Dobrowolska ex rel. Dobrowolska v. Wall

• Decision Date: 16 May 2000
• Docket Number: No. COA98-1533.,COA98-1533.
• Parties: Marta DOBROWOLSKA, a Minor, and Pawel Dobrowolski, a Minor, by and through their Guardian Ad Litem, Robert Dobrowolski, and Robert Guilford County DOBROWOLSKI, Individually, Plaintiffs, v. Michael W. WALL and The City of Greensboro, Defendants.
• Court: North Carolina Court of Appeals

530 S.E.2d 590

138 NC App. 1

Marta DOBROWOLSKA, a Minor, and Pawel Dobrowolski, a Minor, by and through their Guardian Ad Litem, Robert Dobrowolski, and Robert Guilford County DOBROWOLSKI, Individually, Plaintiffs, v. Michael W. WALL and The City of Greensboro, Defendants.

No. COA98-1533.

Court of Appeals of North Carolina.

May 16, 2000.

Fisher, Clinard & Craig, PLLC, by John O. Craig, III and Shane T. Stutts, High Point, for plaintiff-appellants.

Hill, Evans, Duncan, Jordan & Davis, PLLC, by Polly D. Sizemore and Joseph P. Gram, Greensboro, for defendant-appellees.

HUNTER, Judge.

Plaintiffs appeal from an order granting defendants Michael W. Wall ("Wall") and the City of Greensboro ("City") summary judgment. The issues relevant to this appeal are whether defendants may assert governmental immunity for damages incurred by plaintiffs in an auto accident with Wall while he was driving the City's van; whether the City participates in a local government risk pool; and, whether the City has violated plaintiffs' equal protection and substantive due process rights by its assertion of governmental immunity as to their claims while it has admitted settling claims of similar tort claimants. We affirm in part and reverse in part.

Evidence submitted to the trial court indicated that on Monday, 13 February 1995, defendant Wall, a Greensboro police officer, was driving a van owned by the City when he struck a vehicle operated by Alicja Dobrowolska. Her children, the two minor plaintiffs Marta and Pawel Dobrowolska, were passengers in the vehicle and were injured as a result of the accident.

Wall was on his way to work when the accident occurred. He had driven the van home over the weekend because he had taken it for repairs the preceding Friday afternoon, and returning to work that same day would have caused him to work past his shift. Wall also performed minor repairs while the van was at his home during the weekend, for which he received permission by his supervisor.

This suit was subsequently filed, wherein plaintiffs made claims against defendants for Wall's negligence in the auto accident and violation of a city ordinance, waiver of governmental immunity by the City due to participation in a local government risk pool, and the City's violation of plaintiffs' equal protection and substantive due process rights. On 14 August 1998, the trial court granted summary judgment to defendants on all claims, stating in pertinent part:

IT APPEARING TO THE COURT that at the time of the accident defendant Michael W. Wall was performing a duty as a police officer, a purely governmental function; that the City of Greensboro has not waived governmental immunity by the purchase of insurance for claims of $2,000,000.00 or less and $4,000,000.00 or more; that plaintiffs and defendants stipulate that plaintiffs' damages do not exceed $2,000,000.00; that the City of Greensboro does not participate in a risk pool; that the Local Government Excess Liability Fund, Inc. is not an illegal risk pool and therefore, [defendants] are entitled as a matter of law to summary judgment ... [.]

The court concluded that there was no showing that Wall acted outside of and beyond the scope of his duties as a police officer in returning the police van to storage, and therefore he was immune from liability in his individual capacity. It also ruled that the City was not a person under U.S.C.A. § 1983 when the remedy sought is monetary damages, thus plaintiffs' substantive due process and equal protection claims were dismissed.

First, we note that summary judgment is the device whereby judgment is rendered if the pleadings, depositions, interrogatories, and admissions on file, together with any affidavits, 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.R. Civ. P. 56. "The party moving for summary judgment has the burden of clearly establishing the lack of any triable issue of material fact by the record properly before the court." Johnson v. Insurance Co., 300 N.C. 247, 252, 266 S.E.2d 610, 615 (1980).

Plaintiffs first contend that the trial court erred in granting summary judgment on the basis of governmental immunity. They argue that defendants waived any defense under this doctrine because defendant City was engaged in the proprietary function of vehicle repair and/or modification rather than a governmental function at the time of the collision.

The rule of governmental immunity was adopted by the North Carolina Supreme Court in Moffit v. Asheville, 103 N.C. 237, 9 S.E. 695 (1889). The rule set out in Moffit and stated with approval by our Supreme Court in Steelman v. City of New Bern, 279 N.C. 589, 184 S.E.2d 239 (1971), is as follows:

"The liability of cities and towns for the negligence of their officers or agents, depends upon the nature of the power that the corporation is exercising, when the damage complained of is sustained. A town acts in the dual capacity of an imperium in imperio, exercising governmental duties, and of a private corporation enjoying powers and privileges conferred for its own benefit.

"When such municipal corporations are acting (within the purview of their authority) in their ministerial or corporate character in the management of property for their own benefit, or in the exercise of powers, assumed voluntarily for their own advantage, they are impliedly liable for damage caused by the negligence of officers or agents, subject to their control, although they may be engaged in some work that will enure to the general benefit of the municipality....

"On the other hand, where a city or town in exercising the judicial, discretionary or legislative authority, conferred by its charter, or is discharging a duty, imposed solely for the benefit of the public, it incurs no liability for the negligence of its officers, though acting under color of office, unless some statute (expressly or by necessary implication) subjects the corporation to pecuniary responsibility for such negligence...."

Id. at 592-93, 184 S.E.2d at 241-42 (quoting Moffit, 103 N.C. 237, 254, 9 S.E. 695, 697). The Court in Steelman held that a city's operation of its public street lighting system was a governmental function rather than proprietary, thus the city was completely immune from liability for an individual's death due to the city's negligent maintenance of a guy wire. Steelman, 279 N.C. 589, 184 S.E.2d 239. Based on Moffit and its progeny, "[t]he rule that a municipal corporation is immune to suit for negligence in the performance of a governmental function of the municipality, but is liable if it is fulfilling a function of a proprietary character is well settled in this jurisdiction." Glenn v. Raleigh, 246 N.C. 469, 473, 98 S.E.2d 913, 916 (1957) (emphasis in original).

In the present case, there are no genuine issues of material fact as to why the van was in use at the time of the accident. It was being returned to the City after repairs by defendant Wall and a repair shop at the same time it was transporting a city police officer to work. A similar factual situation occurred in Lewis v. Hunter, 212 N.C. 504, 193 S.E. 814 (1937), where a vehicle used by a city in exercise of its police power was involved in an accident after being returned to the police garage after a repair. In that case, our Supreme Court stated:

[I]t is contended by the plaintiff that since Spear, the driver of the Terraplane automobile, was not invested with any police authority, the automobile was not in use at the time in the performance of any police duty. While it is true the driver of the car was not a policeman, he was employed by the hour by the city to keep in proper repair and condition the radio on said automobile, and it was the function of the city in the exercise of its police power to maintain the radio, and in the performance of the work for which he was employed Spear was performing duties incident to the police power of the city, whether he was engaged in repairing or testing the radio or whether in returning the automobile to the police garage after such repairing or testing, and anything that he did for the city with the automobile in the scope of his employment was done as an incident to the police power of the city—a purely governmental function.

Id. at 509, 193 S.E. at 817. Likewise, the van in the present case was being returned to the City's garage for the City's use after it had been repaired. Additionally, a police officer was using the van to report to duty for the City. Thus, we hold as a matter of law that the repair and subsequent return of the van was incident to the police power of the City, a governmental function. Accordingly, we overrule plaintiffs' first assignment of error, concluding that the City and Wall are both immune from liability because Wall's negligence took place while he was performing a governmental function for the City. In so holding, we note that the trial court concluded that Wall did not act outside of or beyond the scope of his duties as a police officer in returning the police van to storage, and was thus immune from liability in his individual capacity. Plaintiffs did not assert error on this issue. Therefore, the trial court's ruling on this issue became the law of the case. Pack v. Randolph Oil Co., 130 N.C.App. 335, 337, 502 S.E.2d 677, 678 (1998) (citing Duffer v. Dodge, Inc., 51 N.C.App. 129, 130, 275 S.E.2d 206, 207 (1981)

); Sutton v. Quinerly; Sutton v. Craddock; Sutton v. Fields, 231 N.C. 669, 677, 58 S.E.2d 709, 714 (1950) (the law of the case doctrine is the "little brother" of res judicata); 18 James W. Moore et al., Moore's Federal Practice § 134.20[1] (3d ed.1997) (law of the case doctrine is "similar" to collateral estoppel "in that it limits relitigation of an issue once it has been decided").

Next, plaintiffs contend that the trial court erred in granting summary judgment because the City has waived governmental...