Tort/Negligence – Wrongful Death – Police Shooting – Constitutional – Civil Rights

Estate of Vidal v. Vassey (Lawyers Weekly No. 002-015-16, 12 pp.) (Louise Flanagan, J.) 7:16-cv-00019; E.D.N.C.

Holding: The plaintiff-estate asserts claims of negligence, gross negligence, and wrongful death against all defendants for the death of its decedent; accordingly, plaintiff has an adequate state remedy and may not bring a claim directly under the North Carolina Constitution for the taking of its decedent’s life “in a manner that was outside the law of the land.”

Defendants’ partial motion to dismiss is granted.

Although defendant Vassey was employed by the defendant City of Southport at the time of the incident, Vassey was responding to a call from police officers of the defendant City of Boiling Spring Lakes pursuant to a mutual aid agreement. Since Boiling Sprints Lakes was the employer with immediate direction and control over Vassey at the time, Southport may not be held liable for Vassey’s acts under a theory of respondeat superior.

Municipalities may not be held liable for punitive damages under 42 U.S.C. § 1983; therefore, plaintiff’s claim for punitive damages premised upon § 1983 liability against Southport and against Vassey in his official capacity must be dismissed.

Municipalities are not immune from punitive damages in wrongful death actions; however, plaintiff has failed to state a claim under North Carolina law for punitive damages against Southport (or Vassey in his official capacity) because plaintiff alleges malicious, willful or wanton conduct only on the part of Vassey. Plaintiff does not allege that Southport or any of its officials “participated in the conduct constituting the aggravating factor giving rise to the punitive damages.” G.S. § 1D-15(c).

Motion granted.