Opinion
No. COA10-616
Filed 19 April 2011 This case not for publication
Appeal by Plaintiff from order dated 1 December 2009 by Judge Joseph N. Crosswhite in Superior Court, Stanly County. Heard in the Court of Appeals 1 December 2010.
Rudolf Widenhouse Fialko, by M. Gordon Widenhouse, Jr., for Plaintiff-Appellant. Womble Carlyle Sandridge Rice, by Scott D. MacLatchie, for Defendants-Appellees.
Stanly County No. 09-CVS-119
Constandinos Pete Nikopoulos (Plaintiff) filed a complaint against Ted Michael Haigler, Chief of Police of the City of Locust (Chief Haigler), and the City of Locust (collectively Defendants) on 22 January 2009. In his complaint, Plaintiff sought damages for personal injuries he alleged he suffered during a motorcycle collision. Plaintiff filed an amended complaint on 15 September 2009 and Defendants filed an answer dated 16 October 2009. Defendants filed a motion for summary judgment on 19 November 2009, and the motion was heard on 30 November 2009. In an order dated 1 December 2009, the trial court granted Defendants' motion for summary judgment.
North Carolina State Trooper Paul Stevens (Trooper Stevens) observed Plaintiff operating a motorcycle in Montgomery County on 28 January 2006. Trooper Stevens clocked Plaintiff traveling at 80 miles per hour on a state highway. Trooper Stevens pursued Plaintiff in his squad car for approximately five minutes. Officer David Dulin (Officer Dulin) of the Albemarle Police Department then took over the pursuit of Plaintiff. Officer Dulin observed Plaintiff run a red light at an intersection in Albemarle. Plaintiff refused to stop when Officer Dulin signaled for him to do so. The pursuit of Plaintiff continued for the next nine miles, during which time Plaintiff's motorcycle reached speeds of 110 miles per hour. Both the Albemarle Police and the Stanly County Sheriff's Office pursued Plaintiff, but discontinued their pursuit when they entered a high traffic area.
Shortly thereafter, a Stanly County Emergency Medical Services (EMS) ambulance was responding to an emergency call. Chris Smith (Mr. Smith), an EMT with Stanly County EMS, was seated in the front passenger seat and his partner was driving the ambulance. The ambulance was traveling at an average speed of 70 to 75 miles per hour. Mr. Smith's partner stated that a motorcycle was tailgating the ambulance's bumper at a close distance. Mr. Smith looked in his side rearview mirror but could not see the motorcycle because it was so close behind the ambulance. At this time, Mr. Smith contacted Locust Police Officer Alan Hines (Officer Hines). Mr. Smith then saw the motorcycle veer into the opposite lane, traveling against oncoming traffic. At this point, Officer Hines began pursuing Plaintiff. Plaintiff again reached estimated speeds of 100 to 110 miles per hour as he accelerated past the ambulance.
Upon hearing Officer Hines' report over the police radio, Chief Haigler parked his police vehicle at an intersection in Locust in order to stop local traffic from traveling through the intersection. Shortly thereafter, Plaintiff drove through the intersection at 65 miles per hour and "popped a wheelie," raising his front tire six to eight feet off the ground, while still accelerating. Plaintiff came within ten feet of hitting an officer who was directing traffic in the middle of the intersection.
Chief Haigler then pursued Plaintiff in his police vehicle. During the pursuit, Chief Haigler and Plaintiff passed several other vehicles traveling on the four-lane highway. They reached speeds of 135 miles per hour. Chief Haigler passed a vehicle on its left and immediately glanced back to see if his police vehicle had cleared the other vehicle. Chief Haigler noticed that Plaintiff had quickly decelerated his motorcycle and that Chief Haigler was "almost on top" of the motorcycle. Chief Haigler was unable to avoid colliding with the motorcycle and his vehicle bumped the rear tire of the motorcycle, causing the motorcycle's back wheel to ride up onto the hood of Chief Haigler's vehicle. Plaintiff's motorcycle then veered off onto the right shoulder of the highway and crashed into a nearby wooded area. Chief Haigler rendered first aid to Plaintiff until emergency assistance arrived.
Plaintiff filed a complaint on 22 January 2009. Plaintiff alleged negligence and gross negligence, and asserted that Chief Haigler had the last clear chance to avoid the collision. Defendants filed an answer and notice of defenses on 25 March 2009. In their answer, Defendants alleged negligence on the part of Plaintiff and denied Plaintiff's claims. Plaintiff filed an amended complaint on 15 September 2009 to include a fourth claim that Defendants had waived their sovereign immunity by purchasing auto liability insurance. In their answer to the amended complaint, Defendants contended that Plaintiff's action was barred by (1) sovereign immunity, (2) Plaintiff's own negligence and gross negligence in operating his motorcycle at excessive speeds, (3) Plaintiff's failure to mitigate damages, and (4) that Chief Haigler was entitled to public official immunity.
Defendants filed a motion for summary judgment on 19 November 2009. In their motion, Defendants asserted "grounds of no actionable negligence or gross negligence, Plaintiff's contributory gross negligence, and public official immunity." Plaintiff filed a response to Defendants' motion on 30 November 2009, stating that there were material issues of fact on the claims of negligence and gross negligence, and claiming that Defendants did not have sovereign immunity or public official immunity. The trial court held a hearing on Defendants' motion on 30 November 2009 and granted summary judgment in favor of Defendants on 1 December 2009. Plaintiff appeals.
I.
Plaintiff first argues that the trial court erred in granting summary judgment for Defendants. Plaintiff contends that he forecast sufficient evidence of a genuine issue of material fact of gross negligence on the part of Defendants. We disagree.
We review an order allowing summary judgment de novo. Forbis v. Neal, 361 N.C. 519, 524, 649 S.E.2d 382, 385 (2007). "If the granting of summary judgment can be sustained on any grounds, it should be affirmed on appeal." Shore v. Brown, 324 N.C. 427, 428, 378 S.E.2d 778, 779 (1989). "Summary judgment is appropriate `if 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 judgment as a matter of law.'" Grayson v. High Point Dev. Ltd. P'ship, 175 N.C. App. 786, 788, 625 S.E.2d 591, 593 (2006) (quoting N.C. Gen. Stat. § 1A-1, Rule 56(c) (2003)).
"Although issues of negligence are generally not appropriately decided by way of summary judgment, if there are no genuine issues of material fact, and an essential element of a negligence claim cannot be established, summary judgment is proper." Norris v. Zambito, 135 N.C. App. 288, 293, 520 S.E.2d 113, 116 (1999). "[I]n any civil action resulting from the vehicular pursuit of a law violator, the gross negligence standard applies in determining the officer's liability." Parish v. Hill, 350 N.C. 231, 238, 513 S.E.2d 547, 551 (1999). Therefore, we review Plaintiff's complaint alleging claims of negligence and gross negligence under the requisite standard of gross negligence. In a complaint for gross negligence against law enforcement officers on the issue of their conduct while in pursuit of a fleeing driver, the "plaintiff [must] demonstrate the existence of a genuine issue of material fact as to gross negligence on the part of the [police] officers, so as to survive defendants' summary judgment motion." Norris, 135 N.C. App. at 294-95, 520 S.E.2d at 117-18.
Plaintiff argues that Chief Haigler's conduct during the pursuit was evidence of Chief Haigler's gross negligence, as his conduct was not in compliance with what is required of law enforcement officers when apprehending a fleeing suspect. Plaintiff argues that a jury should have been allowed to hear the facts surrounding the pursuit, including Chief Haigler's speed, his following distance behind Plaintiff's motorcycle, and the general conditions involved with the pursuit. Plaintiff contends that Chief Haigler "acted with a conscious and reckless disregard of an unreasonably high probability of injury in light of the minimal law enforcement benefits[.]" We disagree.
"[A] law enforcement officer will be held liable for damages . . . resulting from his or her gross negligence in deciding or continuing to pursue a violator of the law." Fowler v. N.C. Dept. of Crime Control Public Safety, 92 N.C. App. 733, 736, 376 S.E.2d 11, 13 (1989). Gross negligence is defined 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.'" Id. (citation omitted). Many factors are relevant to the issue of whether the conduct of a police officer during a high-speed chase meets any standard of negligence. Norris, 135 N.C. App. at 294, 520 S.E.2d at 117. The relevant factors are as follows:
First, the reason for the pursuit is to be considered. If the officer was attempting to apprehend someone suspected of violating the law, the police officer would fall squarely within the standard of care established by the Supreme Court's construction of G.S. § 20-145. Clark v. Burke County, 117 N.C. App. 85, 87, 450 S.E.2d 747, 748 (1994) (officer trying to apprehend a man suspected of discharging firearm in a public place); Bullins [v. Schmidt, 322 N.C. 580,] 584, 369 S.E.2d [601,] 604 [(1988)] (officer attempting to apprehend a driver acting "as if he was under the influence of alcohol"); Fowler v. N[.]C[.] Dept. of Crime Control Public Safety, 92 N.C. App. 733, 733, 376 S.E.2d 11, 12, disc. review denied, 324 N.C. 577, 381 S.E.2d 773 (1989) (officer trying to arrest driver traveling at 115 m.p.h. along rural highway). It is also relevant to consider whether the suspect was known to police and could be arrested through means other than apprehension via a high speed chase; Bullins at 584, 369 S.E.2d at 604 (suspect was unknown to police and no other means existed for apprehension); or whether the fleeing suspect presented a danger to the public that could only be abated by immediate pursuit. Clark at 87, 450 S.E.2d at 748; Bullins at 584, 369 S.E.2d at 604.
Norris, 135 N.C. App. at 294, 520 S.E.2d at 117. N.C. Gen. Stat. § 20-145 "exempts police officers from speed laws when engaged in the pursuit of a law violator." Id. at 293, 520 S.E.2d at 117.
Viewing the facts in the light most favorable to Plaintiff, we find that Plaintiff did not demonstrate the existence of a genuine issue of material fact as to whether Chief Haigler's conduct, during his high-speed pursuit of Plaintiff, amounted to gross negligence. The facts show that Chief Haigler was attempting to apprehend a motorcyclist whom he knew from other officers' reports over the radio had been traveling at excessive speeds in several towns, and he witnessed the motorcycle being operated at 65 miles per hour in a 35 mile per hour zone. Chief Haigler knew from reports that Plaintiff had dangerously followed an ambulance, and Chief Haigler witnessed Plaintiff "pop[] a wheelie" in an intersection and come within feet of hitting another officer standing in the intersection.
Plaintiff contends that Chief Haigler failed to maintain control of his vehicle when, after passing a car on its left and taking his eyes off of Plaintiff for a moment, Chief Haigler collided with Plaintiff's motorcycle. In Bray v. N.C. Dep't of Crime Control Pub. Safety, 151 N.C. App. 281, 564 S.E.2d 910 (2002), a pursuing officer was determined to have been driving excessively fast on a dangerous road when he crossed the center line and struck an innocent motorist. Id. at 283, 564 S.E.2d at 912. The officer in Bray was found not to have engaged in wanton conduct amounting to gross negligence. Id. Likewise, in Eckard v. Smith, 166 N.C. App. 312, 603 S.E.2d 134 (2004), our Court held that a concerted effort on the part of police officers to execute a "moving roadblock" in an area of heavy traffic on Interstate-40 was not gross negligence though one of the officers lost control of his vehicle, collided with the suspect, and caused the suspect to collide with an innocent civilian motorist, killing the motorist. Id. at 322-24, 603 S.E.2d at 141-42.
Our Supreme Court in Parish recited policy reasons for allowing police pursuits of fleeing suspects:
Political society must consider not only the risks to passengers, pedestrians, and other drivers that high-speed chases engender, but also the fact that if police are forbidden to pursue, then many more suspects will flee-and successful flights not only reduce the number of crimes solved but also create their own risks for passengers and bystanders.
Parish, 350 N.C. at 245, 513 S.E.2d at 555 (citation omitted). Likewise, the Court in Parish held that "`police officers have a duty to apprehend lawbreakers and society has a strong interest in allowing the police to carry out that duty without fear of becoming insurers for the misdeeds of the lawbreakers[.]'" Id. at 236, 513 S.E.2d at 550 (citation and alteration omitted). The Court further noted that officers must "`act decisively and . . . show restraint at the same moment, and their decisions have to be made "in haste, under pressure, and frequently without the luxury of a second chance."'" Id. at 246, 513 S.E.2d at 556 (citation omitted).
In the present case, we find that Chief Haigler's conduct was neither done with a wicked purpose, nor needlessly, so as to manifest a reckless indifference to the rights of others. Fowler, 92 N.C. App. at 736, 376 S.E.2d at 13. On the contrary, Chief Haigler had "good reason to attempt to remove [Plaintiff] from the road due to the immediate and significant potential danger to the public posed by his driving [at excessive speeds]." Norris, 135 N.C. App. at 295, 520 S.E.2d at 118. Further, Chief Haigler's alleged loss of control of his vehicle was "significantly less severe" than those involved in either Bray or Eckard, discussed above. Eckard, 166 N.C. App. at 323, 603 S.E.2d at 141. Here, Chief Haigler momentarily took his eyes off a fleeing suspect in order to observe the motorist he was passing, and, upon returning his attention to Plaintiff, found that Plaintiff had slowed down such that Chief Haigler was unable to avoid colliding with Plaintiff's motorcycle. We hold that "[t]hese circumstances do not exemplify the degree of conscious or reckless indifference toward the safety of others necessary to establish gross negligence." Fowler, 92 N.C. App at 736, 376 S.E.2d at 13.
Because we find no genuine issue of material fact as to the issue of whether Chief Haigler's conduct amounted to gross negligence, we affirm the trial court's summary judgment on this issue in favor of Defendants.
II.
Plaintiff next argues that the trial court erred in granting summary judgment in favor of Defendants because material issues of fact existed as to whether Defendants had the last clear chance to avoid the collision. However, "[t]he doctrine of last clear chance presupposes antecedent negligence on the part of the defendant and antecedent contributory negligence on the part of the plaintiff, such as would, but for the application of this doctrine, defeat recovery." Clodfelter v. Carroll, 261 N.C. 630, 634, 135 S.E.2d 636, 638 (1964); see also Dodd v. Wilson, 46 N.C. App. 601, 602, 265 S.E.2d 449, 450 (1980) ("The jury's verdict of no negligence on defendant's part makes the doctrine of last clear chance a moot issue in this case."). As we have concluded that Plaintiff failed to establish an issue of genuine material fact as to his claim of negligence and gross negligence against Defendants, we need not address Plaintiff's argument concerning last clear chance.
Affirmed.
Chief Judge MARTIN and Judge ERVIN concur.
Report per Rule 30(e).