Truhan v. Walston ( 2014 )

NO. COA14-43
NORTH CAROLINA COURT OF APPEALS
Filed: 5 August 2014
DANIEL JOSEPH TRUHAN,
Plaintiff-Appellee,
v. Wayne County
No. 12-CVS-450
SUSAN P. WALSTON and
DAVID M. WALSTON,
Defendants and Third-Party
Plaintiff-Appellant Susan P.
Walston,
v.
NORTH CAROLINA FARM BUREAU
MUTUAL INSURANCE COMPANY,
UNITED SERVICES AUTOMOBILE
ASSOCIATION, and WESTERN
SURETY COMPANY,
Third-Party Defendants.
Appeal by Defendant and Third-Party Plaintiff Susan P.
Walston from orders entered 7 October 2013 and 4 November 2013 by
Judge Kendra D. Hill in Superior Court, Wayne County. Heard in
the Court of Appeals 6 May 2014.
Teague, Campbell, Dennis & Gorham, L.L.P., by Bryan T.
Simpson and Natalia K. Isenberg, for Daniel Joseph Truhan,
Plaintiff-Appellee and Western Surety Company, Third-Party
Defendant-Appellee.
Poyner Spruill LLP, by Timothy W. Wilson, for North
Carolina Farm Bureau Mutual Insurance Company, Third-Party
Defendant-Appellee.
-2-
Battle, Winslow, Scott & Wiley, P.A., by M. Greg Crumpler,
for United Services Automobile Association, Third-Party
Defendant-Appellee.
Whitley Law Firm, by Ann C. Ochsner, for Susan P. Walston,
Defendant and Third-Party Plaintiff-Appellant.
McGEE, Judge.
We review an order from the trial court that (1) granted
summary judgment in favor of Daniel Joseph Truhan (“Plaintiff”),
Western Surety Company (“Western Surety”), North Carolina Farm
Bureau Mutual Insurance Company (“Farm Bureau”), and United
Services Automobile Association (“United Services”)
(collectively, “Third-Party Defendants”); (2) dismissed all
counterclaims, and third-party claims of Defendant Susan P.
Walston (“Defendant”); and (3) denied the motion for summary
judgment filed by Defendant, Defendant David M. Walston, and
unnamed Defendant Argonaut Great Central Insurance Company
(“Argonaut”). Therefore, the following recitation of the “facts”
presents the evidence that was before the trial court in the
light most favorable to Defendant and ignores evidence favorable
to Plaintiff. Peter v. Vullo, __ N.C. App. __, __, 758 S.E.2d
431, 434 (2014) (for summary judgment “the evidence presented by
the parties must be viewed in the light most favorable to the
non-movant”) (citations omitted).
-3-
The following is the evidence taken in the light most
favorable to Defendant. The North Carolina Highway Patrol
(“Highway Patrol”) received a call from Kaye Howell (“Ms.
Howell”), a witness to a two-vehicle accident, at approximately
7:08 a.m. on 30 December 2009. Ms. Howell then called Wayne
County Communications to report the accident, and to inform them
that no emergency services were needed because there had been no
injuries. The Highway Patrol also called Wayne County
Communications to report the accident and also informed them that
there were no injuries. However, the Highway Patrol did inform
Wayne County Communications that the accident was on a curve in
the road and a trooper could not get to the scene right away;
therefore, traffic control was needed. Ms. Howell called Wayne
County Communications again to inform them that a woman who was
involved in the accident was arguing with a man she apparently
knew, who had arrived at the scene, and that the woman had pushed
the man. Ms. Howell asked for the estimated time of arrival of
the dispatched deputy, because the woman was “getting a little
bit out of hand.” However, Joshua Carroll, who was also involved
in the accident, stated: “At no time while I was present at the
scene of the collision did I observe any physical violence by
anyone.”
-4-
Plaintiff was a deputy for the Wayne County Sheriff’s
Office. He was leaving a Kangaroo Express located at Highway 117
and Carolina Commerce Drive in Goldsboro on 30 December 2009.
Plaintiff overheard the call from the Highway Patrol to Wayne
County Communications requesting that a Wayne County deputy
respond to the accident and provide traffic control. Plaintiff
indicated to Wayne County Communications that he was free,
closer to the accident, and could respond. Plaintiff received
the okay to respond to the accident at approximately 7:19 a.m.
About one minute later, Wayne County Communications began
receiving calls of a second accident involving injuries at
Highway 117 North and Woodview Drive, approximately one and one-
half miles from the Kangaroo Express. This second accident
involved Plaintiff and Defendant.
At the time of the accidents, Plaintiff had been working as
a deputy for just under three years. Plaintiff was a warrant
officer and spent his days serving warrants. Plaintiff only
responded to calls when no patrol deputy was available, or there
was some other circumstance that warranted departure from
Plaintiff’s usual duties. Before becoming a deputy, Plaintiff
had worked briefly for the Goldsboro Police Department as a
school resource officer. Plaintiff explained his “skill,
ability, and training” for high speed driving as follows:
-5-
I know my limitations of driving. I know
when I’m on the limits of traction or
handling a vehicle. Everybody – you know if
you’re going into a curve whether you’re
going too fast. You can – it’s a perception
thing. It’s not something I can quantify to
you. At no time during that time did I feel
that I had exceeded my ability to control
that vehicle.
Plaintiff had received no training for emergency driving beyond
the Basic Law Enforcement Training certification curriculum he
had taken at Wayne Community College in 2004.
Wayne County Sheriff’s Office policy recognizes three kinds
of police driving:
Emergency Response Driving: is driving to the
scene of a call where there may be a danger
to life, or a threat to officer safety, or
reported violence or threat of imminent
violence.
Pursuit Driving: is the attempt to apprehend
a person subject to arrest who is fleeing in
a vehicle, and includes “catch up” driving
for traffic enforcement purposes before a
violator attempts to flee.
Routine driving: is all on-duty driving other
than “emergency response driving” [or]
“pursuit driving” and includes routine
patrol, service of warrants, transportation
of prisoners, going to location of non-
emergency calls, or other driving in
performance of duty.
POLICY TITLE: Emergency Response & Vehicle Pursuits, Wayne County
Sheriff’s Office General Order (Revised January 7, 2002).
-6-
According to the evidence most favorable to Defendant, in
the approximately one to two minutes between the time Plaintiff
received the call regarding the first accident and the time
Plaintiff and Defendant were involved in the second accident, the
following occurred. Plaintiff headed north on Highway 117,
passed an exit that connected with Interstate 95, passed a
school, and passed a fire station before he reached the
intersection of Highway 117 and Woodview Drive. The fire station
was about three tenths of a mile south of Woodview Drive. At
some point before his collision with Defendant, Plaintiff
activated his blue lights, but he did not activate his siren.
Trooper L. J. Bunn (“Trooper Bunn”) of the Highway Patrol, who
investigated the accident, believed the speed limit along part of
that section of the road was thirty-five miles per hour (“mph”).
According to a collision analysis report produced by
Collision Analyst William J. Kluge, Jr., along that mile-and-a-
half section of road, Plaintiff reached speeds over one hundred
mph, passed automobiles traveling both north and south, and had
his accelerator fully depressed at times. The speed limit at the
site of the accident was forty-five mph. Four and one-half to
five seconds before the collision, Plaintiff was traveling
eighty-six to eighty-seven mph, and was accelerating. Plaintiff
was maintaining full throttle acceleration “for at least a couple
-7-
of seconds when [Defendant’s truck] would have come into view[,]”
and maintained full throttle acceleration until approximately
one-half second before the impact, at which time Plaintiff
removed his foot from the accelerator and began to depress the
brake. Plaintiff was traveling approximately ninety-five mph at
the time of impact. Plaintiff “should have been on alert and
noticed [Defendant’s truck] before [Defendant] began to make her
turn and [should have] adjusted his speed accordingly.”
Continuing with evidence presented in the light most
favorable to Defendant, Defendant left her house on Woodview
Drive, a residential street, shortly after 7:00 a.m. on 30
December 2009. As Defendant approached the intersection of
Woodview Drive and Highway 117, she slowed down, and came to a
complete stop at the stop sign. Defendant pulled forward to
obtain a better view up and down Highway 117, and again stopped.
Defendant looked to the left, looked to the right, looked back to
the left, and then pulled onto Highway 117, initiating a left-
hand turn onto Highway 117 South. Before Defendant pulled onto
Highway 117, she did not see any vehicles coming from the left,
but did see a truck coming from the right, which turned into a
drive, then Defendant looked to the left again and saw no
vehicles. As Defendant “made [her] effort to leave the stop
sign, there was nobody to the left.” As Defendant was entering
-8-
the southbound lane of Highway 117, she saw blue lights out of
the corner of her eye and was immediately hit by Plaintiff’s
cruiser.
Both Plaintiff and Defendant were seriously injured in the
accident. Plaintiff filed his complaint on 29 February 2012,
alleging that Defendant was negligent, and that Defendant’s
negligence caused the accident and Plaintiff’s injuries.
Plaintiff also brought suit against Defendant’s husband, David M.
Walston, pursuant to “the Family Purpose Doctrine.” Defendant
answered and counterclaimed on 23 May 2012. Defendant denied
that any negligence on her part caused the accident, alleged that
Plaintiff’s negligence was responsible for her injuries, and
requested both compensatory and punitive damages. Defendant
filed a “Motion for Leave to Amend Counterclaim and File Third
Party Complaint” against Farm Bureau, United Services, and
Western Surety, Third-Party Defendants, on 14 December 2012.
Defendant’s motion was granted by order filed 21 December 2012.
Plaintiff answered Defendant’s amended counterclaim and
third-party complaint on 31 Jan 2013, and pleaded the affirmative
defenses of governmental immunity and contributory negligence.
Plaintiff and Western Surety moved for summary judgment against
Defendant on 20 June 2013, arguing that Defendant’s counterclaims
should fail as a matter of law. Farm Bureau filed a motion for
-9-
summary judgment on 25 June 2013, and United Services filed a
motion for summary judgment on 9 July 2013. Defendant, along
with David M. Walston and Argonaut, filed a motion for summary
judgment on 8 August 2013. The trial court, in an order entered
7 October 2013, granted summary judgment in favor of Plaintiff,
Western Surety, Farm Bureau, and United Services “as to all
claims, counterclaims and/or third-party claims asserted against
them by Defendant[.]”
In that same order, the trial court denied the motion for
summary judgment filed by Defendant, David M. Walston, and
Argonaut. On 4 October 2013, Defendant filed a Motion for
Reconsideration of the grant of summary judgment in favor of
Plaintiff, Western Surety, Farm Bureau, and United Services or,
in the Alternative, for Certification of Order as a Final
Judgment. By order entered 4 November 2013, the trial court
denied Defendant’s motion for reconsideration, but granted
Defendant’s motion for certification pursuant to Rule 54(b),
whereby the trial court certified as a final judgment the order
granting summary judgment in favor of Plaintiff, Western Surety,
Farm Bureau, and United Services. Defendant appeals.
I.
“Our standard of review of an appeal from
summary judgment is de novo; such judgment is
appropriate only when the record shows that
there is no genuine issue as to any material
-10-
fact and that any party is entitled to a
judgment as a matter of law.”
The moving party bears the burden
of establishing the lack of a
triable issue of fact. If the
movant meets its burden, the
nonmovant is then required to
produce a forecast of evidence
demonstrating that the [nonmoving
party] will be able to make out at
least a prima facie case at trial.
Furthermore, the evidence presented
by the parties must be viewed in
the light most favorable to the
non-movant.
Peter, __ N.C. App. at __, 758 S.E.2d at 434 (citations omitted).
“‘[I]ssues of negligence are generally not appropriately decided
by way of summary judgment, [unless] there are no genuine issues
of material fact, and an essential element of a negligence claim
cannot be established[.]’” Greene v. City of Greenville, __ N.C.
App. __, __, 736 S.E.2d 833, 835, disc. review denied, __ N.C.
__, 747 S.E.2d 249 (2013).
II.
In Defendant’s first argument, she contends the trial court
erred in granting summary judgment in favor of Plaintiff because
her “forecast of the evidence establishes a genuine issue of
material fact regarding [Plaintiff’s] gross negligence.” We
agree.
Defendant argues that N.C. Gen. Stat. § 20-145, which allows
police officers to exceed the posted speed limit in certain
-11-
situations, applied to Plaintiff on the morning of the accident,
but that, because Plaintiff’s conduct rose to the level of gross
negligence, Defendant should recover in negligence from
Plaintiff. N.C. Gen. Stat. § 20-145 states:
The speed limitations set forth in this
Article shall not apply to vehicles when
operated with due regard for safety under the
direction of the police in the chase or
apprehension of violators of the law or of
persons charged with or suspected of any such
violation, nor to fire department or fire
patrol vehicles when traveling in response to
a fire alarm, nor to public or private
ambulances and rescue squad emergency service
vehicles when traveling in emergencies, nor
to vehicles operated by county fire marshals
and civil preparedness coordinators when
traveling in the performances of their
duties. This exemption shall not, however,
protect the driver of any such vehicle from
the consequence of a reckless disregard of
the safety of others.
N.C. Gen. Stat. § 20-145 (2011) (emphasis added).1 This Court
has discussed relevant factors in the N.C. Gen. Stat. § 20—145
analysis as pertains to pursuit as follows:
N.C. Gen. Stat. § 20–145 exempts police
officers from speed laws when pursuing a law
violator. However, the exemption “does not
apply to protect the officer from the
consequence of a reckless disregard of the
safety of others.” Our Supreme Court has
held that “an officer's liability in a civil
action for injuries resulting from the
officer's vehicular pursuit of a law violator
is to be determined pursuant to a gross
1
N.C. Gen. Stat. § 20-145 was amended effective 1 October 2013.
We cite to the version in effect at the time of the collision.
-12-
negligence standard of care.” Grossly
negligent behavior is defined as “wanton
conduct done with conscious or reckless
disregard for the rights and safety of
others.” . . . .
When determining whether an officer's actions
constitute gross negligence, we consider: (1)
the reason for the pursuit, (2) the
probability of injury to the public due to
the officer's decision to begin and maintain
pursuit, and (3) the officer's conduct during
the pursuit.
Relevant considerations under the first prong
include whether the officer “was attempting
to apprehend someone suspected of violating
the law” and whether the suspect could be
apprehended by means other than high speed
chase. . . . .
When assessing prong two, we look to the (1)
time and location of the pursuit, (2) the
population of the area, (3) the terrain for
the chase, (4) traffic conditions, (5) the
speed limit, (6) weather conditions, and (7)
the length and duration of the pursuit.
. . . .
Under the third prong we look to [the
officer’s] conduct during the pursuit.
Relevant factors include (1) whether an
officer made use of the lights or siren, (2)
whether the pursuit resulted in a collision,
(3) whether an officer maintained control of
the cruiser, (4) whether an officer followed
department policies for pursuits, and (5) the
speed of the pursuit.
Greene, __ N.C. App. at __, 736 S.E.2d at 835-36 (citations
omitted). We believe similar factors are useful in evaluating an
-13-
officer’s conduct when “emergency response driving” to the scene
of an incident, as well.
We note ‒ absent knowledge that there is a reasonable risk
of death, serious bodily injury, or some other grave threat ‒
that the need for an officer to engage in emergency response
driving is not as apparent as when engaging in a vehicle pursuit.
A vehicle fleeing at high speed constitutes, by its very nature,
a great risk of death or injury to multiple persons. When
engaged in a pursuit, an officer often must drive at high speed
to maintain contact with the fleeing vehicle. Of course, an
officer must still engage in risk analysis and cease pursuit if
the risk of harm to others becomes too great. Id. The
justification for an emergency response to the scene of an
incident may not be as immediately apparent.
We will view the three factors stated in Greene in the light
most favorable to Defendant:
A. The reason for the pursuit
Plaintiff was responding to a request for traffic control at the
scene of a minor accident involving no injuries. Though a
witness informed Wayne County Communications that a woman was
arguing with a man and had pushed him, and though Plaintiff
testified he was concerned there was a “violent” situation in the
vicinity of a school, there is no evidence in the audio recording
-14-
from that morning that Plaintiff was ever informed of any
disturbance. Therefore, we do not consider the disturbance in
our summary judgment analysis, as it is for the trier of fact to
resolve the issue of whether Plaintiff was aware of the
disturbance prior to his collision with Defendant. However, even
assuming arguendo Plaintiff was aware of the disturbance, there
is no evidence that the disturbance was serious, or that anyone
was in danger of being injured, much less seriously injured.
Plaintiff admitted that he did not believe there was any officer
safety issue involved. Investigating officer Lieutenant Carter
Hicks (“Lieutenant Hicks”), of the Wayne County Sheriff’s Office,
testified that policy dictates, even in emergency response
situations, that officers must “drive in due regards to the
safety of others[;]” that this policy applies to all driving, not
just pursuits, and that he considers “domestic violence calls[,]
unless there’s a life-threatening situation involved[,]” to be
non-emergency response situations. Lieutenant Hicks testified
that the situation involving Plaintiff required Plaintiff to
“balance the need to pursue or apprehend a violator against the
risk of damage to property or injury to persons.” “Deputies
. . . must always be aware that their first obligation is to
protect the public.” Policy dictated that Plaintiff had to
evaluate the reason for the emergency response “and seriousness
-15-
of the suspected violation.” Blair Tyndall (“Mr. Tyndall”), the
Director of Emergency Medical Services and Safety for Wayne
County, testified that Plaintiff, when deciding how fast to
proceed to the accident site, should have weighed the fact that
he was “responding to a motor vehicle accident that had already
occurred.” Mr. Tyndall “felt” like Plaintiff was not following
“due regard there under [N.C. Gen. Stat. § 20-145] for safety to
others.” Mr. Tyndall also believed Plaintiff was in violation of
Wayne County Emergency Response and Vehicle Pursuit Policy that
stated: “Driving that is a wanton and reckless disregard for
safety of others is illegal and never justified by any emergency,
no matter how serious.” Mr. Tyndall understood that emergency
response driving could be justified when “driving to the scene
where there may be a danger to life, or a threat to officer’s
safety, or reported violence or threat of imminent violence[,]”
but he “was not aware that there was any of those occurring at
the accident [Plaintiff] was responding to.” In Mr. Tyndall’s
opinion, Plaintiff was “operating unsafely[.]”
B. The probability of injury to the public due to
Plaintiff’s decision to begin and maintain emergency response
driving
(a) Time and location of the pursuit. Plaintiff began his
high-speed response at approximately 7:19 in the morning, and
-16-
crashed a minute or two later. This was a time when people were
generally heading to work, and children were heading to school.
It is uncertain from the evidence presented whether school was in
session at the time of the accident, but Plaintiff testified that
he believed it was. Along that section of Highway 117 are
located a school, an on/off ramp for a nearby interstate, a fire
station, and multiple residential driveways and side streets.
Although that section of Highway 117 was not heavily developed,
Defendant was pulling out of a residential neighborhood onto
Highway 117 when Plaintiff’s vehicle impacted her vehicle.
(b) The population of the area. The area was not densely
populated, but there was a mix of residential, commercial, and
governmental buildings along the highway. Highway 117 also
connects Goldsboro with Pikeville and other towns.
(c) The terrain for the chase. Highway 117 is mostly flat,
but has some curves in the section on which Plaintiff was
traveling on the morning of 30 December 2009. There was “a
right-hand curve that ended about 2/10th of a mile south of the
intersection” of Highway 117 and Woodview Drive. A witness, who
Plaintiff passed while driving north on Highway 117, stated there
was a line of trees that prevented the witness from seeing
Defendant’s vehicle until Defendant’s vehicle began to pull out
onto Highway 117.
-17-
(d) Traffic conditions. There is no evidence suggesting
heavy traffic on Highway 117 at the time of the accident, but
there were a number of automobiles in the area. One witness
stated that Plaintiff passed him as they were both traveling
north on Highway 117. Another, heading south, passed Plaintiff,
and then saw the collision in his rear-view mirror. Two other
witnesses in separate vehicles were very near the scene of the
accident when it happened, one of whom considered honking her
horn to warn Defendant not to pull out, but worried that might
cause more harm by making Defendant hesitate.
(e) The speed limit. The speed limit was forty-five mph.
Trooper Bunn believed the speed limit was thirty-five mph just
south of where the accident occurred. Plaintiff was traveling at
speeds over one hundred mph, and was accelerating at a speed of
approximately ninety-five mph immediately before the collision.
(f) Weather conditions. There is no evidence of adverse
weather conditions; however, it was early morning in winter.
C. Plaintiff’s conduct during the pursuit
When considering the evidence in the light most favorable
to Defendant, we have to assume that Plaintiff failed to activate
his siren. Trooper Bunn testified that Plaintiff should have had
his lights and siren on, and that it is a violation for any law
enforcement vehicle to initiate emergency driving without
-18-
activating both. Trooper Bunn explained: “I mean, as far as
traffic hazard; somebody pull out in front of you, they will know
you’re coming. If you got your blue lights on, they’re not going
to hear your siren – I mean, know you’re coming until you’re
right there on them.” Lieutenant Hicks testified that Plaintiff
was required to notify Communications that he was initiating
emergency response driving, but Plaintiff failed to notify and
“identify that he [was] running an emergency response of some
sort[.]” Plaintiff was traveling at speeds that prevented him
from utilizing the “four-second path of travel rule,” and the
“industry standards for visual lead time.” According to the
Basic Law Enforcement Training Driver Training manual: “The four-
second path of travel is the vehicle’s immediate path of travel.
When you consider a four-second path of travel, you have time to
take an escape route, or you have sufficient stopping distance
from any object that may appear in your path of travel.”
Further:
A visual lead time of twelve (12) seconds in
rural areas . . . provides officers with
needed time to appropriately select an
immediate path of travel. It also gives
officers time to search the areas beside the
road, adjust their speed, or to make lane
changes well in advance of any problems.”
Plaintiff “did not consider the residential homes along [Highway]
117 during his emergency response” and therefore “failed to
-19-
consider the number of intersections (public streets, residential
driveways, etc.).” Plaintiff could not recall traffic conditions
at the time of the accident, and was not monitoring his speed.
Plaintiff was accelerating out of a curve at the time the
accident occurred. “It is reasonable to believe that [Plaintiff]
experienced tunnel vision.” “The effectiveness of the eyes’
central and peripheral visions is reduced and becomes more narrow
and blurred as the vehicle’s speed is increased.” Plaintiff
should have been able to see Defendant’s vehicle as he
approached, but he did not. Plaintiff should have been operating
at a speed allowing him to brake or take evasive action to avoid
the collision with Defendant’s vehicle, but he was not.
According to Collision Analyst Kluge, had Plaintiff been
traveling at a speed at or below seventy-four mph, the collision
would not have occurred. Trooper Bunn testified that he could
not recall why he had not charged Plaintiff for not engaging his
siren or for excessive speed, but he opined: “I think he could
have been at a lower speed, I mean, going to an accident.” “I’d
say [Plaintiff should have been going] 55 or 60 at the most. I
mean, it was a [property damage] wreck. It wasn’t no life-and-
death situation there.” In his Safety Director’s Report, Mr.
Tyndall stated that Plaintiff was “in violation of the sheriff’s
department standing policy for vehicle use and response. This is
-20-
also [Plaintiff’s] second incident in 2009 with a motor vehicle
collision. Recommend appropriate disciplinary action and
remedial law enforcement drivers training.” Mr. Tyndall believed
Plaintiff was not operating his vehicle with “due regard for
safety” and was exhibiting “a wanton and reckless disregard for
safety of others[.]”
This Court addressed a similar situation in Jones v. City of
Durham, 168 N.C. App. 433, 608 S.E.2d 387 (“Jones I”), aff'd, 360
N.C. 81, 622 S.E.2d 596 (2005), opinion withdrawn and superseded
on reh'g, 361 N.C. 144, 638 S.E.2d 202, and reversed in part
based upon dissenting opinion, 361 N.C. 144, 638 S.E.2d 202(2006) (“Jones II”), together with Jones I, (“Jones”). The facts
in Jones were as follows:
[A]t approximately 9:00 a.m., Officer Tracy
Fox (“Officer Fox”) was dispatched to
investigate a domestic disturbance[.] Soon
after arriving at the scene, Officer Fox
determined that she would need assistance and
called for backup. Dispatch, upon receiving
her call, issued a “signal 20” requiring all
other officers give way for Officer Fox's
complete access to the police radio by
holding all calls. Officer Joseph M. Kelly
(“Officer Kelly”[)] was approximately 2½
miles from [the disturbance], as were fellow
Officers H.M. Crenshaw (“Officer Crenshaw”)
and R.D. Gaither (“Officer Gaither”).
In response to the first call by Officer Fox,
Officers Kelly, Crenshaw, and Gaither got in
their separate vehicles and began driving
towards [the disturbance]. Officer Fox then
made a second distress call, stating with a
-21-
voice noticeably shaken, that she needed more
units. Officers Kelly and Crenshaw activated
their blue lights and sirens and increased
the speed of their vehicles[.] Officer
Gaither took a different route.
At approximately 9:09 a.m. on the same
morning, Linda Jones (“plaintiff”) was
leaving her sister's apartment complex at the
southwest corner of the intersection of
Liberty Street and Elizabeth Street (“the
intersection”). The posted speed limit for
motorists traveling upon Liberty Street was
35 miles per hour. At the curb of Liberty
Street, plaintiff observed no vehicles
approaching, but heard sirens coming from an
undeterminable direction. A bystander
outside the apartment complex also heard the
sirens, but could not determine their
direction. Plaintiff, some 95 feet west of
the intersection, began to cross Liberty
Street outside of any designated cross walk
and against the controlling traffic signal.
At this point in the road, Liberty Street had
three undivided lanes: two eastbound lanes
(the second or middle eastbound lane was for
making northbound right turns only) and a
westbound lane. Reaching the double yellow
lines dividing the two eastbound lanes which
she crossed, plaintiff first saw a police
vehicle heading towards her in the westbound
[lane]. The vehicle came over the railroad
tracks on the eastern side of the
intersection. Sergeant Willie Long, an
eyewitness who was in his vehicle at the
corner of Grace Drive and Liberty Street, and
plaintiff both observed Officer Kelly's
vehicle go completely airborne over the
railroad tracks. Once his vehicle crossed
the railroad tracks, defendant saw plaintiff
at a distance of between 300-332 feet and
standing at the double-yellow lines.
Plaintiff turned and began running back in
the direction from which she came, across the
two eastbound lanes. Officer Kelly, crossing
-22-
the intersection and accelerating, turned his
vehicle with one hand into the eastbound
lanes and struck plaintiff on her side as she
was retreating to the curb. She was launched
six feet into the air over the vehicle and
landed in a gutter approximately 76 feet down
along the eastbound lane of Liberty Street.
Officer Kelly's vehicle traveled
approximately 160 feet after striking
plaintiff and came to a complete stop in the
eastbound lane of Liberty Street. Plaintiff
suffered severe injuries.
While Officer Kelly was en route to Officer
Fox's two distress calls, he was aware at
least four other officers were responding.
. . . . [A]n accident reconstruction expert
determined Officer Kelly's speed to have
varied between 55 and 74 miles per hour.
Jones I, 168 N.C. App. at 434-35, 608 S.E.2d at 388-89. This
Court held that, on these facts, the “plaintiff has not forecast
sufficient evidence to show a genuine issue of material fact as
to gross negligence on the part of Officer Kelly, [and that]
defendants are entitled to judgment as a matter of law.” Jones
I, 168 N.C. App. at, 443, 608 S.E.2d at 393. The Court in Jones
I reasoned:
In response to Officer Fox's two distress
calls, Officer Kelly responded to apprehend
the threatening suspect and defuse what he
believed to be a life or death situation of a
fellow Durham police officer. In pursuit of
the situation, there was some dispute as to
what speed Officer Kelly was alleged to have
been traveling. In a light most favorable to
plaintiff, this speed varied between 55 and
74 miles per hour on a road where the speed
limit was 35 miles per hour.
-23-
Jones I, 168 N.C. App. at 441, 608 S.E.2d at 393. Our Supreme
Court eventually reversed on this issue in Jones II, adopting the
dissenting opinion in Jones I. Jones II, 361 N.C. at 146, 638
S.E.2d at 203. The dissent in Jones I, adopted by Jones II,
reasoned:
[T]he question is whether the evidence raises
any genuine issue of material fact on the
issue of gross negligence. Regarding gross
negligence by a law enforcement officer, this
Court has held:
An officer ‘must conduct a
balancing test, weighing the
interests of justice in
apprehending the fleeing suspect
with the interests of the public in
not being subjected to unreasonable
risks of injury.’ ‘Gross
negligence’ occurs when an officer
consciously or recklessly
disregards an unreasonably high
probability of injury to the public
despite the absence of significant
countervailing law enforcement
benefits.
Viewed, as it must be, in the light most
favorable to the plaintiff, the record
evidence would allow a jury to find that: (1)
Kelly was not pursuing an escaping felon, but
was responding to Officer Fox's call for
assistance with a situation whose nature
Kelly knew nothing about; (2) Kelly knew
other officers had also responded to the call
for backup, so that Officer Fox was not
solely dependent on his aid; (3) Kelly was
familiar with the street where the accident
occurred, and knew it was a densely populated
urban area; (4) as Kelly approached the
accident site he was driving between 50 and
74 mph, and did not have his blue light and
-24-
siren activated; (5) Kelly knew that the
intersection of Liberty and Elizabeth Streets
had been the site of several previous
accidents, and that there were “people
hanging out” there; (6) Kelly knew from
previous experience that the safest maximum
speed on the relevant stretch of Liberty
Street was 45 mph; (7) Kelly did not apply
his brakes when he saw plaintiff in his way;
(8) Kelly lost control of his vehicle and
struck plaintiff with such force that she
suffered serious injuries; and (9) Kelly's
failure to drive at a safe speed for road
conditions was a violation of the Basic Law
Enforcement Training manual. I conclude that
this evidence, if believed by the jury,
tended to show a “high probability of injury
to the public despite the absence of
significant countervailing law enforcement
benefits,” and thus raises a genuine issue of
material fact on the question of gross
negligence.
Jones I, 168 N.C. App. at 444, 608 S.E.2d at 394-95 (citations
omitted).
Viewed in the light most favorable to Defendant, the record
evidence in this case would allow a jury to find that: (1)
Plaintiff was responding to a minor traffic accident involving
only property damage, and the sole purpose of Plaintiff’s
response was to provide traffic flow assistance; (2) Plaintiff,
against department policy, initiated emergency response driving
without any justifiable reason, and without notifying his
department; (3) Plaintiff engaged his blue lights at some point,
but failed to engage his siren, which was also a violation of
department policy; (4) Plaintiff sped along Highway 117 at speeds
-25-
topping one hundred mph where the posted speed limit was forty-
five mph and possibly even thirty-five mph at certain points; (5)
Plaintiff was a warrant officer and he did not usually engage in
driving that required high speeds; (6) Plaintiff had no high-
speed driving training beyond that obtained in his Basic Law
Enforcement Training; (7) Plaintiff sped past a school, not
knowing whether the school was in session; (8) Plaintiff also
sped past an Interstate exit and a fire station before reaching
Defendant’s residential neighborhood; (9) Plaintiff, because of
his high speed, either did not see Defendant before she pulled
out to cross the north-bound lane and head south on Highway 117,
or saw Defendant and did not take appropriate measures to avoid a
collision; (10) if Plaintiff did not see Defendant, it was either
because he was traveling around a blind curve, or because he was
not paying proper attention to the road ahead of him, perhaps
suffering from tunnel vision due to his excessive speed; (11)
Plaintiff was traveling ninety-five mph and still accelerating
until immediately before he made contact with Defendant’s
vehicle, when he finally removed his foot from the accelerator
and apparently attempted to depress the brake; (12) this was the
second automobile accident Plaintiff had been involved in in a
single year; and (13) the accident would not have occurred had
Plaintiff been engaged in “routine driving,” which was all that
-26-
was warranted in this situation – in fact, the accident would
probably not have occurred had Plaintiff simply been driving at a
speed less than seventy-five miles per hour.
We find there was a “‘high probability of injury to the
public despite the absence of significant countervailing law
enforcement benefits[.]’” Id. We hold these facts are, at a
minimum, as persuasive as the facts in Jones and, therefore, as
our Supreme Court did in Jones II, we reverse the trial court’s
grant of summary judgment in favor of Plaintiff and remand for
further action on Defendant’s counter-claims against Plaintiff.
III.
Defendant also argues the trial court erred, to the extent,
if any, that it based its award of summary judgment to Plaintiff,
Western Surety, Farm Bureau, and United Services on the defense
of governmental immunity. We agree.
It does not appear that the trial court granted summary
judgment in favor of Plaintiff based upon governmental immunity.
It is clear that the Wayne County Sheriff’s Office had a
$25,000.00 bond, issued by Western Surety, that was in effect at
the time of the 30 December 2009 accident. “According to N.C.
Gen. Stat. § 58–76–5, a sheriff waives governmental immunity by
purchasing a bond as is required by N.C. Gen. Stat. § 162–8.”
White v. Cochran, __ N.C. App. __, __, 748 S.E.2d 334, 339
-27-
(2013). Therefore, summary judgment would have been improper on
the basis of governmental immunity, at least as to potential
damages up to the amount of the $25,000.00 bond issued by Western
Surety. Id.Furthermore, this Court has recognized actions brought
pursuant to N.C. Gen. Stat. § 20-145 as falling outside the
general rule of governmental immunity. Young v. Woodall, 119
N.C. App. 132, 139-40, 458 S.E.2d 225, 230 (1995) (“Young I”),
rev'd, 343 N.C. 459, 471 S.E.2d 357 (1996) (“Young II”),
(together with Young I, “Young”). In Young, a Winston-Salem
police officer, Officer Woodall, was sued, wherein the
plaintiff apparently argue[d] 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
allege[d] that Officer Woodall failed to
comply with the statutory standard of care
codified in N.C. Gen. Stat. § 20–145.
Young I, 119 N.C. App. at 137, 458 S.E.2d at 228. The City of
Winston–Salem had purchased liability insurance that would cover
the alleged negligence of Officer Woodall, but only for any
damages in excess of $2,000,000.00. Id. at 136, 458 S.E.2d at
228. This Court held:
In summary, we conclude that the City of
Winston–Salem and Officer Woodall, in his
official capacity, are entitled to partial
summary judgment based on governmental
-28-
immunity for any damages up to and including
two million dollars, except as to the
contentions of negligence arising under N.C.
Gen. Stat. § 20–145. We also conclude that
Officer Woodall, in his individual capacity,
is entitled to summary judgment, except as to
the contentions of negligence arising under
N.C. Gen. Stat. § 20–145. As to the
contention that Officer Woodall failed to
observe the standard of care provided in
section 20–145, we affirm the trial court's
denial of summary judgment on behalf of the
City of Winston–Salem and Officer Woodall.
Id. at 139-40, 458 S.E.2d at 230. Stated another way, this Court
held that governmental immunity did not apply to actions brought
pursuant to N.C. Gen. Stat. § 20-145. Our Supreme Court granted
discretionary review, and reversed in part, holding that the
Court of Appeals had applied the wrong standard pursuant N.C.
Gen. Stat. § 20-145, ordinary negligence, instead of the
appropriate standard, gross negligence. Young II, 343 N.C. at
462, 471 S.E.2d at 359. Our Supreme Court reversed after
applying the gross negligence standard and determining that the
actions of Officer Woodall did not meet that standard. Id. at
463, 471 S.E.2d at 360.
Our Supreme Court did not overrule that part of the Court of
Appeals’ decision holding that governmental immunity did not
apply to actions brought pursuant to N.C. Gen. Stat. § 20-145.
In fact, though not specifically addressing this issue, our
Supreme Court implicitly accepted this Court’s holding that
-29-
governmental immunity does not apply to actions brought pursuant
to N.C. Gen. Stat. § 20-145. Bound by this precedent, we hold in
the present case that Defendant’s counterclaim based upon the
alleged gross negligence of Plaintiff pursuant to N.C. Gen. Stat.
§ 20-145 is not barred by governmental immunity.
Reversed and remanded.
Judges HUNTER, Robert C. and ELMORE concur.