Opinion
No. COA12–512.
2013-03-19
Audrey LOWDER, as Administratrix of the Estate of Anthony Wayne Furr, Plaintiff v. Anthony PAYNE, in his capacity as Officer of Charlotte Mecklenburg Police Department, and the City of Charlotte, Defendants.
Robinson Elliott & Smith, by William C. Robinson, W. Lewis Smith, Jr., and Katherine Tenfelde and James, McElroy & Diehl, by Gary S. Hemric, John R. Buric, and Preston O. Odom, III, for plaintiff-appellant. Parker Poe Adams & Bernstein LLP, by Lori R. Keeton, for defendant-appellant City of Charlotte.
Appeal by plaintiff and defendant-City of Charlotte from order entered 19 September 2011 by Judge Forrest D. Bridges in Mecklenburg County Superior Court. Heard in the Court of Appeals 14 November 2012. Robinson Elliott & Smith, by William C. Robinson, W. Lewis Smith, Jr., and Katherine Tenfelde and James, McElroy & Diehl, by Gary S. Hemric, John R. Buric, and Preston O. Odom, III, for plaintiff-appellant. Parker Poe Adams & Bernstein LLP, by Lori R. Keeton, for defendant-appellant City of Charlotte.
Womble Carlyle Sandridge & Rice, by James P. Cooney, III, for defendant-appellee Anthony Payne.
CALABRIA, Judge.
Audrey Lowder (“plaintiff”) and the City of Charlotte (“the City”) each appeal from the trial court's order granting in part and denying in part the City and Anthony Payne's (“Payne”) (collectively “defendants”) motion for summary judgment. We affirm.
I. Background
Anthony Furr (“Furr”), an employee for A.F.L. Network Services, LLC (“A.F.L.”), provided maintenance and upgrade services for cellular phone towers. Furr and his coworkers generally worked from late evening to early morning, when cellular traffic was low. Furr drove a white Chevrolet truck bearing an A.F.L. logo (“Furr's truck”).
On 20 July 2006, between 1:00 a.m. and 2:00 a.m., Payne, Adam Benson (“Benson”) and Steven Branan (“Branan”)(collectively “the officers”) of the Charlotte–Mecklenburg Police Department (“CMPD”), responded to a 911 call regarding a suspicious vehicle at a cell phone tower which was located in an area of Charlotte where armed robberies and other thefts had been reported. The officers were dressed in CMPD uniforms and were driving marked CMPD patrol cars.
Upon arriving at the tower, Benson spoke with the 911 caller, Allen Hodge (“Hodge”), who told Benson that he saw two individuals in a truck parked at the entrance to the enclosed tower area and asked them to leave. The officers inspected Furr's truck to ensure it was unoccupied. When Benson checked the license plate, he was informed that the vehicle was rented. The officers then entered the tower enclosure (“the enclosure”), where there were no signs of forced entry. Since the officers had limited visibility in the enclosure, they had to use their flashlights. The officers also had difficulty hearing because there was a loud hum emanating from the equipment.
After the officers passed through the gate and into the enclosure, they heard some movement from their right. Payne and Branan separated from Benson, moved to the right, and approached the shed which housed the tower's operating system. The door to the shed was open and light was spilling out onto the ground outside the doorway. Payne and Branan approached the open door with their weapons in-hand. Payne took the lead position, drew his weapon even with the shed's open door, and observed Furr crouched down in the shed holding tools with his back to the door. Furr appeared to be working on a piece of equipment. Because Hodge reported seeing two individuals, Payne stepped into the shed to check the blind spot to the left of the door to ensure that Furr was the only occupant in the shed. Branan stood behind Payne, and he was unable to see the interior of the shed clearly.
Payne stepped away from the shed door, identified himself as a police officer, and instructed Furr not to move. Branan was unable to observe Furr or detect his movements after Payne identified himself as an officer. Following Payne's announcement and instruction not to move, Furr stood up, turned around, and produced a handgun from somewhere on his person. Approximately three to five seconds later, Payne fired his weapon once, and the bullet lodged in the left doorjamb of the shed entrance. Then Payne shouted, “gun, drop the gun.” Both Benson, who was standing on the far side of the enclosure, and Hodge, who was standing next to the fence outside the enclosure, heard Payne make exclamations prior to the second and third gunshots.
According to Payne, rather than complying, Furr raised his gun to a 30–degree angle. Payne then fired his weapon two more times. Furr suffered two gunshot wounds to his chest and died almost immediately.
The autopsy report confirmed that Furr was standing at the time both bullets entered his body. Bloodstain patterns on the floor of the shed indicated that Furr continued to move forward after he was struck by the first bullet. Furr's handgun was found on the ground outside the building, approximately 5 to 6 feet from the doorway. However, forensic experts could not precisely determine when or how Furr released his weapon relative to the time Payne fired the second two shots. The experts were only able to agree that, at some point before collapsing, Furr released the gun in a forward motion with sufficient force to propel the gun to its final resting place.
Plaintiff, who is Furr's sister, filed an action against Payne in his individual and official capacity as well as against the City for direct and vicarious liability. Plaintiff's complaint included claims for, inter alia: wrongful death, negligence and gross negligence, assault and battery, negligent hiring, training, and supervision, and punitive damages. Defendants filed a joint motion for summary judgment. On 19 September 2011, the trial court granted defendants' motion as to claims against Payne in his individual capacity, finding that no genuine issue of material fact existed as to whether Payne engaged in acts which were malicious, corrupt, or beyond the scope of his duties. Additionally, the trial court granted defendants' motion as to plaintiff's claims against the City, except for her claims for negligence, gross negligence, and assault and battery against Payne in his official capacity and her claim of vicarious liability against the City. Plaintiff and the City appeal.
II. Interlocutory Appeal
Plaintiff and the City appeal from an order granting partial summary judgment as to some, but not all, of the parties and claims in the case. Since the order is not a “final determination of the rights of the parties,” it is interlocutory. N.C. Gen.Stat. § 1A–1, Rule 54(a) (2011). In general, “a party has no right to immediate appellate review of an interlocutory order.” Thompson v. Town of Dallas, 142 N.C.App. 651, 653, 543 S.E.2d 901, 903 (2001)(internal quotations and citation omitted). When the order affects a substantial right, however, a party has a right to an immediate appeal. N.C. Gen.Stat. §§ 1–277(a); 7A–27 (d)(1) (2011). “Orders denying dispositive motions based on the defenses of governmental and public official's immunity affect a substantial right and are immediately appealable.” Thompson, 142 N.C.App. at 653, 543 S.E.2d at 903. Such orders affect a substantial right because
entitlement [to qualified immunity] is an immunity from suit rather than a mere defense to liability; and like an absolute immunity, it is effectively lost if a case is erroneously permitted to go to trial. Accordingly, the reasoning that underlies the immediate appealability of an order denying absolute immunity indicates to us that the denial of qualified immunity should be similarly appealable.
Corum v. University of North Carolina, 97 N.C.App. 527, 531–32, 389 S.E.2d 596, 598 (1990), aff'd in part, rev'd in part, and remanded, 330 N.C. 761, 413 S.E.2d 276,reh'g denied,331 N.C. 558, 418 S.E.2d 664 (1992). Since the central question in the instant case is whether the trial court properly applied the doctrines of governmental and public official immunity, the trial court's order affects a substantial right, and may be immediately reviewed on appeal.
III. Standard of Review
Summary judgment is appropriate when “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) (2011). The moving party has the burden of establishing that no genuine issue of material fact exists, and can meet the burden “by proving that an essential element of the opposing party's claim is nonexistent, or by showing through discovery that the opposing party cannot produce evidence to support an essential element of his claim or cannot surmount an affirmative defense which would bar the claim.” Thompson, 142 N.C.App. at 654, 543 S.E.2d at 904. “The trial court must consider all the plaintiff's evidence in the light most favorable to him, giving to plaintiff the benefit of all reasonable inferences and resolving all conflicts in his favor[,]” and “when there is substantial evidence of unusual force, it is for the jury to decide whether the officer acted as a reasonable and prudent person or whether he acted arbitrarily and maliciously.” Todd v. Creech, 23 N.C.App. 537, 538–39, 209 S.E.2d 293, 294–95 (1974). We review an order granting summary judgment de novo, and if “summary judgment can be sustained on any grounds, it should be affirmed on appeal.” Wilkins v. Safran, 185 N.C.App. 668, 672, 649 S.E.2d 658, 661 (2007).
IV. Public Official Immunity
Both plaintiff and the City appeal from the trial court's application of public official immunity to Payne's actions, which absolved him of individual, but not official, liability. We disagree with both parties' arguments. A. Plaintiff's Appeal
Plaintiff argues that the trial court erred by granting summary judgment to defendants on her claims against Payne in his individual capacity and against the City under the doctrine of respondeat superior for Payne's allegedly malicious or corrupt actions and punitive damages. In general,
the doctrine of governmental, or sovereign, immunity bars actions against ... the state, its counties, and its public officials sued in their official capacity. A public officer sued in his official capacity operates against the public entity itself, as the public entity is ultimately financially responsible for the compensable conduct of its officers. Thus, a public officer sued in his official capacity is simply another way of suing the public entity of which the officer is an agent.
Thompson, 142 N.C.App. at 654, 543 S.E.2d at 904 (internal quotations and citations omitted). Thus, an underlying negligence action against the public officer is necessary, at a minimum, to maintain an action against the municipality through vicarious liability. Turner v. City of Greenville, 197 N.C.App. 562, 568, 677 S.E.2d 480, 484 (2009).
Although potentially liable in his official capacity, a public officer is immune from individual liability where he “lawfully exercises the judgment and discretion with which he is invested by virtue of his office, keeps within the scope of his official authority, and acts without malice or corruption .... “ Thompson, 142 N.C.App. at 655, 543 S.E.2d at 904. However, a public officer is subject to individual liability for malicious or corrupt conduct or actions beyond the scope of his duties. Id. at 655, 543 S.E.2d at 904–05.
Malicious conduct is “that which a man of reasonable intelligence would know to be contrary to his duty and which he intends to be prejudicial or injurious to another.” Id. at 656, 543 S.E.2d at 905 (internal quotations and citation omitted). Evidence that a law enforcement officer used excessive or unusual force beyond the extent authorized by statute may be sufficient to establish individual liability.
A law-enforcement officer is justified in using deadly physical force upon another person ... only when it is or appears to be reasonably necessary thereby ... [t]o defend himself or a third person from what he reasonably believes to be the use or imminent use of deadly physical force.... Nothing in this subdivision constitutes justification for willful, malicious or criminally negligent conduct by any person which injures or endangers any person or property, nor shall it be construed to excuse or justify the use of unreasonable or excessive force.
N.C. Gen.Stat. § 15A–401(d)(2) (2011). This portion of the statute “was designed solely to codify and clarify those situations in which a police officer may use deadly force without fear of incurring criminal or civil liability.” Turner, 197 N.C.App. at 567, 677 S.E.2d at 484. Such a risk of death or serious physical injury may be “made manifest by the use of a deadly weapon or other conduct or means.” Id. (quoting N.C. Gen.Stat. § 15A–401(d)(2) cmt.(d) (2007)).
Although this statute primarily addresses standards of conduct for law enforcement personnel affecting a lawful arrest, its standards are applicable to all situations wherein an officer employs deadly physical force upon a person, whether in the course of an arrest or while executing other official duties.
This Court has previously found malicious or corrupt conduct where the plaintiff provided clear evidence of affirmative, unethical conduct. See, e.g., Thompson, 142 N.C.App. at 652, 657, 543 S.E.2d at 903, 905 (affirming trial court's order denying the defendant-police officer's motion for summary judgment where the plaintiff produced evidence that the officer was aware shortly after stopping the plaintiff's car that the plaintiff's grandson needed medical attention, that the plaintiff was headed to the hospital at the time the officer pulled the plaintiff over, that the officer refused to assist the plaintiff, and that, upon reaching the hospital, the officer placed the plaintiff under arrest, causing significant health problems for the plaintiff); Prior v. Pruett, 143 N.C.App. 612, 550 S.E.2d 166 (2001) (reversing summary judgment for the defendants where plaintiff produced independent eyewitness statements contradicting defendants' version of events and indicating that the deceased did not lunge at defendants and that defendants' actions were excessive under the circumstances and not in self-defense).
In the instant case, the facts regarding the chain of events leading up to Furr's death are uncontradicted. Payne and his fellow officers responded to a citizen complaint regarding a suspicious vehicle in an area where armed robberies and other thefts had been reported. According to plaintiff's expert witness, this information coupled with the conditions outside the enclosure entitled the officers to investigate further. As a precaution, the officers drew their weapons as they approached the building which was clearly occupied. Payne identified himself and instructed Furr not to move. Instead, Furr turned, stood, and produced a gun. Payne instructed Furr to drop his gun at least once. Furr did not immediately comply with Payne's instructions. Under uncertain circumstances, Furr brought the gun upward in a forward motion, causing the gun to land at least five feet from where Furr ultimately collapsed after the second shot. Also, uncontested forensic evidence indicates that Furr continued to move toward Payne after being struck by the first shot.
Plaintiff has not produced substantial evidence of unusual force. Under these undisputed facts, plaintiff has presented no evidence indicating that Payne acted in a manner he should have known to be contrary to his duty, that he intended to injure Furr, or that his actions exceeded the level of force authorized for self-defense in the face of a deadly weapon. Although plaintiff is entitled to all inferences naturally arising from the evidence, this Court will not infer that deadly force employed by a law enforcement officer is malicious when that officer does so in the face of a deadly weapon. This argument is overruled.
Plaintiff next contends that the trial court erred by granting summary judgment to Payne, individually, for assault and battery, because public official immunity does not shield an official from liability for intentional torts. We disagree.
In Turner, this Court held that, under factual circumstances similar to the instant case, public official immunity absolved a police officer of individual liability for assault and battery in addition to other causes of action. 197 N.C.App. at 566, 677 S.E.2d at 483. Therefore, plaintiff's second argument is overruled. B. The City's Appeal
In its appeal, the City first argues that the trial court erred in denying, in part, its motion for summary judgment because application of public official immunity to Payne absolves it of all liability pursuant to this Court's holding in Turner. We disagree.
Public official immunity protects the official from individual liability for acts of mere negligence. This doctrine does not prevent a plaintiff from bringing an action against the official in his official capacity either alone or in conjunction with an overlapping suit against the municipality through vicarious liability. See id.
When the trial court applied the public official immunity doctrine to Payne, it absolved him of individual liability only. However, plaintiff's actions against Payne in his official capacity for ordinary negligence remain intact, thereby providing the foundation necessary to support plaintiff's actions against the City.
The City's argument incorrectly relies on Turner. In Turner, this Court upheld summary judgment for the defendant-city, because, inter alia, the actions of the defendant-police officers were not “malicious, corrupt or ultra vires conduct by the officers.” 197 N.C.App. at 568–69, 677 S.E.2d at 485. Moreover, unlike the instant case, the plaintiff in Turner did not bring a cause of action against the officers in their official capacity for negligence. Id. at 567, 677 S.E.2d at 484. Consequently, this Court determined that there was no basis for a vicarious liability action against the defendant-city. Id. at 569, 677 S.E.2d at 485. Thus, in Turner, it was the absence of an underlying negligence action against the officers which protected the defendant-city from liability, rather than the application of public official immunity. Therefore, this argument is overruled.
The City additionally argues that the trial court erred by denying its motion for summary judgment because Payne's conduct was objectively reasonable and not negligent. We disagree.
Although there is no genuine issue of material fact as to whether Payne acted with malice or beyond the scope of his duties, there is sufficient evidence from which a jury could conclude that Payne acted negligently in an official capacity. During the early stages of the investigation, Payne and his fellow officers failed to observe evidence indicating lawful activity within the enclosure. They did not observe the A.F.L. logo on the side of Furr's truck, or the precise nature of the tools and work equipment that was located in the open truck bed. In addition, the officers did not observe the fact that there was a combination lock on the gate which was open, with no evidence of forcible entry. In his deposition, Payne admitted that Furr appeared to be working on the processor units in the shed. There was no evidence that any damage had occurred to any of the tower's equipment or fencing. A jury could conclude from these facts that Payne negligently disregarded evidence of lawful activity, creating an environment in which serious physical injury or death could occur. This argument is overruled.
V. Punitive Damages
Plaintiff also argues that the trial court erred by granting defendants summary judgment on her punitive damages claim. However, because plaintiff has not appealed the portion of the trial court's order granting summary judgment to the City on her claim for negligent hiring, training, and supervision, the only basis of her claim for punitive damages against the City would be her claim for vicarious liability. Punitive damages on the basis of vicarious liability are expressly barred by statute. N.C. Gen.Stat. § 1D–15(c) (2011). Furthermore, plaintiff's argument on this point is conclusory, merely restates the statutory language authorizing punitive damages, and is devoid of any specific facts demonstrating the requisite level of wrongful conduct to maintain a claim for punitive damages against either defendant. This argument is overruled.
VI. Limited Waiver of Governmental Immunity
The City next appeals, claiming that its resolution waiving immunity does not extend to accepting liability for the type of conduct alleged in plaintiff's complaint. It argues that the trial court erred by refusing to grant the City full immunity from all of plaintiff's claims. We disagree.
Any governmental or municipal entity is immune from civil action for its own negligence and the negligence of its employees, agents, and officials, unless it “has consented to suit or has waived its immunity through the purchase of liability insurance.” Thompson, 142 N.C.App. at 654, 543 S.E.2d at 904.
Any city is authorized to waive its immunity from civil liability in tort by the act of purchasing liability insurance.... Immunity shall be waived only to the extent that the city is indemnified by the insurance contract from tort liability. No formal action other than the purchase of liability insurance shall be required to waive tort immunity, and no city shall be deemed to have waived its tort immunity by any action other than the purchase of liability insurance.
N.C. Gen.Stat. § 160A–485(a) (2011). Therefore, a governmental entity in North Carolina may limit the extent to which it waives immunity to civil tort claims.
The City has purchased liability insurance in the amount of $2 million. The Charlotte City Council passed a resolution waiving immunity for the “legally wrongful acts or omissions ... of the City or any of its officers, agents, or employees acting within the scope of their authority and the course of their employment.” A subsequent provision in the same resolution states that “the City uses a funded reserve against liability for wrongful death, negligence, or intentional damage to personal property, or absolute liability for damage to person or property” committed by agents or employees of the City.
The City argues that the phrase “legally wrongful acts or omissions” extends only to conduct which would satisfy criminal liability or heightened civil liability (such as malicious and corrupt conduct for public official individual liability or for punitive damages) and does not include acts of mere negligence. However, the City fails to account for the second provision which clearly creates a funded reserve for wrongful death and negligence. Read together, these provisions indicate that the City Council intended for “legally wrongful conduct” to include wrongful death and simple negligence. This argument is overruled.
VII. Contributory Negligence
Finally, the City argues that the trial court erred by failing to find Furr was contributorily negligent in his noncompliance with Payne's commands to drop his weapon, and, as a result, all of plaintiff's claims are barred as a matter of law. We disagree.
Although the defense of contributory negligence was asserted in both defendants' answers, neither defendant raised the defense in their written motion for summary judgment nor orally during the hearing on the motion. In addition, there is no evidence in the record or the transcript that the trial court ever ruled on this issue. Therefore, we can only conclude that the City raises the defense of contributory negligence for the first time on appeal. “A contention not raised in the trial court may not be raised for the first time on appeal.” Creasman v. Creasman, 152 N.C.App. 119, 123, 566 S.E.2d 725, 728 (2002). This issue is improperly before the Court, and cannot be considered. This argument is overruled.
VIII. Conclusion
The trial court properly granted defendants' motion for summary judgment on plaintiff's claims against Payne in his individual capacity and properly denied their motion on plaintiff's claims against Payne in his official capacity. The court also correctly granted defendants' summary judgment motion on plaintiff's claim for punitive damages. The City waived its sovereign immunity for plaintiff's remaining claims against it. Finally, defendants' affirmative defense of contributory negligence is not properly before this Court. The trial court's order is affirmed.
Affirmed. Judges HUNTER, Robert C. and HUNTER, Jr., ROBERT N. concur.
Report per Rule 30(e).