McClease v. Dover Volunteer Fire Dept.

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA17-1123
Filed: 19 June 2018
Craven County, No. 16 CVS 265
JESSIE M. MCCLEASE, Plaintiff,
v.
DOVER VOLUNTEER FIRE DEPT., Defendant.
Appeal by plaintiff from order entered 2 June 2017 by Judge John E. Nobles in
Craven County Superior Court. Heard in the Court of Appeals 4 April 2018.
J. Elliott Field for plaintiff-appellant.
Sumrell, Sugg, Carmichael, Hicks and Hart, P.A., by Scott C. Hart, for
defendant-appellee.
ZACHARY, Judge.
Jessie McClease (“plaintiff”) appeals from an order granting Dover Volunteer
Fire Department’s (“defendant” or “Dover VFD”) motion for summary judgment on
plaintiff’s claims for negligence and negligent infliction of emotional distress. On
appeal, plaintiff argues that the trial court erred by granting summary judgment in
favor of defendant because genuine issues of material fact existed as to whether
defendant was negligent in that defendant: (1) failed to respond to the structure fire
in a timely manner, and (2) failed to maintain or otherwise ensure that the North
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Opinion of the Court
Oak Street fire hydrant was working properly. After careful review, we affirm the
trial court’s order.
Background
Plaintiff is a former resident of the Town of Dover, which is located in Craven
County, North Carolina. In 1983, plaintiff and her husband purchased a residence on
North Oak Street in Dover, where they lived until the residence was destroyed by a
fire on 3 August 2013. Defendant is a non-profit corporation established under
Chapter 55A of the North Carolina General Statutes that “provides fire suppression
services to a six square mile area within Craven County.” Plaintiff’s residence was
located within defendant’s fire district.
On 14 October 2015, plaintiff filed a verified complaint in which she asserted
claims for negligence and negligent infliction of emotional distress against defendant
and the Town of Dover arising from a structure fire on 3 August 2013 that resulted
in the destruction of plaintiff’s residence. Plaintiff specifically alleged that defendant
was negligent in that defendant (1) failed to respond to the structure fire in a timely
manner, and (2) failed to maintain or otherwise ensure that the North Oak Street fire
hydrant near her home was working properly.
In support of her claims, plaintiff submitted three affidavits. In the first
affidavit, plaintiff’s niece, Monica Garris, asserts that when she arrived at plaintiff’s
residence on 3 August 2013, (1) plaintiff’s house “was already burned-down to the
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ground”; (2) “[t]he fire was out and the house was gone”; (3) “the Dover [] VFD was
not there”; (4) “Dover VFD came after I arrived”; and (5) “[w]hen Dover VFD got there,
they were asking the other fire departments . . . what happened.” In the second
affidavit, plaintiff’s former son-in-law, James Mock, asserts that when he arrived at
plaintiff’s residence on 3 August 2013, (1) “[t]he house was engulfed in flames”; and
(2) “I did not see the Dover VFD at the scene.” In the third affidavit, Burt Staton, a
former volunteer for defendant, asserts that (1) he heard a fire alarm for fire
assistance on Oak Street and drove toward defendant’s fire station; (2) there was no
response from defendant for assistance after dispatch; (3) when he arrived at the
scene, he saw Cove City Volunteer Fire Department had arrived; (4) Cove City
Volunteer Fire Department could not use the fire hydrant in front of plaintiff’s house
so they hooked up a fire hydrant approximately 20 feet away; and (5) Dover VFD
finally arrived and was followed by the Jones County Volunteer Fire Department,
Fort Barnwell Volunteer Fire Department, and Township 9 Volunteer Fire
Department. Staton asserted that he stayed at the scene for approximately thirty
minutes.
The affidavits submitted by defendant and the parties’ pleadings allege the
following additional facts: Craven County’s Communications Center is responsible
for receiving all emergency 9-1-1 calls within the county and for dispatching the
appropriate response units. If a dispatch remains unanswered for two minutes, the
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dispatcher will contact additional response units. The dispatch keeps an electronic
“Detail Call For Services Report” (“Report”) of the total communications made to and
from all responding emergency personnel.
When a structure fire is reported, Craven County has an automatic aid policy
pursuant to which more than one fire department is automatically dispatched. When
a structure fire is reported within defendant’s fire district, the Cove City Volunteer
Fire Department and the Fort Barnwell Volunteer Fire Department are also
dispatched. Because defendant operates with an entirely volunteer staff, there is no
internal policy requiring staffing of the station house where defendant’s apparatuses
are stored. However, each volunteer is issued a pager by which the volunteer is
notified when an emergency call is received from within defendant’s fire district.
Additionally, defendant’s leadership, including the Fire Chief, Assistant Chief, and
Captains, keep VHF radios in their personal vehicles with which they respond to the
Communications Center whenever a call is received. A response from defendant’s
leadership via VHF radio is transmitted to the other volunteers’ pagers to inform
them that an emergency call has been received and that defendant is responding.
Upon confirmation that defendant is responding to an emergency, its
volunteers may proceed either to defendant’s fire station or directly to the location of
the emergency, whichever is closer to their location at the time. As defendant’s
volunteers could be spread throughout the county upon dispatch, many of its
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volunteers keep their “turnout-gear” in their personal vehicles rather than at the fire
house to put on at the scene of the fire.
On 3 August 2013, plaintiff’s husband, Mr. McClease, was mowing grass in the
yard when he observed smoke coming from the attic of plaintiff’s residence and
realized that the residence was on fire. He immediately asked the neighbor to call 9-
1-1. At 3:07 p.m., the Communications Center received an emergency call from
plaintiff’s neighbor reporting that plaintiff’s residence was on fire. At 3:08 p.m., the
Communications Center placed a dispatch call to defendant. Pursuant to the
automatic aid agreement, the Cove City Volunteer Fire Department and the Fort
Barnwell Volunteer Fire Department were dispatched at that time as well.
Assistant Chief Eric Pitts and his brother, Captain Ethan Pitts, were at their
parents’ house when the dispatch came through. They proceeded directly to plaintiff’s
residence, arriving at 3:11 p.m. according to the Communications Center Report.
Defendant’s Captain Tyler Whitney was already at the scene performing a “size-up”
to determine the appropriate course of action. Capt. Pitts remained at the scene with
Capt. Whitney, while Asst. Chief Pitts proceeded to defendant’s fire station to get a
pumper truck.
Asst. Chief Pitts returned with the pumper truck at 3:21 p.m., and defendant’s
volunteers hooked up the apparatus to a fire hydrant on Johnson Street,
approximately 500 feet from plaintiff’s residence. Defendant had notified the Town
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of Dover that the hydrant across from plaintiff’s residence was inoperable
approximately a month prior to the fire. However, according to Asst. Chief Pitts, even
if the McClease hydrant had been operable, “[i]t was safer and more efficient to
simply pull water from the Johnson Street hydrant” because “[c]onnecting either
apparatus to the McClease fire hydrant would [have] require[d] a hose to be run
around the apparatus thereby creating a trip hazard and limiting the mobility of both
apparatus at the scene.”
Defendant filed its motion for summary judgment on 12 May 2017, which the
trial court granted on 2 June 2017. Plaintiff gave timely notice of appeal.
Standard of Review
This Court reviews a trial court’s order granting or denying summary
judgment de novo. In re Will of Jones, 362 N.C. 569, 573, 669 S.E.2d 572, 576 (2008).
Summary judgment is proper where “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) (2017). “Summary
judgment is not appropriate where matters of credibility and determining the weight
of the evidence exist.” Draughon v. Harnett County Bd. of Educ., 158 N.C. App. 208,
212, 580 S.E.2d 732, 735 (2003) (citing Moore v. Fieldcrest Mills, Inc., 296 N.C. 467,
470, 251 S.E.2d 419, 422 (1979)).
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The burden of proof governing motions for summary judgment is well
established. Initially, the movant “bears the burden of establishing that there is no
triable issue of material fact.” DeWitt v. Eveready Battery Co., 355 N.C. 672, 681, 565
S.E.2d 140, 146 (2002) (citing Nicholson v. American Safety Util. Corp., 346 N.C. 767,
774, 488 S.E.2d 240, 244 (1997)). The movant may meet this burden “ ‘by proving
that an essential element of the opposing party’s claim is non-existent, or by showing
through discovery that the opposing party cannot produce evidence to support an
essential element of his claim . . . .’ ” Id. (quoting Collingwood v. G.E. Real Estate
Equities, 324 N.C. 63, 66, 376 S.E.2d 425, 427 (1989)). “ ‘[O]nce the party seeking
summary judgment makes the required showing, the burden shifts to the nonmoving
party to produce a forecast of evidence demonstrating specific facts, as opposed to
allegations, showing that he can at least establish a prima facie case at trial.’ ”
Pacheco v. Rogers & Breece, Inc., 157 N.C. App. 445, 448, 579 S.E.2d 505, 507 (2003)
(quoting Gaunt v. Pittaway, 139 N.C. App. 778, 784-85, 534 S.E.2d 660, 664 (2000),
cert. denied, 353 N.C. 371, 547 S.E.2d 810 (2001)).
“Summary judgment is seldom appropriate in a negligence action. A trial court
should only grant such a motion where the plaintiff’s forecast of evidence fails to
support an essential element of the claim.” Wallen v. Riverside Sports Ctr., 173 N.C.
App. 408, 411, 618 S.E.2d 858, 861 (2005) (citing Bostic Packaging, Inc. v. City of
Monroe, 149 N.C. App. 825, 830, 562 S.E.2d 75, 79 (2002)). Nonetheless,“[a]
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‘[p]laintiff is required to offer legal evidence tending to establish beyond mere
speculation or conjecture every essential element of negligence, and upon failure to
do so, [summary judgment] is proper.’ ” Frankenmuth Ins. v. City of Hickory, 235 N.C.
App. 31, 34, 760 S.E.2d 98, 101 (2014) (quoting Young v. Fun Services-Carolina, Inc.,
122 N.C. App. 157, 162, 468 S.E.2d 260, 263 (1996)).
Discussion
I. Negligence Claim
Plaintiff argues that the trial court erred by granting summary judgment for
defendant on plaintiff’s claim for negligence because there existed genuine issues of
material fact. After careful review, we conclude that plaintiff failed to produce
evidence of genuine issues for trial on the issue of negligence.
It is well established that in order to establish a prima facie case of negligence
against the defendant, the plaintiff must demonstrate that “(1) the defendant owed
the plaintiff a duty of care; (2) the defendant’s conduct breached that duty; (3) the
breach was the actual and proximate cause of the plaintiff’s injury; and (4) plaintiff
suffered damages as a result of the injury.” Wallen, 173 N.C. App. at 411, 618 S.E.2d
at 861 (quoting Vares v. Vares, 154 N.C. App. 83, 87, 571 S.E.2d 612, 615 (2002), disc.
review denied, 357 N.C. 67, 579 S.E.2d 576-77 (2003)).
In the present case, plaintiff alleged that defendant was negligent in that
defendant (1) failed to respond to the structure fire in a timely manner, and (2) failed
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to maintain or otherwise ensure that the North Oak Street fire hydrant was working
properly. However, plaintiff failed to produce evidence of each element of these
claims.
There was no evidence before the trial court that defendant failed to respond
in a timely manner. The record established that defendant responded within three
minutes of the dispatch and was the primary unit at the scene of the fire. This is a
reasonable response time and does not amount to a breach of the duty of reasonable
care. Moreover, the affidavits submitted by plaintiff do not support her claim that
defendant did not respond in a timely manner. Garris was not at the scene until after
the fire was extinguished, and Mock merely asserts that he “did not see [defendant]”
at the scene, which does not establish that defendant was not present. Staton’s
affidavit states that defendant arrived shortly after Cove City Volunteer Fire
Department; defendant’s apparatus did arrive after a Cove City Rescue Squad’s
ambulance, but this does not establish that none of defendant’s volunteers were on
scene and responding to the fire.
In addition, there was no evidence before the trial court that defendant acted
in a negligent manner with regard to the fire hydrant in front of plaintiff’s residence.
Plaintiff failed to put forth any evidence that defendant had a duty to maintain the
fire hydrant. The evidence showed that it was the duty of the Town of Dover to
maintain the fire hydrant, not that of defendant. Moreover, plaintiff produced no
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evidence that the inoperability of the fire hydrant was the proximate cause of
plaintiff’s damages. In fact, the evidence showed that defendant would not have used
this fire hydrant, even if it had been operable at the time of the fire.
Plaintiff failed to meet her burden to set forth specific facts establishing every
element of her negligence claim. Therefore, defendant was entitled to judgment as a
matter of law.
II. Claim for Negligent Infliction of Severe Emotional Distress
Plaintiff also argues that the trial court erred by granting summary judgment
for defendant on plaintiff’s claim for negligent infliction of emotional distress because
there existed genuine issues of material fact. We conclude that plaintiff failed to
produce specific facts showing any genuine issues for trial on this claim as well.
A claim of negligent infliction of emotional distress requires proof of negligent
conduct. Pittman v. Hyatt Coin & Gun, Inc., 224 N.C. App. 326, 330, 735 S.E.2d 856,
858-59 (2012). Given that plaintiff failed to present evidence establishing a prima
facie negligence claim, she cannot recover on this cause of action.
Furthermore, no evidence tends to show that plaintiff suffered severe emotional
distress. Plaintiff attended one appointment with a counselor and never filled the
prescription that the counselor provided. This does not establish a “severe and
disabling emotional or mental condition,” as such is defined under North Carolina
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law. Wilkerson v. Duke Univ., 229 N.C. App. 670, 675-76, 748 S.E.2d 154, 159 (2013)
(citation and quotation marks omitted).
Plaintiff failed to produce evidence to support a prima facie case of negligent
infliction of emotional distress. Therefore, defendant was entitled to judgment as a
matter of law.
III. Immunity
The issues of sovereign, governmental, and statutory immunity were raised in
the parties’ complaint and answer. However, neither party addresses these issues in
their briefs submitted to this Court. Accordingly, we do not consider these issues on
appeal.
Conclusion
For the reasons set forth above, the trial court’s summary judgment order is
AFFIRMED.
Judges ELMORE and TYSON concur.
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