Civil Rights – Excessive Force – Wrongful Death – Shooting – Tort/Negligence – Assault & Emotional Distress

Hensley v. Suttles (Lawyers Weekly No. 004-007-16, 33 pp.) (Martin Reidinger, J.) 1:14-cv-00193; W.D.N.C.

Holding: In opposition to plaintiffs’ claim that the defendant-deputies used excessive force in violation of the Fourth Amendment, the deputies insist that the victim was pointing his gun at them when they opened fire. However, since the plaintiff-daughters have forecasted evidence that their father’s arms were down at his sides when the deputies opened fire, shooting their father in the head on their front lawn, the deputies are not entitled to qualified immunity at the summary judgment stage.

Defendants’ motion for summary judgment is granted as to plaintiffs’ intentional infliction of emotional distress claim and their abandoned claims. Otherwise, the motion is denied.

Plaintiffs’ father – and not plaintiffs themselves – was the intended target of the deputies’ shots; however, North Carolina recognizes the common law doctrine of transferred intent in civil assault actions. Plaintiffs testified that, as they stood on their front porch, they could feel the wake of air currents caused by the deputies’ bullets passing close to their bodies and that they were in imminent fear of being struck. Plaintiffs’ forecast of evidence presents genuine issues of material fact as to whether they were assaulted by the deputies.

With respect to plaintiffs’ claim of negligent infliction of emotional distress, a jury could find that the deputies’ shooting the decedent in the head was a negligent act. Further, the deputies were fully aware of the close proximity of plaintiffs to their father when they fired upon and killed him in plaintiffs’ presence. A jury could therefore conclude that it was reasonably foreseeable to the deputies that severe emotional distress to plaintiffs would follow from the deputies’ negligence.

According to plaintiffs’ forecast of evidence, the deputies killed the decedent using excessive force. Plaintiffs’ forecast of evidence in support of their wrongful death claim is sufficient to foreclose summary judgment based on the doctrine of public official immunity.

Since several of plaintiffs’ tort claims survive summary judgment based on a forecast of evidence tending to show malice or willful, wanton, or grossly negligent conduct, plaintiffs’ punitive damages claim survives to the same extent.

However, in support of their intentional infliction of emotional distress claim, plaintiffs have proffered insufficient evidence of extreme and outrageous conduct. Plaintiffs have proffered no evidence that the deputies sought to shoot their father in the head or to kill him in a particularly traumatizing manner with the intent to inflict severe emotional distress upon his two daughters who were present at the time. Plaintiffs have pointed to no evidence from which the court could infer that the deputies maintained any animosity toward plaintiffs. Plaintiffs have proffered no evidence that the deputies’ killing of their father could be viewed as a calculated effort to strike fear in their hearts.

The doctrine of transferred intent does not save plaintiffs’ claim. There is no evidence that the deputies intended to terrify the decedent. The deputies are entitled to summary judgment on plaintiff’s intentional infliction of emotional distress claim.

Motion granted in part and denied in part.