Wilcox v. City of Asheville

• Citation: 730 S.E.2d 226
• Decision Date: 07 August 2012
• Docket Number: No. COA12–12.,COA12–12.
• Parties: Mary Ann WILCOX, Plaintiff, v. CITY OF ASHEVILLE; William Hogan, individually and in his official capacity as the Chief of the City of Asheville Police Department; Stony Gonce, individually and in his official capacity as a police officer for the City of Asheville; Brian Hogan, individually and in his official capacity as a police officer for the City of Asheville; Cheryl Intveld, individually and in her official capacity as a police officer for the City of Asheville, Defendants.
• Court: Court of Appeal of North Carolina (US)

730 S.E.2d 226

Mary Ann WILCOX, Plaintiff,

v.CITY OF ASHEVILLE; William Hogan, individually and in his official capacity as the Chief of the City of Asheville Police Department; Stony Gonce, individually and in his official capacity as a police officer for the City of Asheville; Brian Hogan, individually and in his official capacity as a police officer for the City of Asheville; Cheryl Intveld, individually and in her official capacity as a police officer for the City of Asheville, Defendants.

No. COA12–12.

Court of Appeals of North Carolina.

Aug. 7, 2012.

Appeal by Defendants from order entered 9 September 2011 and cross-appeal by Plaintiff from order entered 9 September 2011 and amended order entered 15 September 2011 by Judge Alan Z. Thornburg in Buncombe County Superior Court. Heard in the Court of Appeals 23 May 2012.

Hyler & Lopez, P.A., by Stephen P. Agan and George B. Hyler, Jr., Asheville, for Plaintiff.

Parker Poe Adams & Bernstein LLP, by Jason R. Benton, Charlotte, and Kelly L. Whitlock, for Defendants.

Patterson Harkavy LLP, Raleigh, by Burton Craige, and Tin Fulton Walker & Owen, PLLC, Charlotte, by S. Luke Largess, for Amicus North Carolina Advocates for Justice.

General Counsel Kimberly S. Hibbard and Senior Assistant General Counsel Gregory F. Schwitzgebel III for Amicus North Carolina League of Municipalities.

STEPHENS, Judge.

In May 2007, Plaintiff Mary Ann Wilcox was shot by Asheville Police Department (“APD”) officers during APD's pursuit of a vehicle in which Wilcox was the only occupant other than the driver. The pursuit began when the driver of the vehicle sped away from an APD officer during a traffic stop. At several points during the approximately 20–minute pursuit, which involved multiple APD officers and reached speeds up to 45 miles per hour, APD officers Defendant Stony Gonce, Defendant Brian Hogan, and Defendant Cheryl Intveld attempted to stop the vehicle by shooting at the vehicle and its driver. A total of 27 bullets were fired; Gonce fired six, Hogan fired 17, and Intveld fired four. Later investigation revealed that the vehicle was hit with 16 bullets, the driver was not hit by any of the bullets, and Wilcox was hit by two bullets.

Thereafter, Wilcox commenced the present action in Buncombe County Superior Court against Defendant City of Asheville, as well as against APD Chief Defendant William Hogan (“Chief Hogan”) and officers Gonce, Hogan, and Intveld (collectively, the “Individual Defendants”) in both their official and individual capacities, asserting claims for (1) “negligence, gross negligence, recklessness, wilfull [sic] and wanton conduct” by Gonce, Hogan, and Intveld in shooting Wilcox; (2) “imputed liability” of the City of Asheville for Gonce's, Hogan's, and Intveld's actions; (3) “negligence, gross negligence, recklessness, willful and wanton conduct” by the City of Asheville and Chief Hogan in failing to adequately train and supervise Gonce, Hogan, and Intveld; (4) “violation of [Wilcox's] state constitutional rights” by all Defendants; and (5) punitive damages for the “egregiously wrongful, malicious, willful and/or wanton” conduct of the Individual Defendants.

Subsequently, pursuant to a motion by the City of Asheville and the Individual Defendants in their official capacities, the trial court dismissed all claims against those Defendants as barred by governmental immunity. Defendants later filed a motion for summary judgment seeking dismissal of Wilcox's remaining claims as follows: (1) public official immunity as barring all claims against the Individual Defendants in their individual capacities; and (2) the existence of an adequate state remedy as barring the claims arising under the North Carolina Constitution. The trial court partially granted the motion, dismissing the state constitutional claims and leaving as Wilcox's only viable claims those against the Individual Defendants in their individual capacities. From that order partially granting summary judgment for Defendants, both Wilcox and Defendants appeal.¹ We review a trial court's summary judgment order de novo, viewing all evidence in the light most favorable to the nonmoving party. Sturgill v. Ashe Memorial Hosp., Inc., 186 N.C.App. 624, 626, 652 S.E.2d 302, 304 (2007), disc. review denied,362 N.C. 180, 658 S.E.2d 662 (2008).

Defendants' appeal

Defendants appeal from that portion of the trial court's order denying summary judgment for the Individual Defendants on Wilcox's claims against them in their individual capacities. While an order denying summary judgment is an interlocutory order from which there is generally no right to appeal, this Court has previously held that a public official—which each of the Individual Defendants is, Campbell v. Anderson, 156 N.C.App. 371, 376, 576 S.E.2d 726, 730,disc. review denied,357 N.C. 457, 585 S.E.2d 385 (2003)—may immediately appeal from an interlocutory order denying a summary judgment motion based on public official immunity. Free Spirit Aviation, Inc. v. Rutherford Airport Auth., 191 N.C.App. 581, 583, 664 S.E.2d 8, 10 (2008). Thus, Defendants' appeal of the trial court's order declining to dismiss the claims against them on grounds of public official immunity is properly before this Court.

Public official immunity is “a derivative form” of governmental immunity, Epps v. Duke Univ., 122 N.C.App. 198, 203, 468 S.E.2d 846, 850,disc. review denied,344 N.C. 436, 476 S.E.2d 115 (1996), which precludes suits against public officials in their individual capacities as follows:

As long as a public officer lawfully exercises the judgment and discretion with which he is invested by virtue of his office, keeps within the scope of his official authority, and acts without malice or corruption, he is protected from liability.

Smith v. State, 289 N.C. 303, 331, 222 S.E.2d 412, 430 (1976). Thus, a public official is immune from suit unless the challenged action was (1) outside the scope of official authority, (2) done with malice, or (3) corrupt. Id. As Wilcox has not alleged that the Individual Defendants' actions were corrupt or outside the scope of their authority,² the only relevant exception to public official immunity is malice. The questions on appeal, then, are (1) what is malice, and (2) did Wilcox sufficiently forecast its existence in this case?

As for the first question, the most commonly-cited definition of malice in this context is from our Supreme Court's decision in In re Grad v. Kaasa, which states that “[a] defendant acts with malice when he wantonly does that which a man of reasonable intelligence would know to be contrary to his duty and which he intends to be prejudicial or injurious to another.” 312 N.C. 310, 313, 321 S.E.2d 888, 890 (1984). Thus, elementally, a malicious act is an act (1) done wantonly, (2) contrary to the actor's duty, and (3) intended to be injurious to another. Id. There is little disagreement between the parties on what type of conduct, generally, would satisfy the first two elements, but on the third element—intent to injure—the parties' positions diverge.

While Wilcox contends that the intent to injure may be implied by the actor's conduct such that direct evidence of a defendant's actual intent to injure the plaintiff is unnecessary, the Individual Defendants contend in their brief that only direct evidence of a defendant's actual intent to injure the plaintiff is sufficient. Hardening this position at oral argument, the Individual Defendants asserted that nothing but a statement by each of them that he or she was intending to injure Wilcox would be sufficient to show intent to injure and, thus, show malice. The authority in this State, however, does not support the Individual Defendants' rigid position on this issue.

Although there are no decisions in North Carolina addressing the sufficiency of evidence of an implied intent to injure specifically in the public official immunity context, our Supreme Court has held generally that “the intention to inflict injury may be constructive as well as actual” and that constructive intent to injure exists where the actor's conduct “is so reckless or so manifestly indifferent to the consequences, where the safety of life or limb is involved, as to justify a finding of [willfulness] and wantonness equivalent in spirit to an actual intent.” Foster v. Hyman, 197 N.C. 189, 192, 148 S.E. 36, 38 (1929). Further, in Pleasant v. Johnson, 312 N.C. 710, 325 S.E.2d 244 (1985), where our Supreme Court held that evidence of constructive intent, as defined in Foster, may be sufficient to show intentional injury in the workers' compensation context, the Court noted the broad applicability of the constructive intent doctrine, stating that “wanton and reckless behavior may be equated with an intentional act” for various purposes beyond workers' compensation actions, including intentional tort claims, punitive damages claims, and second-degree murder prosecutions. Id. at 715, 325 S.E.2d at 248 (emphasis added). In light of our Supreme Court's broad acceptance of the constructive intent doctrine in multiple situations where findings of malice and intent are required, the doctrine should, likewise, apply here so long as the doctrine's application accords with the purpose and rationale for extending immunity to public officials in the first place. Cf. id. at 712, 716–17, 325 S.E.2d at 246–47, 249–50 (in deciding whether to equate wanton and reckless conduct with intentional torts with respect to co-employee immunity in workers' compensation context, reviewing “social policy” of workers' compensation scheme and “rationale supporting co-employee immunity”). We believe it does.

The policy underpinnings of public official immunity have been described as follows:

It is generally recognized that public officers and employees would be unduly hampered, deterred and intimidated in the discharge of their duties, if those who acted improperly, or even exceeded the authority given them, were...