Lunsford v. Lori Renn

• Decision Date: 05 October 2010
• Docket Number: No. COA09-1592.,COA09-1592.
• Citation: 700 S.E.2d 94
• Parties: Clinton W. LUNSFORD, and Mary Ann Lunsford, as Co-Administrators of the Estates of Linsay Erin Lunsford and Maggie Rose Lunsford, Plaintiffs, v. Lori RENN, Administratrix of the Estate of Guy C. Ayscue, Deceased; Michael Lewis Dunlap, individually and in his official capacity as an officer of the Town of Franklinton Police Department; John Green, in his official capacity as an officer of the Town of Franklinton Police Department; Ray Gilliam, in his official capacity as Chief of the Town of Franklinton Police Department; and the Town of Franklinton, Defendants.
• Court: North Carolina Court of Appeals

700 S.E.2d 94

Clinton W. LUNSFORD, and Mary Ann Lunsford, as Co-Administrators of the Estates of Linsay Erin Lunsford and Maggie Rose Lunsford, Plaintiffs,

v.Lori RENN, Administratrix of the Estate of Guy C. Ayscue, Deceased; Michael Lewis Dunlap, individually and in his official capacity as an officer of the Town of Franklinton Police Department; John Green, in his official capacity as an officer of the Town of Franklinton Police Department; Ray Gilliam, in his official capacity as Chief of the Town of Franklinton Police Department; and the Town of Franklinton, Defendants.

No. COA09-1592.

Court of Appeals of North Carolina.

Oct. 5, 2010.

Appeal by plaintiffs from order entered 8 June 2009 by Judge Shannon R. Joseph in Granville County Superior Court. Heard in the Court of Appeals 12 May 2010.

Edmundson & Burnette, L.L.P., by James T. Duckworth, III, Oxford, for plaintiff-appellants.

Frazier, Hill & Fury, R.L.L.P., by Torin L. Fury, Greensboro, for defendant-appellees.

HUNTER, JR., ROBERT N., Judge.

Clinton W. and Mary Ann Lunsford, as administrators of their daughters' estates (collectively “plaintiffs”), filed a wrongful death action against Officer Michael Dunlap, Lieutenant John Green, Police Chief Ray Gilliam, the Town of Franklinton, and the estate of Guy C. Ayscue (“Ayscue”) after Linsay Erin and Maggie Rose Lunsford were killed in a head-on collision. At the time of the collision, Ayscue was attempting to evade arrest in his car, and Officer Dunlap, along with other law enforcement officers, was pursuing Ayscue in order to apprehend him.

The trial court granted summary judgment as to all defendants except Ayscue's estate ¹ and denied all of plaintiffs' claims for gross negligence. As a result, the only claim remaining for trial is plaintiffs' claim against Ayscue's estate for negligence. After review, we agree with the trial court that there is no genuine issue of material fact on the issue of whether any of defendants were grossly negligent, and we agree that defendants were entitled to judgment as a matter of law. Accordingly, we affirm the trial court's order.

I. BACKGROUND

Plaintiffs forecasted the following evidence. On 1 December 2007, at approximately 2:30 p.m., Officer Dunlap of the Franklinton Police Department was flagged down by a clerk at Snacker's Convenience Store located at the intersection of Main Street and N.C. Hwy. 56 in Franklinton, North Carolina. The clerk brought the officer's attention to a car going through the adjacent intersection, and Officer Dunlap observed a gray 1988 Pontiac driving on the wrong side of the road as it went through a red light without stopping or slowing. After observing these misdemeanor offenses, Officer Dunlap decided to initiate a traffic stop, and he pulled out of the parking lot as he activated his blue lights on his K-9 Unit patrol car. At 2:33 p.m., Officer Dunlap notified Franklin County Communications (“Dispatch”) that he was attempting to catch up to the Pontiac, and he provided the license plate number of the car to Dispatch. The K-9 Unit driven by Officer Dunlap lacked a top light rack, but it was fully marked as a Town of Franklinton Police vehicle; and it was equipped with an L.E.D. interior dash blue light bar, two red L.E.D. grill lights, clear corner strobe lights, “wig-wags” in the high beam headlights, and two L.E.D. blue lights on the side mirrors.

The chase began within the town limits of Franklinton, and as the cars traveled west on N.C. Hwy. 56, they passed a residential neighborhood, a business, a church, and a shopping mall. Shortly after Officer Dunlap began pursuit, Lieutenant John Green of the Franklinton Police Department began following at a distance in his marked SUV to monitor radio traffic. At 2:35 p.m., Officer Dunlap advised Dispatch that he was chasing a white male driver, and the dispatcher responded that the same description fit the registered owner of the Pontiac at an address in Henderson, North Carolina. Throughout the chase, Officer Dunlap maintained radio contact with the dispatcher and Lieutenant Green.

The road contour of N.C. Hwy. 56 from Franklinton city limits to the Town of Wilton, in Granville County, was “very hilly” and “up and down,” according to State Trooper D.J. Sinnema. Near the county line between Franklin and Granville Counties, Trooper Sinnema observed Officer Dunlap's pursuit of the Pontiac. In his deposition, Trooper Sinnema stated that he watched Officer Dunlap and the Pontiac crest a “bad hill” going “very fast.” Trooper Sinnema's visual estimate of the chase's speed was between 80 and 90 m.p.h. Trooper Sinnema caught only a glance of Officer Dunlap and the Pontiac as they passed him, but he estimated that Officer Dunlap was following only one car length behind the Pontiac. Shortly after the chase passed by Trooper Sinnema, two cars were run off the road by the Pontiac.

The Pontiac ran several more cars off the road before entering the Town of Creedmoor. After the Pontiac entered the city limits, Officer Ted Frazier of the Creedmoor Police Department joined the chase. As Officer Frazier was heading east on N.C. Hwy. 56, the Pontiac and Officer Dunlap's vehicle passed westbound traffic by entering the eastbound lane. Officer Frazier had to pull his vehicle to the side of the road to avoid being hit, and after the chase passed him, he turned around to follow as well. Officer Frazier testified in his deposition that traffic at the time was “very heavy” due to a Christmas parade which took place earlier in the day. As a result of the increased volume of cars on the road, the Pontiac, as well as Officer Dunlap's vehicle, were weaving in and out of the westbound lane, the left turn lane, and the eastbound lane. Officer Frazier visually estimated the speed of the chase to be between 90 and 100 m.p.h., and his speed radar registered the speed of the vehicles at 103 m.p.h. Officer Frazier followed the chase as it “zigzagged” in and out of the heavy traffic, and he advised a dispatcher that “if the vehicles did not slow down, they would kill someone.”

Trooper Harold Councilman encountered the chase in Creedmoor at the intersection of N.C. Hwy. 56 and N.C. Hwy. 50 (Main St.) as he was heading east on N.C. Hwy. 56. After Trooper Councilman turned around to head west on N.C. Hwy. 56 to assist, he lost sight of the chase. Trooper Councilman eventually discovered that the chase had turned north onto N.C. Hwy. 15. To catch up to the Pontiac and Officer Dunlap, Trooper Councilman drove approximately 120 m.p.h., and he estimated the speed of the chase during his pursuit to be about 90 m.p.h. Trooper Councilman obtained visual contact with the chase about a half a mile before the collision eventually occurred. This last portion of road in the chase contained three hills, each of which prevented a driver going north from observing southbound traffic until the crest of the hill.

Near the top of the third hill, the Pontiac “jerked” left of the centerline to pass another vehicle headed north, and Officer Dunlap followed the Pontiac across the centerline, continuing to chase. A split second after the Pontiac crossed the centerline, Trooper Councilman watched it collide head-on with another car coming south. Officer Dunlap swerved hard to the right to avoid also being part of the collision with the Pontiac and eventually came to rest in the ditch 297 feet from the point of leaving the roadway. Linsay Lunsford, Maggie Lunsford, and the driver of the Pontiac died in the collision. The identification of the driver of the Pontiac was later confirmed to be the registered owner of the car, Ayscue.

Plaintiffs filed a wrongful death action on 14 May 2008 against defendants and Ayscue's estate. The complaint contained causes of action against Officer Dunlap in his official capacity, Lieutenant Green in his official capacity, Ray Gilliam in his official capacity, and the Town of Franklinton. On 15 January 2009, plaintiffs moved to amend their complaint to implead Officer Dunlap individually as well as in his official capacity. On 9 March 2009, the Honorable Henry W. Wright entered an order granting plaintiffs' motion to implead Officer Dunlap individually. On 1 May 2009, defendants filed a motion for summary judgment, which was granted on 8 June 2009 by the Honorable Shannon R. Joseph. On 10 June 2009, the trial court, pursuant to Rule 54(b) of the North Carolina Rules of Civil Procedure, certified the summary judgment order as a final judgment. Plaintiffs timely filed notice of appeal to this Court on 30 June 2009.

II. ANALYSIS

A. Jurisdiction and Standard of Review

We note that this appeal is interlocutory given that plaintiffs' cause of action against Ayscue's estate is still pending in the trial court. Embler v. Embler, 143 N.C.App. 162, 164, 545 S.E.2d 259, 261 (2001) (orders made during the pendency of an action not disposing of the entire controversy are interlocutory). “Generally, there is no immediate right to appeal from interlocutory orders and judgments.” Goldston v. American Motors Corp., 326 N.C. 723, 725, 392 S.E.2d 735, 736 (1990). However, where the trial court certifies an interlocutory order under N.C.R. Civ. P. 54(b) (2010), jurisdiction in this Court is proper. Sharpe v. Worland, 351 N.C. 159, 162, 522 S.E.2d 577, 579 (1999) (“When the trial court certifies its order for immediate appeal under Rule 54(b), appellate review is mandatory.”); see Oestreicher v. Stores, 290 N.C. 118, 127, 225 S.E.2d 797, 803 (1976) (the trial court is a “dispatcher” and determines “the appropriate time when each ‘final decision’ upon ‘one or more but less than all’ of the claims in a multiple claims action is ready for appeal”) (citation omitted); Trull v. Central Carolina Bank, 117 N.C.App. 220, 450 S.E.2d 542 (1994) (jurisdiction is proper where summary judgment is granted to one defendant but fewer than all defendants on all of the plaintiff's claims), aff'd in part and disc. review improvidently...