Schlossberg v. Goins

• Decision Date: 29 December 2000
• Docket Number: No. COA99-1391.,COA99-1391.
• Citation: 141 NC App. 436,540 S.E.2d 49
• Parties: Charles SCHLOSSBERG, Plaintiff-Appellee, v. T.J. (P.J.) GOINS, Individually and in his Official Capacity as a Corporal of the City of Greensboro Police Department, T.D. Dell, Individually and in his Official Capacity as an Officer of the Greensboro Police Department, and The City of Greensboro, Defendants-Appellants.
• Court: North Carolina Court of Appeals

540 S.E.2d 49

141 NC App. 436

Charles SCHLOSSBERG, Plaintiff-Appellee, v. T.J. (P.J.) GOINS, Individually and in his Official Capacity as a Corporal of the City of Greensboro Police Department, T.D. Dell, Individually and in his Official Capacity as an Officer of the Greensboro Police Department, and The City of Greensboro, Defendants-Appellants.

No. COA99-1391.

Court of Appeals of North Carolina.

December 29, 2000.

Carruthers & Roth, P.A., by Kenneth R. Keller and Norman F. Klick, Jr., Greensboro, for the plaintiff-appellee.

Hill, Evans, Duncan, Jordan & Davis, P.L.L.C., by Joseph R. Beatty and Polly D. Sizemore, Greensboro, for the defendants-appellants.

WYNN, Judge.

Unless waived or consented to, a city and its employees acting in their official capacities are protected from tort actions under the doctrine of governmental immunity. Likewise, public officers' immunity protects public officials from actions for mere negligence in the performance of their duties. The trial court in this case denied the City of Greensboro and its police officers the benefit of both doctrines. We reverse that judgment insofar as its holding is based on governmental immunity, but affirm the trial court's decision to deny summary judgment on the basis of the public officer immunity doctrine.

In April 1998, Charles Schlossberg brought this action against the City of Greensboro, and against Corporal T.J. Goins and Officer T.D. Dell of the Greensboro Police Department in their official as well as individual capacities. The complaint alleged assault, battery, false imprisonment/false arrest and malicious prosecution, and sought punitive damages from Officer Dell and Corporal Goins in their individual capacities for injuries sustained during an incident which occurred in June 1997.

The record on appeal shows that around 10:50 p.m. on 29 June 1997, Officer Dell responded to a call regarding a hit and run accident. When he arrived at the scene of the accident, a witness described the suspect vehicle as a tannish or metallic-colored Jeep Cherokee, occupied by a male, with Kentucky license plate number "ZLP 595." A record check with the Kentucky Department of Motor Vehicles records revealed a vehicle matching the description given by the witness. After speaking with the owner of the damaged vehicle, Officer Dell attempted to locate the suspect vehicle in the vicinity of the accident, but was unsuccessful.

Shortly after midnight, Officer Dell overheard a call on his radio to Officer Julius A. Fulmore concerning a residence at which a man was reportedly banging on the door and shouting about a wreck. Suspecting that the call related to the earlier hit and run, Officer Dell met Officer Fulmore at the residence to investigate the incident. A tan metallic Jeep Cherokee with Kentucky license plate number "ZLP 595" parked in the driveway of the residence confirmed his suspicions. Officer Dell inspected the vehicle and noticed what appeared to be fresh scratch marks on the bumper and a warm engine.

The events which next occurred are sharply in dispute. According to the officers, they knocked on the door of the house and Mr. Schlossberg answered the door. Officer Dell noted that Mr. Schlossberg fit the description of the driver of the suspect hit and run vehicle. The two officers stated that Mr. Schlossberg became agitated and angry when questioned about the accident, and denied having driven the vehicle recently. He claimed that any scratches on the vehicle were old damage. The officers stated that Mr. Schlossberg cursed repeatedly and stated that if the officers were not going to arrest him, that he was going to go back to bed, and then slammed the door.

Afterwards, Officer Fulmore left the scene and returned to the site of the earlier hit and run to obtain further information. Meanwhile, Officer Dell returned to his patrol car and radioed Corporal Goins who joined him at the residence. Corporal Goins then telephoned Mr. Schlossberg and informed him that the Jeep Cherokee was going to be impounded. Shortly thereafter, Mr. Schlossberg came out of the house and walked towards the Jeep. As he did so, Corporal Goins went to move his patrol car to block the driveway so as to prevent him from driving the Jeep away. According to both Officer Dell and Corporal Goins, Officer Dell yelled at Mr. Schlossberg before he reached the vehicle, instructing him to stop. But Mr. Schlossberg ignored that instruction, retrieved his wallet from the vehicle and started returning to the house. Officer Dell again instructed him to stop, and told him that he was under arrest. Since Mr. Schlossberg continued to ignore the instruction to stop and continued to walk towards his residence, the officers physically apprehended him before he was able to enter the house.

Mr. Schlossberg recalled this sequence of events differently. He stated that when he left the house to get his wallet from the vehicle, the officers were not in sight, and he did not hear any instructions from either Officer Dell or Corporal Goins before he was attacked as he returned to the house and attempted to enter the side door. During the ensuing struggle, the officers repeatedly struck him with their hands, knees and flashlights, and also sprayed him with mace. He stated that as a result of this struggle, he suffered various injuries, including a broken rib and broken finger.

The record shows that after the officers took Mr. Schlossberg into custody, his wife confessed to the hit and run, and she was therefore charged appropriately. Mr. Schlossberg was charged with obstruction of justice, which charge was ultimately dismissed, following which this action was filed. The City and the police officers answered his complaint and affirmatively pled the defenses of governmental and public officers' immunity. From the trial court's denial of their motions for summary judgment based on those immunities, they appeal to us.

The issues on appeal are: (I) Did the trial court err in failing to find as a matter of law that both the City and the police officers were entitled to governmental immunity? and (II) Did the trial court err in failing to find as a matter of law that the police officers were entitled to public officers' immunity? We hold that under the facts of this case, all of the defendants are entitled to governmental immunity; however, since there is a question of fact on the issue of public officers' immunity, the trial court properly denied summary judgment on that issue.

At the outset, we note that the trial court's interlocutory order denying summary judgment is immediately appealable as affecting a substantial right because it is based upon governmental immunity, as well as public officers' immunity. Schmidt v. Breeden, 134 N.C.App. 248, 251, 517 S.E.2d 171, 174 (1999); see also Jones v. Kearns, 120 N.C.App. 301, 303, 462 S.E.2d 245, 246,

disc. review denied, 342 N.C. 414, 465 S.E.2d 541 (1995); Young v. Woodall, 119 N.C.App. 132, 135, 458 S.E.2d 225, 227 (1995),

rev'd on other grounds,

343 N.C. 459, 471 S.E.2d 357 (1996).

On appeal, the City and the police officers jointly assert that the trial court erred in denying their motion for summary judgment because their evidence establishes the insurmountable affirmative defense of governmental immunity.

I. Governmental Immunity

In North Carolina, governmental immunity serves to protect a municipality, as well as its officers or employees who are sued in their official capacity, from suits arising from torts committed while the officers or employees are performing a governmental function. See Jones, 120 N.C.App. at 304,

462 S.E.2d at 247; Young, 119 N.C.App. at 135,

458 S.E.2d at 228; Taylor v. Ashburn, 112 N.C.App. 604, 436 S.E.2d 276 (1993),

disc. review denied, 336 N.C. 77, 445 S.E.2d 46 (1994). Furthermore, our courts recognize law enforcement as a governmental function. See Young, 119 N.C.App. at 135,

458 S.E.2d at 228 (citing Hare v. Butler, 99 N.C.App. 693, 698, 394 S.E.2d 231, 235,

disc. review denied, 327 N.C. 634, 399 S.E.2d 121 (1990)).

In this case, the record shows that Officer Dell and Corporal Goins acted in their official law enforcement capacities as police officers employed by the Greensboro Police Department when they attempted to apprehend Mr. Schlossberg. As their actions therefore constituted a governmental function, the City of Greensboro, and Officer Dell and Corporal Goins in their official capacities, are generally immune from suit under the doctrine of governmental immunity. That immunity is absolute unless the City has consented to being sued or otherwise waived its right to immunity. N.C. Gen.Stat. § 160A-485(a) (1987); see Williams v. Holsclaw, 128 N.C.App. 205, 208, 495 S.E.2d 166, 168,

aff'd,

349 N.C. 225, 504 S.E.2d 784 (1998). Since the record does not show that the City has expressly consented to being sued by Mr. Schlossberg, his actions against the City and its police officers acting in their official capacities, may only be maintained to the extent the City has waived its governmental immunity.

A city may waive its governmental immunity by purchasing liability insurance or by participating in a local government risk pool under Article 23 of Chapter 58 of the General Statutes. N.C.Gen.Stat. § 160A-485(a); see Jones, 120 N.C.App. at 303,

462 S.E.2d at 246; Young, 119 N.C.App. at 136,

458 S.E.2d at 228; Combs v. Town of Belhaven, N.C., 106 N.C.App. 71, 73, 415 S.E.2d 91, 92 (1992). Such immunity is waived only to the extent that the city is indemnified by its purchase of insurance or by its participation in the risk pool; that is, to the extent the city does not purchase liability insurance or participate in a local government risk pool, it retains its governmental immunity. N.C.Gen.Stat. § 160A-485(a).

The City of Greensboro admits the existence of a $5,000,000.00 excess liability insurance policy, and it acknowledges that, pursuant thereto, it has waived its governmental immunity for liability...