The order denying defendants' motion for summary judgment
is an interlocutory order which, as a general rule, is not
immediately appealable unless a substantial right of one of the
parties would be adversely affected if the appeal is delayed until
a final judgment. See
N.C. Gen. Stat. §§
1-277, 7A-27(d) (2005);
Equitable Leasing Corp. v. Myers
, 46 N.C. App. 162, 164, 265 S.E.2d
240, 244 (1980). However, this Court has repeatedly held that the
denial of a motion for summary judgment grounded on the defense of
governmental immunity affects a substantial right and is
immediately appealable. See Derwort v. Polk County
, 129 N.C. App.
789, 792, 501 S.E.2d 379, 381 (1998); Hedrick v. Rains
, 121 N.C.
App. 466, 466 S.E.2d 281, aff'd
, 344 N.C. 729, 477 S.E.2d 171
(1996). We allow interlocutory appeals in these situations
because the essence of absolute immunity is its possessor's
entitlement not to have to answer for his conduct in a civil
damages action. Epps v. Duke University, Inc.
, 122 N.C. App. 198,
201, 468 S.E.2d 846, 849 (1996) (internal quotation omitted).
Therefore, to the extent defendants appeal from the denial of their
motion for summary judgment grounded on the affirmative defense of
immunity, their appeal is properly before us. Price v. Davis
N.C. App. 556, 558-59, 512 S.E.2d 783, 785-86 (1999).
to the balance of their arguments, however, defendants have shownno substantial right which would be lost or irreparably prejudiced
if the order is not reviewed before final judgment and those
arguments are premature. Waters v. Qualified Personnel
N.C.200, 240 S.E.2d 338 (1978).
A trial court's ruling on a motion for summary judgment is
reviewable de novo
to determine whether there is any genuine issue
of material fact and whether either party is entitled to judgment
as a matter of law. Summey v. Barker
, 357 N.C. 492, 496, 586
S.E.2d 247, 249 (2003). The burden is upon the party moving for
summary judgment to show that no genuine issue of material fact
exists and that it is entitled to judgment as a matter of law.
N.C. Gen. Stat. § 1A-1, Rule 56(c) (2006); Lowe v. Bradford
N.C. 366, 369, 289 S.E.2d 363, 366 (1982).
 Defendants argue the trial court erred in concluding that
Trooper Emmons was not entitled to qualified immunity because the
right which plaintiff alleges to have been violated was not clearly
established at the time and because a reasonable officer would not
have known that Trooper Emmons' actions violated that right. The
defense of qualified immunity shields government officials from
personal liability 'insofar as their conduct does not violate
clearly established statutory or constitutional rights of which a
reasonable person would have known.' Andrews v. Crump
, 144 N.C.
App. 68, 75-76, 547 S.E.2d 117, 122, disc. review denied
, 354 N.C.
215, 553 S.E.2d 907 (2001) (quoting Harlow v. Fitzgerald
, 457 U.S.
800, 818, 102 S.Ct. 2727, 2738, 73 L. Ed. 2d 396, 410 (1982)). Turning first to the plaintiff's claims under 42 U.S.C. §
1983, this Court has held that ruling on a defense of qualified
immunity requires (1) identification of the specific right
allegedly violated; (2) determining whether the right was clearly
established at the time it was allegedly violated; and (3) if so,
then determining whether a reasonable person in the officer's
position would have known that his actions violated that right.
Lee v. Greene
, 114 N.C. App. 580, 585, 442 S.E.2d 547, 550 (1994).
While the first two requirements entail purely legal conclusions,
the third may require factual determinations respecting disputed
aspects of the officer's conduct. . . . Thus, [i]f there are
genuine issues of historical fact respecting the officer's conduct
or its reasonableness under the circumstances, summary judgment is
not appropriate, and the issue must be reserved for trial. Id.
(quoting Pritchett v. Alford
, 973 F.2d 307, 313 (4th Cir. 1992))
(internal citations omitted).
In this case, the plaintiff's § 1983 claim alleged that his
right to be free from false arrest, and his right to be free from
the use of excessive force had been violated by the defendants.
Defendants argue that Trooper Emmons had probable cause to arrest
and use force against plaintiff, and therefore these claims must
fail as a matter of law. However, in analogous cases, we have held
that when, as in the case at bar, the nature and course of events
are disputed, [t]he trier of fact must determine exactly what
transpired and, based on those facts, determine if probable causeexisted. Glenn-Robinson v. Acker
, 140 N.C. App. 606, 621, 538
S.E.2d 601, 612 (2000).
We further note that we have held that the right to be free
from false arrest is a firmly established right for § 1983
. We have held the same with respect to the right to
be free from the use of excessive force. Barnett v. Karpinos
N.C. App. 719, 724, 460 S.E.2d 208, 211-12 (1995). These decisions
predate the events that gave rise to this case. Therefore, we
cannot say that the trial court erred in determining that such
rights existed, and were known to exist at the time of the events
in question, thereby satisfying the first two prongs of the §
test. The third prong, determining if a reasonable police officer
in the position of Trooper Emmons would have known that his actions
violated these established rights, is a material issue of disputed
fact, and therefore must be left to the finder of fact. Given
this, we cannot say that the trial court erred in refusing to grant
summary judgment on the grounds of qualified immunity with respect
to the defendant's § 1983 claims.
North Carolina law regarding the immunity of government actors
from suit for state law claims differs from the law of immunity in
federal § 1983 actions. See e.g., Roberts v. Swain
, 126 N.C. App.
712, 487 S.E.2d 760, cert. denied
, 347 N.C. 270, 493 S.E.2d 746
(1997)(analyzing immunity to state law claims and section 1983
claims under different standards). The North Carolina rule is that
a public official engaged in the performance of governmental duties
involving the exercise of judgment and discretion may not be heldliable unless it is alleged and proved that his act, or failure to
act, was corrupt or malicious, or that he acted outside of and
beyond the scope of his duties. Andrews
, 144 N.C. App. at 76, 547
S.E.2d at 123. Plaintiff has specifically alleged malice in his
 Defendants argue further that the trial court erred in
concluding that Trooper Emmons was not entitled to public official
immunity as a matter of law because plaintiff has failed to produce
evidence that Trooper Emmons' actions were corrupt, malicious, or
outside the scope of his official duties.
A defendant acts with malice when he wantonly does that which
a man of reasonable intelligence would know to be contrary to his
duty and which he intends to be prejudicial or injurious to
another. Grad v. Kaasa
, 312 N.C. 310, 313, 321 S.E.2d 888, 890
(1984). As the moving party, defendants had the burden of showing
that no material issues of fact exist, such as by demonstrating
through discovery that the opposing party cannot produce evidence
to support an essential element of his claim or defense. Dixie
Chemical Corp. v. Edwards
, 68 N.C. App. 714, 715, 315 S.E.2d 747,
In support of their motion for summary judgment, defendants
offered the deposition testimony of plaintiff and his wife, and the
affidavit of Trooper Emmons. Although Trooper Emmons averred in
his affidavit that he did not act maliciously or with reckless
indifference toward plaintiff, and that all of his actions were
based on probable cause, plaintiff testified in his depositionthat the officer was angry, was very loud and spitting, and that
when he opened his car door in response to the officer's command,
Trooper Emmons maced him, with some of the spray going inside
plaintiff's car and contacting his wife. Plaintiff also testified
that he told the officer that he needed his crutches, but the
officer jerked him out of the car and handcuffed him,
notwithstanding plaintiff's wife telling the trooper that plaintiff
was disabled. The court must consider the evidence in a light
most favorable to the nonmoving party, Dalton v. Camp
, 353 N.C.
647, 651, 548 S.E.2d 704, 707 (2001), and [a]ll inferences of fact
must be drawn against the movant and in favor of the nonmovant.
Roumillat v. Simplistic Enters., Inc.
, 331 N.C. 57, 63, 414 S.E.2d
339, 342 (1992). When so considered, the foregoing evidentiary
materials are sufficient to create a genuine issue of fact,
material to the issue of immunity, as to whether Trooper Emmons
actions were done with malice. Thus, the denial of defendants'
summary judgment motion on the grounds of immunity must be
affirmed. See Thompson v. Town of Dallas
, 142 N.C. App. 651, 656,
543 S.E.2d 901, 905 (2001)(finding that genuine issue of material
fact as to whether officer acted with malice in arresting motorist
precluded summary judgment on punitive damages claim).
As noted, defendants' remaining arguments with respect to the
denial of their motion for summary judgment are not grounded on the
defenses of immunity and are premature and must be dismissed. This
case is remanded to the superior court for further proceedings
consistent with this opinion. Affirmed in part, dismissed in part, and remanded.
Judges WYNN and GEER concur.
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