Greene v. Barrick

• Decision Date: 04 August 2009
• Docket Number: No. COA08-1358.,COA08-1358.
• Citation: 680 S.E.2d 727
• Court: North Carolina Court of Appeals
• Parties: Ann B. GREENE, in her capacity as wife of Ted D. Horton and as Administratrix of the Estate of Ted D. Horton, and State of North Carolina, ex rel., Ann B. Greene, individually and as Administratrix of the Estate of Ted D. Horton, Plaintiffs, v. Benjamin Thomas BARRICK, Tom Barrick, Robert Twomey, Brad Barrick, Scott Whaley, Netstar Air Rescue, Inc. d/b/a Northeast Tennessee Search & Tactical Air Response, Jerry W. Jones, in his official capacity as Sheriff of Franklin County, North Carolina and individually, Franklin County, North Carolina, Franklin County Sheriff's Office, Western Surety Company, Southeastern Helicopters, Inc., Keith A. Svadba, and Thomas M. Jones, Defendants.

680 S.E.2d 727

Ann B. GREENE, in her capacity as wife of Ted D. Horton and as Administratrix of the Estate of Ted D. Horton, and State of North Carolina, ex rel., Ann B. Greene, individually and as Administratrix of the Estate of Ted D. Horton, Plaintiffs, v. Benjamin Thomas BARRICK, Tom Barrick, Robert Twomey, Brad Barrick, Scott Whaley, Netstar Air Rescue, Inc. d/b/a Northeast Tennessee Search & Tactical Air Response, Jerry W. Jones, in his official capacity as Sheriff of Franklin County, North Carolina and individually, Franklin County, North Carolina, Franklin County Sheriff's Office, Western Surety Company, Southeastern Helicopters, Inc., Keith A. Svadba, and Thomas M. Jones, Defendants.

No. COA08-1358.

Court of Appeals of North Carolina.

August 4, 2009.

Appeal by plaintiffs from an order entered 9 June 2008 by Judge Kenneth C. Titus in Franklin County Superior Court. Heard in the Court of Appeals 7 April 2009.

Tharrington Smith, L.L.P., by F. Hill Allen, Raleigh, for plaintiffs-appellants.

Frazier, Hill & Fury, RLLP, by William L. Hill and Torin L. Fury, Greensboro, for

Franklin County Sheriff's Office and Jerry Jones, defendants-appellees.

Ortiz & Schick, PLLC, by Michael R. Ortiz and Melinda C. Hemphill, Raleigh, for defendant-appellee, Benjamin Barrick in his official capacity.

JACKSON, Judge.

Ann B. Greene ("plaintiff") appeals the 9 June 2008 order granting summary judgment, in part, in favor of, inter alia, Benjamin Thomas Barrick in his official capacity ("Barrick"), Sheriff Jerry Jones in his official and individual capacities ("Sheriff Jones"), Franklin County Sheriff's Office ("the sheriff's office"), and Western Surety Company ("Western") (collectively "defendants"). For the reasons stated below, we affirm.

In October 2003, Deputy Ted Horton ("Deputy Horton") contacted Barrick of NETSTAR Air Rescue, Inc. ("NETSTAR") to assist the sheriff's office in establishing a helicopter program. Deputy Horton acted as an intermediary between Barrick and Sheriff Jones. In December 2003, Deputy Horton and Sheriff Jones went to Elizabethton, Tennessee to look at Barrick's helicopter. Barrick understood that the sheriff's office wanted a helicopter to do search and rescue, law enforcement, and drug eradication in Franklin County and the surrounding areas.

On 22 January 2004, Barrick and Sheriff Jones signed an agreement for their agencies—NETSTAR and the sheriff's office—to provide mutual aid to each other if necessary. On or about 20 February 2004, Barrick and Sheriff Jones signed an agreement for the sheriff's office to lease or purchase a helicopter from NETSTAR, pursuant to which the sheriff's office was to commence leasing the helicopter on 1 March 2004. Barrick applied for a position with the sheriff's office on or about 10 March 2004, noting on his application that he was recruited with the helicopter program. He was hired as a sheriff's deputy on or about 15 March 2004.

A ribbon-cutting ceremony was held on 14 April 2004. On 13 May 2004, Barrick and Deputy Horton used the helicopter to assist Vance County's search for suspects in a home invasion. During the flight, they noticed marijuana plants. On 14 May 2004, Barrick and Deputy Horton took the helicopter out on a drug eradication flight in the area where marijuana was spotted the previous day. As they were returning to the airport, the helicopter lost its tail rotor, causing the helicopter to crash, killing Deputy Horton.

Plaintiff, in her individual capacity as Deputy Horton's wife and her official capacity as the administrator of his estate, filed a complaint on 5 May 2006 setting forth claims of (1) negligence; (2) gross negligence; (3) breach of express and implied warranties; (4) joint venture and proprietary functions; (5) specific performance; (6) punitive damages; as well as (7) a willful, wanton and reckless negligence claim based upon Pleasant v. Johnson, 312 N.C. 710, 325 S.E.2d 244 (1985); (8) a gross negligence claim based upon Woodson v. Rowland, 329 N.C. 330, 407 S.E.2d 222 (1991); (9) a claim on sheriff's bond; and (10) a claim against Sheriff Jones in his individual capacity.

On 6 May 2008, defendants filed a motion for summary judgment, alleging, inter alia, the protections of governmental immunity. The trial court heard defendants' motion on 15 May 2008 and filed its order granting summary judgment on 9 June 2008. The court granted summary judgment as to all claims except (a) the Pleasant claim against Barrick in his individual capacity, (b) the punitive damages claim against Barrick in his individual capacity, and (c) the Pleasant claim against Barrick in his official capacity and Western, to the extent coverage is available pursuant to the sheriff's surety bond. Plaintiff appeals.

The order appealed from did not dispose of the entire case; therefore, it is interlocutory. See Johnson v. Lucas, 168 N.C.App. 515, 518, 608 S.E.2d 336, 338 (order granting partial summary judgment is interlocutory), aff'd, 360 N.C. 53, 619 S.E.2d 502 (2005) (per curiam). Although ordinarily interlocutory orders are not immediately appealable, an interlocutory order may be appealed immediately if it affects a substantial right of the parties. See N.C. Gen.Stat. § 1-277 (2007). This Court has held that "when the moving party claims sovereign, absolute or qualified immunity, the denial of a motion for summary judgment is immediately appealable." Moore v. Evans, 124 N.C.App. 35, 39, 476 S.E.2d 415, 420 (1996) (citations omitted). Even though this case involves the grant, rather than the denial of sovereign immunity, we believe the same type of issues are called into question by the appeal, and therefore, plaintiff's appeal is properly before this Court.

An order granting summary judgment is appropriate "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 a judgment as a matter of law." N.C. Gen. Stat. § 1A-1, Rule 56(c) (2007). The burden of showing that no triable issue of fact exists rests upon the moving party. Pembee Mfg. Corp. v. Cape Fear Constr. Co., 313 N.C. 488, 491, 329 S.E.2d 350, 353 (1985) (citation omitted). One means of carrying this burden is to show that the non-moving party cannot surmount an affirmative defense which would bar the claim. Collingwood v. G.E. Real Estate Equities, 324 N.C. 63, 66, 376 S.E.2d 425, 427 (1989) (citations omitted).

This Court reviews a trial court's rulings on summary judgment motions de novo. Forbis v. Neal, 361 N.C. 519, 524, 649 S.E.2d 382, 385 (2007) (citing Builders Mut. Ins. Co. v. North Main Constr., Ltd., 361 N.C. 85, 88, 637 S.E.2d 528, 530 (2006)). In deciding a motion for summary judgment, a trial court is to consider the evidence in the light most favorable to the non-moving party. Summey v. Barker, 357 N.C. 492, 496, 586 S.E.2d 247, 249 (2003) (citing Dobson v. Harris, 352 N.C. 77, 83, 530 S.E.2d 829, 835 (2000)). The trial court should deny a motion for summary judgment if there is any evidence of a genuine issue of material fact. Howerton v. Arai Helmet, Ltd., 358 N.C. 440, 471, 597 S.E.2d 674, 694 (2004).

As to the Pleasant claim, plaintiff argues that the evidence supports submission of the claim to a jury. We disagree.

In Pleasant v. Johnson, 312 N.C. 710, 325 S.E.2d 244 (1985), our Supreme Court carved out a narrow exception to this State's workers' compensation law, allowing a common law action for "willful, wanton and reckless negligence" against a co-employee notwithstanding the fact that the employee received workers' compensation benefits. Id. at 716, 325 S.E.2d at 249. The Supreme Court acknowledged at the time that "[t]he concept of willful, reckless and wanton negligence inhabits a twilight zone which exists somewhere between ordinary negligence and intentional injury." Id. at 714, 325 S.E.2d at 247. Although Pleasant created an exception to bring suit against a co-employee, it did not extend that exception to an employer. Id. at 717, 325 S.E.2d at 250.

Plaintiff's Pleasant claim was asserted against Barrick, Sheriff Jones, and Western. The summary judgment order denied summary judgment as to Barrick in his individual capacity, and as to Western and Barrick in his official capacity to the extent of coverage on the surety bond. Sheriff Jones is not a co-employee; Sheriff Jones is the employer. Therefore, plaintiff's Pleasant action must fail as it pertains to him as a matter of law. Accordingly, the trial court did not err in granting summary judgment as to Sheriff Jones on this claim.

As to plaintiff's Pleasant claim against Barrick in his official capacity, Barrick is protected by governmental immunity, except to the extent that coverage is available pursuant to the surety bond.

Governmental immunity is a doctrine by which a municipality is not held liable for the torts of its officers and employees if those torts are committed while the officers or employees are performing a governmental function. Taylor v. Ashburn, 112 N.C.App. 604, 607, 436 S.E.2d 276, 278 (1993), cert. denied, 336 N.C. 77, 445 S.E.2d 46 (1994) (citations omitted). "Ordinarily, a municipality providing police services is engaged in a governmental function for which there is no liability." Coleman v. Cooper, 89 N.C.App. 188, 192, 366 S.E.2d 2, 5, disc. rev. denied, 322 N.C. 834, 371 S.E.2d 275 (1988) (citation omitted), disapproved of on other grounds by Hunt v. N.C. Dept. of Labor, 348 N.C. 192, 499 S.E.2d 747 (1998). "That immunity is absolute unless the [municipality] has consented to being sued or otherwise waived its right to immunity." Schlossberg v. Goins, 141 N.C.App. 436, 440, 540 S.E.2d 49, 52 (2000), disc. rev. denied, 355 N.C. 215, 560 S.E.2d 136 (2002) (citations omitted). A sheriff may waive governmental immunity by purchasing a bond. Sellers v. Rodriguez, 149 N.C.App. 619, 624, 561 S.E.2d 336, 339 (2002) (citin...