Hart v. Brienza

• Citation: 784 S.E.2d 211,246 N.C.App. 426
• Decision Date: 05 April 2016
• Docket Number: No. COA15–1078.,COA15–1078.
• Court: Court of Appeal of North Carolina (US)
• Parties: Corey Scott HART, Plaintiff, v. James Patrick BRIENZA and Gaston County, Defendants.

246 N.C.App. 426

784 S.E.2d 211

Corey Scott HART, Plaintiff,

v.James Patrick BRIENZA and Gaston County, Defendants.

No. COA15–1078.

Court of Appeals of North Carolina.

April 5, 2016.

Law Offices of Jason E. Taylor, PC, by Lawrence B. Serbin and Jason E. Taylor, Hickory, for plaintiff-appellee.

Stott, Hollowell, Palmer & Windham, L.L.P., by Martha Raymond Thompson, Gastonia and Ryan L. Bostic, for defendants-appellants.

TYSON, Judge.

James Patrick Brienza ("Officer Brienza") and Gaston County (collectively, "Defendants") appeal from order granting in part and denying in part their motion for summary judgment. We affirm in part, reverse in part, and remand.

I. Factual Background

On 4 September 2010, Corey Scott Hart ("Plaintiff") attended a family gathering with his wife, Pamela Hart ("Mrs. Hart") and his cousin, Frances. Plaintiff consumed approximately twelve cans of beer before leaving shortly after midnight with Mrs. Hart and Frances. After Frances drove Plaintiff and Mrs. Hart to their residence, Plaintiff stated he had left his cell phone in Frances' vehicle and walked to her house to retrieve it. Mrs. Hart became concerned when Plaintiff did not return for some time, so she decided to go to Frances' house to check on him. Mrs. Hart walked through the open front door and discovered Plaintiff and Frances in flagrante delicto in Frances' bedroom. A domestic dispute ensued.

Mrs. Hart told Plaintiff not to return to their residence, and, upon her return home, locked Plaintiff out of the house. When Plaintiff discovered he was locked out of his house, he asked Mrs. Hart to give him the keys to his vehicle and his wallet, so he could leave the premises. Mrs. Hart yelled at Plaintiff through an open window, told Plaintiff to leave, and threatened him with a .357 handgun.

Plaintiff retrieved his shotgun from an outbuilding near the residence, fired a shot in the air, and continued to yell at Mrs. Hart to give him his keys and wallet. Plaintiff rested his shotgun on the side of the house and attempted to climb through an open window. Mrs. Hart called 911 and reported the situation.

Gaston County police officers Jimmy Reid Rollins, Jr. ("Officer Rollins"), Jeffrey Kaylor ("Officer Kaylor"), William Blair Hall ("Officer Hall"), and Officer Brienza responded to the call and were dispatched to Plaintiff's residence at approximately 2:41 a.m.

Upon arriving at the residence, which was surrounded by a wooded area, the officers believed they heard additional shots fired, and heard a banging noise on the side of the house. The officers decided this was an active shooter situation and began to advance on the residence. At his criminal trial, Plaintiff testified he was halfway through the window, with his feet approximately three feet off the ground, when he heard the officers exclaim: "Gaston County Police! Get out of the window and get on the ground!" Officer Brienza testified he yelled to Plaintiff: "Police, don't move!"

According to the officers' testimony, Plaintiff turned to face the officers, simultaneously lowered himself to the ground and reached for his shotgun. Plaintiff alleged in his complaint that "at no time did [he] reach for his shotgun or otherwise demonstrate disobedience to Officer Brienza's commands." Reacting, Officer Brienza discharged his weapon three times at close range and struck Plaintiff in the hip once. Officer Brienza advanced on Plaintiff, with his gun pointed at Plaintiff's head until he was handcuffed and secured.

Plaintiff filed a complaint against Officer Brienza and Gaston County on 29 August 2013. Plaintiff asserted claims against Officer Brienza, in both his official and individual capacities, for the following: (1) assault and battery; (2) intentional infliction of emotional distress; (3) ordinary negligence; (4) gross negligence; and, (5) punitive damages. Plaintiff asserted a claim against Gaston County under the doctrine of respondeat superior. Plaintiff alleged Gaston County had waived its governmental immunity through the purchase of a liability insurance policy pursuant to N.C. Gen.Stat. § 153A–435.

On 7 November 2013, Defendants answered Plaintiff's complaint and filed a motion to dismiss pursuant to North Carolina Rules of Civil Procedure, Rules 12(b)(1), (2), and (6). Defendants Gaston County and Officer Brienza alleged they were entitled to the defenses of governmental immunity and public official immunity, respectively. The trial court denied Defendants' motions to dismiss on 18 September 2014.

After discovery, Defendants moved for summary judgment based upon governmental immunity and public official immunity. On 21 July 2015, the trial court entered an order granting in part and denying in part Defendants' motion for summary judgment. The trial court granted summary judgment in favor of all Defendants as to Plaintiff's claims for intentional infliction of emotional distress, ordinary negligence, and gross negligence. The trial court granted summary judgment in favor of Gaston County and Officer Brienza in his official capacity as to Plaintiff's claim for punitive damages. Plaintiff did not appeal from that ruling and that judgment is now final.

The trial court denied Defendants' motion for summary judgment on Plaintiff's claim for assault and battery against Officer Brienza in his individual and official capacities, and Plaintiff's claim against Gaston County under the doctrine of respondeat superior. The trial court also denied Defendants' motion for summary judgment on Plaintiff's claim for punitive damages against Officer Brienza in his individual capacity.

After the trial court entered its order, which granted in part and denied in part Defendants' motion for summary judgment, Plaintiff's remaining claims against Defendants were as follows: (1) assault and battery against Officer Brienza, in both his official and individual capacities; (2) punitive damages against Officer Brienza, in his individual capacity only; and (3) imputed liability to Gaston County under the doctrine of respondeat superior. Defendants gave notice of appeal to this Court.

II. Issues

Defendants argue the trial court erred by denying their motion for summary judgment as to Plaintiff's claims for: (1) assault and battery against Officer Brienza; (2) imputed liability under the doctrine of respondeat superior against Gaston County; and (3) punitive damages against Officer Brienza.

III. Standard of Review

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) (2015) ; see Draughon v. Harnett Cnty. Bd. of Educ., 158 N.C.App. 208, 212, 580 S.E.2d 732, 735 (2003) (citation omitted), aff'd per curiam, 358 N.C. 131, 591 S.E.2d 521 (2004).

"In a motion for summary judgment, the evidence presented to the trial court must be ... viewed in a light most favorable to the non-moving party." Howerton v. Arai Helmet, Ltd., 358 N.C. 440, 467, 597 S.E.2d 674, 692 (2004) (citations omitted).

An issue is "genuine" if it can be proven by substantial evidence and a fact is "material" if it would constitute or irrevocably establish any material element of a claim or a defense.

A party moving for summary judgment may prevail if it meets the burden (1) of proving an essential element of the opposing party's claim is nonexistent, or (2) of showing through discovery that the opposing party cannot produce evidence to support an essential element of his or her claim. Generally this means that on undisputed aspects of the opposing evidential forecast, where there is no genuine issue of fact, the moving party is entitled to judgment as a matter of law. If the moving party meets this burden, the non-moving party must in turn either show that a genuine issue of material fact exists for trial or must provide an excuse for not doing so.

Lowe v. Bradford, 305 N.C. 366, 369, 289 S.E.2d 363, 366 (1982) (citations and internal quotation marks omitted). This Court reviews a trial court's summary judgment order de novo . Sturgill v. Ashe Mem'l Hosp., Inc., 186 N.C.App. 624, 626, 652 S.E.2d 302, 304 (2007), disc. review denied, 362 N.C. 180, 658 S.E.2d 662 (2008).

IV. Analysis

A. Jurisdiction

"[T]he denial of a motion for summary judgment is a nonappealable interlocutory order." Northwestern Fin. Grp. v. Cnty. of Gaston, 110 N.C.App. 531, 535, 430 S.E.2d 689, 692 (citation omitted), disc. review denied, 334 N.C. 621, 435 S.E.2d 337 (1993). This Court will only address the merits of such an appeal if "a substantial right of one of the parties would be lost if the appeal were not heard prior to the final judgment." Id. (citation omitted).

It is well-settled that "[o]rders denying dispositive motions based on the defenses of governmental and public official's immunity affect a substantial right and are immediately appealable." Thompson v. Town of Dallas, 142 N.C.App. 651, 653, 543 S.E.2d 901, 903 (2001) (citing Corum v. Univ. of North Carolina,

97 N.C.App. 527, 389 S.E.2d 596 (1990) ), aff'd in part, reversed in part, and remanded, 330 N.C. 761, 413 S.E.2d 276, reh'g denied, 331 N.C. 558, 418 S.E.2d 664 (1992). This Court has allowed immediate appeal in these cases because "the essence of absolute immunity is its possessor's entitlement not to have to answer for his conduct in a civil damages action." Epps v. Duke Univ., Inc., 122 N.C.App. 198, 201, 468 S.E.2d 846, 849 (citations and quotation marks omitted), disc. review denied, 344 N.C. 436, 476 S.E.2d 115 (1996). Defendants' appeal is properly before this Court.

B. Public Official Immunity

The doctrine of public official immunity is a "derivative form" of governmental immunity. Epps, 122 N.C.App. at 203, 468 S.E.2d at 850. Public official immunity precludes suits against public officials in their individual capacities and protects them from liability "[a]s...