Estate of Graham v. Lambert
| Decision Date | 15 March 2022 |
| Docket Number | COA21-15 |
| Parties | ESTATE OF Gregory GRAHAM, Plaintiff, v. Ashton LAMBERT, individual and official capacity, Fayetteville Police Department and City of Fayetteville, Defendants. |
| Court | North Carolina Court of Appeals |
Kevin Vidunas, for plaintiff-appellee.
Steven A. Bader, Raleigh, for defendants-appellants.
¶ 1 We review an order from the trial court that denied the motion for summary judgment filed by defendants Officer Ashton Lambert and the City of Fayetteville (collectively defendants). Therefore, the following recitation of facts presents the evidence in the light most favorable to plaintiff. See Peter v. Vullo , 234 N.C. App. 150, 153, 758 S.E.2d 431, 434 (2014).
¶ 2 On 24 July 2018, Officer Lambert was on-duty as a police officer with the City of Fayetteville Police Department. At approximately 11:53 p.m., Officer Lambert was dispatched to a domestic violence incident involving a firearm. In responding to the call, Officer Lambert traveled westbound in the middle straight lane along Raeford Road in a marked police cruiser. Officer Lambert traveled at a speed of 58 miles per hour, the speed limit on Raeford Road is 45 miles per hour. Officer Lambert did not activate his emergency siren or blue lights.
¶ 3 At approximately the same time on 24 July 2018, Gregory Graham walked across Raeford Road, between the intersections of Raeford Road and Sandalwood Drive and Eucalyptus Road in Fayetteville, North Carolina. Mr. Graham crossed three eastbound lanes, stopped on the median, looked to ensure traffic was clear, and then proceeded to cross the westbound lanes of Raeford Road. Mr. Graham crossed at a portion of road that did not have a pedestrian crosswalk, but was well lit.
¶ 4 While Mr. Graham was crossing Raeford Road he was struck and killed by Officer Lambert's police cruiser. At the point of impact Officer Lambert had slowed his vehicle to 53 miles per hour. Footage from Officer Lambert's body camera shows that while he was traveling down Raeford Road, Officer Lambert looked at and touched his laptop computer. Additionally, twice, in the moments before impact, Officer Lambert's vehicle slightly deviated from the lane it was traveling in. At the time of the accident, traffic was light, but there were a few other cars on the road. Raeford Road is straight and flat with no curves and the weather was clear with no rain the night of the accident.
Additionally, at the time of the accident Mr. Graham's blood alcohol content was 0.31.
¶ 5 On 13 June 2019, the Estate of Mr. Graham ("plaintiff") filed a complaint against Officer Lambert, in his individual and official capacity, the City of Fayetteville, and the Fayetteville Police Department. Plaintiff alleged claims of negligence, gross negligence, and wrongful death. On 19 August 2020, defendants filed an answer to plaintiff's complaint. In their answer, defendants moved to dismiss the claims against defendant Fayetteville Police Department as an improper party, moved to dismiss plaintiff's complaint pursuant to Rule 12(b)(6) of the North Carolina Rules of Civil Procedure, and asserted defenses of sovereign and governmental immunity, and public official immunity. Defendants also asserted that plaintiff's claims are barred by contributory negligence and gross contributory negligence. On 11 September 2019, plaintiff responded to defendants’ answer.
¶ 6 Defendants filed a motion for summary judgment on 6 March 2020. Defendants reasserted that the claims against the Fayetteville Police Department should be dismissed as an improper party. Defendants also asserted that the claims against the City of Fayetteville and Officer Lambert, in his official capacity, are barred by governmental immunity and that the claims against Officer Lambert, in his individual capacity, are barred by public official immunity. Defendants also argued they are entitled to summary judgment because there is no evidence Officer Lambert acted in a grossly negligent manner, plaintiff's claims are barred by plaintiff's own contributory negligence, plaintiff's claims are barred by the doctrine of sudden emergency, and that punitive damages are not available against a municipality or officers in their official capacity.
¶ 7 Defendants’ motion for summary judgment was heard in Cumberland County Superior Court on 13 July 2020. The trial court concluded that the Fayetteville Police Department is not a proper party to the action and, thus, granted summary judgment in favor of defendant Fayetteville Police Department. However, the trial court concluded there are genuine issues of material fact as to the claims against defendants Officer Lambert and the City of Fayetteville and denied their motions for summary judgment. Defendants Officer Lambert and the City of Fayetteville gave written notice of appeal on 7 August 2020.
¶ 8 On appeal, defendants argue the City of Fayetteville has not waived governmental immunity, Officer Lambert is entitled to public official immunity, plaintiff did not present evidence of gross negligence, and plaintiff's contributory negligence bars his suit. We conclude that plaintiff has failed to present evidence of gross negligence and that defendants Officer Lambert and the City of Fayetteville are entitled to summary judgment.
¶ 9 "Our standard of review of an appeal from summary judgment is de novo ; such judgment is appropriate only when the record shows 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.’ " In re Will of Jones , 362 N.C. 569, 573, 669 S.E.2d 572, 576 (2008) (quoting Forbis v. Neal , 361 N.C. 519, 523-24, 649 S.E.2d 382, 385 (2007) ).
¶ 10 Defendants acknowledge that this appeal is interlocutory. However, defendants assert that the order denying their motion for summary judgment affected a substantial right and is immediately appealable. Typically, the denial of a motion for summary judgment is not immediately appealable, as it is interlocutory. See Sharpe v. Worland , 351 N.C. 159, 161-62, 522 S.E.2d 577, 579 (1999). However, denial of a motion for summary judgment on the grounds of governmental immunity is immediately appealable. Epps v. Duke Univ. , 122 N.C. App. 198, 201, 468 S.E.2d 846, 849, rev. denied , 344 N.C. 436, 476 S.E.2d 115 (1996). Additionally, in the interest of judicial economy we will consider the entirety of defendants’ appeal. See Block v. Cnty. of Person , 141 N.C. App. 273, 277, 540 S.E.2d 415, 419 (2000) ; Houpe v. City of Statesville , 128 N.C. App. 334, 340, 497 S.E.2d 82, 87 (1998).
¶ 11 Defendants first argue that the City of Fayetteville has not waived its governmental immunity. "[A] municipality may waive its immunity from tort liability for governmental activities by purchasing liability insurance." Anderson v. Town of Andrews , 127 N.C. App. 599, 602, 492 S.E.2d 385, 387 (1997) ; N.C. Gen. Stat. § 160A-485(a) (2020). To state a claim against the municipality a plaintiff must allege "waiver of immunity by the purchase of insurance." Id. (). Defendants argue that plaintiff's complaint failed to allege waiver of immunity, thus immunity was not waived.
¶ 12 The plaintiff does not need to explicitly state the word "waiver" to allege a waiver of immunity by purchase of insurance. See id. at 603, 492 S.E.2d at 387. Under the requirements of notice pleading the complaint need only give notice to the defendants so that they understand a waiver of immunity has been alleged. Id.
¶ 13 Here, the complaint does not specifically mention waiver of immunity or explicitly mention the applicable insurance policy. However, the complaint does state multiple times that the action is "brought against the Defendant City pursuant to N.C.G.S. § 160A-485" and that "Defendant City shall be held liable pursuant to ... N.C.G.S. § 160A-485." Section 160A-485 is the statute that gives a municipality the ability to purchase liability insurance and states that if the municipality does purchase liability insurance governmental immunity is waived. N.C. Gen. Stat. § 160A-485. We hold that the complaint is sufficient to give notice to defendants that plaintiff is alleging a waiver of immunity because it states the action is brought and that defendants are liable pursuant to § 160A-485. Therefore, governmental immunity was waived.
¶ 14 Defendants next argue that Officer Lambert has public official immunity for the claims brought against him in his individual capacity. "As long as a public officer lawfully exercises the judgment and discretion with which he is invested by virtue of his office, keeps within the scope of his official authority, and acts without malice or corruption, he is protected from liability." Smith v. State , 289 N.C. 303, 331, 222 S.E.2d 412, 430 (1976) (citations omitted). Public official immunity "serves to protect officials from individual liability for mere negligence, but not for malicious or corrupt conduct, in the performance of their official duties." Thompson v. Town of Dallas , 142 N.C. App. 651, 655, 543 S.E.2d 901, 904-05 (2001) (citation omitted) (emphasis in original).
¶ 15 The capacity in which a defendant is sued dictates what immunity may be available to them. See Est. of Long v. Fowler , 378 N.C. 138, 2021-NCSC-81, ¶ 13, 861 S.E.2d 686. A suit against a defendant in their official capacity is subject to the doctrine of sovereign immunity, while a suit against a defendant in their individual capacity is not subject to the doctrine of sovereign immunity. Id. However, a suit against a defendant in their individual capacity may be subject to the doctrine of public official immunity if she acts within the scope of her office and acts without malice or corruption. Smith , ...
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