from speed restrictions when going to assist another officer to apprehend a suspect in a single location, even when unrelated to any “chase.” Had the legislature chosen to limit the speed exemption to apprehension of those suspects only produced from a chase, arguably they would have used the conjunction “and.”

Furthermore, another panel of our Court has read this statute to provide the following:

The language of G.S. 20-145 is broad enough to include not only police in direct or immediate pursuit of law violators or suspected violators but also police who receive notice of the pursuit and respond by proceeding to the scene for the purpose of assisting in the chase or apprehension.

State v. Flaherty, 55 N.C. App. 14, 22, 284 S.E.2d 565, 571 (1981) (emphasis added). The issue in Flaherty was whether a police officer, found guilty of manslaughter, was availed of the benefits of a proper jury charge based on N.C. Gen. Stat. § 20-145 where the court asked the jury to apply the standard of ordinary negligence. Id. at 16-17, 284 S.E.2d at 567-68. Finding error, we granted a new trial based on this improper instruction. While the facts of Flaherty did involve a pursuit, the officer in question was responding to a call for assistance in the pursuit and at no time joined in the actual pursuit or even observed the suspect being chased. Id. The Court in Flaherty focused on the defendant’s emergency response and made no mention of any limitation of N.C. Gen. Stat. § 20-145 to cases of a police pursuit.

Lastly, we note that the statute reflects due regard for emergency response situations other than criminal apprehension, e.g., fires and medical emergencies. We believe assisting an officer in peril falls within the statute’s purview as well. Generally, there will be a lesser degree of public risk created in emergency response cases because the speed of the responder does not escalate the level of the imminent peril itself, unlike that of a vehicle “chase.”

Based upon a plain reading of the statute and our prior interpretation of its expanse in Flaherty, we find that Officer Kelly’s conduct in the case at bar was governed by N.C. Gen. Stat. § 20-145.

Next, plaintiff submits that, even if defendant’s emergency response is governed by N.C. Gen. Stat. § 20-145, the gross negligence standard only applies to a responding officer’s speed and not the overall operation of his vehicle. In light of our Supreme Court’s holding in Young and its specific rejection of such a dual standard, we find this argument to be without merit. See Flaherty, 55 N.C. App. at 15, 284 S.E.2d at 565 (where the Court allowed gross negligence to be applied to evidence that the officer ran a red light at the intersection where the accident occurred and the officer failed to activate his blue lights or siren).

Therefore, we affirm the trial court’s grant of summary judgment on plaintiff’s ordinary negligence claim.

III. Defendants’ Appeal: Gross Negligence

Defendants assert that the trial court erred in finding that the forecast evidence presented an issue of fact as to plaintiff’s claim of gross negligence. We agree and dismiss this case on that ground without review of those claims made moot by our summary dismissal.

Pursuant to N.C. Gen. Stat. § 20-145, “[t]he standard of care intended by the General Assembly involves the reckless disregard of the safety of others, which is gross negligence.” Young, 343 N.C. at 462, 471 S.E.2d at 359. Accordingly, for a plaintiff to survive a motion for summary judgment based on a police officer’s violation of this standard, she must forecast evidence that the officer’s conduct was “wanton conduct done with conscious or reckless disregard for the rights and safety of others.” Bullins v. Schmidt, 322 N.C. 580, 583, 369 S.E.2d 601, 603 (1988). “A wanton act is one ‘done of wicked purpose [sic] or when done needlessly, manifesting a reckless indifference for the rights of others.’” Fowler v. N.C. Dept. of Crime Control & Public Safety, 92 N.C. App. 733, 736, 376 S.E.2d 11, 13, disc. review denied, 324 N.C. 577, 381 S.E.2d 773 (1989) (citation omitted).

Citing Clayton v. Branson, 153 N.C. App. 488, 570 S.E.2d 253 (2003), plaintiff asserts that the trial court was correct in finding an issue of fact as to whether Officer Kelly’s conduct rose to a level of gross negligence. In that case we found an issue of fact that a police officer’s conduct breached a level of gross negligence where evidence suggested plaintiff was placed in the back of a police squad car in custody and ordered to sit in a fashion where he was unable to put on his seatbelt. Id. at 490, 570 S.E.2d at 255. The officer then proceeded to drive through heavy traffic at a rate of speed two times the speed limit. Id. at 492-93, 570 S.E.2d at 256. In that case, we affirmed the trial court’s determination that an issue of material fact existed as to whether the officer was acting within the scope of his official duties for such conduct. Id. In Clayton, we did not address the gross negligence standard in light of N.C. Gen. Stat. § 20-145, nor was it apparently argued as such. Furthermore, there are no facts presented in the opinion suggesting the officer’s high rate of speed would fall within the justification of N.C. Gen. Stat. § 20-145. Thus, we find Clayton to be of little legal or factual guidance to the case at bar.

Rather, in determining whether an officer was grossly negligent in police pursuit or for purposes of apprehension pursuant to N.C. Gen. Stat. § 20-145, our courts have looked to a number of factors to determine whether the claim was sufficient to survive summary judgment. See Norris v. Zambito, 135 N.C. App. 288, 294, 520 S.E.2d 113, 117 (1999) (citing an extensive list of cases for the factors considered by this Court and our Supreme Court for a determination of gross negligence). The three primary factors summarized by our Court in Norris were found to be: 1) the reason for the officer to be in pursuit; 2) the probability of harm to the public in light of such pursuit and its continuation; and 3) evidence with respect to the law enforcement officer’s conduct during the pursuit. Id. at 294-95, 520 S.E.2d at 117-18.

Applying these factors to the forecast evidence of the case at bar and viewing such in a light most favorable to plaintiff, we conclude that plaintiff did not demonstrate the existence of a genuine issue of material fact as to gross negligence on the part of Officer Kelly, and judgment as a matter of law should have been rendered denying plaintiff’s gross negligence claim against defendants. In response to Officer Fox’s two distress calls, Officer Kelly responded to apprehend the threatening suspect and defuse what he believed to be a life or death situation of a fellow Durham police officer. In pursuit of the situation, there was some dispute as to what speed Officer Kelly was alleged to have been traveling. In a light most favorable to plaintiff, this speed varied between 55 and 74 miles per hour on a road where the speed limit was 35 miles per hour. Zambito, 135 N.C. App. at 291, 520 S.E.2d at 115 (officer not grossly negligent where he testified his car never exceeded 65 miles per hour where the posted speed limit was 35 miles per hour and the pursuit was of a drunk driver lasting less than a mile). Moreover, the apparent probability of harming the public was low at the time of the emergency response; it was a cool, clear, and dry day, with a bright sun and the officer had activated his blue lights and siren to respond to an emergency only 2-% miles from his location. Plaintiff’s own deposition shows she heard sirens before crossing the road. Lastly, while there was evidence of Officer Kelly’s negligent conduct when going airborne over the railroad tracks before entering the intersection, he did not violate the traffic signal in going through the intersection. Plaintiff, in violation of the traffic signal and outside of any designated crosswalk, was at the double yellow line of the road when observed by Officer Kelly at a distance of 300-332 feet. At that point, she was two-thirds of the way across Liberty Street. Plaintiff has forecast no evidence of wanton conduct to rebut the material fact of record that Officer Kelly steered his vehicle into the wrong lane of traffic where there was a larger area to evade hitting plaintiff, in due regard for plaintiff’s safety and in anticipation that she would attempt to get out of the traffic lanes by the shortest distance possible. Defendants’ forecast evidence showed that this evasive maneuver was consistent with the emergency response procedures of law enforcement officers. Plaintiff’s forecast evidence on this point suggested Officer Kelly “breach[ed] his duty of care” when failing to apply his brakes or slow his vehicle to avoid collision. Thus, plaintiff raises an issue of fact only as to a claim in negligence, which we find to be immaterial to the standard of gross negligence in this case. Norris, 135 N.C. App. at 291, 520 S.E.2d at 115 (where the Court determined “evidence of violation [of the city’s pursuit policy] would not show gross negligence. A violation of voluntarily adopted safety policies is merely some evidence of negligence and does not conclusively establish negligence.”). Thus, we find the forecast evidence of Officer Kelly’s conduct bereft of a material fact of wickedness or of any indifference for the rights or safety of others. See Young, 343 N.C. at 460, 471 S.E.2d at 358 (the Supreme Court reversing the trial court’s denial of summary judgment and finding no gross negligence as a matter of law where a police officer ran through a yellow-signaled intersection at a high rate of speed and without his blue lights activated, crashing into an oncoming car); c.f., D’Alessandro v. Westall, 972 F. Supp. 965, 971-76 (W.D.N.C. 1999) (the District Court, in applying the gross negligence standard under N.C. Gen. Stat. § 20-145 as interpreted by North Carolina appellate courts, found summary judgment was not proper where the forecast evidence showed an extensive list of violations of police procedures by two different police agencies in a dangerous and extensive high speed chase; that the pursuing officers had with them young, non-commissioned, “explorer scouts” riding as part of a program to introduce prospective deputies; and that the officers were on notice that a ten-month-old infant was in the fleeing vehicle.).

Because plaintiff has not forecast sufficient evidence to show a genuine issue of material fact as to gross negligence on the part of Officer Kelly, defendants are entitled to judgment as a matter of law. We hereby direct the trial court to enter summary judgment dismissing plaintiffs claims against defendants as all claims are made moot by this opinion.

Affirmed in part, reversed in part.

Judge ELMORE concurs. Judge LEVINSON concurs in part and dissents in part.

1 . Plaintiff has not appealed this dismissal.