Lynn v. Burnette

• Citation: 138 NC App. 435,531 S.E.2d 275
• Decision Date: 20 June 2000
• Docket Number: No. COA98-1303.,COA98-1303.
• Court: Court of Appeal of North Carolina (US)
• Parties: Demetrius LYNN, Plaintiff-appellant, v. Starnisha BURNETTE and Unknown Driver "Jane Doe" a/k/a Nikki Frasier, Defendant-appellees.

531 S.E.2d 275

138 NC App. 435

Demetrius LYNN, Plaintiff-appellant, v. Starnisha BURNETTE and Unknown Driver "Jane Doe" a/k/a Nikki Frasier, Defendant-appellees.

No. COA98-1303.

Court of Appeals of North Carolina.

June 20, 2000.

Keith A. Bishop, Durham, for plaintiff-appellant.

Teague, Rotenstreich & Stanaland, L.L.P., by Kenneth B. Rotenstreich and Ian J. Drake, Greensboro, for defendant-appellees.

McGEE, Judge.

Defendant Starnisha Burnette and an individual known as Nikki Frasier followed Demetrius Lynn (plaintiff) and Dwayne Pratt to the Carolina-Duke Inn in Durham, North Carolina on 13 July 1993 and found plaintiff and Pratt in the company of two other women. Burnette and Pratt had been romantically involved, and Burnette went to plaintiff's motel room in search of Pratt. Later, as plaintiff and the two women were departing from the motel in an automobile, plaintiff saw Burnette and Frasier in a vehicle parked across the street at a gas station.

Plaintiff drove across the street to the gas station, parked, and walked over to the vehicle occupied by Burnette and Frasier. Plaintiff asked Burnette why she was following him. After plaintiff and Burnette spoke, plaintiff returned to his automobile. As he began to drive away, he was shot in the neck. In criminal court, Burnette pled guilty to assault with a deadly weapon inflicting serious injury.

Plaintiff filed an "application and order extending time to file complaint" on 12 July 1996. Plaintiff filed his complaint against defendants Burnette and Frasier on 1 August 1996 alleging that both were negligent. The complaint states that "[d]efendant Burnette owed a positive duty of care ... to protect Plaintiff from injury when she discharged the hand gun at the tire of an automobile in which the Plaintiff was a driver." The complaint further alleges that "[d]efendant negligently caused the uncontrolled discharge of the hand gun[,]" and Frasier "facilitated the negligent discharge of the hand gun by either operating her automobile or permitting her automobile to be operated by [d]efendant Burnette while [d]efendant Burnette negligently discharged the hand gun." In defendant Burnette's answer, she "admit[s] that on or about July 13, 1993 the firearm discharged while aimed at a tire and plaintiff was hit by the bullet." Frasier did not file an answer. Plaintiff filed a motion for entry of default against Frasier, which was granted on 13 May 1997.

Defendant Burnette filed a motion to dismiss plaintiff's complaint. Following a hearing, the trial court entered an order dismissing claims against defendant Burnette with prejudice on 15 October 1997. The order stated the trial court treated the motion to dismiss as a motion for summary judgment. The trial court determined there was no genuine issue as to any material fact regarding the claims against Burnette and granted summary judgment in favor of defendant Burnette. Plaintiff appealed. Burnette moved to dismiss plaintiff's appeal, which was granted by this Court in an order entered 31 July 1998. Plaintiff filed a petition for writ of certiorari with this Court on 20 August 1998, which was granted on 31 August 1998. In an opinion filed 17 August 1999, our Court dismissed plaintiff's appeal for plaintiff's failure to file written notice of appeal. In an order entered 7 February 2000, our Supreme Court remanded this matter to our Court for reconsideration in light of In re Moore, 306 N.C. 394, 293 S.E.2d 127 (1982), cert. denied, 459 U.S. 1139, 103 S.Ct. 776, 74 L.Ed.2d 987 (1983).

In his brief, plaintiff argues only the third of his assignments of error and his remaining assignments of error are deemed abandoned and will not be reviewed. See N.C.R.App. P. 28(a) ("Assignments of error not set out in the appellant's brief, or in support of which no reason or argument is stated or authority cited, will be taken as abandoned."). Plaintiff's sole assignment of error argued in his brief is that the trial court erred in granting summary judgment in favor of defendant Burnette. Plaintiff failed to designate this assignment of error in his argument, in violation of our appellate rules. N.C.R.App. P. Appendix E ("Each question will be ... followed by the assignments of error pertinent to the question, identified by their numbers and by the pages in the printed record on appeal or in the transcript at which they appear[.]"). Nevertheless, we will review the argument pursuant to N.C.R.App. P. 2.

In his brief, plaintiff argues "plaintiff [may] assert a negligence cause of action against a defendant when that defendant discharges a firearm and inflicts seriously disabling injuries" to the plaintiff. Plaintiff contends that "[d]efendant's conduct in firing the gun gave rise to actions for assault and battery and also for negligence." By contrast, defendant Burnette argues an "objective review of the evidence requires a holding that as a matter of law the only proper basis for this claim was one for the intentional tort of assault and battery," which must be brought within one year of the date of the assault and battery. Defendant Burnette then concludes that "plaintiff has failed to bring this action within the applicable statutory limitations period by wrongly bringing a negligence claim for acts constituting only an intentional tort."

Summary judgment is properly granted "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 judgment as a matter of law." N.C.R. Civ. P. 56(c); Toole v. State Farm Mut. Auto. Ins. Co., 127 N.C.App. 291, 294, 488 S.E.2d 833, 835 (1997). At summary judgment all of the evidence is viewed in the light most favorable to the nonmoving party. Coats v. Jones, 63 N.C.App. 151, 154, 303 S.E.2d 655, 657 (1983), aff'd, 309 N.C. 815, 309 S.E.2d 253 (1983). The movant bears the burden of proving the absence of any genuine issue of material fact. Holley v. Burroughs Wellcome Co., 318 N.C. 352, 355, 348 S.E.2d 772, 774 (1986).

We have reviewed the allegations in plaintiff's complaint and defendant Burnette's answer, along with the transcript of the arguments at the summary judgment hearing. The complaint alleges that defendant Burnette "negligently caused the uncontrolled discharge of the hand gun" and she "discharged the hand gun at the tire of an automobile in which the Plaintiff was a driver." Defendant Burnette's answer admits "the firearm discharged while aimed at a tire and plaintiff was hit by the bullet," but states the "alleged actionable negligence is again expressly denied." At the summary judgment hearing, defendant Burnette's attorney read Burnette's answer to a question asked by plaintiff's attorney during Burnette's deposition about how the shooting occurred. Defendant answered:

Well, I thought I was firing at the tire. That was my first time ever shooting a gun and the only way I can see how the bullet hit him was I did not have a direct aim at the tire because as I remember when I was putting the gun at—pointing—putting the gun out the window to shoot I was—I guess I was already pulling the trigger but I thought I was aiming the gun at the time.

Plaintiff still contends the question of defendant Burnette's intent is for the jury, which might conclude that she was negligent. Plaintiff argues that defendant Burnette "never intended to hurt anybody," and "[w]hat she did say is that she is sitting in the car and she puts her hand out and she fires at the same time." Therefore, "[w]e don't know what intent she possessed at that time and I would present to the Court that is a factual determination again for a jury." We disagree. The evidence before the trial court presented no genuine issue of material fact as to defendant Burnette's intentional act in that she had already testified in her deposition that her intent was to shoot plaintiff's tire. Rather, the evidence presented purely a question of law as to how Burnette's actions are characterized in tort. See, e.g., Town of Spencer v. Town of East Spencer, 351 N.C. 124, 135, 522 S.E.2d 297, 305 (1999) ("The evidence before the trial court presented `no genuine issue as to any material fact,' N.C.G.S. § 1A-1, Rule 56(c) (1990), but presented purely a question of law as to the validity of East Spencer's resolution of intent."). Our question is whether defendant Burnette's act, which the parties agree is an intentional tort, also gives rise to a claim of negligence, which is not barred by the one year statute of limitation.

Negligence is the breach of a legal duty proximately causing injury. Tise v. Yates Construction Co., 345 N.C. 456, 460, 480 S.E.2d 677, 680 (1997). A breach may be caused by the performance of some positive act. See Nourse v. Food Lion, Inc., 127 N.C.App. 235, 238 n. 1, 488 S.E.2d 608, 611 n. 1 (1997),aff'd,347 N.C. 666, 496 S.E.2d 379 (1998) (active negligence denotes some positive act or some failure in duty of operation which is equivalent to a positive act). As defined by our Supreme Court, willful negligence is "the intentional failure to carry out some duty imposed by law or contract which is necessary to the safety of the person or property to which it is owed." See Pleasant v. Johnson, 312 N.C. 710, 714, 325 S.E.2d 244, 248 (1985). The duty that is intentionally breached has been defined as "an obligation, recognized by the law, requiring the person to conform to a certain standard of conduct, for the protection of others against unreasonable risks." Daniels v. Reel, 133 N.C.App. 1, 9, 515 S.E.2d 22, 27, disc. review denied, 350 N.C. 827, ___ S.E.2d ___ (1999). All "[a]ctionable negligence presupposes the existence of a legal relationship between parties by which the injured party is owed a duty by the other, and such duty must be imposed by law." Id. The law may impose that duty by statute, or else "generally by operation of law under application of the...