Justice FRYE dissenting.

Justice WHICHARD dissenting.

This is an action for personal injury and property damage growing from an automobile accident that occurred in the City of Winston-Salem. Defendant Christopher Allen Woodall was an officer with the City of Winston-Salem Police Department and was acting in the performance of his duties at the time of the accident.

The defendants moved for summary judgment. The materials filed in support and in opposition to the summary judgment motion showed that at approximately 2:00 a.m. on 30 May 1992, defendant Woodall was on duty and driving in a northerly direction on Peters Creek Parkway when he saw a Chevrolet Camaro approaching him with only one headlight on. Officer Woodall turned and started following this vehicle. He did not activate his blue light or siren, he said, because if he had done so, it would have given the car he was following a better chance to elude him. He intended to activate his blue light when he was closer to the vehicle he was following.

Officer Woodall said he did not know the speed at which he was traveling, but it might have been in excess of forty-five miles per hour, which was the posted speed limit. The Winston-Salem Police Department's policy requires that the blue light and siren be activated when a patrol car exceeds the speed limit. A witness to the accident said she saw defendant Woodall traveling at a high rate of speed immediately before the accident. The witness said she could not "say for certain whether or not the headlights of the vehicle were on."

At the time defendant Woodall was traveling south on Peters Creek Parkway, the plaintiff was proceeding in a northerly direction on the Parkway, approaching Officer Woodall's oncoming vehicle. A yellow caution light was flashing as Officer Woodall approached the intersection. When plaintiff made a left turn at the intersection of the Parkway and Link Road, her vehicle was hit by the vehicle driven by the defendant.

The City of Winston-Salem did not have liability insurance for the first $2,000,000 of any claim against it and did not participate in a local government risk pool pursuant to N.C.G.S. § 160A-485 at the time of the accident. The superior court granted the motion for summary judgment as to the Police Department and denied the motion as to the City and Officer Woodall.

The Court of Appeals reversed in part. It held that the City and Officer Woodall were entitled to summary judgment based on sovereign immunity for claims up to and including $2,000,000 except claims of negligence based on N.C.G.S. § 20-145.

We allowed defendants' petition for discretionary review.

WEBB, Justice.

The Court of Appeals' opinion in this case is grounded in large part on its reading of N.C.G.S. § 20-145, which provides in part:

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 . . . . 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.G.S. § 20-145 (1993). The Court of Appeals, relying on Bullins v. Schmidt, 322 N.C. 580, 369 S.E.2d 601 (1988), and Goddard v. Williams, 251 N.C. 128, 110 S.E.2d 820 (1959), held that the last sentence of section 20-145, which makes police officers liable for "the consequence[s] of a reckless disregard of the safety of others," holds such officers to the standard of care that a reasonably prudent person would exercise in the discharge of his duties. This is ordinary negligence. The Court of Appeals held that because Officer Woodall could be liable for ordinary negligence, he could be sued in his official capacity, which means the City would be liable for his tort.

The Court of Appeals' reading of Bullins and Goddard is certainly reasonable. In Goddard, we granted a new trial when the court charged the jury "that the defendant would not be liable upon any aspect of negligence unless you . . . find . . . that the conduct of the officer . . . was intentional, purposeful, and made for the purpose of injuring the plaintiff." Goddard, 251 N.C. at 132, 110 S.E.2d at 823. In that case, we said, "[A]n officer is liable for his negligent acts as well as his wilful and wanton acts." Id. at 133, 110 S.E.2d at 824.

In Bullins, the plaintiff's intestate was killed when his automobile was hit by a vehicle being driven at a high rate of speed in an attempt to avoid the police. In Bullins, we distinguished Goddard on the ground that the collision in Goddard was between the pursuing officer and the plaintiff. We said in Bullins that when the pursuing law enforcement vehicle does not collide with another vehicle, the statutory standard of reckless disregard of the safety of others applies. Bullins, 322 N.C. at 582, 369 S.E.2d at 603.

We can see no good reason why there should be a distinction between the standards of care based on whether the officer's vehicle was in the collision. The statute makes no such distinction. The statute sets the standard, and it is gross negligence. In Goddard, the Court seemed to rely on that part of the first sentence of the section which says the speed limit shall not apply to vehicles "operated with due regard for safety under the direction of the police." We held, relying on this phrase, that an officer is liable if the jury finds he is either negligent or that he was proceeding in reckless disregard of the safety of others. Goddard, 251 N.C. at 133, 110 S.E.2d at 824. We do not believe the General Assembly intended to provide two different standards of care in one section of the statute. It seems clear to us that the standard of care intended by the General Assembly involves the reckless disregard of the safety of others, which is gross negligence.

The plaintiff argues that whatever the intent of the General Assembly when the statute was adopted, this Court held in Goddard, which was decided in 1959, that the standard of care provided by the statute is an ordinary negligence standard. Id. at 133, 110 S.E.2d at 824. The General Assembly has not amended the statute to change this result, and it is now settled as the law, says the plaintiff. The failure of a legislature to amend a statute which has been interpreted by a court is some evidence that the legislature approves of the court's interpretation. But cf. DiDonato v. Wortman, 320 N.C. 423, 435, 358 S.E.2d 489, 490 (1987) (stating that legislative inaction is not necessarily evidence of legislative approval, and that the inquiry must focus on the statute itself). In this case, the meaning of the statute is clear. We do not need this canon of construction. In order to have recovered against Officer Woodall, the plaintiff would have to have proved Officer Woodall was grossly negligent. So far as Goddard is inconsistent with this case, it is overruled.

Applying the gross negligence standard, we hold the superior court should have granted Officer Woodall's motion for summary judgment. His following the Camaro without activating the blue light or siren, his entering the intersection while the caution light was flashing, and his exceeding the speed limit were acts of discretion on his part which may have been negligent but were not grossly negligent. Officer Woodall testified his headlights were on. A witness said she could not tell whether they were on. This is not evidence that the headlights were off. The forecast of evidence did not show Officer Woodall was grossly negligent. If this evidence had been introduced at trial, the plaintiff's claim against Officer Woodall should have been dismissed. Summary judgment should have been allowed in his favor. Moore v. Fieldcrest Mills, Inc., 296 N.C. 467, 251 S.E.2d 419 (1979).

If Officer Woodall is not liable, the City is not liable under the doctrine of respondeat superior. Summary judgment should have been allowed for the City.

The defendants and the amicus curiae brief filed by the North Carolina Association of Police Attorneys advance several public policy arguments in favor of absolute immunity. The parties argue that public policy is against subjecting a police officer in this situation to a trial. Absolute immunity is necessary to encourage people to enter public service. They say it is also necessary to enable police officers to perform their duties fully and effectively without fear of liability. Although we acknowledge these arguments, we are bound by the language of the statute. N.C.G.S. § 20-145 clearly states that "[t]his exemption shall not, however, protect the driver . . . from the consequence of a reckless disregard of the safety of others." (Emphasis added.) Any change to the plain language of the statute must be made by the legislature.

We reverse that part of the decision of the Court of Appeals which allowed the plaintiff to proceed under N.C.G.S. § 20-145. We remand to the Court of Appeals for further remand to the superior court for the entry of a judgment consistent with this opinion.

REVERSED AND REMANDED.