Appeal by defendants from order entered 19 July 1999 by Judge
Russell G. Walker, Jr. in Superior Court, Guilford County. Heard
in the Court of Appeals 20 September 2000.
Carruthers & Roth, P.A., by Kenneth R. Keller and Norman F.
Klick, Jr., for the plaintiff-appellee.
Hill, Evans, Duncan, Jordan & Davis, P.L.L.C., by Joseph R.
Beatty and Polly D. Sizemore, for the defendants-appellants.
WYNN, Judge.
Unless waived or consented to, a city and its employees acting
in their official capacities are protected from tort actions under
the doctrine of governmental immunity. Likewise, public officers'
immunity protects public officials from actions for mere negligence
in the performance of their duties. The trial court in this case
denied the City of Greensboro and its police officers the benefit
of both doctrines. We reverse that judgment insofar as its holding
is based on governmental immunity, but affirm the trial court's
decision to deny summary judgment on the basis of the public
officer immunity doctrine.
In April 1998, Charles Schlossberg brought this action against
the City of Greensboro, and against Corporal T.J. Goins and Officer
T.D. Dell of the Greensboro Police Department in their official as
well as individual capacities. The complaint alleged assault,
battery, false imprisonment/false arrest and malicious prosecution,
and sought punitive damages from Officer Dell and Corporal Goins in
their individual capacities for injuries sustained during an
incident which occurred in June 1997.
The record on appeal shows that around 10:50 p.m. on 29 June
1997, Officer Dell responded to a call regarding a hit and run
accident. When he arrived at the scene of the accident, a witness
described the suspect vehicle as a tannish or metallic-colored JeepCherokee, occupied by a male, with Kentucky license plate number
“ZLP 595." A record check with the Kentucky Department of Motor
Vehicles records revealed a vehicle matching the description given
by the witness. After speaking with the owner of the damaged
vehicle, Officer Dell attempted to locate the suspect vehicle in
the vicinity of the accident, but was unsuccessful.
Shortly after midnight, Officer Dell overheard a call on his
radio to Officer Julius A. Fulmore concerning a residence at which
a man was reportedly banging on the door and shouting about a
wreck. Suspecting that the call related to the earlier hit and
run, Officer Dell met Officer Fulmore at the residence to
investigate the incident. A tan metallic Jeep Cherokee with
Kentucky license plate number “ZLP 595" parked in the driveway of
the residence confirmed his suspicions. Officer Dell inspected the
vehicle and noticed what appeared to be fresh scratch marks on the
bumper and a warm engine.
The events which next occurred are sharply in dispute.
According to the officers, they knocked on the door of the house
and Mr. Schlossberg answered the door. Officer Dell noted that Mr.
Schlossberg fit the description of the driver of the suspect hit
and run vehicle. The two officers stated that Mr. Schlossberg
became agitated and angry when questioned about the accident, and
denied having driven the vehicle recently. He claimed that any
scratches on the vehicle were old damage. The officers stated that
Mr. Schlossberg cursed repeatedly and stated that if the officers
were not going to arrest him, that he was going to go back to bed,
and then slammed the door. Afterwards, Officer Fulmore left the scene and returned to the
site of the earlier hit and run to obtain further information.
Meanwhile, Officer Dell returned to his patrol car and radioed
Corporal Goins who joined him at the residence. Corporal Goins
then telephoned Mr. Schlossberg and informed him that the Jeep
Cherokee was going to be impounded. Shortly thereafter, Mr.
Schlossberg came out of the house and walked towards the Jeep. As
he did so, Corporal Goins went to move his patrol car to block the
driveway so as to prevent him from driving the Jeep away.
According to both Officer Dell and Corporal Goins, Officer Dell
yelled at Mr. Schlossberg before he reached the vehicle,
instructing him to stop. But Mr. Schlossberg ignored that
instruction, retrieved his wallet from the vehicle and started
returning to the house. Officer Dell again instructed him to stop,
and told him that he was under arrest. Since Mr. Schlossberg
continued to ignore the instruction to stop and continued to walk
towards his residence, the officers physically apprehended him
before he was able to enter the house.
Mr. Schlossberg recalled this sequence of events differently.
He stated that when he left the house to get his wallet from the
vehicle, the officers were not in sight, and he did not hear any
instructions from either Officer Dell or Corporal Goins before he
was attacked as he returned to the house and attempted to enter the
side door. During the ensuing struggle, the officers repeatedly
struck him with their hands, knees and flashlights, and also
sprayed him with mace. He stated that as a result of this
struggle, he suffered various injuries, including a broken rib andbroken finger.
The record shows that after the officers took Mr. Schlossberg
into custody, his wife confessed to the hit and run, and she was
therefore charged appropriately. Mr. Schlossberg was charged with
obstruction of justice, which charge was ultimately dismissed,
following which this action was filed. The City and the police
officers answered his complaint and affirmatively pled the defenses
of governmental and public officers' immunity. From the trial
court's denial of their motions for summary judgment based on those
immunities, they appeal to us.
The issues on appeal are: (I) Did the trial court err in
failing to find as a matter of law that both the City and the
police officers were entitled to governmental immunity? and (II)
Did the trial court err in failing to find as a matter of law that
the police officers were entitled to public officers' immunity? We
hold that under the facts of this case, all of the defendants are
entitled to governmental immunity; however, since there is a
question of fact on the issue of public officers' immunity, the
trial court properly denied summary judgment on that issue.
[1]At the outset, we note that the trial court's
interlocutory order denying summary judgment is immediately
appealable as affecting a substantial right because it is based
upon governmental immunity, as well as public officers' immunity.
Schmidt v. Breeden, 134 N.C. App. 248, 251, 517 S.E.2d 171, 174
(1999); see also Jones v. Kearns, 120 N.C. App. 301, 303, 462
S.E.2d 245, 246, disc. review denied, 342 N.C. 414, 465 S.E.2d 541(1995); Young v. Woodall, 119 N.C. App. 132, 135, 458 S.E.2
d 225,
227 (1995), rev'd on other grounds, 343 N.C. 459, 471 S.E.2d 357
(1996).
On appeal, the City and the police officers jointly assert
that the trial court erred in denying their motion for summary
judgment because their evidence establishes the insurmountable
affirmative defense of governmental immunity.
I. Governmental Immunity
[2]In North Carolina, governmental immunity serves to protect
a municipality, as well as its officers or employees who are sued
in their official capacity, from suits arising from torts committed
while the officers or employees are performing a governmental
function.
See Jones, 120 N.C. App. at 304, 462 S.E.2d at 247;
Young, 119 N.C. App. at 135, 458 S.E.2d at 228;
Taylor v. Ashburn,
112 N.C. App. 604, 436 S.E.2d 276 (1993),
disc. review denied, 336
N.C. 77, 445 S.E.2d 46 (1994). Furthermore, our courts recognize
law enforcement as a governmental function.
See Young, 119 N.C.
App. at 135, 458 S.E.2d at 228 (citing
Hare v. Butler, 99 N.C. App.
693, 698, 394 S.E.2d 231, 235,
disc. review denied, 327 N.C. 634,
399 S.E.2d 121 (1990)).
In this case, the record shows that Officer Dell and Corporal
Goins acted in their official law enforcement capacities as police
officers employed by the Greensboro Police Department when they
attempted to apprehend Mr. Schlossberg. As their actions therefore
constituted a governmental function, the City of Greensboro, and
Officer Dell and Corporal Goins in their official capacities, aregenerally immune from suit under the doctrine of governmental
immunity. That immunity is absolute unless the City has consented
to being sued or otherwise waived its right to immunity. N.C. Gen.
Stat. § 160A-485(a) (1987);
see Williams v. Holsclaw, 128 N.C. App.
205, 208, 495 S.E.2d 166, 168,
aff'd, 349 N.C. 225, 504 S.E.2d 784
(1998). Since the record does not show that the City has expressly
consented to being sued by Mr. Schlossberg, his actions against the
City and its police officers acting in their official capacities,
may only be maintained to the extent the City has waived its
governmental immunity.
A city may waive its governmental immunity by purchasing
liability insurance or by participating in a local government risk
pool under Article 23 of Chapter 58 of the General Statutes. N.C.
Gen. Stat. § 160A-485(a);
see Jones, 120 N.C. App. at 303, 462
S.E.2d at 246;
Young, 119 N.C. App. at 136, 458 S.E.2d at 228;
Combs v. Town of Belhaven, N.C., 106 N.C. App. 71, 73, 415 S.E.2d
91, 92 (1992). Such immunity is waived only to the extent that the
city is indemnified by its purchase of insurance or by its
participation in the risk pool; that is, to the extent the city
does not purchase liability insurance or participate in a local
government risk pool, it retains its governmental immunity. N.C.
Gen. Stat. § 160A-485(a).
The City of Greensboro admits the existence of a $5,000,000.00
excess liability insurance policy, and it acknowledges that,
pursuant thereto, it has waived its governmental immunity for
liability for claims greater than $2,000,000.00 up to and including$7,000,000.00. The City further contends that it does not
participate in a local government risk pool. On that point, Mr.
Schlossberg disagrees with the City. He argues that the City
participates in a local government risk pool which covers claims
over $100,000.00 up to and including $2,000,000.00.
Indeed, at the time of the alleged incident, the City
participated as a member of the Local Government Excess Liability
Fund, Inc. The City describes that Fund as a non-profit
corporation that was incorporated in 1986 under Chapter 55A of the
General Statutes. In his affidavit, Everett Arnold, the Executive
Director of the Guilford City/County Insurance Advisory Committee
(which advises the City of Greensboro on insurance matters),
described the Fund as a self-insurance plan which “was created to
allow participating non-profit government agencies to fund
liability claims for which the defense of governmental liability is
inapplicable, through a central agency administered by a
professional administrator.”
The Fund administered three separate funds for the payment of
liability claims against its members: Fund A, Fund B and Fund C.
Mr. Arnold described the three different funds as follows:
4. . . . Fund B is available to pay claims
exceeding $100,000.00, up to $600,000.00,
subject to the City of Greensboro paying the
first $100,000.00. In the event Fund B makes
any claims payments, the City of Greensboro is
obligated to repay Fund B the entire amount so
paid. Fund A was established to pay claims in
excess of $600,000.00 up to a maximum of
$1,600,000.00, after exhausting the City's
direct responsibility for payment of the first
$100,000.00, and after Fund B payment of
$500,000.00. Fund C was established to
provide payment for any amount in excess of
$1,600,000.00 up to $2,000,000.00. . . .
5. . . . The governmental agencies
participating in the Fund share costs only for
the administration of the Fund. There is no
sharing of risks among the members of the Fund
for any claim under $600,000.00. All such
claims under $600,000.00 which are paid from
Fund B are the direct responsibility of the
participating member against which the claim
is asserted, and any payments made by Fund B
must be repaid by the participating
governmental agency.
Mr. Arnold concluded the Fund is not a local government risk pool
under Article 23 of Chapter 58 of the General Statutes.
Our Supreme Court construed what constitutes a local
government risk pool under N.C. Gen. Stat. §§ 58-23-1
et seq.
(1994) in
Lyles v. City of Charlotte, 344 N.C. 676, 477 S.E.2d 150
(1996),
reh'g denied, 345 N.C. 355, 483 S.E.2d 170 (1997). In
Lyles, our Supreme Court considered whether the City of Charlotte
had waived its sovereign immunity by participating in a local
government risk pool when it entered into an agreement with
Mecklenburg County and the Charlotte-Mecklenburg Board of
Education. Those three entities had created a Division of
Insurance and Risk Management (DIRM) to handle liability claims
against them.
Id. Under the agreement, each of the three member
entities paid funds into separate trust accounts from which the
DIRM would pay claims against each entity. The Supreme Court
specifically noted that the funds in each entity's trust account
were not commingled with the funds in the other entities' trust
accounts. Each entity was responsible for paying the first
$500,000.00 for any claim against it out of its own trust account.
For claims exceeding $500,000.00 against an entity for which theentity had insufficient DIRM funds to pay in its own trust account,
the entity was entitled to borrow funds deposited in the DIRM by
the other entities to the extent those funds exceeded $500,000.00.
Any funds so borrowed were required to be repaid with interest.
The plaintiff in
Lyles contended that this arrangement
constituted a local government risk pool, as each of the DIRM
members had
the right, in certain circumstances, to use
funds contributed by the other entities for
the payment of claims, [and] the entities had
[thereby] pooled retention of their risks for
liability claims and provided for the payment
of such claims made against any member of the
pool on a cooperative or contract basis.
Id. at 679, 477 S.E.2d at 152-53. In holding that this arrangement
did not constitute a local government risk pool, the Supreme Court
analyzed the DIRM in light of the statutory requirements for such
risk pools found in N.C. Gen. Stat. § 58-23-1
et seq. First, the
Court noted that the statute defines a “local government,” for
purposes of joining a local government risk pool, as including only
counties, cities, and housing authorities--not school boards.
Id.
at 680, 477 S.E.2d at 153;
see N.C. Gen. Stat. § 58-23-1 (1994).
The Court noted that the statute requires that a contract or
agreement creating a local government risk pool must contain a
provision requiring the pool to pay all claims for which each
member incurs liability.
Lyles, 344 N.C. at 680, 477 S.E.2d at
153;
see N.C. Gen. Stat. § 58-23-15(3) (1994). Because the DIRM
members were required to repay any borrowed amounts, the Court felt
that this arrangement did not equate to a payment of claims by thepool, and did not rise to the level of risk-sharing required by the
statute.
Lyles, 344 N.C. at 680, 477 S.E.2d at 153. The Court
also emphasized that the entities did not pool their risks in one
common pool, but instead created separate trust accounts for each
DIRM member. Moreover, the three entities failed to meet many of
the statutory requirements for creating and operating a local
government risk pool; and while the Court acknowledged that this
fact should not be determinative, it felt that it should be
afforded some weight. In concluding that the DIRM arrangement did
not constitute a local government risk pool, the Court stated:
We believe it would be a mistake to hold that
a local government may ignore these statutory
requirements and create a risk pool to its own
liking. The City did not intend to join a
local government risk pool, and we do not
believe we should hold it has done so by
accident.
Id. at 681, 477 S.E.2d at 153.
Since
Lyles, this Court has had few opportunities to further
consider the question of what constitutes a local government risk
pool, and those decisions have relied on the
Lyles decision and
generally have concerned the same DIRM considered by the Supreme
Court in
Lyles.
See Kephart by Tutwiler v. Pendergraph, 131 N.C.
App. 559, 507 S.E.2d 915 (1998);
Cross v. Residential Support
Services, Inc., 129 N.C. App. 374, 499 S.E.2d 771 (1998);
Mullis v.
Sechrest, 126 N.C. App. 91, 484 S.E.2d 423 (1997),
rev'd on other
grounds, 347 N.C. 548, 495 S.E.2d 721 (1998);
Pharr v. Worley, 125
N.C. App. 136, 479 S.E.2d 32 (1997); cf.
Dobrowolska ex rel.Dobrowolska v. Wall , 138 N.C. App. 1, 530 S.E.2d 590,
disc. review
allowed, 352 N.C. 588, __ S.E.2d __ (2000).
The issue of whether the Fund in the instant case constitutes
a local government risk pool is not as clear as the same question
decided in
Lyles regarding the DIRM. However, in
Dobrowolska, this
Court considered the same Fund at issue in the present case and
concluded that summary judgment for the defendants in that case was
proper where the plaintiffs sought only $350,000.00 in damages.
138 N.C. App. at 8-9, 530 S.E.2d at 596. Nonetheless, in
Dobrowolska, we limited that holding to the precise facts of that
case by stating that “the Fund cannot be classified as a local
government risk pool
as to the present case because it will not
actually pay for any part of the claim.”
Id. (emphasis added).
In this case, Mr. Schlossberg filed a statement of monetary
relief under N.C.R. Civ. P. 8(a)(2) seeking $5,000,000.00 for
compensatory damages and $5,000,000.00 for punitive damages against
Officer Dell and Corporal Goins in their individual capacities.
See N.C. Gen. Stat. § 1A-1, Rule 8(a)(2) (1999). Thus, our holding
in
Dobrowolska has limited application to this case. Nonetheless,
several of the findings regarding the Fund in
Dobrowolska are
relevant to our analysis here.
As discussed at length in
Dobrowolska, the Fund fails in many
respects to comply with the statutory requirements for a local
government risk pool.
See Dobrowolska, 138 N.C. App. at 8, 530
S.E.2d at 595-96. For instance, the members of the Fund includethe Guilford County Board of Education and Guilford Technical
Community College, neither of which falls within the definition of
a “local government” for purposes of joining a local government
risk pool as provided in N.C. Gen. Stat. § 58-23-1. According to
Mr. Arnold's unrebutted affidavit, the members of the Fund did not
give thirty days advance written notice of their intention to
organize and operate a risk pool as required pursuant to N.C. Gen.
Stat. § 58-23-5 (1994). The members of the Fund did not enter a
contract or agreement containing a provision for “a system or
program of loss control” as mandated by N.C. Gen. Stat. § 58-23-
15(1) (1994). Moreover, the Fund was never intended to be
considered a local government risk pool and was not organized to
comply with the statutory requirements found in N.C. Gen. Stat. §
58-23-1
et seq. Indeed, Mr. Schlossberg presented no evidence to
refute Mr. Arnold's statements in his affidavit that the City is
required to reimburse the Fund for claims payments made from Fund
B. As we noted in
Dobrowolska, “immunity is not waived when a
claim is paid for which the pool is reimbursed, because the pool
has not paid the claim and the requirements of N.C. Gen. Stat. §
160A-485 have not been met.” 138 N.C. App. at 8, 530 S.E.2d at
596.
On the other hand, the City presented no evidence showing that
it is required to reimburse the Fund for claims payments made from
either Fund A or Fund C. Also, there is no evidence that the Fund
maintains separate accounts for the contributions made by each of
its various members. In short, the evidence presented in the
instant case does not point us unerringly toward a finding that theFund
in its entirety is not a local government risk pool. When
viewing all of the evidence in the light most favorable to Mr.
Schlossberg, we cannot conclude as a matter of law that the Fund
does not constitute a local government risk pool insofar as the
City is sued for damages that fall in the ranges established under
Fund A and Fund C--exceeding $600,000.00 and up to and including
$2,000,000.00.
Therefore, consistent with our holding in
Dobrowolska, we
conclude that the Fund is not a local government risk pool to the
extent the City must reimburse the Fund B claims--over $100,000.00
and up to and including $600,000.00. Furthermore, we conclude that
the City, irrespective of its participation in the Fund, is
uninsured for claims up to and including $100,000.00, as well as
for claims exceeding $7,000,000.00. Accordingly, the City along
with Officer Dell and Corporal Goins in their official capacities
are entitled to partial summary judgment on grounds of governmental
immunity for damages of $600,000.00 or less, and for damages
greater than $7,000,000.00.
See Schmidt, 134 N.C. App. at 256, 517
S.E.2d at 176;
see also Dobrowolska, 138 N.C. App. at 8-9, 530
S.E.2d at 596.
However, we uphold the trial court's denial of summary
judgment on grounds of governmental immunity for the part of Mr.
Schlossberg's claim that asserts damages that fall in the ranges of
Fund A and Fund C--over $600,000.00 and up to and including
$2,000,000.00. Moreover, as previously stated, the City has waived
its governmental immunity for damages greater than $2,000,000.00and up to $7,000,000.00 by its purchase of excess liability
insurance.
II. Public Officers' Immunity
[3]We next consider whether the trial court committed
reversible error in denying the motion for summary judgment on
grounds that Officer Dell and Corporal Goins do not have public
officers' immunity. We uphold the trial court's denial of summary
judgment on this ground.
Under the public officers' immunity doctrine, “a public
official is [generally] immune from personal liability for mere
negligence in the performance of his duties, but he is not shielded
from liability if his alleged actions were corrupt or malicious or
if he acted outside and beyond the scope of his duties.”
Slade v.
Vernon, 110 N.C. App. 422, 428, 429 S.E.2d 744, 747 (1993). Our
courts recognize police officers as public officials.
See Jones,
120 N.C. App. at 305, 462 S.E.2d at 247 (citing
Shuping v. Barber,
89 N.C. App. 242, 248, 365 S.E.2d 712, 716 (1988)). Thus, police
officers enjoy absolute immunity from personal liability for their
discretionary acts done without corruption or malice.
Id.
(citation omitted);
see Collins v. North Carolina Parole Comm'n,
344 N.C. 179, 183, 473 S.E.2d 1, 3 (1996) (holding that a public
officer is immune from personal liability if he “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”) (citation omitted).
This Court has defined discretionary acts as “those requiringpersonal deliberation, decision, and judgment.
48;
Jones, 120 N.C.
App. at 306, 462 S.E.2d at 248 (citing
Hare, 99 N.C. App. at 700,
394 S.E.2d at 236). Also, where a defendant performs discretionary
acts as part of his or her official or governmental duties, to
sustain a suit for personal or individual liability, a plaintiff
must allege and prove that the defendant's acts were malicious or
corrupt.
Id. (citing
Wilkins v. Burton, 220 N.C. 13, 15, 16 S.E.2d
406, 407 (1941));
see Epps v. Duke University, Inc., 122 N.C. App.
198, 205, 468 S.E.2d 846, 851-52,
disc. review denied, 344 N.C.
436, 476 S.E.2d 115 (1996). A plaintiff may not satisfy this
burden through allegations of mere reckless indifference.
See
Robinette v. Barriger, 116 N.C. App. 197, 203, 447 S.E.2d 498, 502
(1994),
aff'd, 342 N.C. 181, 463 S.E.2d 78 (1995),
reh'g denied,
342 N.C. 666, 465 S.E.2d 548 (1996),
overruled on other grounds by
Meyer v. Walls, 347 N.C. 97, 489 S.E.2d 880 (1997).
Undisputedly, Officer Dell and Corporal Goins were on duty as
police officers on the night of 29 June 1997. Officer Dell
received and responded to the initial call regarding the hit and
run accident, and later responded to a radio call that brought him
to the residence of Mr. Schlossberg. Officer Dell attempted to
obtain information from Mr. Schlossberg, and then called Corporal
Goins who arrived at Mr. Schlossberg's residence shortly
thereafter. It is further undisputed that Officer Dell and
Corporal Goins were acting as public officials executing a
governmental function at the time of the incident giving rise toMr. Schlossberg's suit. Moreover, the decisions made by Officer
Dell and Corporal Goins in attempting to restrain and arrest Mr.
Schlossberg were discretionary decisions made during the course of
performing their official duties as public officers.
See Jones,
120 N.C. App. at 306, 462 S.E.2d at 248. Therefore, to survive the
police officers' motion for summary judgment on the issue of their
individual liability, Mr. Schlossberg must have alleged and
forecasted evidence demonstrating the officers acted corruptly or
with malice.
In his complaint, Mr. Schlossberg asserted separate claims
against Officer Dell and Corporal Goins in their individual
capacities. In his battery claim, Mr. Schlossberg alleged that the
conduct of Officer Dell and Corporal Goins was “illegal, malicious,
intentional, excessive, not reasonably necessary, willful and
wanton, corrupt, . . . and beyond the scope of their employment.”
Mr. Schlossberg's assault claim alleged that the conduct of Officer
Dell and Corporal Goins was “beyond the scope of their employment.”
Likewise, his false imprisonment/false arrest and malicious
prosecution claims state that the officers' conduct was malicious
and beyond the scope of their employment. In support of these
claims, Mr. Schlossberg presented deposition testimony of his wife
and Dr. Robert V. Sypher, Jr., a hand specialist who treated his
broken finger. He also presented evidence showing that he was
beaten repeatedly and severely by Officer Dell and Corporal Goins.
Furthermore, Corporal Goins stated in his deposition that Mr.
Schlossberg did not try to strike the officers and that he did not
feel that they were being attacked by him, but merely resisted. We conclude that the evidence, when viewed in the li
ght most
favorable to Mr. Schlossberg, creates a genuine issue of material
fact as to whether Officer Dell and Corporal Goins, in their
individual capacities, acted with malice, corruption or beyond the
scope of their authority in their arrest of Mr. Schlossberg.
Therefore, the trial court properly denied the police oficers'
motion for summary judgment regarding Mr. Schlossberg's claims
against Officer Dell and Corporal Goins in their individual
capacities.
We remand to the trial court for further proceedings
consistent with this opinion. The trial court's denial of the
motion for summary judgment is,
Affirmed in part, reversed in part, and remanded.
Judges LEWIS and HUNTER concur.
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