Jones v. Kearns , 120 N.C. App. 301 ( 1995 )

MARTIN, MARK D., Judge.

Defendants appeal from a denial of their motion for summary judgment. We affirm in part, reverse in part, and remand.

Plaintiff filed this action 5 October 1993 against defendants Penny L. Kearns (Officer Kearns) and the City of Winston-Salem (the City) seeking money damages for injuries she sustained to her right foot on 6 October 1990 while a patron at the Dixie Classic Fair. The incident occurred when a horse ridden by Officer Kearns, an employee of the Winston-Salem Police Department assigned to the Special Operations Division, Mounted Patrol Unit, allegedly stepped on plaintiffs foot. The defendants denied the material allegations of plaintiffs complaint and pled the affirmative defenses of governmental immunity, public officers’ immunity, and contributory negligence.

On 15 April 1994 defendants filed a motion for summary judgment or, in the alternative, partial summary judgment, for damages of $250,000.00 or less on the ground of governmental immunity. On 7 July 1994 the trial court entered an order denying defendants’ motion for summary judgment.

At the outset we note the trial court’s denial of defendants’ motion for summary judgment on the issue of governmental immunity is immediately appealable. Corum v. University of North Carolina, 97 N.C. App. 527, 531-532, 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 in its governmental capacity for damages of $250,000.00 or less because the City is not indemnified by a contract of insurance for damages of $250,000.00 or less and is not a member of a local government risk pool.

A city may waive immunity in its governmental capacity through 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). However, a city generally retains immunity from civil liability in its governmental capacity to the extent it does not purchase liability insurance or participate in a local government risk pool pursuant to Article 23 of Chapter 58 of the General Statutes. N.C. Gen. Stat. § 160A-485.

At the time of the alleged incident, 6 October 1990, the City did not have liability insurance for damages of $250,000 or less. Although the City did have excess insurance, it was subject to a $250,000.00 retention per incident. Moreover, at the time of the alleged incident, the City was not participating in a local government risk pool pursuant to Article 39 of Chapter 58 of the General Statutes. Because immunity from suit for damages of $250,000.00 or less had not been waived at the time of the alleged incident, the City is entitled to partial summary judgment in its governmental capacity for damages of $250,000.00 or less.

Plaintiff contends the City is not entitled to governmental immunity because the Dixie Classic Fair is a proprietary function. Specifically, plaintiff contends the proprietary nature of the fair converts the provision of municipal law enforcement into a proprietary function and deprives the City of asserting the defense of governmental immunity.

Assuming the application of governmental immunity under the present circumstances were a question of first impression, we believe plaintiffs arguments would carry great force. However, the clear and unambiguous precedent of our Supreme Court mandates that the question of whether the City is entitled to governmental immunity depends upon the mission or purpose of the municipal employee and whether the employee was acting in her official capacity at the time of the alleged negligence. We are bound by this precedent of the Supreme Court in our disposition of this case.

In the absence of governmental immunity, municipal tort liability is generally premised on the doctrine of respondeat superior. See Edwards v. Akion, 52 N.C. App 688, 279 S.E.2d 894 (1981) (applying respondeat superior principles in determining municipal tort liability for conduct of refuse collector), aff’d, 304 N.C. 585, 284 S.E.2d 518 (1981). As a corollary to this principle, our Supreme Court has squarely held that the key inquiry in determining whether a City retains immunity is the mission or purpose of the City’s employee at the time of the alleged negligence. Beach v. Tarboro, 225 N.C. 26, 28, 33 S.E.2d 64, 65-66 (1945). See also Rich v. City of Goldsboro, 282 N.C. 383, 386, 192 S.E.2d 824, 826 (1972) (focus on agent’s function allegedly causing injury); Clark v. Scheld, 253 N.C. 732, 737, 117 S.E.2d 838, 842 (1961) (focus on employee’s duty at the time of the injury); Hodges v. Charlotte, 214 N.C. 737, 741, 200 S.E. 889, 891 (1939) (focus on whether employee was performing duties incidental to a governmental function).

If at the time of the alleged negligence, the City’s officer or employee is performing a governmental function, 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 and employees sued in their official capacity. Slade v. Vernon, 110 N.C. App. 422, 426, 429 S.E.2d 744, 746 (1993). In determining whether an activity is governmental, our Supreme Court in Beach explained the court must focus on the mission of the city’s employee who allegedly caused injury:

The mission of the town’s employee, out of which the alleged injury to the plaintiff arose, is the determining factor... not what such employee was called upon to do at other times and places, but what he was engaged in doing at the particular time and place alleged.

Beach v. Tarboro, 225 N.C. at 28, 33 S.E.2d at 65-66. 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).

At the time of the alleged incident, Officer Kearns was assigned to patrol the Dixie Classic Fair in her capacity as a member of the Special Operations Division, Mounted Patrol Unit. More particularly, Officer Kearns was responding to a fellow officer’s radio call for assistance at the Midway because of a fight and resulting medical emergency. PlaintifUconcedes that Officer Kearns was employed as a police officer of the City of Winston-Salem at the time of the alleged accident. Plaintiff also concedes that, at the time of the alleged accident, Officer Kearns was assigned by the police department to the Dixie Classic Fair. Therefore, after careful examination of Officer Kearns’ mission at the time of the alleged negligence, it is clear she was performing a governmental function. Accordingly, the City of Winston-Salem and Officer Kearns, in her official capacity, are immune from suit under the doctrine of governmental immunity for damages of $250,000 or less.

Finally, defendants contend Officer Kearns is immune from suit in her 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. at 428, 429 S.E.2d at 747. 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 absent a showing of malice or corruption. Piggott v. City of Wilmington, 50 N.C. App. 401, 402-403, 273 S.E.2d 752, 753-754 (quoting Smith v. State, 289 N.C. 303, 331, 222 S.E.2d 412, 430 (1976)), cert. denied, 303 N.C. 181, 280 S.E.2d 453 (1981).

Plaintiff contends the evidence establishes a genuine issue of whether Officer Kearns acted with malice in performing her duties. Plaintiff also contends Officer Kearns owed a special duty to plaintiff, and therefore may be held liable even if she was engaged in governmental duties.

First, we examine plaintiffs contention the evidence establishes there is a genuine issue of whether Officer Kearns acted with malice in performing her duties.

Plaintiff must allege and prove corruption or malice when the defendant is in the performance of official or governmental duties involving the exercise of discretion. Wilkins v. Burton, 220 N.C. 13, 15, 16 S.E.2d 406, 407 (1941). See also Hare v. Butler, 99 N.C. App. at 700-701, 394 S.E.2d at 237 (plaintiff must allege and show a forecast of bad faith or malicious intent in order to raise an issue of fact with regard to public officer’s immunity); Jacobs v. Sherard, 36 N.C. App. 60, 66, 243 S.E.2d 184, 189, disc. review denied, 295 N.C. 466, 246 S.E.2d 12 (1978) (where complaint does not allege that law enforcement officers exceeded their authority or acted outside the scope of the duty imposed upon them, dismissal of the officers under Rule 12(b)(6) is appropriate). 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. Allegations of “reckless indifference” are not sufficient to satisfy plaintiff’s burden to allege and forecast evidence of corruption or malice. See Robinette v. Barriger, 116 N.C. App. 197, 203, 447 S.E.2d 498, 502 (1994), disc. review denied in part, 339 N.C. 615, 454 S.E.2d 257 (1995).

Officer Kearns was on duty as a police officer when she responded to a fellow officer’s radio call for assistance at the Midway, and therefore was a public official executing a governmental function at the time of the accident. Her decisions in controlling and in dispersing the large and unruly crowd to respond to the medical emergency all constitute discretionary decisions made within the course of her official duties. To survive a motion for summary judgment on the issue of whether Officer Kearns was liable in her individual capacity, therefore, plaintiff must allege and forecast evidence demonstrating Officer Kearns acted corruptly or with malice.

In her complaint plaintiff alleges Officer Kearns was negligent in failing to control her horse while attempting to control a large and unruly crowd during a medical emergency. Nowhere in her complaint or deposition does plaintiff allege or forecast evidence of malicious or corrupt conduct on the part of Officer Kearns. Although plaintiff alleges in her brief on appeal that Officer Kearns displayed a “reckless indifference” to the people in the crowd, this allegation, standing alone, does not satisfy plaintiff’s burden, and we hold Officer Kearns is entitled to public officers’ immunity.

We next address plaintiffs contention that Officer Kearns owed a special duty to plaintiff, and therefore may be held liable even if Officer Kearns was engaged in a governmental function.

Plaintiff relies on our Supreme Court’s decision in Hipp v. Ferrall, 173 N.C. 167, 91 S.E. 831 (1917), to support her contention Officer Kearns owed a special duty to plaintiff. In that case the Supreme Court articulated the rule of public officers’ immunity:

It is held in this State that public officers, in the performance of their official and governmental duties involving the exercise of judgment and discretion, may not be held liable as individuals for breach of such duty unless they act corruptly and of malice.

Id. at 169, 91 S.E. at 832. The Court noted an exception, however, where a public officer undertakes to perform a “special duty” for an individual, such as a clerk who negligently fails to index a docketed judgment. The Court reasoned that, although these duties are in some respects public in their nature, they also involve a duty special to the person injured, and in such case individual liability will attach. Id. at 171, 91 S.E. at 833.

We note that more recent decisions cast doubt on the continued vitality of Hipp to claims against clerks in their individual capacity who negligently, but in good faith, perform official duties absent specific statutory authorization. See, e.g., Whitaker v. Clark, 109 N.C. App 379, 427 S.E.2d 142 (1993) (plaintiff fails to state a claim against Department of Social Services social workers individually for negligence in failing to remove child from father’s custody and thus preventing child’s death; absent allegations in the complaint separate and apart from official duties, the complaint does not state a claim against the defendants individually); Taylor v. Ashburn, 112 N.C. App. 604, 436 S.E.2d 276 (1993) (plaintiff fails to state a claim against a fire fighter, individually, where fire truck defendant was driving collided with plaintiff’s car while fire fighter was responding to the call); Robinette v. Barriger, 116 N.C. App. 197, 447 S.E.2d 498 (1994) (no claim stated individually against county environmental health supervisor who allegedly issued permit to plaintiff with false soil data); City of Winston-Salem v. Yarbrough, 117 N.C. App. 340, 451 S.E.2d 358 (1994) (where plaintiff alleges city attorney negligently misrepresented the legality of an agreement, the complaint fails to state a claim against city attorney in his individual capacity), disc. review denied, 340 N.C. 110, 456 S.E.2d 311, disc. review denied, 340 N.C. 260, 456 S.E.2d 519 (1995).

In any event, the facts of this case nevertheless reveal that Officer Kearns undertook no special duty with respect to plaintiff. It is indisputable that Officer Kearns did not know plaintiff and did not undertake any special obligation to protect or perform a service for plaintiff individually. Rather, Officer Kearns had a duty to the general public to keep order at the fair and prevent crime. See, e.g., Braswell v. Braswell, 330 N.C. 363, 370, 410 S.E.2d 897, 901 (1991) (as a general rule police officers act for the public and therefore there is no liability for the failure to furnish police protection to specific individuals), reh’g denied, 330 N.C. 854, 412 S.E.2d 550 (1992). Therefore, Officer Kearns is entitled to the defense of public officers’ immunity in her individual capacity.

In summary, we reverse in part, having concluded the City and Officer Kearns, in her official capacity, are entitled to partial summary judgment based on governmental immunity for any damages of $250,000.00 or less and, in addition, that Officer Kearns, in her individual capacity, is entitled to summary judgment based on public officers’ immunity.

To the extent plaintiff’s claim exceeds $250,000.00, the City and Officer Kearns, in her official capacity, are not entitled to the defense of governmental immunity. We therefore affirm the trial court’s denial of the City’s motion for summary judgment for damages in excess of $250,000.00, and remand to the trial court for further proceedings consistent with this opinion.

Affirmed in part, reversed in part, and remanded.

Judge EAGLES concurs. Judge WYNN concurs in the result only with separate opinion.