NO. COA02-502
Appeal by plaintiff from judgment entered 29 October 2001 by
Judge W. Douglas Albright in Pasquotank County Superior Court.
Heard in the Court of Appeals 29 January 2003.
The Twiford Law Firm, PC, by Branch W. Vincent, III, for
plaintiff-appellant.
Womble, Carlyle, Sandridge & Rice, PLLC, by Burley B.
Mitchell, Jr. and Mark A. Davis, for defendants-appellees.
STEELMAN, Judge.
Plaintiff, Melissa A. Olkowski, appeals the granting of
summary judgment in favor of defendants in a wrongful death case
involving a police pursuit. For the reasons stated herein, we
affirm. On the evening of 11 August 1998 at approximately 9:30 p.m.,
Deputy Sheriff Jeffrey L. Goetz of the Pasquotank County Sheriff's
Department was on patrol in an unmarked vehicle. He observed a
Mustang motor vehicle drive out of a private driveway with its
tires squealing and the back end of the vehicle fishtailing. Goetz
decided that the vehicle was being operated in a reckless manner
and immediately followed it. Goetz ascertained that the vehicle
was traveling 80 to 85 miles per hour. Goetz then activated his
blue light. The driver of the vehicle did not pull over, but
accelerated to 105 miles per hour. Goetz radioed for assistance.
Officer J.P. Avery of the Elizabeth City Police Department and
Deputy Sheriff John A. Forbes of the Pasquotank County Sheriff's
Department joined in the pursuit. They parked their vehicle at an
intersection that the suspect would pass, based upon the
information from Goetz. At the intersection, the suspect made a
rapid left turn, slid through the intersection and came close to
hitting the vehicle in which Avery and Forbes were sitting. As the
suspect passed the officers' vehicle, Forbes was able to see and
recognize Walter Rudolph Williams, Jr.'s face. Avery noted that
Williams's taillights were flickering off and on. In his
deposition, Williams stated that during the pursuit, he was
manipulating the dimmer switch for his vehicle in order to conceal
his taillights from the officers. Goetz never determined theidentity of the driver during the course of the pursuit.
As Williams continued to speed away from the officers, Goetz,
Avery and Forbes slowed their vehicles because they had lost sight
of Williams's vehicle. Williams attempted to pass a car and
collided with the motorcycle that decedent David Olkowski was
operating. At the time of the collision, the police officers had
slowed their vehicles and were not near Williams. The entire
episode lasted about four minutes, over a distance of approximately
6.9 miles. As a result of the injuries received in the collision,
Olkowski died.
Williams pled guilty to voluntary manslaughter and speeding to
elude arrest. He was sentenced to 70 to 93 months in prison.
Plaintiff filed this action for wrongful death on 17 July
2000, contending that defendants were grossly negligent in pursuing
Williams and that their actions violated the Pasquotank County
Sheriff's Department's pursuit policy. She contended that at the
time of the pursuit, the danger to the public outweighed the need
to immediately apprehend Williams and that the pursuit should have
been terminated once Williams's identity had been determined.
Defendants Goetz, Avery and Forbes were sued in their individual
and official capacities for their conduct in the pursuit. Goetz
was also sued for his role as a supervisor in failing to terminate
the pursuit. Defendant Randy Cartwright was sued in his officialcapacity as Sheriff of Pasquotank County for failure to train his
deputies and for vicarious liability.
Defendants filed a motion for summary judgment in October
2001, denying any negligence on their part and citing public
official and sovereign immunity. After considering affidavits,
depositions, and the pleadings, the trial court granted summary
judgment in favor of all defendants, dismissing all of plaintiff's
claims. Plaintiff appeals.
I.
In her first assignment of error, plaintiff argues the trial
court erred in granting summary judgment because there was evidence
that defendants were grossly negligent. We disagree.
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 a
judgment as a matter of law.” N.C. Gen. Stat. § 1A-1, Rule 56(c)
(2001). A law enforcement officer can only be liable for injuries
and death to a third party resulting from a police pursuit if the
plaintiff shows gross negligence.
Young v. Woodall, 343 N.C. 459,
471 S.E.2d 357 (1996). This is the standard of care for an officer
during a pursuit.
Id. at 462, 471 S.E.2d at 359.
Gross negligence has been defined by our Supreme Court as“wanton conduct done with conscious or reckless disregard for the
rights and safety of others.”
Parish v. Hill, 350 N.C. 231, 238,
513 S.E.2d 547, 551,
reh'g denied, 350 N.C. 600, 537 S.E.2d 215
(1999) (citing
Bullins v. Schmidt, 322 N.C. 580, 583, 369 S.E.2d
601, 603 (1988)). An act is wanton when it is done needlessly,
manifesting a reckless indifference to the rights of others.
Wagoner v. N.C. R.R. Co., 238 N.C. 162, 167, 77 S.E.2d 701, 705
(1953).
In
Parish v. Hill, 350 N.C. 231, 513 S.E.2d 547,
reh'g denied,
350 N.C. 600, 537 S.E.2d 215 (1999), there was a nighttime chase
where speeds reached 90 to 120 miles per hour for approximately 10
miles. The police eventually lost sight of the suspect, who had
cut off his headlights, and continued speeding at about 90 miles
per hour. The suspect eventually lost control of his vehicle,
crashed into a residence and killed the decedent. The weather was
clear, the roads were dry, and the traffic was light. The Supreme
Court upheld the trial court's granting of summary judgment for all
of the police officer defendants, emphasizing that at no time did
the officers attempt to overtake the suspect, and that at the time
of the collision, all of the officers were well behind the
suspect's vehicle, and were traveling at a reduced rate of speed.
The court held that plaintiff failed to demonstrate that defendants
breached a duty to the decedent or show a causal connection betweendefendants' conduct and the accident.
The facts here are quite similar to those in
Parish. In the
instant case, Goetz pursued Williams, but did not attempt to
overtake the vehicle. Williams was at times driving over 100 miles
per hour. Goetz reduced his speed as he turned onto a major
highway. At that point, the pursuit was picked up by defendants
Forbes and Avery. These officers soon lost sight of Williams, and
also slowed their vehicles. Williams was manipulating his lights
to conceal himself from the deputies, and while in the process of
passing another vehicle, struck and killed the decedent. All of
these events took place at night, the traffic was light, the
weather was clear, and the roads were dry. The entire pursuit
lasted approximately four minutes. We hold that under these facts,
plaintiff has not shown that defendants were grossly negligent in
their pursuit of Williams.
Plaintiff also argues that the officers' conduct in pursuing
Williams amounted to gross negligence because the officers violated
the departmental pursuit policy.
In
Norris v. Zambito, 135 N.C. App. 288, 295, 520 S.E.2d 113,
118 (1999), this Court held that “a violation of voluntarily
adopted safety policies is merely some evidence of negligence and
does not conclusively establish negligence.” The Pasquotank County
Sheriff's Department adopted a policy on vehicle pursuits in March1996. In 1997, the General Assembly modified the provisions of
N.C. Gen. Stat. § 20-141.5(f), directing each law enforcement
agency to adopt a policy applicable to the pursuit of fleeing or
eluding motorists.
See Sess. Laws 1997-443, s. 19.26(a). The
statute required that the policy include factors to be considered
by a deputy in determining when to initiate and terminate a
pursuit. The Attorney General was directed to develop a model
policy “to be considered” for use by law enforcement agencies.
Since section 20-141.5(f) does not set forth specific criteria
for officer conduct during a pursuit, the rationale of
Norris is
applicable and a violation of a local pursuit policy by an officer
does not conclusively establish negligence or gross negligence.
A review of the pursuit policy adopted by the Pasquotank
County Sheriff's Department in effect on 11 August 1998 shows that,
on the evidence forecast, the deputies and officer involved in the
pursuit of Williams did not violate its provisions. The policy set
forth certain criteria for the initiation of a pursuit, including
that deputies must evaluate the following circumstances:
1. Visibility and weather conditions;
2. Traffic volume and road conditions;
3. Seriousness of the suspected violation;
4. Danger presented to the public if suspect
is not immediately apprehended; and
5. Danger to the public caused by the pursuit.
The policy set forth the following criteria for termination of apursuit:
A. The lead unit must end the pursuit
if at any time it appears that the danger to
the public because of the pursuit outweighs
the danger of allowing the suspect to escape.
B. The pursuit should also be
terminated if, at any time, the deputy feels
that his ability to maintain control of his
vehicle is jeopardized.
C. In many pursuit situations it is
possible for deputies to positively identify
the suspect through their personal knowledge,
the vehicle registration, description of the
driver, or some combination of these factors.
When a deputy feels that he can positively
identify the fleeing suspect, the pursuit
should be ended for safety reasons unless
there is a greater danger to the public if the
suspect is not immediately apprehended.
D. Supervisors and/or ranking on duty
deputies are responsible for ordering that a
pursuit be terminated if, at any time, the
danger of continuing the pursuit is greater
than the danger to the public if the suspect
is not apprehended immediately.
The uncontroverted evidence before the court showed that the
weather was clear and the roads were dry and in good condition.
There was very light traffic on the road. While the suspect was
being pursued, the officers had their blue lights flashing, sirens
running and headlights on. No pedestrians were on the road during
the pursuit.
Williams was driving upon roadways in Pasquotank County,
including U.S. Highway 158, at speeds exceeding 100 miles per hour,
at night, without his headlights or taillights burning. ClearlyWilliams's conduct constituted a clear and present danger to all
motorists on those roads that night. This immediate danger to the
public mandated that Williams be immediately apprehended even
though he was identified by Forbes as he sped by his parked
vehicle. It should be noted that Forbes did not identify Williams
as the operator of the speeding vehicle until after the pursuit was
well under way. At no time was the ability of the deputies to
control their vehicles at issue. In fact, at the time of
Williams's collision with Olkowski, all of the deputies had lost
sight of Williams and had slowed their vehicles.
There was no evidence of gross negligence on the part of
Goetz, Avery and Forbes. Consequently, the claims of plaintiff
against Sheriff Cartwright for vicarious liability and negligent
failure to properly train his deputies were properly dismissed by
the trial court. See Young, 343 N.C. at 463, 471 S.E.2d at 360.
There were no genuine issues of material fact and all defendants
were entitled to entry of summary judgment dismissing plaintiff's
claims against them as a matter of law.
II.
In her second assignment of error, plaintiff argues that
defendant waived sovereign immunity by the purchase of liability
insurance. Since we have held that defendants were entitled to
summary judgment, we need not address this assignment of error.
III.
In her third assignment of error, plaintiff contends the trial
court committed reversible error in considering the affidavit of
Loyd Reese Trimmer, defendants' expert, because it contained
inadmissible testimony. We disagree.
In his affidavit, Trimmer rendered an opinion that officers
Goetz, Avery and Forbes acted in compliance with the adopted
pursuit policy.
An expert witness may not testify “that a particular legal
conclusion or standard has or has not been met, at least where the
standard is a legal term of art which carries a specific meaning
not readily apparent to the witness.”
State v. Ledford, 315 N.C.
599, 617, 340 S.E.2d 309, 321 (1986).
See also N.C. Gen. Stat. §
8C-1, Rule 704 (2001). In
Norris v. Zambito, 135 N.C. App. 288,
520 S.E.2d 113 (1999), this Court held that an expert cannot
testify as to whether an officer's conduct violated a city's
pursuit policy. The pursuit policy established a legal standard
and testimony as to whether the officer's conduct met that standard
was not proper.
Id.
Here, we note that at the summary judgment hearing, the trial
judge had before him the pursuit policy, as well as the affidavits,
depositions and discovery that were submitted by the parties. The
trial court was thus able to review the policy and draw conclusionsas to whether the conduct of defendants complied with that policy
independent of Trimmer's affidavit. There is no indication in the
record that the trial judge relied exclusively upon or based his
decision on Trimmer's opinion. Further, plaintiff's brief does not
contend nor does the record before this Court reveal that plaintiff
objected to the affidavit at the time of the hearing.
As discussed above, the evidence shows that the officers
complied with the pursuit policy. We therefore hold that plaintiff
was not prejudiced by the improper opinions contained in Trimmer's
affidavit. Consequently, we find no merit in this assignment of
error and we affirm the judgment of the trial court.
AFFIRMED.
Judges MARTIN and HUDSON concur.
Report per Rule 30(e).
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