LINDA JONES, Plaintiff, v. THE CITY OF DURHAM, and JOSEPH M.
KELLY (in his official capacity as a police officer for the City
of Durham), Defendants
Appeal by both plaintiff and defendants from judgment entered
6 January 2004 by Judge A. Leon Stanback, Jr., in Durham CountySuperior Court. Originally heard in the Court of Appeals 8
December 2004. Now on remand by virtue of the Supreme Court's
opinion in Jones v. City of Durham
, 361 N.C. 144, 638 S.E.2d 202
Glenn, Mills & Fisher, P.A., by Robert B. Glenn, Jr., Stewart
W. Fisher and Carlos E. Mahoney, for plaintiff appellant-
Elliot Pishko Morgan, P.A., by Robert M. Elliot, Amicus Curie
of American Civil Liberties Union of North Carolina Legal
Foundation, Inc., and North Carolina Academy of Trial Lawyers
in support of plaintiff appellant-appellee
Faison & Gille
, by Reginald B. Gillespie, Jr., and Keith
D. Burns, for defendant appellants-appellees
Womble Carlyle Sandridge & Rice, P.L.L.C., by Mark A. Davis,
Amicus Curiae for N.C. Association of County Commissioners in
support of defendant appellants-appellees.
The facts and procedural history of this matter are set forth
in Jones v. City of Durham
, 168 N.C. App. 433, 608 S.E.2d 387
). In a recent decision, the Supreme Court (1)
reversed itself and its earlier opinion reported at 360 N.C. 81,622 S.E.2d 596 (2005) that plaintiff had not forecast evidence
demonstrating gross negligence on the part of defendant-Joseph
Kelly, and (2) remanded this matter to this Court for consideration
of the remaining issues. Jones v. City of Durham
, 361 N.C. 144,
638 S.E.2d 202 (2006).
 Consistent with this Court's earlier opinion in Jones I
we conclude the trial court correctly dismissed plaintiff's claim
based on ordinary negligence. The majority opinion in Jones I
concluded that plaintiff's claims as regards obstruction of public
justice and constitutional violations were rendered moot by
virtue of its conclusion that plaintiff's claim for gross
negligence failed. We now address these claims.
 Plaintiff brought a claim for obstruction of public
justice. Obstruction of justice is a common law offense in North
Carolina. In re Kivett
, 309 N.C. 635, 670, 309 S.E.2d 442, 462
(1983). It is an offense to do any act which prevents, obstructs,
impedes or hinders public or legal justice. Broughton v.
McClatchy Newspapers, Inc
., 161 N.C. App. 20, 33, 588 S.E.2d 20, 30
(2003) (citing Burgess v. Busby
, 142 N.C. App. 393, 408-09, 544
S.E.2d 4, 12 (2001)
). In the instant case, the evidence would
allow a jury to conclude that a camera in Kelly's police car had
made a videotape recording of the accident, and that the videotape
was subsequently misplaced or destroyed. We affirm the trial
court's denial of defendants' motion for summary judgment on this
claim.  We next address plaintiff's complaint alleging that
defendant City of Durham (the City) violated her rights under N.C.
Const. art. 1, § 19
by their assertion of the defense of
governmental immunity to the Plaintiff's first two claims for
relief in this civil action[,] and her contention that the City's
assertion of governmental immunity as a legal defense to the
Plaintiff's first two claims for relief constitutes an
unreasonable, arbitrary, and capricious governmental action. We
reverse the trial court and remand for entry of summary judgment in
favor of defendants on plaintiff's constitutional claim. We reach
this conclusion for several reasons.
Preliminarily, we observe that the trial court's order
mistakenly characterizes plaintiff's suit as presenting a challenge
to the facial constitutionality of the City's practices for
handling claims against it. Plaintiff's complaint is strictly
limited to allegations that defendants violated her state
constitutional rights by asserting sovereign immunity in this
as a defense to Plaintiff's first two claims. Thus,
plaintiff challenges the manner in which the city's policies have
been applied to her
, rather than making the separate and distinct
claim that the City's customs are facially unconstitutional. See
Maines v. City of Greensboro,
300 N.C. 126, 130, 265 S.E.2d 155,
158 (1980) (discussing the two types of claims where plaintiff
first contends that the ordinance is unconstitutional on its face
. . . alternative[ly], plaintiff argues that the ordinance isunconstitutional as applied). However, the trial court's order
repeatedly refers to plaintiff's having brought claims against the
city's assertion of sovereign immunity in this and other cases
This is an erroneous characterization of plaintiff's complaint,
which properly should be analyzed as a challenge to the City's
policies for handling claims as applied to her.
We conclude that plaintiff failed to present evidence raising
a genuine issue of material fact on her constitutional claim. The
core of plaintiff's argument is her allegation that the City has a
policy or practice of waiving sovereign immunity in some cases
but not in others. She further alleges that the City's
determination of when to waive sovereign immunity resides in the
unbridled discretion of certain city employees, and that the
City's waiver of sovereign immunity for certain similarly
situated claimants violates her rights to due process and equal
Plaintiff's argument rests on the erroneous premise
that the City has a practice of selectively waiving the defense
of sovereign immunity. The uncontradicted record evidence
establishes that claims against the City are never denied on the
basis of sovereign immunity, and that claims are paid or denied on
the basis of their legal merits, based on evaluation of whether (1)
the claimant asserts a legally cognizable cause of action; (2)
investigation shows the claim to be meritorious; and (3) the
damages have been documented.
Plaintiff presents no evidence that
defendant ever denies
a claim based on sovereign immunity. However, if
sued by a claimant, the City always raises the defense
of sovereign immunity when appropriate. Thus, the City never
denies claims based on sovereign immunity, but always
defense if it is sued. Accordingly, there is no evidence that
defendants have a practice of selectively waiving this defense.
Nor does the City's practice of executing settlement contracts
with certain claimants constitute a waiver of sovereign immunity in
those cases. 'Whether denominated accord and satisfaction or
compromise and settlement, the executed agreement terminating or
purporting to terminate a controversy is a contract, to be
interpreted and tested by established rules relating to
contracts.' Bolton Corp. v. T. A. Loving Co
., 317 N.C. 623, 628,
347 S.E.2d 369, 372 (1986) (quoting Casualty Co. v. Teer Co
N.C. 547, 550, 109 S.E.2d 171, 173 (1959)). The representative
settlement form in the record does not waive sovereign immunity or
any other defense. Further, it specifically states that:
This release expresses a full and complete
settlement of a liability claimed and denied,
. . . and the acceptance of this release shall
not operate as an admission of liability on
the part of anyone nor as an estoppel, waiver,
or bar with respect to any claim the party or
parties released may have against the
(emphasis added). Thus, should a tort claimant violate the
settlement agreement by suing the City after executing the
settlement contract, the City would be entitled to raise any
applicable defense, including satisfaction and accord or sovereign
Plaintiff presents no evidence that the City everexecuted a settlement contract waiving
the right to assert
sovereign immunity in the event that the claimant tried to sue the
City after executing the settlement contract.
plaintiff has not presented evidence that the City's
settlement practices violated her due process or equal protection
rights under the State constitution.
'[T]he touchstone of due
process is protection of the individual against arbitrary action of
. . . Arbitrary and capricious acts by government
are also prohibited under the Equal Protection Clauses of the
United States and the North Carolina Constitutions. Dobrowolska
, 138 N.C. App. 1, 14, 530 S.E.2d 590, 599 (2000)
The equal protection 'principle requires that
all persons similarly situated be treated
alike.' Accordingly, to state an equal
protection claim, a claimant must allege (1)
the government (2) arbitrarily (3) treated
them differently (4) than those similarly
Lea v. Grier
, 156 N.C. App. 503, 509, 577 S.E.2d 411, 416 (2003)
138 N.C. App. at 14, 530 S.E.2d at 599).
another case challenging a city's exercise of discretion, Maines,
300 N.C. at 131-32, 265 S.E.2d at 158-59,
the North Carolina
Supreme Court held
[A]n ordinance which vests unlimited or
unregulated discretion in a municipal officer
is void. . . . On the other hand, actions of
public officials are presumed to be regular
and done in good faith[,] and the burden is on
the challenger to show that the actions as to
him were unequal when compared to persons
. The initial question then
is whether plaintiff has met his burden of
showing that he received treatment differentfrom others similarly situated.
In the instant case, plaintiff has failed to show either that
(1) similarly situated claimants are not treated equally, or that
(2) the determination not to offer her a settlement was arbitrary
Plaintiff has not shown she was treated differently from
similarly situated claimants. She has assembled a long list of
claimants from a given time period. However, she articulates no
similarity between her case and those of claimants receiving
settlements, other than having brought a claim, which may or may
not involve a law enforcement officer, against the City of Durham.
There is no information about the relative merits of claims, the
similarity or differences in claimant's background, or other
information that would enable us to conclude that plaintiff had
been treated differently from similar claimants. See Clayton v.
, 170 N.C. App. 438, 613 S.E.2d 259, disc. review denied
360 N.C. 174, 625 S.E.2d 785 (2005).
Nor does the evidence raise an issue of fact regarding whether
the city's decision not to settle her particular claim was
arbitrary and capricious. Not every deprivation of liberty or
property constitutes a violation of substantive due process granted
under article I, section 19. Generally, any such deprivation is
only unconstitutional where the challenged law bears no rational
relation to a valid state objective.
Affordable Care Inc. v. N.C.
State Bd. of Dental Exam'rs
, 153 N.C. App. 527, 535, 571 S.E.2d 52,59 (2002) (citing Rhyne v. K-Mart Corp
., 149 N.C. App. 672, 562
S.E.2d 82 (2002), aff'd
, 358 N.C. 160, 594 S.E.2d 1 (2004))
the instant case, defendants presented ample evidence supporting
their decision that plaintiff's claim was not meritorious.
Further, we disagree with plaintiff that the holding of
controls the result in the instant case. The defendant
, the City of Greensboro, customarily responded to
claims for damages by asserting the defense of sovereign
immunity. Thereafter, the City would sometimes waive the defense
and enter into a settlement agreement:
[A]t the same time the City has asserted
governmental immunity towards plaintiffs . . .
it has asserted such immunity
individuals similar to plaintiffs, but then
by paying damages to those
injured individuals. . . . The City has opted
to pay damages to some claimants after
governmental immunity; therefore, it
must carry out this custom, or 'unwritten'
policy in a way which affords due process to
all similarly situated tort claimants . . .
[The City] classifies claims . . . into two
different categories _ (1) immunity is
asserted with no exception,
asserted but the claim is paid in settlement.
, 138 N.C. App. at 12-13 and 17, 530 S.E.2d at 598-99
and 601 (emphasis added).
This contrasts sharply with Durham's
policy of never asserting sovereign immunity as a basis for denial
of a claim, and of always asserting it in response to a lawsuit.
Further, unlike defendant City in Dobrowolska,
leave decisions about settlement of cases to the unfettered
discretion of city employees. As discussed above, theuncontroverted evidence is that claims against the City are
resolved by determination of whether the claimant (1) presents a
legally cognizable claim, that (2) is meritorious, as shown by
investigation into the facts, and (3) has documented injuries.
position results from the assumption that the
[City of Durham] may purposely and wilfully abuse the discretion
with which the law invests it. It is hard to see how any
administrative body can function without exercising discretion; but
even then the discretion must not be whimsical, or capricious, or
arbitrary, or despotic.
North Carolina State Highway Com. v.
, 200 N.C. 603, 607, 158 S.E. 91, 93 (1931).
determination of whether to settle a claim will always
exercise of discretion and the weighing and assessment of largely
subjective factors, such as the credibility and demeanor of
prospective witnesses, or the likely response of a jury to certain
evidence. It also requires evaluation of legal issues such as a
claim's validity, the impact of relevant precedent on trial issues,
or the availability of affirmative defenses. Accordingly, the
determination of how to respond to a claim brought against the City
is akin to other discretionary judgments that cannot be reduced to
a mathematical formula, such as decisions about hiring, firing, or
resource allocation. The process is very different from that
involved in decisions about
zoning, permitting, or eligibility for
public services, because such determinations can
be reduced to an
objective set of criteria.
gravamen of plaintiff's claim is in reality a
challenge to the inequality in bargaining strength between a tort
claimant and the City. Ordinarily, if parties cannot settle a
civil dispute, a plaintiff has the option of filing suit. However,
if sovereign immunity is available as a defense, then the plaintiff
has no recourse if a settlement cannot be reached. Thus, plaintiff
seeks to redress the reality that the City can decide whether or
not to settle claims, while plaintiff lacks the usual power to
bring suit if the claim is not settled.
During the hearing on
these motions, plaintiff's counsel conceded as much, stating to the
trial court that:
. . . [O]ur purpose in bringing these
declaratory and injunctive claims is to stop
[the City] from having the ability to . . .
pay some claims, but also to unilaterally
. . . .
Because they have immunity, they can browbeat
citizens into taking whatever it is they're
willing to offer.
. . . .
That's our reason for bringing this case, . .
. to put everybody on equal footing.
The plaintiff asks us either to abolish governmental immunity or
to change the way it is applied. . . . [A]ny change in this
doctrine should come from the General Assembly. Blackwelder v.
City of Winston-Salem, 332 N.C. 319, 324, 420 S.E.2d 432, 435-36
Finally, even if we were to hold that the City's policiesgoverning its decisions of when to waive sovereign immunity were
constitutionally infirm, defendants would nonetheless be entitled
to assert sovereign immunity in this case. A police officer in
the performance of his duties is engaged in a governmental
function. Galligan v. Town of Chapel Hill, 276 N.C. 172, 175, 171
S.E.2d 427, 429 (1970).
In general, municipalities in North
Carolina are immune from liability for their negligent acts arising
out of governmental activities unless the municipality waives such
immunity by purchasing liability insurance. Anderson v. Town of
Andrews, 127 N.C. App. 599, 600, 492 S.E.2d 385, 386 (1997). Under
N.C. Gen. Stat. § 160A-485(a) (2005), [a]ny city is authorized to
waive its immunity from civil liability in tort by the act of
purchasing liability insurance. . . . Immunity shall be waived
only to the extent that the city is indemnified by the insurance
contract from tort liability. However, the statute also provides
that no city shall be deemed to have waived its tort immunity by
any action other than the purchase of liability insurance.
(emphasis added). Our appellate courts have consistently held that
N.C.G.S. § 160A-485 provides that the only way a city may waive
its governmental immunity is by the purchase of liability
Blackwelder, 332 N.C. at 324, 420 S.E.2d at 435
(emphasis added). In Blackwelder
, defendant City formed a
corporation to handle claims against the City of less than
$1,000,000. The North Carolina Supreme Court held that:
Finally, the plaintiff contends that the City
has violated the Equal Protection Clause ofthe Fourteenth Amendment . . . and Article I,
Section 19 of the Constitution of North
Carolina[,] . . . because the City, through
RAMCO, can pick and choose what claims it will
pay, thus depriving the plaintiff of the equal
protection of the law. . . . If we were to
hold the City has acted unconstitutionally . .
. it would not mean the City had waived its
governmental immunity. The most we could do
is strike down RAMCO. A decision involving
this constitutional question would not resolve
this case and we do not consider it.
Blackwelder, 332 N.C. at 325-26, 420 S.E.2d
at 436-37 (emphasis
In sum, as a consequence of the Supreme Court's recent
decision in Jones, 361 N.C. 144, 638 S.E.2d 202 (2006), reversing
this Court on the claim for gross negligence for the reasons set
forth in the dissenting opinion in Jones I, plaintiff has raised
genuine issues of material fact for her claim alleging gross
negligence. We therefore affirm the trial court order in this
regard. We also conclude that the trial court correctly dismissed
the claim alleging ordinary negligence, and that defendant's motion
for summary judgment on the claim for obstruction of justice was
properly denied. We further conclude that defendants are entitled
to assert sovereign immunity to the extent that they have not
waived the defense by purchase of liability insurance.
reverse the trial court's order to the extent it denied defendant's
motions for summary judgment on the constitutional claims because
plaintiff has failed to present evidence that the City's decision
not to pay her claim violated her constitutional rights. On
remand, the trial court is directed to enter summary judgment infavor of defendant as to the constitutional claims.
Affirmed in part; reversed in part.
Judges McCULLOUGH and ELMORE concur.
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