Thompson v. Town of Dallas

• Decision Date: 03 April 2001
• Docket Number: No. COA00-499.,COA00-499.
• Citation: 142 NC App. 651,543 S.E.2d 901
• Court: North Carolina Court of Appeals
• Parties: Mary H. THOMPSON, Plaintiff, v. The TOWN OF DALLAS, North Carolina and Officer J.D. Howell, in his official capacity and individually, Defendants.

543 S.E.2d 901

142 NC App. 651

Mary H. THOMPSON, Plaintiff, v. The TOWN OF DALLAS, North Carolina and Officer J.D. Howell, in his official capacity and individually, Defendants.

No. COA00-499.

Court of Appeals of North Carolina.

April 3, 2001.

Tim L. Harris & Associates, by J. Neal Rodgers, Charlotte, for plaintiff-appellee.

Womble Carlyle Sandridge & Rice, by Allan R. Gitter and Stacey M. Stone, Winston-Salem, and Caudle & Spears, by Lloyd C. Caudle, Charlotte, for defendant-appellants.

MARTIN, Judge.

Plaintiff filed this action alleging claims against defendants Town of Dallas and Officer J.D. Howell, individually and in his official capacity, arising from events allegedly occurring while defendant Howell was employed as a police officer for the Town of Dallas. In her complaint, plaintiff alleged that her grandson suffered a head injury due to an accident at plaintiff's home. Plaintiff and the child's parents placed the child in plaintiff's automobile and proceeded to transport him to the emergency room at Gaston Memorial Hospital. As plaintiff drove through Dallas with her emergency flashers operating, she was observed by Officer Howell, who turned on his blue light and siren. In response, plaintiff stopped her car, walked backed to Howell's patrol car, and requested his assistance. When Howell did not offer assistance or investigate the child's condition, plaintiff returned to her vehicle, apparently without the officer's permission, and proceeded to the hospital, with Howell in pursuit. Upon plaintiff's arrival at the hospital, Howell placed plaintiff under arrest. Though she submitted without resistance, plaintiff alleges that Howell threatened her with chemical mace, handcuffed her behind her back, and treated her in a "rough and callous manner." Plaintiff's son informed the officer that plaintiff had suffered a previous heart attack and suffered from heart problems. Nevertheless, Howell transported plaintiff to the magistrate's office where he filed charges for speeding and failing to stop for a blue light. Plaintiff alleges that as a result of the officer's actions, she suffered additional heart problems requiring hospitalization. She alleges that the criminal charges filed against her by Officer Howell were subsequently dismissed by the Gaston County district attorney's office. Plaintiff alleged six claims for relief: negligence, violations of the North Carolina Constitution, "breach of statutory and fiduciary duties (malfeasance of office)," abuse of process and malicious prosecution, use of excessive force during arrest in violation of G.S. § 15A-401(d), and a claim for punitive damages against Officer Howell individually for his "malicious, willful and wanton conduct." She also alleged that Defendant Town of Dallas had waived governmental immunity through the purchase of liability insurance.

Defendants answered, admitting the existence of liability insurance, denying the material factual allegations of the complaint, and asserting several affirmative defenses, including, inter alia, governmental immunity and public official's immunity. Defendants' subsequent motion for judgment on the pleadings was granted as to plaintiff's third claim for relief alleging "breach of statutory and fiduciary duties (malfeasance of office)," but was denied as to plaintiff's remaining claims. Defendants then moved for summary judgment as to plaintiff's remaining claims. The trial court granted summary judgment in favor of defendants and dismissed plaintiff's second (violation of N.C. Constitution, Article I, § 19), fourth (abuse of process/malicious prosecution), and fifth (excessive force during arrest) claims for relief, but denied summary judgment as to plaintiff's first (negligence) and sixth (punitive damages against Officer Howell individually) claims for relief. Defendants appeal from the order denying their motion for summary judgment as to those claims.

The order from which defendants have appealed is an interlocutory order. In general, "a party has no right to immediate appellate review of an interlocutory order." Tise v. Yates Const. Co., Inc., 122 N.C.App. 582, 584, 471 S.E.2d 102, 105 (1996), affirmed as modified and remanded, 345 N.C. 456, 480 S.E.2d 677 (1997) (citing Veazey v. Durham, 231 N.C. 357, 362, 57 S.E.2d 377, 381 (1950)). When the order affects a substantial right, however, a party has a right to an immediate appeal. N.C. Gen.Stat. § 1-277(a); 7A-27(d)(1). Orders denying dispositive motions based on the defenses of governmental and public official's immunity affect a substantial right and are immediately appealable. Corum v. University of North Carolina, 97 N.C.App. 527, 389 S.E.2d 596 (1990), affirmed in part, reversed, in part, and remanded, 330 N.C. 761, 413 S.E.2d 276, reh'g denied, 331 N.C. 558, 418 S.E.2d 664 (1992). Immediate appeal of such interlocutory orders is allowed because "`the essence of absolute immunity is its possessor's entitlement not to have to answer for his conduct in a civil damages action.'" Epps v. Duke University, Inc., 122 N.C.App. 198, 201, 468 S.E.2d 846, 849, disc. review denied, 344 N.C. 436, 476 S.E.2d 115 (1996) (citations omitted). Defendants' appeal, therefore, is properly before this Court.

Summary judgment is appropriate when "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. Gen.Stat. § 1A-1, Rule 56(c) (1999). The moving party has the burden of establishing that no genuine issue of material fact exists, and can meet the burden

by proving that an essential element of the opposing party's claim is nonexistent, or by showing through discovery that the opposing party cannot produce evidence to support an essential element of his claim or cannot surmount an affirmative defense which would bar the claim.

Roumillat v. Simplistic Enterprises, Inc., 331 N.C. 57, 63, 414 S.E.2d 339, 342 (1992) (quoting Collingwood v. G.E. Real Estate Equities, 324 N.C. 63, 376 S.E.2d 425 (1989)). The record before us does not include any discovery materials nor is there any indication that any materials other than the pleadings were before the trial court.

By their first assignment of error, defendants contend the trial court erred in denying their motion for summary judgment with respect to plaintiff's first claim for relief alleging negligence. Their arguments present issues of whether plaintiff's negligence claims are barred by the doctrines of governmental immunity or public official's immunity.

Generally, "the doctrine of governmental, or sovereign, immunity bars actions against, inter alia, the state, its counties, and its public officials sued in their official capacity." Messick v. Catawba County, 110 N.C.App. 707, 714, 431 S.E.2d 489, 493, disc. review denied, 334 N.C. 621, 435 S.E.2d 336 (1993) (citations omitted). A public officer sued in his official capacity "operates against the public entity itself, as the public entity is ultimately financially responsible for the compensable conduct of its officers." Epps, 122 N.C.App. at 203, 468 S.E.2d at 850. Thus, a public officer sued in his official capacity is simply another way of suing the public entity of which the officer is an agent. Governmental or sovereign immunity "prevents the State or its agencies from being sued without its consent." Corum, 97 N.C.App. at 533, 389 S.E.2d at 599.

Governmental immunity "is inapplicable, however, where the state has consented to suit or has waived its immunity through the purchase of liability insurance." Messick, 110 N.C.App. at 714, 431 S.E.2d at 493. Pursuant to G.S. § 160A-485(a):

Any city is authorized to waive its immunity from civil liability in tort by the act of purchasing liability insurance.... Immunity shall be waived only to the extent that the city is indemnified by the insurance contract from tort liability. No formal action other than the purchase of liability insurance shall be required to waive tort immunity, and no city

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