Lyles v. City of Charlotte

• Decision Date: 05 September 1995
• Docket Number: No. 9426SC134,9426SC134
• Citation: 120 N.C.App. 96,461 S.E.2d 347
• Court: North Carolina Court of Appeals
• Parties: Debra Kay LYLES, Plaintiff, v. The CITY OF CHARLOTTE and Motorola, Inc., Defendants.

Page 347

461 S.E.2d 347

120 N.C.App. 96

Debra Kay LYLES, Plaintiff, v. The CITY OF CHARLOTTE and Motorola, Inc., Defendants.

No. 9426SC134.

Court of Appeals of North Carolina.

Sept. 5, 1995.

James, McElroy & Diehl, P.A. by G. Russell Kornegay, III, and Richard B. Fennell and William K. Diehl, Jr., Charlotte, for plaintiff-appellee.

Smith, Helms, Mulliss & Moore, L.L.P. by L.D. Simmons, II, Robert B. Cordle and Leigh F. Moran, Charlotte, for defendant-appellant City of Charlotte.

JOHN, Judge.

In this action brought pursuant to Woodson v. Rowland, 329 N.C. 330, 407 S.E.2d 222 (1991), defendant City of Charlotte (the City) appeals the trial court's denial of its motion for summary judgment. More particularly, the City contends it neither purchased liability insurance covering plaintiff's claim nor participated in a "local government risk pool," and that it therefore was entitled to assert the defense of governmental immunity in bar to plaintiff's action. Accordingly, the City continues, the trial court committed reversible error by denying its motion for summary judgment on these grounds. We disagree.

Pertinent factual and procedural information is as follows: On the evening of 5 August 1990, Charlotte Police Officer Milus Terry Lyles (Lyles) and his partner Officer Villines (Villines) responded to a call involving a domestic dispute. At the scene, the officers arrested Calvin Cunningham (Cunningham), purportedly searched him for weapons, and, after he was handcuffed, placed him in the back seat of Lyles' squad car. Villines then drove away in a separate vehicle. As Lyles was transporting Cunningham to the Mecklenburg County Jail, the latter managed to retrieve a small pistol hidden on his person and shot the officer twice in the back. Although Lyles' bullet-proof vest prevented the shots from penetrating his body, the impact caused him to lose control of the squad car and crash into a parked dump truck.

According to allegations in the complaint, Lyles then exited the driver's seat and, following training received from the City's Police Department (the Department), moved towards the rear of the vehicle to call for assistance with his assigned Motorola portable radio. In accordance with standard instructions, he crouched down and pressed the "E" (emergency) button on the radio and stated "140 to Villines ... 140." It is alleged that Lyles had been informed that depressing the "E" button would access "a clear channel to communicate with all police officers and the dispatcher." In reality, however, the portable radio "did not send his distress signal to the other officers," and as a consequence Lyles received no response. In conformity with his training, Lyles attempted to return to the front of the vehicle to summon help on the squad car radio. As Lyles passed the left rear window of the wrecked automobile, Cunningham fired another shot from the back seat, hitting Lyles in the right eye and killing him.

On 4 August 1992, plaintiff Debra Kay Lyles (Lyles' widow) filed the instant action against the City and Motorola, Inc., contending that a proximate cause of Lyles' death was the improper training he allegedly received from defendants regarding use of the Motorola portable radio. Plaintiff further alleged the Department:

20. ... had received complaints from officers prior to the death of ... Lyles regarding malfunctioning of the emergency button, and knew that it did not function as ... Lyles ... had been trained. It intentionally did not take adequate steps, however, to ensure that the radios were operating properly.

21. The ... Department knew at and before the time of ... Lyles' death that the training it had given him, particularly the information regarding the functioning of the "E" button on the portable units, was inadequate and improper.... It intentionally did not take adequate steps, however, to ensure that the police officers were trained regarding the functioning of the radios.

22. The ... Department knew that its officers would be governed in their reaction to distress and emergency situations by this training, and act in accordance with it. The ... Department also knew that its officers would rely on the representations made regarding the functioning of the radio. The ... Department knew, or should have known, that officers' reliance on this training and these representations would lead to situations in which it was substantially certain that an officer would be seriously injured or killed.

23. The ... Department's conduct, in particular its failure to advise ... Lyles that he should no longer rely on the training and information he had received regarding his portable radio unit, was a proximate cause of his death.... Lyles was shot while attempting to act in accordance with his training.

In answer to the complaint, the City raised numerous affirmative defenses, including "governmental and sovereign immunity." Thereafter, on 7 September 1993, the City moved for judgment on the pleadings pursuant to N.C.R.Civ.P. 12(c) (1990) or, in the alternative, for summary judgment "based solely on the affirmative defense of sovereign immunity." In support of its summary judgment motion, the City submitted the affidavits of the City's Deputy Finance Director Gregory C. Gaskins (Gaskins) and Frank T. Weber (Weber), Vice President of a regional insurance brokerage firm.

The trial court denied each motion by order entered in open court 20 October 1993 and signed 27 October 1993, stating the City "is not immune from liability in this particular case and thus this Court has personal jurisdiction over Defendant [City]."

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At the outset, we resolve plaintiff's argument that this appeal is premature and should be dismissed. While denial of summary judgment is generally considered interlocutory and not immediately appealable, Hill v. Smith, 38 N.C.App. 625, 626, 248 S.E.2d 455, 456 (1978), this Court has repeatedly held that when "the grounds for [a party's] motion for summary judgment are governmental immunity ... the denial of [the] motion is immediately appealable." Taylor v. Ashburn, 112 N.C.App. 604, 606, 436 S.E.2d 276, 278 (1993) (citations omitted), disc. review denied, 336 N.C. 77, 445 S.E.2d 46 (1994); see also Hickman v. Fuqua, 108 N.C.App. 80, 82, 422 S.E.2d 449, 450 (1992) (citations omitted), disc. review denied, 333 N.C. 462, 427 S.E.2d 621 (1993); see also N.C.Gen.Stat. § 1-277 (1983). Accordingly, we examine the merits of the City's appeal.

The City contends it waived governmental immunity neither through participation in a "local government risk pool" nor by purchasing liability insurance covering plaintiff's claim, and that denial of summary judgment in its favor was therefore error. Because we determine the City's "risk management operations" fall within the definition of a "local government risk pool" as contemplated by our General Assembly, however, we uphold the court's ruling and decline to address the issue of liability coverage.

A party moving for summary judgment bears the burden of establishing the absence of any genuine issue of material fact and its entitlement to judgment as a matter of law. Normile v. Miller and Segal v. Miller, 63 N.C.App. 689, 692, 306 S.E.2d 147, 149 (1983) (citation omitted), modified on other grounds and aff'd, 313 N.C. 98, 326 S.E.2d 11 (1985); see also N.C.R.Civ.P. 56 (1990). A defendant who moves for summary judgment may meet this burden by showing either that (1) an essential element of plaintiff's claim is nonexistent; (2) plaintiff cannot produce evidence to support an essential element of its claim; or (3) plaintiff cannot surmount an affirmative defense raised in bar of its claim. Taylor, 112 N.C.App. at 606-07, 436 S.E.2d at 278 (citation omitted).

In the case sub judice, the City contends the uncontradicted affidavits offered in support of its motion established plaintiff's inability to overcome the affirmative defense of governmental immunity.

The common law doctrine of governmental immunity insulates a city or county from liability for injuries arising from governmental (as opposed to proprietary) activities. See, e.g., Gregory v. City of Kings Mountain, 117 N.C.App. 99, 103, 450 S.E.2d 349, 352 (1994). In other words, a municipality is not generally liable for torts committed by its officers and employees while performing governmental functions. Young v. Woodall, 119 N.C.App. 132, 135, 458 S.E.2d 225, 228 (1995) (citation omitted).

Governmental functions have been described as "discretionary, political, legislative, or public in nature and performed for the public good in behalf of the State...." Britt v. Wilmington, 236 N.C. 446, 450, 73 S.E.2d 289, 293 (1952); see also Clark v. Scheld, 253 N.C. 732, 735, 117 S.E.2d 838, 841 (1961) (governmental activities are those which promote or protect the "health, safety, security or general welfare of [a municipality's] citizens.") (citation omitted). "Ordinarily, a municipality providing police services is engaged in a governmental function...." Coleman v. Cooper, 89 N.C.App. 188, 192, 366 S.E.2d 2, 5 (citation omitted), disc. review denied, 322 N.C. 834, 371 S.E.2d 275 (1988).

In her complaint, plaintiff alleged Lyles was killed as the result of improper training by the City's agents regarding operation of his portable Motorola radio. We agree with the City that the training and supervision of officers by a police department are embraced within the concept of "provi[sion] [of] police services"--a governmental function. Id. Accordingly, the City would ordinarily be immune from liability for torts committed by its officers and agents while engaged in instructing Lyles in the emergency use of a portable radio.

However, N.C.Gen.Stat. § 160A-485 (1994) "establishes an exception to the common-law rule." Wiggins v. City of Monroe, 73 N.C.App. 44, 49, 326 S.E.2d 39, 43 (1985); see also Galligan v. Town of Chapel Hill, 276 N.C. 172, 175, 171 S.E.2d 427, 429 (1970) (in the absence of...