McClease v. Dover Volunteer Fire Dept. , 260 N.C. App. 81 ( 2018 )


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  •               IN THE COURT OF APPEALS OF NORTH CAROLINA
    No. COA17-1123
    Filed: 19 June 2018
    Craven County, No. 16 CVS 265
    JESSIE M. MCCLEASE, Plaintiff,
    v.
    DOVER VOLUNTEER FIRE DEPT., Defendant.
    Appeal by plaintiff from order entered 2 June 2017 by Judge John E. Nobles in
    Craven County Superior Court. Heard in the Court of Appeals 4 April 2018.
    J. Elliott Field for plaintiff-appellant.
    Sumrell, Sugg, Carmichael, Hicks and Hart, P.A., by Scott C. Hart, for
    defendant-appellee.
    ZACHARY, Judge.
    Jessie McClease (“plaintiff”) appeals from an order granting Dover Volunteer
    Fire Department’s (“defendant” or “Dover VFD”) motion for summary judgment on
    plaintiff’s claims for negligence and negligent infliction of emotional distress. On
    appeal, plaintiff argues that the trial court erred by granting summary judgment in
    favor of defendant because genuine issues of material fact existed as to whether
    defendant was negligent in that defendant: (1) failed to respond to the structure fire
    in a timely manner, and (2) failed to maintain or otherwise ensure that the North
    MCCLEASE V. DOVER VOLUNTEER FIRE DEPT.
    Opinion of the Court
    Oak Street fire hydrant was working properly. After careful review, we affirm the
    trial court’s order.
    Background
    Plaintiff is a former resident of the Town of Dover, which is located in Craven
    County, North Carolina. In 1983, plaintiff and her husband purchased a residence on
    North Oak Street in Dover, where they lived until the residence was destroyed by a
    fire on 3 August 2013. Defendant is a non-profit corporation established under
    Chapter 55A of the North Carolina General Statutes that “provides fire suppression
    services to a six square mile area within Craven County.” Plaintiff’s residence was
    located within defendant’s fire district.
    On 14 October 2015, plaintiff filed a verified complaint in which she asserted
    claims for negligence and negligent infliction of emotional distress against defendant
    and the Town of Dover arising from a structure fire on 3 August 2013 that resulted
    in the destruction of plaintiff’s residence. Plaintiff specifically alleged that defendant
    was negligent in that defendant (1) failed to respond to the structure fire in a timely
    manner, and (2) failed to maintain or otherwise ensure that the North Oak Street fire
    hydrant near her home was working properly.
    In support of her claims, plaintiff submitted three affidavits. In the first
    affidavit, plaintiff’s niece, Monica Garris, asserts that when she arrived at plaintiff’s
    residence on 3 August 2013, (1) plaintiff’s house “was already burned-down to the
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    Opinion of the Court
    ground”; (2) “[t]he fire was out and the house was gone”; (3) “the Dover [] VFD was
    not there”; (4) “Dover VFD came after I arrived”; and (5) “[w]hen Dover VFD got there,
    they were asking the other fire departments . . . what happened.” In the second
    affidavit, plaintiff’s former son-in-law, James Mock, asserts that when he arrived at
    plaintiff’s residence on 3 August 2013, (1) “[t]he house was engulfed in flames”; and
    (2) “I did not see the Dover VFD at the scene.” In the third affidavit, Burt Staton, a
    former volunteer for defendant, asserts that (1) he heard a fire alarm for fire
    assistance on Oak Street and drove toward defendant’s fire station; (2) there was no
    response from defendant for assistance after dispatch; (3) when he arrived at the
    scene, he saw Cove City Volunteer Fire Department had arrived; (4) Cove City
    Volunteer Fire Department could not use the fire hydrant in front of plaintiff’s house
    so they hooked up a fire hydrant approximately 20 feet away; and (5) Dover VFD
    finally arrived and was followed by the Jones County Volunteer Fire Department,
    Fort Barnwell Volunteer Fire Department, and Township 9 Volunteer Fire
    Department. Staton asserted that he stayed at the scene for approximately thirty
    minutes.
    The affidavits submitted by defendant and the parties’ pleadings allege the
    following additional facts: Craven County’s Communications Center is responsible
    for receiving all emergency 9-1-1 calls within the county and for dispatching the
    appropriate response units. If a dispatch remains unanswered for two minutes, the
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    MCCLEASE V. DOVER VOLUNTEER FIRE DEPT.
    Opinion of the Court
    dispatcher will contact additional response units. The dispatch keeps an electronic
    “Detail Call For Services Report” (“Report”) of the total communications made to and
    from all responding emergency personnel.
    When a structure fire is reported, Craven County has an automatic aid policy
    pursuant to which more than one fire department is automatically dispatched. When
    a structure fire is reported within defendant’s fire district, the Cove City Volunteer
    Fire Department and the Fort Barnwell Volunteer Fire Department are also
    dispatched. Because defendant operates with an entirely volunteer staff, there is no
    internal policy requiring staffing of the station house where defendant’s apparatuses
    are stored. However, each volunteer is issued a pager by which the volunteer is
    notified when an emergency call is received from within defendant’s fire district.
    Additionally, defendant’s leadership, including the Fire Chief, Assistant Chief, and
    Captains, keep VHF radios in their personal vehicles with which they respond to the
    Communications Center whenever a call is received. A response from defendant’s
    leadership via VHF radio is transmitted to the other volunteers’ pagers to inform
    them that an emergency call has been received and that defendant is responding.
    Upon confirmation that defendant is responding to an emergency, its
    volunteers may proceed either to defendant’s fire station or directly to the location of
    the emergency, whichever is closer to their location at the time. As defendant’s
    volunteers could be spread throughout the county upon dispatch, many of its
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    Opinion of the Court
    volunteers keep their “turnout-gear” in their personal vehicles rather than at the fire
    house to put on at the scene of the fire.
    On 3 August 2013, plaintiff’s husband, Mr. McClease, was mowing grass in the
    yard when he observed smoke coming from the attic of plaintiff’s residence and
    realized that the residence was on fire. He immediately asked the neighbor to call 9-
    1-1. At 3:07 p.m., the Communications Center received an emergency call from
    plaintiff’s neighbor reporting that plaintiff’s residence was on fire. At 3:08 p.m., the
    Communications Center placed a dispatch call to defendant. Pursuant to the
    automatic aid agreement, the Cove City Volunteer Fire Department and the Fort
    Barnwell Volunteer Fire Department were dispatched at that time as well.
    Assistant Chief Eric Pitts and his brother, Captain Ethan Pitts, were at their
    parents’ house when the dispatch came through. They proceeded directly to plaintiff’s
    residence, arriving at 3:11 p.m. according to the Communications Center Report.
    Defendant’s Captain Tyler Whitney was already at the scene performing a “size-up”
    to determine the appropriate course of action. Capt. Pitts remained at the scene with
    Capt. Whitney, while Asst. Chief Pitts proceeded to defendant’s fire station to get a
    pumper truck.
    Asst. Chief Pitts returned with the pumper truck at 3:21 p.m., and defendant’s
    volunteers hooked up the apparatus to a fire hydrant on Johnson Street,
    approximately 500 feet from plaintiff’s residence. Defendant had notified the Town
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    Opinion of the Court
    of Dover that the hydrant across from plaintiff’s residence was inoperable
    approximately a month prior to the fire. However, according to Asst. Chief Pitts, even
    if the McClease hydrant had been operable, “[i]t was safer and more efficient to
    simply pull water from the Johnson Street hydrant” because “[c]onnecting either
    apparatus to the McClease fire hydrant would [have] require[d] a hose to be run
    around the apparatus thereby creating a trip hazard and limiting the mobility of both
    apparatus at the scene.”
    Defendant filed its motion for summary judgment on 12 May 2017, which the
    trial court granted on 2 June 2017. Plaintiff gave timely notice of appeal.
    Standard of Review
    This Court reviews a trial court’s order granting or denying summary
    judgment de novo. In re Will of Jones, 
    362 N.C. 569
    , 573, 
    669 S.E.2d 572
    , 576 (2008).
    Summary judgment is proper where “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 a
    judgment as a matter of law.” N.C. Gen. Stat. § 1A-1, Rule 56(c) (2017). “Summary
    judgment is not appropriate where matters of credibility and determining the weight
    of the evidence exist.” Draughon v. Harnett County Bd. of Educ., 
    158 N.C. App. 208
    ,
    212, 
    580 S.E.2d 732
    , 735 (2003) (citing Moore v. Fieldcrest Mills, Inc., 
    296 N.C. 467
    ,
    470, 
    251 S.E.2d 419
    , 422 (1979)).
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    Opinion of the Court
    The burden of proof governing motions for summary judgment is well
    established. Initially, the movant “bears the burden of establishing that there is no
    triable issue of material fact.” DeWitt v. Eveready Battery Co., 
    355 N.C. 672
    , 681, 
    565 S.E.2d 140
    , 146 (2002) (citing Nicholson v. American Safety Util. Corp., 
    346 N.C. 767
    ,
    774, 
    488 S.E.2d 240
    , 244 (1997)). The movant may meet this burden “ ‘by proving
    that an essential element of the opposing party’s claim is non-existent, or by showing
    through discovery that the opposing party cannot produce evidence to support an
    essential element of his claim . . . .’ ” 
    Id. (quoting Collingwood
    v. G.E. Real Estate
    Equities, 
    324 N.C. 63
    , 66, 
    376 S.E.2d 425
    , 427 (1989)). “ ‘[O]nce the party seeking
    summary judgment makes the required showing, the burden shifts to the nonmoving
    party to produce a forecast of evidence demonstrating specific facts, as opposed to
    allegations, showing that he can at least establish a prima facie case at trial.’ ”
    Pacheco v. Rogers & Breece, Inc., 
    157 N.C. App. 445
    , 448, 
    579 S.E.2d 505
    , 507 (2003)
    (quoting Gaunt v. Pittaway, 
    139 N.C. App. 778
    , 784-85, 
    534 S.E.2d 660
    , 664 (2000),
    cert. denied, 
    353 N.C. 371
    , 
    547 S.E.2d 810
    (2001)).
    “Summary judgment is seldom appropriate in a negligence action. A trial court
    should only grant such a motion where the plaintiff’s forecast of evidence fails to
    support an essential element of the claim.” Wallen v. Riverside Sports Ctr., 173 N.C.
    App. 408, 411, 
    618 S.E.2d 858
    , 861 (2005) (citing Bostic Packaging, Inc. v. City of
    Monroe, 
    149 N.C. App. 825
    , 830, 
    562 S.E.2d 75
    , 79 (2002)).            Nonetheless,“[a]
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    ‘[p]laintiff is required to offer legal evidence tending to establish beyond mere
    speculation or conjecture every essential element of negligence, and upon failure to
    do so, [summary judgment] is proper.’ ” Frankenmuth Ins. v. City of Hickory, 235 N.C.
    App. 31, 34, 
    760 S.E.2d 98
    , 101 (2014) (quoting Young v. Fun Services-Carolina, Inc.,
    
    122 N.C. App. 157
    , 162, 
    468 S.E.2d 260
    , 263 (1996)).
    Discussion
    I. Negligence Claim
    Plaintiff argues that the trial court erred by granting summary judgment for
    defendant on plaintiff’s claim for negligence because there existed genuine issues of
    material fact.   After careful review, we conclude that plaintiff failed to produce
    evidence of genuine issues for trial on the issue of negligence.
    It is well established that in order to establish a prima facie case of negligence
    against the defendant, the plaintiff must demonstrate that “(1) the defendant owed
    the plaintiff a duty of care; (2) the defendant’s conduct breached that duty; (3) the
    breach was the actual and proximate cause of the plaintiff’s injury; and (4) plaintiff
    suffered damages as a result of the injury.” 
    Wallen, 173 N.C. App. at 411
    , 618 S.E.2d
    at 861 (quoting Vares v. Vares, 
    154 N.C. App. 83
    , 87, 
    571 S.E.2d 612
    , 615 (2002), disc.
    review denied, 
    357 N.C. 67
    , 
    579 S.E.2d 576-77
    (2003)).
    In the present case, plaintiff alleged that defendant was negligent in that
    defendant (1) failed to respond to the structure fire in a timely manner, and (2) failed
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    to maintain or otherwise ensure that the North Oak Street fire hydrant was working
    properly. However, plaintiff failed to produce evidence of each element of these
    claims.
    There was no evidence before the trial court that defendant failed to respond
    in a timely manner. The record established that defendant responded within three
    minutes of the dispatch and was the primary unit at the scene of the fire. This is a
    reasonable response time and does not amount to a breach of the duty of reasonable
    care. Moreover, the affidavits submitted by plaintiff do not support her claim that
    defendant did not respond in a timely manner. Garris was not at the scene until after
    the fire was extinguished, and Mock merely asserts that he “did not see [defendant]”
    at the scene, which does not establish that defendant was not present. Staton’s
    affidavit states that defendant arrived shortly after Cove City Volunteer Fire
    Department; defendant’s apparatus did arrive after a Cove City Rescue Squad’s
    ambulance, but this does not establish that none of defendant’s volunteers were on
    scene and responding to the fire.
    In addition, there was no evidence before the trial court that defendant acted
    in a negligent manner with regard to the fire hydrant in front of plaintiff’s residence.
    Plaintiff failed to put forth any evidence that defendant had a duty to maintain the
    fire hydrant. The evidence showed that it was the duty of the Town of Dover to
    maintain the fire hydrant, not that of defendant. Moreover, plaintiff produced no
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    Opinion of the Court
    evidence that the inoperability of the fire hydrant was the proximate cause of
    plaintiff’s damages. In fact, the evidence showed that defendant would not have used
    this fire hydrant, even if it had been operable at the time of the fire.
    Plaintiff failed to meet her burden to set forth specific facts establishing every
    element of her negligence claim. Therefore, defendant was entitled to judgment as a
    matter of law.
    II. Claim for Negligent Infliction of Severe Emotional Distress
    Plaintiff also argues that the trial court erred by granting summary judgment
    for defendant on plaintiff’s claim for negligent infliction of emotional distress because
    there existed genuine issues of material fact. We conclude that plaintiff failed to
    produce specific facts showing any genuine issues for trial on this claim as well.
    A claim of negligent infliction of emotional distress requires proof of negligent
    conduct. Pittman v. Hyatt Coin & Gun, Inc., 
    224 N.C. App. 326
    , 330, 
    735 S.E.2d 856
    ,
    858-59 (2012). Given that plaintiff failed to present evidence establishing a prima
    facie negligence claim, she cannot recover on this cause of action.
    Furthermore, no evidence tends to show that plaintiff suffered severe emotional
    distress. Plaintiff attended one appointment with a counselor and never filled the
    prescription that the counselor provided. This does not establish a “severe and
    disabling emotional or mental condition,” as such is defined under North Carolina
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    Opinion of the Court
    law. Wilkerson v. Duke Univ., 
    229 N.C. App. 670
    , 675-76, 
    748 S.E.2d 154
    , 159 (2013)
    (citation and quotation marks omitted).
    Plaintiff failed to produce evidence to support a prima facie case of negligent
    infliction of emotional distress. Therefore, defendant was entitled to judgment as a
    matter of law.
    III. Immunity
    The issues of sovereign, governmental, and statutory immunity were raised in
    the parties’ complaint and answer. However, neither party addresses these issues in
    their briefs submitted to this Court. Accordingly, we do not consider these issues on
    appeal.
    Conclusion
    For the reasons set forth above, the trial court’s summary judgment order is
    AFFIRMED.
    Judges ELMORE and TYSON concur.
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