Cities and Towns--immunity_fire protection services_additional role of dispatcher
Defendant city's motion for summary judgment was properly denied in an action arising
from decedent's death in a wrecked and burning automobile while waiting for someone trained
to operate equipment used to free people trapped in cars. While there is specific statutory
immunity for firefighters, there is an issue of fact as to whether the city was acting solely as a
provider of fire protection services or in the additional role of dispatcher.
W. Edward Musselwhite, Jr., for plaintiff-appellee.
Hedrick, Eatman, Gardner & Kincheloe, L.L.P., by Jeffery H.
Blackwell and Shelley W. Coleman, for defendant-appellant.
HUDSON, Judge.
On 19 May 2002, plaintiff Josephine Williams, Administratrix
of the Estate of Tiffany Jordan, filed a wrongful death complaint
against defendants Scotland County (“the county”) and the City of
Laurinburg (“the city”). The city answered, pleading immunity as
a complete bar to plaintiff's claim. The plaintiff later
voluntarily dismissed the county. On 8 May 2003, the city moved
for summary judgment, which motion the court denied on 3 September
2003. The city appeals. For the reasons discussed below, we
affirm the court's denial of the city's motion for summary
judgment. According to the pleadings and forecast of evidence, on 18 May
2000, a car driven by Tiffany Jordan (“Tiffany”), a nineteen-year-
old college student, left the road and struck a tree in Scotland
County. Tiffany was trapped in the car, which caught fire.
Witnesses to the accident called 911 Emergency Services in Scotland
County, telling the 911 dispatcher that Tiffany was trapped in a
burning car. The 911 dispatcher sent an ambulance and a rescue
truck to the accident scene. The EMS attendants in the ambulance
arrived first, but could not free Tiffany from the car.
Firefighter David Laviner arrived in the rescue unit, which
contained equipment used to free people trapped in cars. Laviner,
however, was not trained to operate the equipment. Instead,
Laviner used fire extinguishers to try to control the car fire, and
when those were emptied, he and others carried water from a nearby
ditch to dump on the fire. Eventually, a fire truck arrived at the
scene and extinguished the fire, but by that time, Tiffany had died
from burns and smoke inhalation.
Because this is an appeal from the denial of summary judgment,
it is interlocutory. However, under N.C. Gen. Stat. § 7A-27(d)(1)
interlocutory appeals affecting a substantial right are immediately
appealable. “Where the appeal from an interlocutory order raises
issues of sovereign immunity, such appeals affect a substantial
right sufficient to warrant immediate appellate review.” Satorre
v. New Hanover County Bd. of Comm'rs, 165 N.C. App. 173, 175, 598
S.E.2d 142, 144 (2004). Defendant argues that the court erred in denying its motion
for summary judgment. “[T]he standard of review on appeal from
summary judgment is whether there is any genuine issue of material
fact and whether the moving party is entitled to a judgment as a
matter of law.” Bruce-Terminix Co. v. Zurich Ins. Co., 130 N.C.
App. 729, 733, 504 S.E.2d 574, 577 (1998). “[T]he evidence
presented by the parties must be viewed in the light most favorable
to the non-movant.” Id.
The city argues that the court's denial of summary judgment
was erroneous because it is entitled to complete immunity under
N.C. Gen. Stat. § 160A-293(b), which reads, in pertinent part:
No city or any officer or employee thereof
shall be held to answer in any civil action or
proceeding for failure or delay in answering
calls for fire protection outside the
corporate limits, nor shall any city be held
to answer in any civil action or proceeding
for the acts or omissions of its officers or
employees in rendering fire protection
services outside its corporate limits.
This statute provides immunity specifically to firefighters as they
respond to calls for fire protection services and render those
services outside a city's corporate limits.
Here, the pleadings, affidavits, and depositions raise
factual issues about whether the city fire department was acting
solely as a fire fighting agency or whether the department also
took on the role of dispatcher in the instant case. In Scotland
County, the 911 Emergency Telecommunications System dispatcher is
to notify the city fire department of any request for fire
protection anywhere in the county. The city fire department thendetermines and dispatches the appropriate fire-fighting department
and equipment. The deposition of the city fire department
dispatcher clearly sets forth these dual roles for the city fire
department:
Q: Now, is it correct that the way the system
is set up in Scotland County is that the fire
department has basically two separate roles.
The first role is involved with a 9-1-1 system
where they have the responsibility of
determining which fire department needs to be
called to a particular incident?
A: Correct.
Q: And the second role or responsibility is
that if it's in the Laurinburg Fire District,
to actually go to a fire and fight the fire?
A: Correct.
Q: Do you agree that these are two different
functions that you're performing there at the
fire station?
A: Correct.
Because the evidence presented by the parties, viewed in the
light most favorable to plaintiff, presents a genuine issue of
material fact as to whether the city fire department was acting
solely as a provider of fire protection services or in additional
capacities as a dispatcher, defendant's motion for summary judgment
was properly denied.
Affirmed.
Chief Judge MARTIN and Judge TIMMONS-GOODSON concur.
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