Norris v. Zambito10/19/1999
existed for apprehension); or whether the fleeing suspect presented a danger to the public that could only be abated by immediate pursuit. Clark at 87, 450 S.E.2d at 748; Bullins at 584, 369 S.E.2d at 604.
Also relevant to a determination of whether the officer's conduct was grossly negligent is the probability of injury to the public by the officer's decision to pursue and continue to pursue the suspect. Relevant considerations include the time of day or night when the pursuit occurred, Bullins at 584, 369 S.E.2d at 604; Fowler at 736, 376 S.E.2d at 13; the location of the pursuit (a highway, residential neighborhood, rural area, or within the city limits), Bullins at 584, 369 S.E.2d at 604; Fowler at 736, 376 S.E.2d at 13; Clark at 90, 450 S.E.2d at 749; population of the area, Fowler at 736, 376 S.E.2d at 13; type of terrain (hilly or curvy roads), Clark at 90, 450 S.E.2d at 749; traffic conditions, Bullins at 584, 369 S.E.2d at 604; presence of other vehicles on the road, Bullins at 584, 369 S.E.2d at 604; posted speed limits, Clark at 90, 450 S.E.2d at 749; road conditions, Bullins at 584, 369 S.E.2d at 604; weather conditions, Clark at 90, 450 S.E.2d at 749; Fowler at 733, 376 S.E.2d at 12; duration of pursuit, Clark at 90, 450 S.E.2d at 749; Fowler at 736, 376 S.E.2d at 13; and length of pursuit, Clark at 90, 450 S.E.2d at 749; Fowler at 736, 376 S.E.2d at 13.
In addition, evidence with respect to the law enforcement officer's conduct in pursuing the fleeing driver is relevant to the issue of gross negligence. Courts have discussed whether the officer used emergency lights, sirens and headlights, Fowler at 736, 376 S.E.2d at 13; Young at 460, 471 S.E.2d at 358; collided with any person, vehicle or object, Bullins at 585, 369 S.E.2d at 604; kept his or her vehicle under control, Bullins at 585, 369 S.E.2d at 604; followed relevant departmental policies regarding chases, Young at 460, 471 S.E.2d at 358; violated generally accepted standards for police pursuits, Clark at 91, 450 S.E.2d at 750; and what the officer's speed was during the pursuit, Fowler at 736, 376 S.E.2d at 13.
Applying those factors to the evidence before the trial court at the summary judgment hearing in the present case, we conclude that plaintiff did not demonstrate the existence of a genuine issue of material fact as to gross negligence on the part of the officers, so as to survive defendants' summary judgment motion. The officers were attempting to apprehend a driver they suspected to be driving while intoxicated. Even though they knew Zambito and could possibly have apprehended him at his home at a later time, they had good reason to attempt to remove him from the road due to the immediate and significant potential danger to the public posed by his driving while impaired. Moreover, the apparent probability of injury to the public at the time Officer Bynum initiated the pursuit was not great; the road was clear and dry, the pursuit occurred in the early morning hours, traffic in the area was very light, and the length and duration of the pursuit were both short. Finally, even assuming that plaintiff had showed that the officers, in pursuing Zambito, had violated defendant City's pursuit policy, such evidence would not show gross negligence. A violation of voluntarily adopted safety policies is merely some evidence of negligence and does not conclusively establish negligence. Peal by Peal v. Smith, 115 N.C. App. 225, 444 S.E.2d 673 (1994), affirmed, 340 N.C. 352, 457 S.E.2d 599 (1995); Robinson v. Seaboard System R.R., Inc., 87 N.C. App. 512, 361 S.E.2d 909 (1987), disc. review denied, 321 N.C. 474, 364 S.E.2d 924 (1988); Briggs v. Morgan, 70 N.C. App. 57, 318 S.E.2d 878 (1984).
Plaintiff argues
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