Young v. Woodall

• Decision Date: 06 June 1995
• Docket Number: No. 9421SC623,9421SC623
• Citation: 119 N.C.App. 132,458 S.E.2d 225
• Parties: Kimberly (Hicks) YOUNG v. Christopher Allen WOODALL in his individual capacity and as an officer of the Winston-Salem Police Department; and Winston-Salem Police Department and The City of Winston-Salem.
• Court: North Carolina Court of Appeals

Page 225

458 S.E.2d 225

119 N.C.App. 132

Kimberly (Hicks) YOUNG v. Christopher Allen WOODALL in his individual capacity and as

an officer of the Winston-Salem Police Department;

and Winston-Salem Police Department and

The City of Winston-Salem.

No. 9421SC623.

Court of Appeals of North Carolina.

June 6, 1995.

Wright, Parrish, Newton & Rabil by Melvin F. Wright, Jr. and Nils E. Gerber, Winston-Salem, for plaintiff-appellee.

Womble Carlyle Sandridge & Rice by Gusti W. Frankel, Winston-Salem, for defendant-appellant.

MARK D. MARTIN, Judge.

The sole question upon review is whether the trial court erred in denying defendants' motion for summary judgment. We affirm in part and reverse in part.

On 30 May 1992, at approximately 2:00 a.m., plaintiff, Kimberly (Hicks) Young, was travelling north on Peters Creek Parkway. While preparing to make a left turn onto Link Road, plaintiff's automobile was struck by a police car operated by Officer Christopher Allen Woodall of the Winston-Salem Police Department. At the time of the collision, Officer Woodall was on duty as a police officer.

Officer Woodall was travelling north on Peters Creek Parkway when he observed a Camaro travelling south with only one headlight. Officer Woodall turned his vehicle around and gave chase. Officer Woodall did not notify the police dispatcher of his intention to pursue the Camaro, as required by departmental regulations, nor did he activate his sirens or flashing lights.

Officer Woodall testified that if he activates his emergency equipment when he is not close to the vehicle, the driver has an opportunity to try to outrun the officer. Apparently, Officer Woodall's intention was to turn on the blue lights when he closed in on the Camaro and, if the Camaro did not stop, to activate his siren.

It is disputed whether Officer Woodall's vehicle was travelling at an excessive speed as he approached the flashing yellow light at the intersection of Peters Creek Parkway and Link Road. During his deposition Officer Woodall testified his speed was not excessive as he approached the intersection. However, Darla Mansell, a witness, alleged in her affidavit that she "observed a police car travelling at a high rate of speed proceeding down Peters Creek Parkway." In any event, Officer Woodall conceded in his deposition that if he were in fact exceeding the posted speed limit, he would have been required by Winston-Salem Police Department policy to turn on all of his emergency equipment.

Officer Woodall testified he did not see plaintiff's vehicle until he had entered the intersection with Link Road and, at that time, saw plaintiff's vehicle was already "well into the intersection." Officer Woodall testified he did not have time to stop or take any evasive action. The two cars collided.

On 3 August 1993 plaintiff filed a negligence action against the City of Winston-Salem, the Winston-Police Department, and Police Officer Christopher Woodall to recover damages sustained in the motor vehicle collision involving plaintiff and Officer Woodall. The defendants denied the material allegations of the complaint and asserted the affirmative defenses of: governmental immunity up to and including damages of two million dollars; public officers' immunity; and contributory negligence. On 3 March 1994 defendants filed a motion for summary judgment. On 6 April 1994 the trial court granted defendant Winston-Salem Police Department's motion for summary judgment; denied defendant Woodall's motion for summary judgment on the grounds of governmental immunity and public officers' immunity; and denied defendant City of Winston-Salem's motion for summary judgment, or in the alternative, partial summary judgment on the ground of governmental immunity.

We note at the outset that denial of defendants' motion for summary judgment on the issues of governmental immunity and public officers' immunity is immediately appealable. Corum v. University of North Carolina, 97 N.C.App. 527, 531, 389 S.E.2d 596, 598 (1990), aff'd in part, rev'd in part on other grounds, 330 N.C. 761, 413 S.E.2d 276 (1992).

On appeal defendants contend the City of Winston-Salem is immune from suit up to and including two million dollars since the City is not indemnified by a contract of insurance for damages of two million dollars or less and is not a member of a local government risk pool. Defendants further contend Officer Woodall is immune from suit to the same extent as the City of Winston-Salem since at the time of the accident he was acting in his official capacity.

Governmental immunity protects a municipality, Taylor v. Ashburn, 112 N.C.App. 604, 607, 436 S.E.2d 276, 278 (1993) (citations omitted), cert. denied, 336 N.C. 77, 445 S.E.2d 46 (1994), and its officers or employees sued in their official capacity from suit for torts committed while the officers or employees are performing a governmental function. Id. at 607, 436 S.E.2d at 279. It is well established that law enforcement is a governmental function. 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, Officer Woodall was performing his official duties as a police officer when he pursued the Camaro to enforce the motor vehicle laws of this State. Because Officer Woodall was performing a governmental function at the time of the collision, we believe the City of Winston-Salem and Officer Woodall, in his official capacity, would generally be immune from suit under the doctrine of governmental immunity.

Defendant City of Winston-Salem may waive governmental immunity by the purchase of liability insurance or by joining a local government risk pool. N.C.Gen.Stat. § 160A-485(a) (1994); Combs v. Town of Belhaven, 106 N.C.App. 71, 73, 415 S.E.2d 91, 92 (1992) (addressing purchase of insurance). To the extent a city does not purchase liability insurance or participate in a local government risk pool pursuant to Article 23 of General Statute Chapter 58, however, a city generally retains immunity from civil liability in tort. N.C.Gen.Stat. § 160A-485.

At the time of the accident, the City of Winston-Salem was not indemnified by a contract of insurance for damages of two million dollars or less. Nor was the City a member of any local government risk pool. Because immunity has not been waived from suit for damages of two million dollars or less, the City of Winston-Salem would ordinarily be entitled to partial summary judgment for any claims in this lawsuit up to and including that amount. Furthermore, as an employee of the City of Winston-Salem, Officer Woodall would ordinarily be immune from suit in his official capacity to the same extent as the City.

Defendants also contend Officer Woodall is immune from suit in his individual capacity.

The general rule is that a public official is immune from personal liability for mere negligence in the performance of his duties, but he is not shielded from liability if his alleged actions were corrupt or malicious or if he acted outside and beyond the scope of his duties.

Slade v. Vernon, 110 N.C.App. 422, 428, 429 S.E.2d 744, 747 (1993). A police officer is a public official. Shuping v. Barber, 89 N.C.App. 242, 248, 365 S.E.2d 712, 716 (1988). Public officers are absolutely immune from liability for discretionary acts when taken without a showing of malice or corruption. Pigott v. City of Wilmington, 50 N.C.App. 401, 402-403, 273 S.E.2d 752, 753-754, cert. denied, 303 N.C. 181, 280 S.E.2d 453 (1981) (quoting Smith v. State, 289 N.C. 303, 331, 222 S.E.2d 412, 430 (1976)). Discretionary acts are those requiring personal deliberation, decision and judgment. Hare v. Butler, 99 N.C.App. at 700, 394 S.E.2d at 236.

Plaintiff does not allege Officer Woodall's conduct was malicious or corrupt. Rather, plaintiff apparently argues Officer Woodall failed to exercise reasonable care in the exercise of an alleged ministerial or proprietary function carried out for his own private purposes in contravention of departmental policy. Plaintiff also alleges that Officer Woodall failed to comply with the statutory standard of care codified in N.C.Gen.Stat. § 20-145.

We disagree with plaintiff's contentions that Officer Woodall was engaged in a ministerial or propriety function when he gave chase to the Camaro. Law enforcement is clearly a governmental function, Hare v. Butler, supra, and Officer Woodall was on duty as a police officer at the time of the collision. Likewise, the officer's decisions to chase the Camaro, to not activate his emergency equipment, and to allegedly employ excessive speed all constitute discretionary decisions made within the course of his duties. Accordingly, Officer Woodall would ordinarily be entitled to immunity under the general standard of care required of public officers and employees.

However, plaintiff contends the statutory standard of care codified in N.C.Gen.Stat. § 20-145 provides the proper legal standard for her negligence cause of action against Officer Woodall.

Defendants, in their reply brief, contend plaintiff did not pursue this theory of negligence in the complaint and is therefore barred from raising it on appeal. According to N.C.R.Civ.P. 8(a)(1), a pleading must contain "[a] short and plain statement of the claim sufficiently particular to give the court and the parties notice of the transactions, occurrences, or series of transactions or occurrences, intended to be proved showing that the pleader is entitled to relief...." N.C.Gen.Stat. § 1A-1, Rule 8(a)(1) (1990). Under Rule 8(a)(1), pleadings must be liberally construed to do substantial justice between the parties. Givens v. Sellars, 273 N.C. 44, 48, 159 S.E.2d 530, 534 (1968). We conclude that plaintiff...