Tort/Negligence – Gross Negligence – Sovereign Immunity – Public Official Immunity

Lunsford v. Renn. (Lawyers Weekly 10-07-0955, 19 pp.) (Robert N. Hunter Jr., J.) Appealed from Granville County Superior Court (Shannon R. Joseph, J.). N.C. App. Click here for the full text of the opinion.

Holding: The plaintiff failed to forecast evidence sufficient to raise a genuine issue of material fact that a police officer pursuing a driver who struck and killed two people acted with a reckless indifference to the safety of the public. The officer was entitled to public official immunity. A town did not waive its governmental immunity by purchasing an insurance policy.

Facts

During a high-speed chase involving a man and a police officer, the man struck the plaintiff’s car head-on, killing two people.

The plaintiff brought suit against the driver’s estate, against officers of multiple police departments involved in the chase both in their official and individual capacities, against the police departments and against a town. The trial court entered summary judgment in favor of all defendants except the estate of the driver of the car that struck the plaintiff’s vehicle.

The plaintiff appealed.

Analysis

In any civil action resulting from the vehicular pursuit of a law violator, the gross-negligence standard applies in determining the officer’s liability.

The plaintiff alleged that the defendant’s pursuit of the driver was grossly negligent. Several factors are relevant in assessing whether the conduct of a law enforcement officer engaged in the pursuit of a fleeing suspect meets the grossly negligent standard. They include (1) the reason for the pursuit; (2) the probability of injury to the public due to the officer’s decision to begin and maintain pursuit; and (3) the officer’s conduct during the pursuit.

Even though a pursuing officer violated departmental policies in the manner in which he engaged in the chase, the evidence fails to raise a genuine issue that the officer acted with a reckless indifference to the safety of the public – the lowest threshold for wanton conduct.

The plaintiffs’ evidence highlights the dangers encountered throughout the pursuit, but it does not show that the officer acted in a manner that was wanton or reckless. The officer was merely attempting to mitigate an already precarious situation by getting the driver off the road. The driver refused to comply.

Without at least some evidence showing that the officer was reckless in trying to get the driver to pull off the road, the plaintiffs cannot show that the officer’s conduct was grossly negligent. We similarly decline to hold that the lieutenant and chief were grossly negligent.

Sovereign immunity

 The plaintiffs allege that the defendants are not covered by the doctrine of sovereign immunity due to ambiguities in the town’s insurance policy. The doctrine of governmental or sovereign immunity bars action against, the state, its counties and its public officials sued in their official capacity. It applies when the entity is being sued for the performance of a governmental function.

A town or municipality may waive sovereign immunity through the purchase of liability insurance. A governmental entity does not waive sovereign immunity if the action brought against them is excluded from coverage under their insurance policy.

A review of the town’s insurance policy shows that it did not waive governmental immunity.

Public official immunity

The plaintiffs argued that the trial court erred by granting summary judgment to the officer in his individual capacity because the evidence showed that his actions were malicious or wanton.

As a general rule it is presumed that a public official in the performance of his official duties acts fairly, impartially and in good faith and in the exercise of sound judgment or discretion, for the purpose of promoting the public good and protecting the public interest. Accordingly, a public official engaged in the performance of governmental duties involving the exercise of judgment and discretion may not be held personally liable 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.

The plaintiffs have not forecast evidence which demonstrates that the officer acted maliciously, wantonly, or recklessly in his pursuit of the driver. Accordingly, the officer in his individual capacity is entitled to public official immunity.

Affirmed.