Norris v. Zambito10/19/1999
, Bynum and City for summary judgment and dismissing her claims against those defendants. Plaintiff argues that genuine issues of material fact exist as to whether the officers, in pursuing Zambito, acted with reckless disregard for the rights and safety of others so as to be grossly negligent.
Summary judgment is proper "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) (1990). The burden of establishing the absence of any genuine issue of material fact is on the moving party, and the evidence presented should be viewed in the light most favorable to the nonmoving party. Holley v. Burroughs Wellcome Co., 318 N.C. 352, 348 S.E.2d 772 (1986). The moving party may meet this burden by showing that an essential element of the opposing party's claim is nonexistent, or that the opposing party cannot produce evidence to support an essential element of the claim. Pine Knoll Association, Inc. v. Cardon, 126 N.C. App. 155, 484 S.E.2d 446, disc. review denied, 347 N.C. 138, 492 S.E.2d 26 (1997). Although issues of negligence are generally not appropriately decided by way of summary judgment, if there are no genuine issues of material fact, and an essential element of a negligence claim cannot be established, summary judgment is proper. Lavelle v. Schultz, 120 N.C. App. 857, 463 S.E.2d 567 (1995), disc. review denied, 342 N.C. 656, 467 S.E.2d 715 (1996).
G.S. § 20-145 exempts police officers from speed laws when engaged in the pursuit of a law violator. The exemption, however, does not apply to protect the officer from "the consequence of a reckless disregard of the safety of others." Our Supreme Court has construed the statute as establishing a general standard of care, as opposed to a simple exemption from speed laws, and has held that an officer's liability in a civil action for injuries resulting from the officer's vehicular pursuit of a law violator is to be determined pursuant to a gross negligence standard of care. Parish v. Hill, 350 N.C. 231, 513 S.E.2d 547, reh'g denied, ___ N.C. ___, ___ S.E.2d ___ (1999); Young v. Woodall, 343 N.C. 459, 471 S.E.2d 357 (1996). Gross negligence has been defined as "wanton conduct done with conscious or reckless disregard for the rights and safety of others." Bullins v. Schmidt, 322 N.C. 580, 583, 369 S.E.2d 601, 603 (1988).
Courts have discussed several factors as relevant to the issue of whether the conduct of a law enforcement officer engaged in pursuit of a fleeing suspect meets the grossly negligent standard. First, the reason for the pursuit is to be considered. If the officer was attempting to apprehend someone suspected of violating the law, the police officer would fall squarely within the standard of care established by the Supreme Court's construction of G.S. § 20-145. Clark v. Burke County, 117 N.C. App. 85, 87, 450 S.E.2d 747, 748 (1994) (officer trying to apprehend man suspected of discharging firearm in a public place); Bullins at 584, 369 S.E.2d at 604 (officer attempting to apprehend a driver acting "as if he was under the influence of alcohol"); Fowler v. NC Dept. of Crime Control & Public Safety, 92 N.C. App. 733, 733, 376 S.E.2d 11, 12, disc. review denied, 324 N.C. 577, 381 S.E.2d 773 (1989) (officer trying to arrest driver traveling at 115 m.p.h. along rural highway). It is also relevant to consider whether the suspect was known to police and could be arrested through means other than apprehension via a high speed chase; Bullins at 584, 369 S.E.2d at 604 (suspect was unknown to police and no other means
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