Appeal by defendants from order entered 22 October 2001 by
Judge Clarence Carter in Superior Court, Forsyth County. Heard in
the Court of Appeals 8 October 2002.
Lewis & Daggett, P.A., by Hugh J. Eighmie II, for plaintiffs-
appellees.
Womble Carlyle Sandridge & Rice, P.L.L.C., by Allan R. Gitter
and Oliver M. Read IV, for defendants-appellants.
Teague, Rotenstreich & Stanaland, LLP, by Paul A. Daniels, for
unnamed defendant-appellee Windsor Insurance Company
McGEE, Judge.
Gloria L. Childs and Kimberly F. Childs (plaintiffs) were
traveling in a westerly direction on New Walkertown Road in
Winston-Salem, North Carolina in a 1989 Chevrolet driven by Gloria
F. Childs at about 8:00 a.m. on the morning of 12 December 1997.
At that same time, defendant Jarvis Eugene Johnson, Jr. (Johnson)
was traveling on New Walkertown Road from the opposite direction,
driving a 1997 Ford sports utility vehicle (SUV) owned by defendant
Forsyth County. Johnson made a left turn across New Walkertown
Road to enter a bank parking lot. Johnson claimed that traffic was
stopped in two of the three westbound lanes of New Walkertown Road,
and that cars in those lanes motioned Johnson to cross in front ofthem. While crossing the westbound lanes, the front of plaintiffs'
Chevrolet struck Johnson's SUV. The collision resulted in both
property damage to the vehicles involved and personal injury to
both plaintiffs.
At the time of the collision, Johnson was an employee of
Forsyth County, serving as Forsyth Emergency Medical Services (EMS)
director. Forsyth EMS is a governmentally-operated provider of
paramedic emergency health care. Johnson stated that he was on
call twenty-four hours a day while in Forsyth County. The SUV he
was operating was owned by Forsyth County and was provided for
Johnson's use within the borders of the county at Forsyth County's
expense in connection with Johnson's position as Forsyth EMS
director. At the time of the collision, Johnson was driving to his
office. However, Johnson took a detour from the drive to his
office and turned into the bank parking lot for the purpose of
conducting his own personal financial business. Johnson stated
that he was going to "obtain cash for his daily needs."
At the time of the collision, Forsyth County had an insurance
policy in place with a "self insured retention" of $250,000.00.
However, there was evidence presented that Forsyth County had an
additional policy as well, which had a "self insured retention" of
$10,000.00. Forsyth County admitted that it had provided ambulance
service to individuals outside of Forsyth County and that it had
paid claims related to the operation of its EMS vehicles both
before and after the collision on 12 December 1997. However,
Forsyth County contends it has not paid any claims for personalinjury related to collisions involving its EMS vehicles since our
Court's holding in McIver v. Smith, 134 N.C. App. 583, 584, 518
S.E.2d 522, 524 (1999), review improvidently granted, McIver v.
Smith, 351 N.C. 344, 525 S.E.2d 173 (2000).
Plaintiffs filed a complaint on 14 November 2000 seeking,
inter alia, damages from defendant Johnson, and pursuant to the
doctrine of respondeat superior, from Johnson's employer, Forsyth
County, as a result of the collision between Johnson and
plaintiffs. Plaintiffs alleged that Forsyth County had waived
governmental immunity by purchasing insurance, and that Johnson was
not operating the county-owned SUV for public benefit at the time
of the collision. Plaintiffs also served the complaint on the
unnamed defendant Windsor Insurance Company (Windsor), a potential
uninsured motorist carrier.
Johnson and Forsyth County filed their answer on 4 December
2000 asserting the defense of governmental immunity as a complete
bar to recovery by plaintiffs. Defendants also filed a request for
the amount of monetary relief sought by each plaintiff pursuant to
N.C. Gen. Stat. § 1A-1, Rule 8. Plaintiffs served their notice of
monetary relief sought on defendants, demanding compensatory
damages of $25,000.00 for plaintiff Gloria L. Childs and
compensatory damages of $5,000.00 for plaintiff Kimberly F. Childs.
The notice stated that, in accordance with N.C.G.S. § 1A-1, Rule 8,
the notice would not be filed with the trial court until the above
captioned action was called for trial.
Johnson and Forsyth County filed a motion for summary judgmenton 15 December 2000. In their motion, defendants asserted as their
basis for entitlement to summary judgment, that "having not
purchased liability insurance for claims below $250,000,"
defendants were entitled to summary judgment on the basis of
governmental immunity. Unnamed defendant Windsor elected to appear
and served its answer dated 22 January 2001. Plaintiffs filed a
motion for leave to amend their complaint, which was granted. The
amended complaint included additional allegations that Forsyth
County had violated plaintiffs' due process and equal protection
rights because it paid the claims of similarly situated parties but
refused to pay plaintiffs' claims. Defendants Johnson and Forsyth
County filed their answer to the amended complaint on 30 January
2001. The parties conducted discovery.
The trial court denied Johnson and Forsyth County's motion for
summary judgment on 22 October 2001, stating "that there is a
genuine issue of material fact with regard to whether Defendant
Forsyth County is entitled to governmental immunity under the facts
of this case." Defendants Johnson and Forsyth County appeal from
the trial court's order.
I.
We note that appeals involving the denial of a motion for
summary judgment are interlocutory and generally not immediately
appealable.
Carriker v. Carriker, 350 N.C. 71, 73, 511 S.E.2d 2,
4 (1999) (citation omitted).
However, a "trial court's denial of
[a] motion for summary judgment on the issue of governmental
immunity is immediately appealable."
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) (citation omitted). Defendants' appeal
is properly before this Court.
Defendants assign as error the trial court's failure to grant
their motion for summary judgment on the grounds that sovereign
immunity bars plaintiffs' action against Johnson and Forsyth
County.
In
Dawes v. Nash Cty., 148 N.C. App. 641, 643, 559 S.E.2d 254,
256 (2002), our Court stated that
[s]ummary judgment is appropriate where "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." N.C.R. Civ.
P. 56(c) (2000). Summary judgment may also be
granted when the non-moving party cannot
survive an affirmative defense.
McIver v.
Smith, 134 N.C. App. 583, 584, 518 S.E.2d 522,
524 (1999). Sovereign immunity is such an
affirmative defense.
Id.
Johnson and Forsyth County must demonstrate that they are
"'entitled to the insurmountable affirmative defense of
governmental immunity.'"
Id. (quoting
McIver, 134 N.C. App. at
584, 518 S.E.2d at 524). On appeal this Court must view the record
in the light most favorable to the non-moving party and draw all
reasonable inferences in that party's favor.
Gaskill v. Jennette
Enters., Inc., 147 N.C. App. 138, 140, 554 S.E.2d 10, 12 (2001),
disc. review denied, 355 N.C. 211, 559 S.E.2d 801 (2002) (citing
Aetna Casualty & Surety Co. v. Welch, 92 N.C. App. 211, 213, 373
S.E.2d 887, 888 (1988)). In
Dawes, our Court summarized the law on governmental
immunity in this State:
"In North Carolina the law on
governmental immunity is clear." [
McIver, 134
N.C. App.] at 585, 518 S.E.2d at 524. In the
absence of some statute that subjects them to
liability, the State, its municipalities, and
the officers and employees thereof sued in
their official capacities, are shielded from
tort liability when discharging or performing
a governmental function.
See id.;
Houpe v.
City of Statesville, 128 N.C. App. 334, 340,
497 S.E.2d 82, 87 (1998). "Like cities,
counties have governmental immunity when
engaging in activity that is clearly
governmental in nature and not proprietary."
McIver, 134 N.C. App. at 585, 518 S.E.2d at
524. This Court has previously held that
"county-operated ambulance service is a
governmental activity shielded from liability
by governmental immunity."
Id. at 588, 518
S.E.2d at 526. Thus, Nash County would be
entitled to governmental immunity from
Plaintiff's claim, unless Nash County has in
some way waived its governmental immunity.
148 N.C. App. at 643-44, 559 S.E.2d at 256. Governmental immunity
protects not only the county, but also its officers and employees
when they are sued in their official capacities.
Schlossberg v.
Goins, 141 N.C. App. 436, 440, 540 S.E.2d 49, 52 (2000),
appeal
dismissed and disc. review denied, 355 N.C. 215, 560 S.E.2d 136
(2002). While it is not clear from the record whether Johnson has
been sued in his individual or official capacity, plaintiffs have
the burden of indicating in what capacity defendants are being
sued.
Reid v. Town of Madison, 137 N.C. App. 168, 171-72, 527
S.E.2d 87, 90 (2000) (citations omitted). Absent a clear statement
as to a defendant's capacity, the action will be deemed to be
against the individual in his official capacity.
Id. (citationsomitted). As there is no such clear indication in this case, we
deem that Johnson was sued in his official capacity only.
The trial court denied Johnson and Forsyth County's motion for
summary judgment, concluding that there was a genuine issue of
material fact as to whether governmental immunity barred
plaintiffs' claims. As stated above, a governmental entity is
immune from liability for the torts of its officers and employees
which are committed while the officers and employees are performing
governmental functions.
Galligan v. Town of Chapel Hill, 276 N.C.
172, 175, 171 S.E.2d 427, 429 (1970);
Dawes, 148 N.C. App. at 643,
559 S.E.2d at 256.
While the doctrine of sovereign immunity has been cited as the
public policy of North Carolina,
see Steelman v. New Bern, 279 N.C.
589, 594, 184 S.E.2d 239, 242 (1971), our Supreme Court has
approvingly cited "the modern tendency to restrict rather than to
extend the application of governmental immunity."
Koontz v. City
of Winston-Salem, 280 N.C. 513, 529-30, 186 S.E.2d 897, 908 (1972)
(citations omitted).
Governmental immunity is dependent on the acts of the employee
being committed while the employee is carrying out a governmental
function.
Wilkerson v. Norfolk Southern Railway Co., 151 N.C. App.
332, 338-39, 566 S.E.2d 104, 109 (2002). Defendants argue that
McIver v. Smith, 134 N.C. App. 583, 518 S.E.2d 522 (1999), is
controlling in this case, and entitles them to summary judgment.
In
McIver, our Court held that a county-operated ambulance service
is a governmental activity, and thus shielded from liability bygovernmental immunity. 134 N.C. App. at 588, 518 S.E.2d at 526.
Plaintiffs and Windsor argue that
McIver can be distinguished on
its facts since the county employee in that case was responding to
a 911 call in a county-owned ambulance and had activated the
ambulance's emergency lights and siren.
Id. at 584, 518 S.E.2d at
524. The decision in
McIver held that the provision of an
ambulance service by a governmental entity is a governmental
function.
Id. at 588, 518 S.E.2d at 526. The issue in the case
before us is whether the governmental immunity, as discussed in
McIver, applies to government-provided EMS services in general or
if it is limited to when the officers and employees are carrying
out specific EMS functions, such as when an EMS vehicle is being
used to provide direct emergency services. We do not read
McIver
to grant wholesale immunity to employees and agents of county-
provided EMS services.
As our Court stated in
Jones, 120 N.C. App. at 304, 462 S.E.2d
at 247 (quoting
Beach v. Tarboro, 225 N.C. 26, 28, 33 S.E.2d 64,
65-66 (1945)):
In determining whether an activity is
governmental, our Supreme Court [has]
explained the court must focus on the mission
of the city's employee who allegedly caused
injury: "The mission of the town's employee,
out of which the alleged injury to the
plaintiff arose, is the determining factor
. . . not what such employee was called upon
to do at other times and places, but what he
was engaged in doing at the particular time
and place alleged."
Therefore, although
McIver determined that county provision of EMS
services is a governmental function in general, we must look atwhat Johnson "was engaged in doing at the particular time and place
alleged."
Id.
Decisions in other North Carolina cases have gone beyond the
initial inquiry of whether the general occupation of the negligent
employee is a governmental function to look at the actions of the
employee or officer at the time the alleged negligence occurred.
See,
e.g.,
Schlossberg, 141 N.C. App. at 440, 540 S.E.2d at 52
(court noted that officers' actions constituted a governmental
function since the officers were acting in their official police
capacities when they attempted to apprehend the plaintiff);
Williams v. Holsclaw, 128 N.C. App. 205, 208, 495 S.E.2d 166, 168,
aff'd per curiam, 349 N.C. 225, 504 S.E.2d 784 (1998) (court
focused on the fact that the officer was performing his official
police duties when he was responding to a call at the time of the
collision);
Wall v. City of Raleigh, 121 N.C. App. 351, 354, 465
S.E.2d 551, 553 (1996) (court noted that a city was entitled to
immunity in suits arising from the collection of fines and late
fees from parking violations as such collection is a governmental
function, since such collection was necessary to enforce parking
regulations);
Jones, 120 N.C. App. at 305, 462 S.E.2d at 247 (court
noted that where the police officer was assigned to patrol the fair
in her capacity as a member of the police force and was responding
to another officer's radio call for assistance at the time of the
alleged negligence, the officer was performing a governmental
function);
Lyles v. City of Charlotte, 120 N.C. App. 96, 100, 461
S.E.2d 347, 350 (1995),
rev'd on other grounds, 344 N.C. 676, 477S.E.2d 150 (1996) (court noted that the training and supervision of
officers by a police department are governmental functions and
therefore the city had immunity from liability for torts committed
by its officers while engaged in instructing the plaintiff in the
emergency use of a portable radio);
Barnett v. Karpinos, 119 N.C.
App. 719, 460 S.E.2d 208,
disc. review denied, 342 N.C. 190, 463
S.E.2d 232 (1995) (court noted that officers were executing a
search warrant and seizing the plaintiffs in their law enforcement
capacity, thus conducting a governmental function);
Mullins v.
Friend, 116 N.C. App. 676, 680, 449 S.E.2d 227, 230 (1994) ("A
police officer in the performance of his duties is engaged in a
governmental function.") (citing
Galligan, 276 N.C. at 175, 171
S.E.2d at 429);
Hare v. Butler, 99 N.C. App. 693, 699, 394 S.E.2d
231, 235-36,
disc. review denied, 327 N.C. 634, 399 S.E.2d 121
(1990) ("[A] county normally would be immune from liability for
injuries caused by negligent social services employees working in
the course of their duties."). Although the law in North Carolina
is clear that law enforcement is a governmental function, the
appellate courts of this State have often noted whether the law
enforcement officer was engaged in law enforcement activities at
the time of the alleged negligence.
We see no reason to create a different rule for county-
provided EMS services. While the provision of EMS services by a
county is a governmental function, we must look at the particular
actions by an EMS employee or agent to determine whether he is
performing an EMS function, and therefore a governmental function,at the time of the alleged negligence.
Defendants argue that Johnson was performing a governmental
function at the time of the collision, because he was on call
twenty-four hours a day when in Forsyth County and he drove a
vehicle owned by Forsyth County for use in connection with his
position as Forsyth EMS director. Plaintiffs and Windsor argue
that because Johnson was on a personal errand, he was not acting
for a public purpose at the time of the collision, and therefore
governmental immunity would not normally apply.
At the time of the
collision Johnson was driving to his office in a county-provided
SUV. "The general rule in this state is that an injury by accident
occurring while an employee travels to and from work is not one
that arises out of or in the course of employment."
Royster v.
Culp,
Inc., 343 N.C. 279, 281, 470 S.E.2d 30, 31 (1996) (citation
omitted). Defendants admit Johnson was not responding to an
emergency call at the time of the accident, nor was he performing
any particular EMS duties; in fact, the uncontested evidence in the
record indicates that Johnson was turning into a bank to get money
for his personal use. Johnson's detour into the bank was not
related to his job responsibilities with Forsyth EMS.
Careful review of the evidence in the record shows that the
facts pertinent to whether Johnson was engaged in a governmental
function at the time of the accident are not in dispute. In the
case before us there is no genuine issue of material fact
concerning the issue of whether Johnson was engaged in a
governmental function at the time of the collision. We hold thathe was not.
In appropriate cases, where there is no genuine issue
of material fact, summary judgment may be granted for the non-
moving party.
Candid Camera Video v. Matthews, 76 N.C. App. 634,
637, 334 S.E.2d 94, 96 (1985),
disc. review denied, 315 N.C. 390,
338 S.E.2d 879 (1986) (citations omitted). Plaintiffs are entitled
to judgment as a matter of law on defendants' defense of
governmental immunity. We therefore affirm the trial court's
denial of defendants' motion for summary judgment and remand with
instructions that the trial court grant summary judgment for
plaintiffs as to defendants' defense of governmental immunity.
II.
Defendants attempt to argue in their brief that the trial
court erred by not granting summary judgment to defendants on
plaintiffs' claim that plaintiffs' equal protection rights were
violated. However, in defendants' motion for summary judgment,
they explicitly sought summary judgment only on the basis of
governmental immunity. We recognize that plaintiffs amended their
complaint to add an equal protection claim after defendants
initially moved for summary judgment. However, when a motion for
summary judgment cites specific grounds as the basis for that
motion and the non-moving party adds claims that are not addressed
by the motion for summary judgment, if the moving party feels it is
entitled to judgment on the new claims as well, the better practice
is to amend their original motion to address the new claims by the
non-moving party, or to file a new motion for summary judgment
addressing those claims. We note that defendants in this case didnot amend their original motion for summary judgment or file an
additional summary judgment motion, despite over seven months
elapsing between the date defendants answered the amended complaint
and the date of hearing on their motion for summary judgment.
Further, the trial court, in its 22 October 2001 order,
clearly only ruled on the motion for summary judgment as it
pertains to the governmental immunity claim by defendants. The
record does not show any evidence that the trial court ruled on
plaintiffs' equal protection claim. If a party desires for this
Court to review a decision by a trial court, it is the
responsibility of that party to obtain a ruling from the trial
court for this court to review.
See Electronic World, Inc. v.
Barefoot, ___ N.C. App. ___, ___, 570 S.E.2d 225, 231 (2002)
(citing N.C.R. App. P. 10(b)(1) (2002)). Since the record does not
show that the trial court ruled on any issue other than defendants'
motion for summary judgment based on the defense of governmental
immunity, the equal protection claim is not properly before us.
Id.
We affirm the trial court's denial of Johnson and Forsyth
County's motion for summary judgment and remand with instructions
that the trial court grant summary judgment to plaintiffs as to
defendants' defense of governmental immunity.
Affirmed in part; remanded in part.
Judges GREENE and WYNN concur.
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