Fowler v. North Carolina Department of Crime Control & Public Safety

376 S.E.2d 11 (1989) 92 N.C. App. 733

David Mitchell FOWLER, Co-Personal Representative of the Estates of Richard C. Crutchfield, deceased, Wendie Crutchfield, deceased and Sallie Crutchfield, deceased, Plaintiff,
v.
NORTH CAROLINA DEPARTMENT OF CRIME CONTROL & PUBLIC SAFETY, Defendant.

No. 8810IC320.

Court of Appeals of North Carolina.

February 7, 1989.

Pollock, Fullenwider, Cunningham & Patterson, P.A. by Bruce T. Cunningham, Jr., Southern Pines, for plaintiff-appellant.

Atty. Gen. Lacy H. Thornburg by Associate Attys. Gen. Meg Scott Phipps and Patricia F. Padgett, Raleigh, for defendant-appellee.

WELLS, Judge.

At the outset we consider whether our Supreme Court's decision in Bullins v. Schmidt, 322 N.C. 580, 369 S.E.2d 601 (1988), which was filed 30 June 1988, applies to our decision in this case. In Bullins officers from the Greensboro Police Department pursued a speeding vehicle for about eighteen miles, travelling at speeds up to 100 miles per hour. The driver of the pursued vehicle attempted to pass a vehicle in a no-passing zone, collided with the Bullins automobile, and killed both drivers. In response to the plaintiff's negligence action the North Carolina Supreme Court held that when a law enforcement officer's vehicle does not collide with another person, vehicle, or object, the officer will not be held liable for negligence unless his or her conduct constituted gross or wanton negligence. The Court held that plaintiffs failed to establish a prima facie case of gross or wanton negligence and remanded for the entry of an order directing a verdict for the defendants.

There is a presumption in North Carolina favoring retroactive application of a decision rendered by our Supreme Court that changes the existing law. The intervening decision will be applied unless compelling reasons exist for limiting its retroactive effect. Cox v. Haworth, 304 N.C. 571, 284 S.E.2d 322 (1981). In balancing the countervailing interests this Court must consider whether the plaintiff was unfairly prejudiced by his reliance on prior law, whether the purposes of the intervening decision could be achieved solely by prospective application, and the impact of retroactive application on the administration of justice. Id.

Plaintiff contends that he relied on prior law and did not address the standard of care in his claims. We note, however, that the deputy commissioner found the evidence presented insufficient to establish even simple negligence. Because the facts did not support a finding of negligence under the lower standard of care in effect when he filed his claims, we do not believe that plaintiff would be unfairly prejudiced by retroactive application of Bullins, supra.

Bullins' purpose of protecting law enforcement officers engaged in "pursu[ing] and attempt[ing] to apprehend violators of the law," furthermore, would best be served by a retroactive application. Prospective application would thwart the public policy of protecting law enforcement officers attempting to apprehend motorists exceeding a safe speed limit.

We do not believe, moreover, that a retroactive application of Bullins would significantly impair the administration of justice. We hold, consequently, that the heightened standard of care announced in Bullins, supra, applies to our disposition of this case.

Pursuant to that standard, a law enforcement officer will be held liable for damages proximately resulting from his or her gross negligence in deciding or continuing to pursue a violator of the law. Id.; see also N.C.Gen.Stat. § 20-145 (Cum.Supp.1988). The Bullins Court defined gross negligence as "wanton conduct done with conscious or reckless disregard for the rights and safety of others." A wanton act is one "done of wicked purpose [sic] or when done needlessly, manifesting a reckless indifference to the rights of others." Siders v. Gibbs, 39 N.C.App. 183, 249 S.E.2d 858 (1978) (quoting Wagoner v. North Carolina Railroad Company, 238 N.C. 162, 77 S.E.2d 701 (1953)).

Trooper Bjorklund followed a speeding vehicle for at least eight miles on a rural two-lane highway, at speeds of approximately 115 miles per hour, without activating either his siren or flashing blue light. Although we believe these facts to be more egregious than those of Bullins, supra, we cannot say that they constitute gross negligence. The incident occurred around midnight in a sparsely populated area. Bjorklund testified that he encountered no vehicles travelling in the opposite, or westerly, direction, and saw only one vehicle other than the 1967 Chevrolet, which turned off of the highway shortly before he activated his siren and light.

These circumstances do not exemplify the degree of conscious or reckless indifference toward the safety of others necessary to establish gross negligence. The evidence supports the Commission's opinion that there was no negligence on the part of defendant's employee, and we affirm that decision. We have considered plaintiff's other arguments and find them to be without merit.

AFFIRMED.

BECTON and JOHNSON, JJ., concur.