Scott v. City of Charlotte

691 S.E.2d 747

Anne SCOTT, Administrator for the Estate of David Scott, and Anne Scott, Individually, Plaintiff, v. CITY OF CHARLOTTE, Defendant.

No. COA09-893.

Court of Appeals of North Carolina.

April 20, 2010.

DeVore, Acton & Stafford, PA, by Fred W. DeVore, III, Charlotte; Kuruc Law Offices, by Joan Kuruc, Raleigh, for plaintiff-appellee.

Gray King Chamberlin & Martineau, LLC, by L. Kristin King and Jennifer P. Pulley, Charlotte, for defendant-appellant.

HUNTER, ROBERT C., Judge.

The City of Charlotte ("defendant" or "the City") appeals from the trial court's denial of its motion for summary judgment. After careful review, we reverse the trial court's order.

Background

At approximately 9:00 a.m. on 12 November 2005, a call was placed to the Charlotte 911 dispatch center reporting an erratic driver. The Charlotte Mecklenburg Police Department was notified and Officer Todd Davis ("Officer Davis") located the reported vehicle. Officer Davis pulled in behind the vehicle and activated his lights and siren. The driver of the vehicle then pulled over on the side of the road. Officer Davis received back-up assistance from Officer Brandy Lingle ("Officer Lingle") and Officer Erika Conway ("Officer Conway").¹

Officer Davis asked the driver for his license and registration, which he produced. The driver was identified as David Scott ("Mr. Scott"). Upon questioning by Officer Davis, Mr. Scott explained that he had driven from Cary, North Carolina that morning and was heading to a job site where he had left some work related materials that he needed for that afternoon. Officer Davis asked Mr. Scott if he had been drinking and Mr. Scott replied that he had not. Officer Davis also inquired about any medications that Mr. Scott was taking and Mr. Scott replied that he took blood pressure medication that morning as well as other medications related to a stroke he had suffered the previous spring. Officer Davis determined that "something" was affecting Mr. Scott's ability to operate his vehicle and he informed Mr. Scott that he could not continue to drive. It is uncontested by the parties that Mr. Scott was physically unsteady at the time of the stop. One of the female officers commented: "Sir, we can't let you drive. I mean, you can't even stand here without wobbling...."

Upon questioning Mr. Scott and discovering that there was no one in the Charlotte area whom Mr. Scott could contact, Officer Davis requested that Mr. Scott call his wife in Cary. Officer Davis noticed that Mr. Scott was having difficulty placing the call and promptly took Mr. Scott's cell phone and asked him for his wife's telephone number, which Mr. Scott relayed. Officer Davis then had a conversation with Anne Scott ("Mrs. Scott" or "plaintiff"); however, only Officer Davis' side of the conversation was recorded by the patrol car camera. After informing Mrs. Scott of the situation regarding her husband, Officer Davis told the other officers that Mrs. Scott, a registered nurse, said that Mr. Scott "`could relapse with a stroke and not realize it.'" Officer Davis told Mrs. Scott that, in his opinion, Mr. Scott's speech was not slurred and that he did not appear to have any paralysis. Officer Davis allowed Mr. Scott to speak with his wife while he discussed the situation with the other two officers. The officers noted that Mr. Scott's mouth was "drooped," but they acknowledged that the condition could be attributed to his prior stroke. After some deliberation between the officers as to the best course of action, Officer Davis informed Mrs. Scott that she would have to drive to Charlotte from Cary to pick up Mr. Scott from a parking lot located near their present location. Officer Davis gave Mrs. Scott a telephone number to call when she arrived in Charlotte and he assured her that someone would bring Mr. Scott's keys to her.

The video transcript reveals that one of the officers asked Mr. Scott if he needed medical assistance; however, no response is indicated. Mrs. Scott stated in her deposition that she did not specifically ask Officer Davis to call an ambulance or take Mr. Scott to a hospital. In his deposition, Officer Davis claimed that it was his belief that Mr. Scott was not having a stroke and that his symptoms were due to an adverse reaction to his medications.

Mr. Scott's vehicle was subsequently moved to a "Pep Boys" parking lot and the officers left the scene. At approximately 11:30 a.m., emergency dispatch received a call that a man had collapsed in the Pep Boys parking lot. Mr. Scott was located and transported by ambulance to Presbyterian Hospital, where he was pronounced dead the following day. A CT scan revealed that a brain hemorrhage was the cause of death.

On 17 October 2007, Anne Scott, individually and as administrator of her deceased husband's estate, filed a complaint in Mecklenburg County Superior Court against the City, the Charlotte Mecklenburg Police Department, Officer Davis, Officer Lingle, and Officer Conway in their official capacities. Plaintiff alleged, inter alia, that the various defendants had committed acts of negligence, gross negligence, and negligence per se. Plaintiff also brought a civil rights action pursuant to 42 U.S.C. § 1983. The City and Officers Davis, Lingle, and Conway, filed answers in which they pled the public duty doctrine as a defense to liability. On 3 April 2008, plaintiff voluntarily dismissed defendant Charlotte Mecklenburg Police Department. On 20 August 2008, plaintiff voluntarily dismissed Officers Davis, Lingle, and Conway. On 10 September 2008, the City filed a motion for summary judgment, claiming that there were no material issues of fact for jury consideration. On 2 January 2009, defendant filed a supplemental motion for summary judgment. A hearing was held on 12 January 2009 to address defendant's motion for summary judgment. On 30 January 2009, the trial court denied defendant's motion for summary judgment.

Interlocutory Nature of Appeal

An order denying a motion for summary judgment is interlocutory because it "does not dispose of the case, but leaves it for further action by the trial court in order to settle and determine the entire controversy." Veazey v. Durham, 231 N.C. 357, 362, 57 S.E.2d 377, 381 (1950). As a general rule this Court does not review interlocutory orders; "however, an appeal based on the public duty doctrine `involves a substantial right warranting immediate appellate review.'" Estate of McKendall v. Webster, ___ N.C.App. ___, ___, 672 S.E.2d 768, 770 (2009) (quoting Cockerham-Ellerbee v. Town of Jonesville, 176 N.C.App. 372, 374, 626 S.E.2d 685, 687 (2006)). "The scope of our review in this case is ... limited to issues that implicate the public duty doctrine." Id.

Standard of Review

A party is entitled to summary judgment "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) (2009). We review a grant or denial of summary judgment de novo. Falk Integrated Tech., Inc. v. Stack, 132 N.C.App. 807, 809, 513 S.E.2d 572, 574 (1999). On appeal, this Court must determine: "`(1) whether there is a genuine issue of material fact and (2) whether the movant is entitled to judgment as a matter of law.'" McCoy v. Coker, 174 N.C.App. 311, 313, 620 S.E.2d 691, 693 (2005) (quoting NationsBank v. Parker, 140 N.C.App. 106, 109, 535 S.E.2d 597, 599 (2000)). "For the case at bar, we must discern whether, upon review of the evidence in a light most favorable to plaintiff's claims, judgment as a matter of law should have been entered in favor of defendant upon the assertion of the defense of the public duty doctrine...." Lassiter v. Cohn, 168 N.C.App. 310, 315, 607 S.E.2d 688, 691, disc. review denied, 359 N.C. 633, 613 S.E.2d 686 (2005).

Analysis

I. Application of the Public Duty Doctrine

The threshold question in this case is whether the public duty doctrine serves to bar plaintiff's negligence claims in this specific circumstance, where plaintiff asserts that city police officers failed to summon medical assistance for an individual who appeared to be physically impaired in some respect, but did not request medical attention. Defendant argues that the public duty doctrine bars recovery in this case, and, therefore, summary judgment should have been entered in its favor. We agree with defendant and hold that the public duty doctrine shields defendant from liability under these specific circumstances.

In a claim for negligence, there must exist a "legal duty owed by a defendant to a plaintiff, and in the absence of any such duty owed the injured party by the defendant, there can be no liability." Hedrick v. Rains, 121 N.C.App. 466, 469, 466 S.E.2d 281, 283 (internal citation omitted), aff'd per curiam, 344 N.C. 729, 477 S.E.2d 171 (1996). "When the public duty doctrine applies, the government entity, as the defendant, owes no legal duty to the plaintiff." Blaylock v. N.C. Dep't of Correction-Division of Community Corrections, ___ N.C.App. ___, ___, 685 S.E.2d 140, 143 (2009).

In Braswell v. Braswell, 330 N.C. 363, 370-71, 410 S.E.2d 897, 901 (1991) (internal citation omitted), our Supreme Court adopted the common law public duty doctrine, stating:

The general common law rule, known as the public duty doctrine, is that a municipality and its agents act for the benefit of the public, and therefore, there is no liability for the failure to furnish police protection to specific individuals. This rule recognizes the limited resources of law enforcement and refuses to judicially impose an overwhelming burden of liability for failure to prevent every criminal act.

In Braswell, a woman was killed by her estranged husband and her son, as administrator of his deceased mother's estate, filed suit against the county sheriff, alleging that the...