{ "id": 8201496, "name": "LINDA JONES, Plaintiff v. THE CITY OF DURHAM, and JOSEPH M. KELLY (in his official capacity as a police officer for the City of Durham), Defendants", "name_abbreviation": "Jones v. City of Durham", "decision_date": "2007-05-01", "docket_number": "No. COA04-662-2", "first_page": "57", "last_page": "65", "citations": [ { "type": "official", "cite": "183 N.C. App. 57" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "638 S.E.2d 202", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12637345 ], "year": 2006, "opinion_index": -1, "case_paths": [ "/se2d/638/0202-01" ] }, { "cite": "361 N.C. 144", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3735722 ], "year": 2006, "opinion_index": -1, "case_paths": [ "/nc/361/0144-01" ] }, { "cite": "138 N.C. App. 1", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11078355 ], "year": 2000, "opinion_index": -1, "case_paths": [ "/nc-app/138/0001-01" ] }, { "cite": "168 N.C. App. 433", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8470112 ], "year": 2005, "opinion_index": -1, "case_paths": [ "/nc-app/168/0433-01" ] }, { "cite": "625 S.E.2d 785", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12635074, 12635075, 12635076 ], "year": 2005, "opinion_index": 0, "case_paths": [ "/se2d/625/0785-01", "/se2d/625/0785-02", "/se2d/625/0785-03" ] }, { "cite": "613 S.E.2d 259", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12632933 ], "year": 2005, "opinion_index": 0, "case_paths": [ "/se2d/613/0259-01" ] }, { "cite": "622 S.E.2d 596", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12634528 ], "year": 2005, "opinion_index": 0, "case_paths": [ "/se2d/622/0596-01" ] }, { "cite": "638 S.E.2d 202", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12637345 ], "weight": 2, "year": 2006, "opinion_index": 0, "case_paths": [ "/se2d/638/0202-01" ] }, { "cite": "492 S.E.2d 385", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "pin_cites": [ { "page": "386" } ], "opinion_index": 0 }, { "cite": "127 N.C. App. 599", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11799017 ], "year": 1997, "pin_cites": [ { "page": "600" } ], "opinion_index": 0, "case_paths": [ "/nc-app/127/0599-01" ] }, { "cite": "171 S.E.2d 427", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1970, "pin_cites": [ { "page": "429" } ], "opinion_index": 0 }, { "cite": "276 N.C. 172", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560510 ], "year": 1970, "pin_cites": [ { "page": "175" } ], "opinion_index": 0, "case_paths": [ "/nc/276/0172-01" ] }, { "cite": "420 S.E.2d 432", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1992, "pin_cites": [ { "page": "435-36" }, { "page": "435", "parenthetical": "emphasis added" }, { "page": "436-37", "parenthetical": "emphasis added" } ], "opinion_index": 0 }, { "cite": "332 N.C. 319", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2503328 ], "weight": 3, "year": 1992, "pin_cites": [ { "page": "324" }, { "page": "324" }, { "page": "325-26" } ], "opinion_index": 0, "case_paths": [ "/nc/332/0319-01" ] }, { "cite": "158 S.E. 91", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1931, "pin_cites": [ { "page": "93" } ], "opinion_index": 0 }, { "cite": "200 N.C. 603", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8624786 ], "year": 1931, "pin_cites": [ { "page": "607" } ], "opinion_index": 0, "case_paths": [ "/nc/200/0603-01" ] }, { "cite": "594 S.E.2d 1", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2004, "opinion_index": 0 }, { "cite": "358 N.C. 160", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2986939 ], "year": 2004, "opinion_index": 0, "case_paths": [ "/nc/358/0160-01" ] }, { "cite": "562 S.E.2d 82", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "opinion_index": 0 }, { "cite": "149 N.C. App. 672", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9131361 ], "year": 2002, "opinion_index": 0, "case_paths": [ "/nc-app/149/0672-01" ] }, { "cite": "571 S.E.2d 52", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "59", "parenthetical": "citing Rhyne v. K-Mart Corp., 149 N.C. App. 672, 562 S.E.2d 82 (2002), aff'd, 358 N.C. 160, 594 S.E.2d 1 (2004)" } ], "opinion_index": 0 }, { "cite": "153 N.C. App. 527", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9250810 ], "year": 2002, "pin_cites": [ { "page": "535", "parenthetical": "citing Rhyne v. K-Mart Corp., 149 N.C. App. 672, 562 S.E.2d 82 (2002), aff'd, 358 N.C. 160, 594 S.E.2d 1 (2004)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/153/0527-01" ] }, { "cite": "360 N.C. 174", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3793766, 3788363, 3795889, 3789044, 3793752, 3794619, 3788252, 3795613 ], "year": 2005, "opinion_index": 0, "case_paths": [ "/nc/360/0174-03", "/nc/360/0174-08", "/nc/360/0174-05", "/nc/360/0174-07", "/nc/360/0174-06", "/nc/360/0174-02", "/nc/360/0174-01", "/nc/360/0174-04" ] }, { "cite": "170 N.C. App. 438", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9005872 ], "year": 2005, "opinion_index": 0, "case_paths": [ "/nc-app/170/0438-01" ] }, { "cite": "577 S.E.2d 411", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "pin_cites": [ { "page": "416", "parenthetical": "quoting Dobrowolska, 138 N.C. App. at 14, 530 S.E.2d at 599" } ], "opinion_index": 0 }, { "cite": "156 N.C. App. 503", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9191271 ], "year": 2003, "pin_cites": [ { "page": "509", "parenthetical": "quoting Dobrowolska, 138 N.C. App. at 14, 530 S.E.2d at 599" } ], "opinion_index": 0, "case_paths": [ "/nc-app/156/0503-01" ] }, { "cite": "530 S.E.2d 590", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 2000, "pin_cites": [ { "page": "599" }, { "page": "599" } ], "opinion_index": 0 }, { "cite": "109 S.E.2d 171", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1959, "pin_cites": [ { "page": "173" } ], "opinion_index": 0 }, { "cite": "250 N.C. 547", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8624893 ], "year": 1959, "pin_cites": [ { "page": "550" } ], "opinion_index": 0, "case_paths": [ "/nc/250/0547-01" ] }, { "cite": "347 S.E.2d 369", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "372", "parenthetical": "quoting Casualty Co. v. Teer Co., 250 N.C. 547, 550, 109 S.E.2d 171, 173 (1959)" } ], "opinion_index": 0 }, { "cite": "317 N.C. 623", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4771766 ], "year": 1986, "pin_cites": [ { "page": "628", "parenthetical": "quoting Casualty Co. v. Teer Co., 250 N.C. 547, 550, 109 S.E.2d 171, 173 (1959)" } ], "opinion_index": 0, "case_paths": [ "/nc/317/0623-01" ] }, { "cite": "265 S.E.2d 155", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1980, "pin_cites": [ { "page": "158", "parenthetical": "discussing the two types of claims where plaintiff \"first contends that the ordinance is unconstitutional on its face . . . alternative [ly], plaintiff argues that the ordinance is unconstitutional as applied\"" }, { "page": "158-59" } ], "opinion_index": 0 }, { "cite": "300 N.C. 126", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559865 ], "weight": 2, "year": 1980, "pin_cites": [ { "page": "130", "parenthetical": "discussing the two types of claims where plaintiff \"first contends that the ordinance is unconstitutional on its face . . . alternative [ly], plaintiff argues that the ordinance is unconstitutional as applied\"" }, { "page": "131-32" } ], "opinion_index": 0, "case_paths": [ "/nc/300/0126-01" ] }, { "cite": "544 S.E.2d 4", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "pin_cites": [ { "page": "12" } ], "opinion_index": 0 }, { "cite": "142 N.C. App. 393", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9441495 ], "year": 2001, "pin_cites": [ { "page": "408-09" } ], "opinion_index": 0, "case_paths": [ "/nc-app/142/0393-01" ] }, { "cite": "588 S.E.2d 20", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "pin_cites": [ { "page": "30", "parenthetical": "citing Burgess v. Busby, 142 N.C. App. 393, 408-09, 544 S.E.2d 4, 12 (2001)" } ], "opinion_index": 0 }, { "cite": "161 N.C. App. 20", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8955097 ], "year": 2003, "pin_cites": [ { "page": "33", "parenthetical": "citing Burgess v. Busby, 142 N.C. App. 393, 408-09, 544 S.E.2d 4, 12 (2001)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/161/0020-01" ] }, { "cite": "309 S.E.2d 442", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "462" } ], "opinion_index": 0 }, { "cite": "309 N.C. 635", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4768299 ], "year": 1983, "pin_cites": [ { "page": "670" } ], "opinion_index": 0, "case_paths": [ "/nc/309/0635-01" ] }, { "cite": "360 N.C. 81", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3793456 ], "year": 2005, "opinion_index": 0, "case_paths": [ "/nc/360/0081-01" ] }, { "cite": "608 S.E.2d 387", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2005, "pin_cites": [ { "parenthetical": "Jones I" } ], "opinion_index": 0 }, { "cite": "361 N.C. 144", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3735722 ], "weight": 2, "year": 2006, "opinion_index": 0, "case_paths": [ "/nc/361/0144-01" ] }, { "cite": "138 N.C. App. 1", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11078355 ], "weight": 3, "year": 2000, "pin_cites": [ { "page": "14" }, { "page": "14" } ], "opinion_index": 0, "case_paths": [ "/nc-app/138/0001-01" ] }, { "cite": "168 N.C. App. 433", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8470112 ], "year": 2005, "pin_cites": [ { "parenthetical": "Jones I" } ], "opinion_index": 0, "case_paths": [ "/nc-app/168/0433-01" ] } ], "analysis": { "cardinality": 961, "char_count": 21587, "ocr_confidence": 0.752, "pagerank": { "raw": 7.890039528182033e-08, "percentile": 0.4603876519441867 }, "sha256": "7e18e12f6e8fca9c4f17232adaed34627bb623332f5fea349614275b88aa7d17", "simhash": "1:0e18f5795449b69a", "word_count": 3390 }, "last_updated": "2023-07-14T15:07:58.512650+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges McCULLOUGH and ELMORE concur." ], "parties": [ "LINDA JONES, Plaintiff v. THE CITY OF DURHAM, and JOSEPH M. KELLY (in his official capacity as a police officer for the City of Durham), Defendants" ], "opinions": [ { "text": "LEVINSON, Judge.\nThe f\u00e1cts and procedural history of this matter are set forth in Jones v. City of Durham, 168 N.C. App. 433, 608 S.E.2d 387 (2005) (Jones I). In a recent decision, the Supreme Court (1) reversed itself and its earlier opinion reported at 360 N.C. 81, 622 S.E.2d 596 (2005) that plaintiff had not forecast evidence demonstrating gross negligence on the part of defendant-Joseph Kelly, and (2) remanded this matter to this Court for consideration of the remaining issues. Jones v. City of Durham, 361 N.C. 144, 638 S.E.2d 202 (2006).\nConsistent with this Court\u2019s earlier opinion in Jones I, we conclude the trial court correctly dismissed plaintiffs claim based on ordinary negligence. The majority opinion in Jones I concluded that plaintiffs claims as regards obstruction of public justice and constitutional violations were rendered \u201cmoot\u201d by virtue of its conclusion that plaintiff\u2019s claim for gross negligence failed. We now address these claims.\nPlaintiff brought a claim for obstruction of public justice. \u201cObstruction of justice is a common law offense in North Carolina.\u201d In re Kivett, 309 N.C. 635, 670, 309 S.E.2d 442, 462 (1983). \u201cIt is an offense to do any act which prevents, obstructs, impedes or hinders public or legal justice.\u201d Broughton v. McClatchy Newspapers, Inc., 161 N.C. App. 20, 33, 588 S.E.2d 20, 30 (2003) (citing Burgess v. Busby, 142 N.C. App. 393, 408-09, 544 S.E.2d 4, 12 (2001)). In the instant case, the evidence would allow a jury to conclude that a camera in Kelly\u2019s police car had made a videotape recording of the accident, and that the videotape was subsequently misplaced or destroyed. We affirm the trial court\u2019s denial of defendants\u2019 motion for summary judgment on this claim.\nWe next address plaintiff\u2019s complaint alleging that defendant City of Durham (the City) violated her rights under N.C. Const, art. 1, \u00a7 19 \u201cby their assertion of the defense of governmental immunity to the Plaintiff\u2019s first two claims for relief in this civil action[,]\u201d and her contention that the City\u2019s \u201cassertion of governmental immunity as a legal defense to the Plaintiff\u2019s first two claims for relief constitutes an unreasonable, arbitrary, and capricious governmental action.\u201d We reverse the trial court and remand for entry of summary judgment in favor of defendants on plaintiff\u2019s constitutional claim. We reach this conclusion for several reasons.\nPreliminarily, we observe that the trial court\u2019s order mistakenly characterizes plaintiff\u2019s suit as presenting a challenge to the facial constitutionality of the City\u2019s practices for handling claims against it. Plaintiff\u2019s complaint is strictly limited to allegations that defendants violated her state constitutional rights by asserting sovereign immunity \u201cin this cause\u201d as a defense to \u201cPlaintiffs first two claims.\u201d Thus, plaintiff challenges the manner in which the city\u2019s policies have been applied to her, rather than making the separate and distinct claim that the City\u2019s customs are facially unconstitutional. See Maines v. City of Greensboro, 300 N.C. 126, 130, 265 S.E.2d 155, 158 (1980) (discussing the two types of claims where plaintiff \u201cfirst contends that the ordinance is unconstitutional on its face . . . alternative [ly], plaintiff argues that the ordinance is unconstitutional as applied\u201d). However, the trial court\u2019s order repeatedly refers to plaintiff\u2019s having brought claims against the city\u2019s assertion of sovereign immunity \u201cin this and other cases.\u201d This is an erroneous characterization of plaintiff\u2019s complaint, which properly should be analyzed as a challenge to the City\u2019s policies for handling claims as applied to her.\nWe conclude that plaintiff failed to present evidence raising a genuine issue of material fact on her constitutional claim. The core of plaintiff\u2019s argument is her allegation that the City has a policy or practice of \u201cwaiving\u201d sovereign immunity in some cases but not in others. She .further alleges that the City\u2019s determination of when to \u201cwaive sovereign immunity\u201d resides in the \u201cunbridled discretion\u201d of certain city employees, and that the City\u2019s waiver of sovereign immunity for certain \u201csimilarly situated\u201d claimants violates her rights to due process and equal protection. Plaintiff\u2019s argument rests on the erroneous premise that the City has a practice of selectively \u201cwaiving\u201d the defense of sovereign immunity. The uncontradicted record evidence establishes that claims against the City are never denied on the basis of sovereign immunity, and that claims are paid or denied on the basis of their legal merits, based on evaluation of whether (1) the claimant asserts a legally cognizable cause of action; (2) investigation shows the claim to be meritorious; and (3) the damages have been documented. Plaintiff presents no evidence that defendant ever denies a claim based on sovereign immunity. However, if sued by a claimant, the City always raises the defense of sovereign immunity when appropriate. Thus, the City never denies claims based on sovereign immunity, but always asserts the defense if it is sued. Accordingly, there is no evidence that defendants have a practice of \u201cselectively waiving\u201d this defense.\nNor does the City\u2019s practice of executing settlement contracts with certain claimants constitute a waiver of sovereign immunity in those cases. \u201c \u2018Whether denominated accord and satisfaction or compromise and settlement, the executed agreement terminating or purporting to terminate a controversy is a contract, to be interpreted and tested by established rules relating to contracts.\u2019 \u201d Bolton Corp. v. T. A Loving Co., 317 N.C. 623, 628, 347 S.E.2d 369, 372 (1986) (quoting Casualty Co. v. Teer Co., 250 N.C. 547, 550, 109 S.E.2d 171, 173 (1959)). The representative settlement form in the record does not waive sovereign immunity or any other defense. Further, it specifically states that:\nThis release expresses a full and complete settlement of a liability claimed and denied, ... . and the acceptance of this release shall not operate as an admission of liability on the part of anyone nor as an estoppel, waiver, or bar with respect to any claim the party or parties released may have against the undersigned.\n(emphasis added). Thus, should a tort claimant violate the settlement agreement by suing the City after executing the settlement contract, the City would be entitled to raise any applicable defense, including satisfaction and accord or sovereign immunity. Plaintiff presents no evidence that the City ever executed a settlement contract waiving the right to assert sovereign immunity in the event that the claimant tried to sue the City after executing the settlement contract.\nMoreover, plaintiff has not presented evidence that the City\u2019s settlement practices violated her due process or equal protection rights under the State constitution. \u201c \u2018[T]he touchstone of due process is protection of the individual against arbitrary action of government,\u2019. . . . Arbitrary and capricious acts by government are also prohibited under the Equal Protection Clauses of the United States and the North Carolina Constitutions.\u201d Dobrowolska v. Wall, 138 N.C. App. 1, 14, 530 S.E.2d 590, 599 (2000). Further:\nThe equal protection \u2018principle requires that all persons similarly situated be treated alike.\u2019 Accordingly, to state an equal protection claim, a claimant must allege (1) the government (2) arbitrarily (3) treated them differently (4) than those similarly situated.\nLea v. Grier, 156 N.C. App. 503, 509, 577 S.E.2d 411, 416 (2003) (quoting Dobrowolska, 138 N.C. App. at 14, 530 S.E.2d at 599). In another case challenging a city\u2019s exercise of discretion, Maines, 300 N.C. at 131-32, 265 S.E.2d at 158-59, the North Carolina Supreme Court held that:\n[A]n ordinance which vests unlimited or unregulated discretion in a municipal officer is void. . . . On the other hand, actions of public officials are presumed to be regular and done in good faith[,] and the burden is on the challenger to show that the actions as to him were unequal when compared to persons similarly situated. The initial question then is whether plaintiff has met his burden of showing that he received treatment different from others similarly situated.\nIn the instant case, plaintiff has failed to show either that (1) similarly situated claimants are not treated equally, or that (2) the determination not to offer her a settlement was arbitrary and capricious.\nPlaintiff has not shown she was treated differently from \u201csimilarly situated\u201d claimants. She has assembled a long list of claimants from a given time period. However, she articulates no \u201csimilarity\u201d between her case and those of claimants receiving settlements, other than having brought a claim, which may or may not involve a law enforcement officer, against the City of Durham. There is no information about the relative merits of claims, the similarity or differences in claimant\u2019s background, or other information that would enable us to conclude that plaintiff had been treated differently from similar claimants. See Clayton v. Branson, 170 N.C. App. 438, 613 S.E.2d 259, disc. review denied, 360 N.C. 174, 625 S.E.2d 785 (2005).\nNor does the evidence raise an issue of fact regarding whether the city\u2019s decision not to settle her particular claim was arbitrary and capricious. \u201cNot every deprivation of liberty or property constitutes a violation of substantive due process granted under article I, section 19. Generally, any such deprivation is only unconstitutional where the challenged law bears no rational relation to a valid state objective.\u201d Affordable Care Inc. v. N.C. State Bd. of Dental Exam\u2019rs, 153 N.C. App. 527, 535, 571 S.E.2d 52, 59 (2002) (citing Rhyne v. K-Mart Corp., 149 N.C. App. 672, 562 S.E.2d 82 (2002), aff'd, 358 N.C. 160, 594 S.E.2d 1 (2004)). In the instant case, defendants presented ample evidence supporting their decision that plaintiff\u2019s claim was not meritorious.\nFurther, we disagree with plaintiff that the holding of Dobrowolska controls the result in the instant case. The defendant in Dobrowolska, the City of Greensboro, customarily responded to all claims for damages by asserting the defense of sovereign immunity. Thereafter, the City would sometimes waive the defense and enter into a settlement agreement:\n[A]t the same time the City has asserted governmental immunity towards plaintiffs ... it has asserted such immunity against injured individuals similar to plaintiffs, but then waived immunity by paying damages to those injured individuals. . . . The City has opted to pay damages to some claimants after asserting governmental immunity; therefore, it must carry out this custom, or \u2018unwritten\u2019 policy in a way which affords due process to all similarly situated tort claimants . . . [The City] classifies claims . . . into two different categories \u2014 (1) immunity is asserted with no exception, or (2) immunity is asserted but the claim is paid in settlement.\nDobrowolska, 138 N.C. App. at 12-13 and 17, 530 S.E.2d at 598-99 and 601 (emphasis added). This contrasts sharply with Durham\u2019s policy of never asserting sovereign immunity as a basis for denial of a claim, and of always asserting it in response to a lawsuit. Further, unlike defendant City in Dobrowolska, Durham does not leave decisions about settlement of cases to the unfettered discretion of city employees. As discussed above, the uncontroverted evidence is that claims against the City are resolved by determination of whether the claimant (1) presents a legally cognizable claim, that (2) is meritorious, as shown by investigation into the facts, and (3) has documented injuries.\n\u201c[Plaintiff\u2019s] position results from the assumption that the [City of Durham] may purposely and wilfully abuse the discretion with which the law invests it. It is hard to see how any administrative body can function without exercising discretion; but even then the discretion must not be whimsical, or capricious, or arbitrary, or despotic.\u201d North Carolina State Highway Com. v. Young, 200 N.C. 603, 607, 158 S.E. 91, 93 (1931). A party\u2019s determination of whether to settle a claim will always require exercise of discretion and the weighing and assessment of largely subjective factors, such as the credibility and demeanor of prospective witnesses, or the likely response of a jury to certain evidence. It also requires evaluation of legal issues such as a claim\u2019s validity, the impact of relevant precedent on trial issues, or the availability of affirmative defenses. Accordingly, the determination of how to respond to a claim brought against the City is akin to other discretionary judgments that cannot be reduced to a mathematical formula, such as decisions about hiring, firing, or resource allocation. The process is very different from that involved in decisions about zoning, permitting, or eligibility for public services, because such determinations can be reduced to an objective set of criteria.\nIndeed, the gravamen of plaintiff\u2019s claim is in reality a challenge to the inequality in bargaining strength between a tort claimant and the City. Ordinarily, if parties cannot settle a civil dispute, a plaintiff has the option of filing suit. However, if sovereign immunity is available as a defense, then the plaintiff has no recourse if a settlement cannot be reached. Thus, plaintiff seeks to redress the reality that the City can decide whether or not to settle claims, while plaintiff lacks the usual power to bring suit if the claim is not settled. During the hearing on these motions, plaintiffs counsel conceded as much, stating to the trial court that:\n. . . [0]ur purpose in bringing these declaratory and injunctive claims is to stop [the City] from having the ability to ... pay some claims, but also to unilaterally assert immunity].]\nBecause they have immunity, they can browbeat citizens into taking whatever it is they\u2019re willing to offer.\nThat\u2019s our reason for bringing this case, ... to put everybody on equal footing.\n\u201cThe plaintiff asks us either to abolish governmental immunity or to change the way it is applied. . . . [A]ny change in this doctrine should come from the General Assembly.\u201d Blackwelder v. City of Winston-Salem, 332 N.C. 319, 324, 420 S.E.2d 432, 435-36 (1992).\nFinally, even if we were to hold that the City\u2019s policies governing its decisions of when to waive sovereign immunity were constitutionally infirm, defendants would nonetheless be entitled to assert sovereign immunity in this case. \u201cA police officer in the performance of his duties is engaged in a governmental function.\u201d Galligan v. Town of Chapel Hill, 276 N.C. 172, 175, 171 S.E.2d 427, 429 (1970). \u201cIn general, municipalities in North Carolina are immune from liability for their negligent acts arising out of governmental activities unless the municipality waives such immunity by purchasing liability insurance.\u201d Anderson v. Town of Andrews, 127 N.C. App. 599, 600, 492 S.E.2d 385, 386 (1997). Under N.C. Gen. Stat. \u00a7 160A-485(a) (2005), \u201c[a]ny city is authorized to waive its immunity from civil liability in tort by the act of purchasing liability insurance.... Immunity shall be waived only to the extent that the city is indemnified by the insurance contract from tort liability.\u201d However, the statute also provides that \u201cno city shall be deemed to have waived its tort immunity by any action other than the purchase of liability insurance.\u201d (emphasis added). Our appellate courts have consistently held that \u201cN.C.G.S. \u00a7 160A-485 provides that the only way a city may waive its governmental immunity is by the purchase of liability insurance.\u201d Blackwelder, 332 N.C. at 324, 420 S.E.2d at 435 (emphasis added). In Blackwelder, defendant City formed a corporation to handle claims against the City of less than $1,000,000. The North Carolina Supreme Court held that:\nFinally, the plaintiff contends that the City has violated the Equal Protection Clause of the Fourteenth Amendment . . . and Article I, Section 19 of the Constitution of North Carolina[,] . . . because the City, through RAMCO, can pick and choose what claims it will pay, thus depriving the plaintiff of the equal protection of the law. ... If we were to hold the City has acted unconstitutionally ... it would not mean the City had waived its governmental immunity. The most we could do is strike down RAMCO. A decision involving this constitutional question would not resolve this case and we do not consider it.\nBlackwelder, 332 N.C. at 325-26, 420 S.E.2d at 436-37 (emphasis added).\nIn sum, as a consequence of the Supreme Court\u2019s recent decision in Jones, 361 N.C. 144, 638 S.E.2d 202 (2006), reversing this Court on the claim for gross negligence for the reasons set forth in the dissenting opinion in Jones I, plaintiff has raised genuine issues of material fact for her claim alleging gross negligence. We therefore affirm the trial court order in this regard. We also conclude that the trial court correctly dismissed the claim alleging ordinary negligence, and that defendant\u2019s motion for summary judgment on the claim for obstruction of justice was properly denied. We further conclude that defendants are entitled to assert sovereign immunity to the extent that they have not waived the defense by purchase of liability insurance. Finally, we reverse the trial court\u2019s order to the extent it denied defendant\u2019s motions for summary judgment on the constitutional claims because plaintiff has failed to present evidence that the City\u2019s decision not to pay her claim violated her constitutional rights. On remand, the trial court is directed to enter summary judgment in favor of defendant as to the constitutional claims.\nAffirmed in part; reversed in part.\nJudges McCULLOUGH and ELMORE concur.", "type": "majority", "author": "LEVINSON, Judge." } ], "attorneys": [ "Glenn, Mills & Fisher, P.A., by Robert B. Glenn, Jr., Stewart W. Fisher and, Carlos E. Mahoney, for plaintiff appellant-appellee.", "Elliot Pishko Morgan, P.A., by Robert M. Elliot, Amicus Curie of American Civil Liberties Union of North Carolina Legal Foundation, Inc., and North Carolina Academy of Trial Lawyers in support of plaintiff appellant-appellee.", "Faison & Gillespie, by Reginald B. Gillespie, Jr., and Keith D. Bums, for defendant appellants-appellees.", "Womble Carlyle Sandridge & Rice, P.L.L.G., by Mark A. Davis, Amicus Curiae for N.C. Association of County Commissioners in support of defendant appellants-appellees." ], "corrections": "", "head_matter": "LINDA JONES, Plaintiff v. THE CITY OF DURHAM, and JOSEPH M. KELLY (in his official capacity as a police officer for the City of Durham), Defendants\nNo. COA04-662-2\n(Filed 1 May 2007)\n1. Negligence\u2014 ordinary \u2014 motion to dismiss \u2014 sufficiency of evidence\nThe trial court did not err by dismissing plaintiffs claim based on ordinary negligence for the reasoning stated in the Court of Appeals\u2019 earlier opinion in Jones v. City of Durham, 168 N.C. App. 433 (2005).'\n2. Obstruction of Justice\u2014 missing videotape \u2014 summary judgment\nThe trial court did not err by denying defendants\u2019 motion for summary judgment on a claim for obstruction of public justice where the evidence would allow a jury to conclude that a camera in defendant police officer\u2019s patrol car had made a videotape recording of the accident in question, and that the videotape was subsequently misplaced or destroyed.\n3. Immunity\u2014 sovereign \u2014 waiver in some cases \u2014 due process and equal protection\nDefendant city did not violate plaintiff pedestrian\u2019s state due process and equal protection rights under N.C. Const, art. 1, \u00a7 19 by its assertion of the defense of governmental immunity to plaintiff\u2019s claims for negligence and gross negligence arising from being struck by a city police officer\u2019s vehicle while the officer was responding to a distress call by another officer because: (1) the trial court\u2019s order mistakenly characterized plaintiff\u2019s suit as presenting a challenge to the facial constitutionality of the city\u2019s practices for handling claims against it when plaintiff merely challenges the manner in which the city\u2019s policies have been applied to her; (2) plaintiff did not present any evidence that defendant ever denied a claim based on sovereign immunity even though it always asserts the defense if it is sued; (3) the city\u2019s practice of executing settlement contracts with certain claimants does not constitute a waiver of sovereign immunity in those cases; (4) plaintiff failed to show either that similarly situated claimants are not treated equally, or that the determination not to offer her a settlement was arbitrary and capricious; (5) defendants presented ample evidence supporting their decision that plaintiffs claim was not meritorious; (6) contrary to plaintiffs assertion, the holding in Dobrowolska v. Wall, 138 N.C. App. 1 (2000), does not control the results in this case; (7) the determination of how to respond to a claim brought against the city is akin to other discretionary judgments that cannot be reduced to a mathematical formula; and (8) even assuming arguendo that the city\u2019s policies governing its decisions of when to waive sovereign immunity were constitutionally infirm, defendants would nevertheless be entitled to assert sovereign immunity in this case when defendants are entitled to assert sovereign immunity to the extent that they have not waived the defense by purchase of liability insurance.\nAppeal by both plaintiff and defendants from judgment entered 6 January 2004 by Judge A. Leon Stanback, Jr., in Durham County Superior Court. Originally heard in the Court of Appeals 8 December 2004. Now on remand by virtue of the Supreme Court\u2019s opinion in Jones v. City of Durham, 361 N.C. 144, 638 S.E.2d 202 (2006).\nGlenn, Mills & Fisher, P.A., by Robert B. Glenn, Jr., Stewart W. Fisher and, Carlos E. Mahoney, for plaintiff appellant-appellee.\nElliot Pishko Morgan, P.A., by Robert M. Elliot, Amicus Curie of American Civil Liberties Union of North Carolina Legal Foundation, Inc., and North Carolina Academy of Trial Lawyers in support of plaintiff appellant-appellee.\nFaison & Gillespie, by Reginald B. Gillespie, Jr., and Keith D. Bums, for defendant appellants-appellees.\nWomble Carlyle Sandridge & Rice, P.L.L.G., by Mark A. Davis, Amicus Curiae for N.C. Association of County Commissioners in support of defendant appellants-appellees." }, "file_name": "0057-01", "first_page_order": 89, "last_page_order": 97 }