An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA02-502


Filed: 06 May 2003

MELISSA OLKOWSKI, Administratrix
of the Estate of DAVID OLKOWSKI,

v .                         Pasquotank County
                            No. 00 CVS 476
Capacity as Sheriff of Pasquotank
County; Deputy JEFFREY L. GOETZ,
A. FORBES, In their Individual
and Official Capacities,

    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.

    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.

    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.
    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.
    Judges MARTIN and HUDSON concur.
    Report per Rule 30(e).

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