Jones v. City of Durham

• Decision Date: 16 December 2005
• Docket Number: No. 137A05.,137A05.
• Citation: 622 S.E.2d 596
• Parties: Linda JONES v. The CITY OF DURHAM and Joseph M. Kelly (in his official Capacity as a police officer for the City of Durham).
• Court: North Carolina Supreme Court

Page 596

622 S.E.2d 596

Linda JONES v. The CITY OF DURHAM and Joseph M. Kelly (in his official Capacity as a police officer for the City of Durham).

No. 137A05.

Supreme Court of North Carolina.

December 16, 2005.

Appeal pursuant to N.C.G.S. § 7A-30(2) from the decision of a divided panel of the Court of Appeals, 168 N.C.App. 433, 608 S.E.2d 387 (2005), affirming in part and reversing in part an order and judgment entered on 6 January 2004 by Judge A. Leon Stanback, Jr. in Superior Court, Durham County. Heard in the Supreme Court 14 September 2005.

Glenn, Mills & Fisher, P.A., by Robert B. Glenn, Jr., Stewart W. Fisher, and Carlos E. Mahoney, Durham, for plaintiff-appellant.

Faison & Gillespie, by Reginald B. Gillespie, Jr., Durham, for defendants-appellees.

LAKE, Chief Justice.

The sole question presented for review in this case is whether plaintiff presented sufficient evidence to show a genuine issue of material fact in order to survive summary judgment under a law enforcement officer vehicular gross negligence standard.

The Court of Appeals reversed the trial court and held that plaintiff's forecast of evidence was insufficient to maintain a claim of gross negligence. Furthermore, the court held that defendants were entitled to judgment as a matter of law. For the reasons set forth below, we affirm the decision of the Court of Appeals.

The following evidence was before the trial court at the time of its entry of the partial summary judgment order leading to this appeal: On 15 September 2000, at approximately 9:00 a.m., Officer Tracey Fox ("Officer Fox") was dispatched to investigate a domestic disturbance at 800 North Street in Durham. This residence was familiar to officers, because it had previously been the location of a domestic disturbance involving weapons and this information was relayed to all officers by Dispatch. Soon after arriving at the scene, Officer Fox determined that she would need assistance and called for backup. Upon receiving her call, Dispatch issued a "signal 20" which indicated a dangerous situation requiring that all other officers give way for Officer Fox's complete access to the police radio by holding all calls. Officer Joseph M. Kelly ("Officer Kelly" or "defendants" when referred to collectively with the City of Durham) was approximately two and one-half miles from Officer Fox's location.

In response to the first call by Officer Fox, Officer Kelly and other officers began driving in their separate vehicles towards North Street. Officer Fox then made a second distress call, and stated with a noticeably shaky voice, that she needed more units. Officer Kelly and Officer H.M. Crenshaw independently activated their blue lights and sirens and increased the speed of their vehicles towards North Street.

As Officer Kelly was on his way to assist Officer Fox, Linda Jones ("plaintiff") was leaving her sister's apartment complex at the southwest corner of the intersection of Liberty Street and Elizabeth Street ("the intersection"). Plaintiff walked to a point on Liberty Street approximately ninety-five feet west of the intersection. The posted speed limit there was 35 miles per hour. Additionally, Liberty Street had three undivided lanes: two eastbound lanes with the second or middle eastbound lane designated as a turn only lane, and a westbound lane. At the curb, plaintiff observed no vehicles approaching, but heard sirens approaching from an indeterminable direction. Plaintiff began to cross Liberty Street in the middle of the block outside of any designated crosswalk and against the controlling traffic signal. Having reached the double yellow lines after crossing two-thirds of the roadway, plaintiff first saw a police vehicle heading towards her in the westbound lane. At a speed estimated between 45 and 60 miles per hour, Officer Kelly's vehicle went briefly airborne in crossing a railroad track, and he then observed plaintiff at a distance of approximately 300 to 332 feet. In an attempt to avoid striking plaintiff, Officer Kelly turned his vehicle into the eastbound lanes in order to pass behind plaintiff, who apparently was heading across the westbound lane. However, plaintiff did not continue across the westbound lane. Instead, at that moment, she abruptly turned around and began running back in the direction from which she had come, back across the two eastbound lanes. Officer Kelly's vehicle struck plaintiff on her side as she was retreating to the curb, causing plaintiff severe injuries.

In her initial complaint, plaintiff brought claims against Officer Kelly and the City of Durham for negligence, gross negligence, and obstruction of public justice and spoliation of evidence. Defendants' answer included a motion to dismiss based on N.C.G.S. § 1A-1, Rule 12(b)(6) and pled the affirmative defenses of immunity and contributory negligence. Plaintiff responded alleging the doctrine of last clear chance to defendants' defense of contributory negligence. Plaintiff then filed an amended complaint, bringing additional claims alleging that defendants' assertion of immunity in this case violated a number of plaintiff's rights under the North Carolina Constitution. This matter, with pleadings, exhibits, affidavits, and depositions of forecast evidence, was presented before the trial court in a summary judgment hearing held on 11 December 2003 pursuant to motions brought by both parties.

In an order entered 6 January 2004, the trial court concluded the following: (1) that plaintiff's ordinary negligence claim was dismissed as a matter of law; (2) that there were issues of fact as to whether Officer Kelly was grossly negligent in his emergency response to assist and apprehend the suspect threatening Officer Fox; (3) that there were issues of fact concerning plaintiff's obstruction of public justice and spoliation claim; (4) that plaintiff's claim for violation of the prohibition against exclusive emoluments based on Article I, Section 32 of the North Carolina Constitution was dismissed as a matter of law; and (5) the manner in which defendants have asserted sovereign immunity in this and other cases has been arbitrary and capricious and violates guarantees of due process and equal protection under Article I, Section 19 of the North Carolina Constitution as a matter of law. The trial court certified its order under N.C.G.S. § 1A-1, Rule 54(b) as an entry of final judgment. Both parties appealed to the Court of Appeals.

In their appeal, defendants assigned error to the trial court's finding of an issue of fact supported by forecast evidence as to whether defendants were grossly negligent and argued the trial court should have granted summary judgment as a matter of law in their favor. Additionally, defendants alleged the trial court erred when failing to rule in their favor as a matter of law on the spoliation and constitutional claims. Plaintiff's only issue on appeal to the Court of Appeals submitted that the trial court erred in dismissing her claim of ordinary negligence by finding the standard to be inapplicable as a matter of law in light of the forecast evidence.

Judge Levinson dissented from the majority opinion's reversal of the trial court's denial of defendants' motion for summary judgment on the gross negligence claim. He further dissented from the majority opinion's holding that plaintiff's constitutional claim and her claim for obstruction of justice were moot. He stated that he would affirm the trial court's dismissal of defendants' summary judgment motion on the spoliation claim. However, he would have reversed the trial court's entry of summary judgment for plaintiff on her claim of violation of her rights to due process and equal protection under Article I, Section 19 of the North Carolina Constitution.

Plaintiff filed her appeal of right based on the dissenting opinion in accordance with N.C.G.S. § 7A-30(2). Although plaintiff presented the two issues of gross negligence and obstruction of justice in her notice of appeal, her brief to this Court addressed only the gross negligence issue. Therefore, plaintiff has abandoned her appeal of right as to the obstruction of justice issue, and that assignment of error is dismissed. See N.C. R.App. P. 28(b)(6).

The grant of summary judgment for the moving party is proper "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.G.S. § 1A-1, Rule 56(c) (2003); see Parish v. Hill, 350 N.C. 231, 236, 513 S.E.2d 547, 550 (1999). In assessing whether the moving party established the absence of any genuine issue of material fact, the evidence presented should be viewed in the light most favorable to the nonmoving party. N.C.G.S. § 1A-1, Rule 56(c). If there is any evidence of a genuine issue of material fact, a motion for summary judgment should be denied. Howerton v. Arai Helmet, Ltd., 358 N.C. 440, 471, 597 S.E.2d 674, 694 (2004).

In determining whether a genuine issue of material fact exists in the case at bar, the crux of the allegations of gross negligence on the part of Officer Kelly relate to the speed of his vehicle and his maneuver to avoid hitting plaintiff. As properly stated in the majority opinion of the Court of Appeals, Officer Kelly's conduct in the case sub judice is governed by N.C.G.S. § 20-145. Jones v. City of Durham, 168 N.C.App. 433, 437-39, 608 S.E.2d 387, 390-92 (2005). N.C.G.S. § 20-145 provides the following:

The speed limitations set forth in this Article shall not apply to vehicles when operated with due regard for safety under the direction of the police in the chase or apprehension of violators of the law or of persons charged with or suspected of any such violation, nor to fire department or fire patrol vehicles when traveling in response to a fire alarm, nor to public or private ambulances and...