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Norris v. Zambito10/19/1999
Filed: 19 October 1999
Appeal by plaintiff from judgment entered on 17 August 1998 by Judge E. Lynn Johnson in Durham County Superior Court. Heard in the Court of Appeals 14 September 1999.
Plaintiff filed this action seeking compensatory and punitive damages for the wrongful death of Jasper Norris, III, allegedly caused by negligence on the part of defendants. Defendants Hayes and Bynum, who were police officers employed by the City of Durham (defendant City), and defendant City filed answers denying negligence and asserting the affirmative defense of sovereign immunity. After discovery, defendants Hayes, Bynum and City moved for summary judgment.
The materials before the trial court upon hearing the motion for summary judgment tended to show that at approximately 1:00 a.m. on 20 October 1993, Corporal M.L. Hayes of the Durham Police Department was on routine patrol when he spotted Joseph Paul Zambito driving a red and white pickup truck on Academy Road in Durham. Corporal Hayes recalled that he had arrested Zambito a few months earlier for driving while impaired and radioed to Officer V.P. Bynum, who was also patrolling in the area, that he had spotted Zambito. The officers discussed the fact that Zambito's driver's license had likely been suspended, and Officer Bynum informed Corporal Hayes that he had seen Zambito earlier in the evening and suspected that Zambito was driving while impaired.
Officer Bynum spotted Zambito shortly thereafter and began to follow him on Cornwallis Road. Zambito increased his speed over the posted 35 mile per hour limit and Officer Bynum responded by increasing his speed and turning on his emergency lights. A few hundred feet later, Zambito made a sharp right turn onto University Drive, accelerated rapidly, and proceeded on University Drive toward Hope Valley Road. Officer Bynum continued in pursuit. Zambito entered the intersection of University Drive and Hope Valley Road against a red traffic light at a speed of approximately 70 miles per hour and collided with a car driven by plaintiff's decedent, Jasper Norris, III, who died as a result of the collision. Officer Bynum was approximately 150 yards behind Zambito at the time of the collision. Corporal Hayes did not witness the collision, but arrived shortly thereafter. Zambito's blood- alcohol level was .013.
The pursuit lasted no longer than one minute and was less than one mile in length. The speed limit on the roads over which the pursuit occurred was 35 miles per hour, and the officers testified that the roads were in good condition and free of other motorists. The officers also testified that their speed never exceeded 65 miles per hour, and that they were always in control of their cars.
Three days before the incident in question, Zambito had been arrested by another Durham police officer for driving while impaired and instigating a similar chase. During the booking process on that charge, Zambito told an officer that he would run from the police every time he was chased. There was no evidence that either Corporal Hayes or Officer Bynum was aware of Zambito's threat.
Plaintiff offered an affidavit of John Gormley, who was tendered as an expert in police pursuit tactics. The trial court sustained defendants' objections to those portions of Mr. Gormley's affidavit in which he stated his opinion that the officers' pursuit of Zambito was "grossly negligent" and "showed a reckless disregard for the safety of others", and that the chase was a violation of defendant City's pursuit policy, on grounds that Mr. Gormley's opinions expressed legal Conclusions.
The trial court determined that no genuine issue of material fact existed
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