{ "id": 12173046, "name": "DANIEL JOSEPH TRUHAN, Plaintiff-Appellee v. SUSAN P. WALSTON and DAVID M. WALSTON, Defendants and Third-Party Plaintiff-Appellant Susan P. Walston v. NORTH CAROLINA FARM BUREAU MUTUAL INSURANCE COMPANY, UNITED SERVICES AUTOMOBILE ASSOCIATION, and WESTERN SURETY COMPANY, Third-Party Defendants", "name_abbreviation": "Truhan v. Walston", "decision_date": "2014-08-05", "docket_number": "No. COA14-43", "first_page": "406", "last_page": "422", "citations": [ { "type": "official", "cite": "235 N.C. App. 406" } ], "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 ], "weight": 3, "year": 2006, "pin_cites": [ { "parenthetical": "\"Jones IF" }, { "parenthetical": "\"Jones IF" }, { "page": "203" } ], "opinion_index": 0, "case_paths": [ "/se2d/638/0202-01" ] }, { "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": "471 S.E.2d 357", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1996, "pin_cites": [ { "parenthetical": "\"Young IF" }, { "page": "359" }, { "page": "463" }, { "page": "360" } ], "opinion_index": 0 }, { "cite": "343 N.C. 459", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 798839 ], "weight": 2, "year": 1996, "pin_cites": [ { "parenthetical": "\"Young IF" }, { "page": "462" } ], "opinion_index": 0, "case_paths": [ "/nc/343/0459-01" ] }, { "cite": "458 S.E.2d 225", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1995, "pin_cites": [ { "page": "230", "parenthetical": "\"Young I\"" }, { "page": "228" }, { "page": "228" }, { "page": "230" } ], "opinion_index": 0 }, { "cite": "119 N.C. App. 132", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11913840 ], "weight": 2, "year": 1995, "pin_cites": [ { "page": "139-40", "parenthetical": "\"Young I\"" }, { "page": "137" } ], "opinion_index": 0, "case_paths": [ "/nc-app/119/0132-01" ] }, { "cite": "748 S.E.2d 334", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2013, "pin_cites": [ { "page": "339" } ], "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 162-8", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 58-76-5", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "opinion_index": 0 }, { "cite": "361 N.C. 144", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3735722 ], "weight": 3, "year": 2006, "pin_cites": [ { "parenthetical": "\"Jones IF" }, { "parenthetical": "\"Jones IF" }, { "page": "146" } ], "opinion_index": 0, "case_paths": [ "/nc/361/0144-01" ] }, { "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", "weight": 6, "pin_cites": [ { "page": "388-89" }, { "page": "393" }, { "page": "393" }, { "page": "394-95", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "168 N.C. App. 433", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8470112 ], "weight": 4, "pin_cites": [ { "page": "434-35" }, { "page": "441" }, { "page": "444" } ], "opinion_index": 0, "case_paths": [ "/nc-app/168/0433-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 20-145", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 16, "pin_cites": [ { "parenthetical": "emphasis added" }, { "page": "139-40" } ], "opinion_index": 0 }, { "cite": "747 S.E.2d 249", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2013, "opinion_index": 0 }, { "cite": "736 S.E.2d 833", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 2013, "pin_cites": [ { "page": "835" }, { "page": "835-36", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "758 S.E.2d 431", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2014, "pin_cites": [ { "page": "434", "parenthetical": "for summary judgment \"the evidence presented by the parties must be viewed in the light most favorable to the non-movant\"" }, { "page": "434", "parenthetical": "citations omitted" } ], "opinion_index": 0 } ], "analysis": { "cardinality": 1394, "char_count": 41289, "ocr_confidence": 0.7, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.2470568747444349 }, "sha256": "5dd581f336b45bce056709adb1428686d3a85a30695945971754b5005578f356", "simhash": "1:5fd1913ec9a67ffb", "word_count": 6622 }, "last_updated": "2023-07-14T16:54:11.341648+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges HUNTER, Robert C. and ELMORE concur." ], "parties": [ "DANIEL JOSEPH TRUHAN, Plaintiff-Appellee v. SUSAN P. WALSTON and DAVID M. WALSTON, Defendants and Third-Party Plaintiff-Appellant Susan P. Walston v. NORTH CAROLINA FARM BUREAU MUTUAL INSURANCE COMPANY, UNITED SERVICES AUTOMOBILE ASSOCIATION, and WESTERN SURETY COMPANY, Third-Party Defendants" ], "opinions": [ { "text": "McGEE, Judge.\nWe review an order from the trial court that (1) granted summary judgment in favor of Daniel Joseph Truh\u00e1n (\u201cPlaintiff\u2019), Western Surety Company (\u201cWestern Surety\u201d), North Carolina Farm Bureau Mutual Insurance Company (\u201cFarm Bureau\u201d), and United Services Automobile Association (\u201cUnited Services\u201d) (collectively, \u201cThird-Party Defendants\u201d); (2) dismissed all counterclaims, and third-party claims of Defendant Susan P. Walston (\u201cDefendant\u201d); and (3) denied the motion for summary judgment filed by Defendant, Defendant David M. Walston, and unnamed Defendant Argonaut Great Central Insurance Company (\u201cArgonaut\u201d). Therefore, the following recitation of the \u201cfacts\u201d presents the evidence that was before the trial court in the light most favorable to Defendant and ignores evidence favorable to Plaintiff. Peter v. Vullo, _ N.C. App. _, _, 758 S.E.2d 431, 434 (2014) (for summary judgment \u201cthe evidence presented by the parties must be viewed in the light most favorable to the non-movant\u201d) (citations omitted).\nThe following is the evidence taken in the light most favorable to Defendant. The North Carolina Highway Patrol (\u201cHighway Patrol\u201d) received a call from Kaye Howell (\u201cMs. Howell\u201d), a witness to a two-vehicle accident, at approximately 7:08 a.m. on 30 December 2009. Ms. Howell then called Wayne County Communications to report the accident, and to inform them that no emergency services were needed because there had been no injuries. The Highway Patrol also called Wayne County Communications to report the accident and also informed them that there were no injuries. However, the Highway Patrol did inform Wayne County Communications that the accident was on a curve in the road and a trooper could not get to the scene right away; therefore, traffic control was needed. Ms. Howell called Wayne County Communications again to inform them that a woman who was involved in the accident was arguing with a man she apparently knew, who had arrived at the scene, and that the woman had pushed the man. Ms. Howell asked for the estimated time of arrival of the dispatched deputy, because the woman was \u201cgetting a little bit out of hand.\u201d However, Joshua Carroll, who was also involved in the accident, stated: \u201cAt no time while I was present at the scene of the collision did I observe any physical violence by anyone.\u201d\nPlaintiff was a deputy for the Wayne County Sheriff\u2019s Office. He was leaving a Kangaroo Express located at Highway 117 and Carolina Commerce Drive in Goldsboro on 30 December 2009. Plaintiff overheard the call from the Highway Patrol to Wayne County Communications requesting that a Wayne County deputy respond to the accident and provide traffic control. Plaintiff indicated to Wayne County Communications that he was free, closer to the accident, and could respond. Plaintiff received the okay to respond to the accident at approximately 7:19 a.m. About one minute later, Wayne County Communications began receiving calls of a second accident involving injuries at Highway 117 North and Woodview Drive, approximately one and one-half miles from the Kangaroo Express. This second accident involved Plaintiff and Defendant.\nAt the time of the accidents, Plaintiff had been working as a deputy for just under three years. Plaintiff was a warrant officer and spent his days serving warrants. Plaintiff only responded to calls when no patrol deputy was available, or there was some other circumstance that warranted departure from Plaintiffs usual duties. Before becoming a deputy, Plaintiff had worked briefly for the Goldsboro Police Department as a school resource officer. Plaintiff explained his \u201cskill, ability, and training\u201d for high speed driving as follows:\nI know my limitations of driving. I know when I\u2019m on the limits of traction or handling a vehicle. Everybody - you know if you\u2019re going into a curve whether you\u2019re going too fast. You can - it\u2019s a perception thing. It\u2019s not something I can quantify to you. At no time during that time did I feel that I had exceeded my ability to control that vehicle.\nPlaintiff had received no training for emergency driving beyond the Basic Law Enforcement Training certification curriculum he had taken at Wayne Community College in 2004.\nWayne County Sheriff\u2019s Office policy recognizes three kinds of police driving:\nEmergency Response Driving: is driving to the scene of a call where there may be a danger to life, or a threat to officer safety, or reported violence or threat of imminent violence.\nPursuit Driving: is the attempt to apprehend a person subject to arrest who is fleeing in a vehicle, and includes \u201ccatch up\u201d driving for traffic enforcement purposes before a violator attempts to flee.\nRoutine driving: is all on-duty driving other than \u201cemergency response driving\u201d [or] \u201cpursuit driving\u201d and includes routine patrol, service of warrants, transportation of prisoners, going to location of non-emergency calls, or other driving in performance of duty.\nPOLICY TITLE: Emergency Response & Vehicle Pursuits, Wayne County Sheriffs Office General Order (Revised January 7, 2002).\nAccording to the evidence most favorable to Defendant, in the approximately one to two minutes between the time Plaintiff received the call regarding the first accident and the time Plaintiff and Defendant were involved in the second accident, the following occurred. Plaintiff headed north on Highway 117, passed an exit that connected with Interstate 95, passed a school, and passed a fire station before.he reached the intersection of Highway 117 and Woodview Drive. The fire station was about three tenths of a mile south of Woodview Drive. At some point before his collision with Defendant, Plaintiff activated his blue fights, but he did not activate his siren. Trooper L. J. Brum (\u201cTrooper Bunn\u201d) of the Highway Patrol, who investigated the accident, believed the speed limit along part of that section of the road was thirty-five miles per hour (\u201cmph\u201d).\nAccording to a collision analysis report produced by Collision Analyst William J. Kluge, Jr., along that mile-and-a-half section of road, Plaintiff reached speeds over one hundred mph, passed automobiles traveling both north and south, and had his accelerator fully depressed at times. The speed limit at the site of the accident was forty-five mph. Four and one-half to five seconds before the collision, Plaintiff was traveling eighty-six to eighty-seven mph, and was accelerating. Plaintiff was maintaining full throttle acceleration \u201cfor at least a couple of seconds when [Defendant\u2019s truck] would have come into view[,]\u201d and maintained full throttle acceleration until approximately one-half second before the impact, at which time Plaintiff removed his foot from the accelerator and began to depress the brake. Plaintiff was traveling approximately ninety-five mph at the time of impact. Plaintiff \u201cshould have been on alert and noticed [Defendant\u2019s truck] before [Defendant] began to make her turn and [should have] adjusted his speed accordingly.\u201d\nContinuing with evidence presented in the light most favorable to Defendant, Defendant left her house on Woodview Drive, a residential street, shortly after 7:00 a.m. on 30 December 2009. As Defendant approached the intersection of Woodview Drive and Highway 117, she slowed down, and came to a complete stop at the stop sign. Defendant pulled forward to obtain a better view up and down Highway 117, and again stopped. Defendant looked to the left, looked to the right, looked back to the left, and then pulled onto Highway 117, initiating a left-hand turn onto Highway 117 South. Before Defendant pulled onto Highway 117, she did not see any vehicles coming from the left, but did see a truck coming from the right, which turned into a drive, then Defendant looked to the left again and saw no vehicles. As Defendant \u201cmade [her] effort to leave the stop sign, there was nobody to the left.\u201d As Defendant was entering the southbound lane of Highway 117, she saw blue lights out of the comer of her eye and was immediately hit by Plaintiff\u2019s cruiser.\nBoth Plaintiff and Defendant were seriously injured in the accident. Plaintiff filed his complaint on 29 February 2012, alleging that Defendant was negligent, and that Defendant\u2019s negligence caused the accident and Plaintiff\u2019s injuries. Plaintiff also brought suit against Defendant\u2019s husband, David M. Walston, pursuant to \u201cthe Family Purpose Doctrine.\u201d Defendant answered and counterclaimed on 23 May 2012. Defendant denied that any negligence on her part caused the accident, alleged that Plaintiff\u2019s negligence was responsible for her injuries, and requested both compensatory and punitive damages. Defendant filed a \u201cMotion for Leave to Amend Counterclaim and File Third Party Complaint\u201d against Farm Bureau, United Services, and Western Surety, Third-Party Defendants, on 14 December 2012. Defendant\u2019s motion was granted by order filed 21 December 2012.\nPlaintiff answered Defendant\u2019s amended counterclaim and third-party complaint on 31 Jan 2013, and pleaded the affirmative defenses of governmental immunity and contributory negligence. Plaintiff and Western Surety moved for summary judgment against Defendant on 20 June 2013, arguing that Defendant\u2019s counterclaims should fail as a matter of law. Farm Bureau filed a motion for summary judgment on 25 June 2013, and United Services filed a motion for summary judgment on 9 July 2013. Defendant, along with David M. Walston and Argonaut, filed a motion for summary judgment on 8 August 2013. The trial court, in an order entered 7 October 2013, granted summary judgment in favor of Plaintiff, Western Surety, Farm Bureau, and United Services \u201cas to all claims, counterclaims and/or third-party claims asserted against them by Defendant^]\u201d\nIn that same order, the trial court denied the motion for summary judgment filed by Defendant, David M. Walston, and Argonaut. On 4 October 2013, Defendant filed a Motion for Reconsideration of the grant of summary judgment in favor of Plaintiff, Western Surety, Farm Bureau, and United Services or, in the Alternative, for Certification of Order as a Final Judgment. By order entered 4 November 2013, the trial court denied Defendant\u2019s motion for reconsideration, but granted Defendant\u2019s motion for certification pursuant to Rule 54(b), whereby the trial court certified as a final judgment the order granting summary judgment in favor of Plaintiff, Western Surety, Farm Bureau, and United Services. Defendant appeals.\nI.\n\u201cOur standard of review of an appeal from summary judgment is de novo; such judgment is appropriate only when the record shows 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.\u201d\nThe moving party bears the burden of establishing the lack of a triable issue of fact. If the movant meets its burden, the nonmovant is then required to produce a forecast of evidence demonstrating that the [nonmoving party] will be able to make out at least a prima facie case at trial. Furthermore, the evidence presented by the parties must be viewed in the light most favorable to the non-movant.\nPeter, _ N.C. App. at _, 758 S.E.2d at 434 (citations omitted). \u201c \u2018[I]ssues of negligence are generally not appropriately decided by way of summary judgment, [unless] there are no genuine issues of material fact, and an essential element of a negligence claim cannot be established[.]\u2019 \u201d Greene v. City of Greenville, _ N.C. App. _, _, 736 S.E.2d 833, 835, disc. review denied, _ N.C. _, 747 S.E.2d 249 (2013).\nII.\nIn Defendant\u2019s first argument, she contends the trial court erred in granting summary judgment in favor of Plaintiff because her \u201cforecast of the evidence establishes a genuine issue of material fact regarding [Plaintiff\u2019s] gross negligence.\u201d We agree.\nDefendant argues that N.C. Gen. Stat. \u00a7 20-145, which allows police officers to exceed the posted speed limit in certain situations, applied to Plaintiff on the morning of the accident, but that, because Plaintiff\u2019s conduct rose to the level of gross negligence, Defendant should recover in negligence from Plaintiff. N.C. Gen. Stat. \u00a7 20-145 states:\nThe speed limitations set forth in this Article shall not apply to vehicles when operated with due regard for safety under the direction of the police in the chase or apprehension of violators of the law or of persons charged with or suspected of any such violation, nor to fire department or fire patrol vehicles when traveling in response to a fire alarm, nor to public or private ambulances and rescue squad emergency service vehicles when traveling in emergencies, nor to vehicles operated by county fire marshals and civil preparedness coordinators when traveling in the performances of their duties. This exemption shall not, however, protect the driver of any such vehicle from the consequence of a reckless disregard of the safety of others.\nN.C. Gen. Stat. \u00a7 20-145 (2011) (emphasis added). This Court has discussed relevant factors in the N.C. Gen. Stat. \u00a7 20-145 analysis as pertains to pursuit as follows:\nN.C. Gen. Stat. \u00a7 20-145 exempts police officers from speed laws when pursuing a law violator. However, the exemption \u201cdoes not apply to protect the officer from the consequence of a reckless disregard of the safety of others.\u201d Our Supreme Court has held that \u201can officer\u2019s liability in a civil action for injuries resulting from the officer\u2019s vehicular pursuit of a law violator is to be determined pursuant to a gross negligence standard of care.\u201d Grossly negligent behavior is defined as \u201cwanton conduct done with conscious or reckless disregard for the rights and safety of others.\u201d ....\nWhen determining whether an officer\u2019s actions constitute gross negligence, we consider: (1) the reason for the pursuit, (2) the probability of injury to the public due to the officer\u2019s decision to begin and maintain pursuit, and (3) the officer\u2019s conduct during the pursuit.\nRelevant considerations under the first prong include whether the officer \u201cwas attempting to apprehend someone suspected of violating the law\u201d and whether the suspect could be apprehended by means other than high speed chase.\nWhen assessing prong two, we look to the (1) time and location of the pursuit, (2) the population of the area, (3) the terrain for the chase, (4) traffic conditions, (5) the speed limit, (6) weather conditions, and (7) the length and duration of the pursuit.\nUnder the third prong we look to [the officer\u2019s] conduct during the pursuit. Relevant factors include (1) whether an officer made use of the lights or siren, (2) whether the pursuit resulted in a collision, (3) whether an officer maintained control of the cruiser, (4) whether an officer followed department policies for pursuits, and (5) the speed of the pursuit.\nGreene, _ N.C. App. at _, 736 S.E.2d at 835-36 (citations omitted). We believe similar factors are useful in evaluating an officer\u2019s conduct when \u201cemergency response driving\u201d to the scene of an incident, as well.\nWe note \u2014 absent knowledge that there is a reasonable risk of death, serious bodily injury, or some other grave threat \u2014 that the need for an officer to engage in emergency response driving is not as apparent as when engaging in a vehicle pursuit. A vehicle fleeing at high speed constitutes, by its very nature, a great risk of death or injury to multiple persons. When engaged in a pursuit, an officer often must drive at high speed to maintain contact with the fleeing vehicle. Of course, an officer must still engage in risk analysis and cease pursuit if the risk of harm to others becomes too great. Id. The justification for an emergency response to the scene of an incident may not be as immediately apparent.\nWe will view the three factors stated in Greene in the light most favorable to Defendant:\nA. The reason for the pursuit,\nPlaintiff was responding to a request for traffic control at the scene of a minor accident involving no injuries. Though a witness informed Wayne County Communications that a woman was arguing with a man and had pushed him, and though Plaintiff testified he was concerned there was a \u201cviolent\u201d situation in the vicinity of a school, there is no evidence in the audio recording from that morning that Plaintiff was ever informed of any disturbance. Therefore, we do not consider the disturbance in our summary judgment analysis, as it is for the trier of fact to resolve the issue of whether Plaintiff was aware of the disturbance prior to his collision with Defendant. However, even assuming arguendo Plaintiff was aware of the disturbance, there is no evidence that the disturbance was serious, or that anyone was in danger of being injured, much less seriously injured. Plaintiff admitted that he did not believe there was any officer safety issue involved. Investigating officer Lieutenant Carter Hicks (\u201cLieutenant Hicks\u201d), of the Wayne County Sheriffs Office, testified that policy dictates, even in emergency response situations, that officers must \u201cdrive in due regards to the safety of others[;]\u201d that this policy applies to all driving, not just pursuits, and that he considers \u201cdomestic violence calls[,] unless there\u2019s a life-threatening situation involved[,]\u201d to be non-emergency response situations. Lieutenant Hicks testified that the situation involving Plaintiff required Plaintiff to \u201cbalance the need to pursue or apprehend a violator against the risk of damage to property or injury to persons.\u201d \u201cDeputies ... must always be aware that their first obligation is to protect the public.\u201d Policy dictated that Plaintiff had to evaluate the reason for the emergency response \u201cand seriousness of the suspected violation.\u201d Blair Tyndall (\u201cMr. Tyndall\u201d), the Director of Emergency Medical Services and Safety for Wayne County, testified that Plaintiff, when deciding how fast to proceed to the accident site, should have weighed the fact that he was \u201cresponding to a motor vehicle accident that had already occurred.\u201d Mr. Tyndall \u201cfelt\u201d like Plaintiff was not following \u201cdue regard there under [N.C. Gen. Stat. \u00a7 20-145] for safety to others.\u201d Mr. Tyndall also believed Plaintiff was in violation of Wayne County Emergency Response and Vehicle Pursuit Policy that stated: \u201cDriving that is a wanton and reckless disregard for safety of others is illegal and never justified by any emergency, no matter how serious.\u201d Mr. Tyndall understood that emergency response driving could be justified when \u201cdriving to the scene where there may be a danger to life, or a threat to officer\u2019s safety, or reported violence or threat of imminent violence [,]\u201d but he \u201cwas not aware that there was any of those occurring at the accident [Plaintiff] was responding to.\u201d In Mr. Tyndall\u2019s opinion, Plaintiff was \u201coperating unsafely[.]\u201d\nB. The probability of iniurv to the public due to Plaintiff\u2019s decision to begin and maintain emergency response driving\n(a) Time and location of the pursuit. Plaintiff began his high-speed response at approximately 7:19 in the morning, and crashed a minute or two later. This was a time when people were generally heading to work, and children were heading to school. It is uncertain from the evidence presented whether school was in session at the time of the accident, but Plaintiff testified that he believed it was. Along that section of Highway 117 are located a school, an on/off ramp for a nearby interstate, afire station, and multiple residential driveways and side streets. Although that section of Highway 117 was not heavily developed, Defendant was pulling out of a residential neighborhood onto Highway 117 when Plaintiff\u2019s vehicle impacted her vehicle.\n(b) The population of the area. The area was not densely populated, but there was a mix of residential, commercial, and governmental buildings along the highway. Highway 117 also connects Goldsboro with Pikeville and other towns.\n(c) The terrain for the chase. Highway 117 is mostly flat, but has some curves in the section on which Plaintiff was traveling on the morning of 30 December 2009. There was \u201ca right-hand curve that ended about 2/10th of a mile south of the intersection\u201d of Highway 117 and Woodview Drive. A witness, who Plaintiff passed while driving north on Highway 117, stated there was a line of trees that prevented the witness from seeing Defendant\u2019s vehicle until Defendant\u2019s vehicle began to pull out onto Highway 117.\n(d) Traffic conditions. There is no evidence suggesting heavy traffic on Highway 117 at the time of the accident, but there were a number of automobiles in the area. One witness stated that Plaintiff passed him as they were both traveling north on Highway 117. Another, heading south, passed Plaintiff, and then saw the collision in his rear-view mirror. Two other witnesses in separate vehicles were very near the scene of the accident when it happened, one of whom considered honking her horn to warn Defendant not to pull out, but worried that might cause more harm by making Defendant hesitate.\n(e) The speed limit. The speed limit was forty-five mph. Trooper Bunn believed the speed limit was thirty-five mph just south of where the accident occurred. Plaintiff was traveling at speeds over one hundred mph, and was accelerating at a speed of approximately ninety-five mph immediately before the collision.\n(f) Weather conditions. There is no evidence of adverse weather conditions; however, it was early morning in winter.\nC. Plaintiffs conduct during the pursuit\nWhen considering the evidence in the light most favorable to Defendant, we have to assume that Plaintiff failed to activate his siren. Trooper Bunn testified that Plaintiff should have had his fights and siren on, and that it is a violation for any law enforcement vehicle to initiate emergency driving without activating both. Trooper Bunn explained: \u201cI mean, as far as traffic hazard; somebody pull out in front of you, they will know you\u2019re coming. If you got your blue lights on, they\u2019re not going to hear your siren -1 mean, know you\u2019re coming until you\u2019re right there on them.\u201d Lieutenant Hicks testified that Plaintiff was required to notify Communications that he was initiating emergency response driving, but Plaintiff failed to notify and \u201cidentify that he [was] running an emergency response of some sort[.]\u201d Plaintiff was traveling at speeds that prevented him from utilizing the \u201cfour-second path of travel rule,\u201d and the \u201cindustry standards for visual lead time.\u201d According to the Basic Law Enforcement Training Driver Training manual: \u201cThe four-second path of travel is the vehicle\u2019s immediate path of travel. When you consider a four-second path of travel, you have time to take an escape route, or you have sufficient stopping distance from any object that may appear in your path of travel.\u201d Further:\nA visual lead time of twelve (12) seconds in rural areas ... provides officers with needed time to appropriately select an immediate path of travel. It also gives officers time to search the areas beside the road, adjust their speed, or to make lane changes well in advance of any problems.\u201d\nPlaintiff \u201cdid not consider the residential homes along [Highway] 117 during his emergency response\u201d and therefore \u201cfailed to consider the number of intersections (public streets, residential driveways, etc.).\u201d Plaintiff could not recall traffic conditions at the time of the accident, and was not monitoring his speed. Plaintiff was accelerating out of a curve at the time the accident occurred. \u201cIt is reasonable to believe that [Plaintiff] experienced tunnel vision.\u201d \u201cThe effectiveness of the eyes\u2019 central and peripheral visions is reduced and becomes more narrow and blurred as the vehicle\u2019s speed is increased.\u201d Plaintiff should have been able to see Defendant\u2019s vehicle as he approached, but he did not. Plaintiff should have been operating at a speed allowing him to brake or take evasive action to avoid the collision with Defendant\u2019s vehicle, but he was not. According to Collision Analyst Kluge, had Plaintiff been traveling at a speed at or below seventy-four mph, the collision would not have occurred. Trooper Bunn testified that he could not recall why he had not charged Plaintiff for not engaging his siren or for excessive speed, but he opined: \u201cI think he could have been at a lower speed, I mean, going to an accident.\u201d \u201cI\u2019d say [Plaintiff should have been going] 55 or 60 at the most. I mean, it was a [property damage] wreck. It wasn\u2019t no life-and-death situation there.\u201d In his Safety Director\u2019s Report, Mr. Tyndall stated that Plaintiff was \u201cin violation of the sheriff\u2019s department standing policy for vehicle use and response. This is also [Plaintiff\u2019s] second incident in 2009 with a motor vehicle collision. Recommend appropriate disciplinary action and remedial law enforcement drivers training.\u201d Mr. Tyndall believed Plaintiff was not operating his vehicle with \u201cdue regard for safety\u201d and was exhibiting \u201ca wanton and reckless disregard for safety of others[.]\u201d\nThis Court addressed a similar situation in Jones v. City of Durham, 168 N.C. App. 433, 608 S.E.2d 387 (\u201cJones 7\u201d), aff'd, 360 N.C. 81, 622 S.E.2d 596 (2005), opinion withdrawn and superseded on reh\u2019g, 361 N.C. 144, 638 S.E.2d 202, and reversed in part based upon dissenting opinion, 361 N.C. 144, 638 S.E.2d 202 (2006) (\u201cJones IF), together with Jones I, (\u201cJones\"). The facts in Jones were as follows:\n[A]t approximately 9:00 a.m., Officer Tracy Fox (\u201cOfficer Fox\u201d) was dispatched to investigate a domestic disturbance[.] Soon after arriving at the scene, Officer Fox determined that she would need assistance and called for backup. Dispatch, upon receiving her call, issued a \u201csignal 20\u201d requiring all other officers give way for Officer Fox\u2019s complete access to the police radio by holding all calls. Officer Joseph M. Kelly (\u201cOfficer Kelly\u201d [)] was approximately 2\u00bd miles from [the disturbance], as were fellow Officers H.M. Crenshaw (\u201cOfficer Crenshaw\u201d) and R.D. Gaither (\u201cOfficer Gaither\u201d).\nIn response to the first call by Officer Fox, Officers Kelly, Crenshaw, and Gaither got in their separate vehicles and began driving towards [the disturbance]. Officer Fox then made a second distress call, stating with a voice noticeably shaken, that she needed more units. Officers Kelly and Crenshaw activated their blue lights and sirens and increased the speed of their vehicles[.] Officer Gaither took a different route.\nAt approximately 9:09 a.m. on the same morning, Linda Jones (\u201cplaintiff\u201d) was leaving her sister\u2019s apartment complex at the southwest comer of the intersection of Liberty Street and Elizabeth Street (\u201cthe intersection\u201d). The posted speed limit for motorists traveling upon Liberty Street was 35 miles per hour. At the curb of Liberty Street, plaintiff observedno vehicles approaching, butheardsirens coming from an undeterminable direction. A bystander outside the apartment complex also heard the sirens, but could not determine their direction. Plaintiff, some 95 feet west of the intersection, began to cross Liberty Street outside of any designated cross walk and against the controlling traffic signal. At this point in the road, Liberty Street had three undivided lanes: two eastbound lanes (the second or middle eastbound lane was for making northbound right turns only) and a westbound lane. Reaching the double yellow lines dividing the two eastbound lanes which she crossed, plaintiff first saw a police vehicle heading towards her in the westbound [lane]. The vehicle came over the railroad tracks on the eastern side of the intersection. Sergeant Willie Long, an eyewitness who was in his vehicle at the comer of Grace Drive and Liberty Street, and plaintiff both observed Officer Kelly\u2019s vehicle go completely airborne over the railroad tracks. Once his vehicle crossed the railroad tracks, defendant saw plaintiff at a distance of between 300-332 feet and standing at the double-yellow lines.\nPlaintiff turned and began running back in the direction from which she came, across the two eastbound lanes. Officer Kelly, crossing the intersection and accelerating, turned his vehicle with one hand into the eastbound lanes and struck plaintiff on her side as she was retreating to the curb. She was launched six feet into the air over the vehicle and landed in a gutter approximately 76 feet down along the eastbound lane of Liberty Street. Officer Kelly\u2019s vehicle traveled approximately 160 feet after striking plaintiff and came to a complete stop in the eastbound lane of Liberty Street. Plaintiff suffered severe injuries.\nWhile Officer Kelly was en route to Officer Fox\u2019s two distress calls, he was aware at least four other officers were responding.[A]n accident reconstruction expert determined Officer Kelly\u2019s speed to have varied between 55 and 74 miles per hour.\nJones I, 168 N.C. App. at 434-35, 608 S.E.2d at 388-89. This Court held that, on these facts, the \u201cplaintiff has not forecast sufficient evidence to show a genuine issue of material fact as to gross negligence on the part of Officer Kelly, [and that] defendants are entitled to judgment as a matter of law.\u201d Jones I, 168 N.C. App. at, 443, 608 S.E.2d at 393. The Court in Jones I reasoned:\nIn response to Officer Fox\u2019s two distress calls, Officer Kelly responded to apprehend the threatening suspect and defuse what he believed to be a life or death situation of a fellow Durham police officer. In pursuit of the situation, there was some dispute as to what speed Officer Kelly was alleged to have been traveling. In a light most favorable to plaintiff, this speed varied between 55 and 74 miles per hour on a road where the speed limit was 35 miles per hour.\nJones I, 168 N.C. App. at 441, 608 S.E.2d at 393. Our Supreme Court eventually reversed on this issue in Jones II, adopting the dissenting opinion in Jones I. Jones II, 361 N.C. at 146, 638 S.E.2d at 203. The dissent in Jones I, adopted by Jones II, reasoned:\n[T]he question is whether the evidence raises any genuine issue of material fact on the issue of gross negligence. Regarding gross negligence by a law enforcement officer, this Court has held:\nAn officer \u2018must conduct a balancing test, weighing the interests of justice in apprehending the fleeing suspect with the interests of the public in not being subjected to unreasonable risks of injury.\u2019 \u2018Gross negligence\u2019 occurs when an officer consciously or recklessly disregards an unreasonably high probability of injury to the public despite the absence of significant countervailing law enforcement benefits.\nViewed, as it must be, in the light most favorable to the plaintiff, the record evidence would allow a jury to find that: (1) Kelly was not pursuing an escaping felon, but was responding to Officer Fox\u2019s call for assistance with a situation whose nature Kelly knew nothing about; (2) Kelly knew other officers had also responded to the call for backup, so that Officer Fox was not solely dependent on his aid; (3) Kelly was familiar with the street where the accident occurred, and knew it was a densely populated urban area; (4) as Kelly approached the accident site he was driving between 50 and 74 mph, and did not have his blue light and siren activated; (5) Kelly knew that the intersection of Liberty and Elizabeth Streets had been the site of several previous accidents, and that there were \u201cpeople hanging out\u201d there; (6) Kelly knew from previous experience that the safest maximum speed on the relevant stretch of Liberty Street was 45 mph; (7) Kelly did not apply his brakes when he saw plaintiff in his way; (8) Kelly lost control of his vehicle and struck plaintiff with such force that she suffered serious injuries; and (9) Kelly\u2019s failure to drive at a safe speed for road conditions was a violation of the Basic Law Enforcement Training manual. I conclude that this evidence, if believed by the jury, tended to show a \u201chigh probability of injury to the public despite the absence of significant countervailing law enforcement benefits,\u201d and thus raises a genuine issue of material fact on the question of gross negligence.\nJones I, 168 N.C. App. at 444, 608 S.E.2d at 394-95 (citations omitted).\nViewed in the light most favorable to Defendant, the record evidence in this case would allow a jury to find that: (1) Plaintiff was responding to a minor traffic accident involving only property damage, and the sole purpose of Plaintiffs response was to provide traffic flow assistance; (2) Plaintiff, against department policy, initiated emergency response driving without any justifiable reason, and without notifying his department; (3) Plaintiff engaged his blue lights at some point, but failed to engage his siren, which was also a violation of department policy; (4) Plaintiff sped along Highway 117 at speeds topping one hundred mph where the posted speed limit was forty-five mph and possibly even thirty-five mph at certain points; (5) Plaintiff was a warrant officer and he did not usually engage in driving that required high speeds; (6) Plaintiff had no high-speed driving training beyond that obtained in his Basic Law Enforcement Training; (7) Plaintiff sped past a school, not knowing whether the school was in session; (8) Plaintiff also sped past an Interstate exit and a fire station before reaching Defendant\u2019s residential neighborhood; (9) Plaintiff, because of his high speed, either did not see Defendant before she pulled out to cross the north-bound lane and head south on Highway 117, or saw Defendant and did not take appropriate measures to avoid a collision; (10) if Plaintiff did not see Defendant, it was either because he was traveling around a blind curve, or because he was not paying proper attention to the road ahead of him, perhaps suffering from tunnel vision due to his excessive speed; (11) Plaintiff was traveling ninety-five mph and still accelerating until immediately before he made contact with Defendant\u2019s vehicle, when he finally removed his foot from the accelerator and apparently attempted to depress the brake; (12) this was the second automobile accident Plaintiff had been involved in in a single year; and (13) the accident would not have occurred had Plaintiff been engaged in \u201croutine driving,\u201d which was all that was warranted in this situation - in fact, the accident would probably not have occurred had Plaintiff simply been driving at a speed less than seventy-five miles per hour.\nWe find there was a \u201c \u2018high probability of injury to the public despite the absence of significant countervailing law enforcement benefits!)]\u2019 \u201d Id. We hold these facts are, at a minimum, as persuasive as the facts in Jones and, therefore, as our Supreme Court did in Jones II, we reverse the trial court\u2019s grant of summary judgment in favor of Plaintiff and remand for further action on Defendant\u2019s counter-claims against Plaintiff.\nIII.\nDefendant also argues the trial court erred, to the extent, if any, that it based its award of summary judgment to Plaintiff, Western Surety, Farm Bureau, and United Services on the defense of governmental immunity. We agree.\nIt does not appear that the trial court granted summary judgment in favor of Plaintiff based upon governmental immunity. It is clear that the Wayne County Sheriff\u2019s Office had a $25,000.00 bond, issued by Western Surety, that was in effect at the time of the 30 December 2009 accident. \u201cAccording to N.C. Gen. Stat. \u00a7 58-76-5, a sheriff waives governmental immunity by purchasing a bond as is required by N.C. Gen. Stat. \u00a7 162-8.\u201d White v. Cochran, _ N.C. App. _, _, 748 S.E.2d 334, 339 (2013). Therefore, summary judgment would have been improper on the basis of governmental immunity, at least as to potential damages up to the amount of the $25,000.00 bond issued by Western Surety. Id.\nFurthermore, this Court has recognized actions brought pursuant to N.C. Gen. Stat. \u00a7 20-145 as falling outside the general rule of governmental immunity. Young v. Woodall, 119 N.C. App. 132, 139-40, 458 S.E.2d 225, 230 (1995) (\u201cYoung I\u201d), rev\u2019d, 343 N.C. 459, 471 S.E.2d 357 (1996) (\u201cYoung IF), (together with Young I, \u201cYoung\"). In Young, a Winston-Salem police officer, Officer Woodall, was sued, wherein the\nplaintiff apparently argue [d] Officer Woodall failed to exercise reasonable care in the exercise of an alleged ministerial or proprietary function carried out for his own private purposes in contravention of departmental policy. Plaintiff also allege [d] that Officer Woodall failed to comply with the statutory standard of care codified in N.C. Gen. Stat. \u00a7 20-145.\nYoung I, 119 N.C. App. at 137, 458 S.E.2d at 228. The City of Winston-Salem had purchased liability insurance that would cover the alleged negligence of Officer Woodall, but only for any damages in excess of $2,000,000.00. Id. at 136, 458 S.E.2d at 228. This Court held:\nIn summary, we conclude that the City of Winston-Salem and Officer Woodall, in his official capacity, are entitled to partial summary judgment based on governmental immunity for any damages up to and including two million dollars, except as to the contentions of negligence arising under N.C. Gen. Stat. \u00a7 20-145. We also conclude that Officer Woodall, in his individual capacity, is entitled to summary judgment, except as to the contentions of negligence arising under N.C. Gen. Stat. \u00a7 20-145. As to the contention that Officer Woodall failed to observe the standard of care provided in section 20-145, we affirm the trial court\u2019s denial of summary judgment on behalf of the City of Winston-Salem and Officer Woodall.\nId. at 139-40, 458 S.E.2d at 230. Stated another way, this Court held that governmental immunity did not apply to actions brought pursuant to N. C. Gen. Stat. \u00a7 20-145. Our Supreme Court granted discretionary review, and reversed in part, holding that the Court of Appeals had applied the wrong standard pursuant N.C. Gen. Stat. \u00a7 20-145, ordinary negligence, instead of the appropriate standard, gross negligence. Young II, 343 N.C. at 462, 471 S.E.2d at 359. Our Supreme Court reversed after applying the gross negligence standard and determining that the actions of Officer Woodall did not meet that standard. Id. at 463, 471 S.E.2d at 360.\nOur Supreme Court did not overrule that part of the Court of Appeals\u2019 decision holding that governmental immunity did not apply to actions brought pursuant to N.C. Gen. Stat. \u00a7 20-145. In fact, though not specifically addressing this issue, our Supreme Court implicitly accepted this Court\u2019s holding that governmental immunity does not apply to actions brought pursuant to N.C. Gen. Stat. \u00a7 20-145. Bound by this precedent, we hold in the present case that Defendant\u2019s counterclaim based upon the alleged gross negligence of Plaintiff pursuant to N.C. Gen. Stat. \u00a7 20-145 is not barred by governmental immunity.\nReversed and remanded.\nJudges HUNTER, Robert C. and ELMORE concur.\n. N.C. Gen. Stat. \u00a7 20-145 was amended effective 1 October 2013. We cite to the version in effect at the time of the collision.", "type": "majority", "author": "McGEE, Judge." } ], "attorneys": [ "Teague, Campbell, Dennis & Gorham, L.L.P, by Bryan T. Simpson and Natalia K. Isenberg, for Daniel Joseph Truh\u00e1n, Plaintiff-Appellee and Western Surety Company, Third-Party Defendant-Appellee.", "Poyner Spruill LLP, by Timothy W. Wilson, for North Carolina Farm Bureau Mutual Insurance Company, Third-Party Defendant-Appellee.", "Battle, Winslow, Scott & Wiley, P.A., by M. Greg Crumpler, for United Services Automobile Association, Third-Party Defendant-Appellee.", "Whitley Law Firm, by Ann C. Ochsner, for Susan P. Walston, Defendant and Third-Party Plaintiff-Appellant." ], "corrections": "", "head_matter": "DANIEL JOSEPH TRUHAN, Plaintiff-Appellee v. SUSAN P. WALSTON and DAVID M. WALSTON, Defendants and Third-Party Plaintiff-Appellant Susan P. Walston v. NORTH CAROLINA FARM BUREAU MUTUAL INSURANCE COMPANY, UNITED SERVICES AUTOMOBILE ASSOCIATION, and WESTERN SURETY COMPANY, Third-Party Defendants\nNo. COA14-43\nFiled 5 August 2014\n1. Police Officers\u2014automobile accident\u2014negligence action\u2014 summary judgment for officer\u2014erroneous\nIn an automobile accident case involving a collision between a speeding officer and a car pulling out from a side road, the trial court\u2019s grant of summary judgment for plaintiff (the officer) was reversed and the case was remanded for further action on defendant\u2019s counter-claims. Plaintiff was responding to a request for traffic control at the scene of a minor accident involving no injuries and, considering a number of other factors such as the terrain, the speed limit, the population and the time of day of the pursuit, there was a high probability of injury to the public despite the absence of significant law enforcement benefits.\n2. Immunity\u2014governmental\u2014police officer in car accident\u2014 immunity not available\nIn an automobile accident case involving a collision between a speeding officer and a car pulling out from a side road, summary judgment for the officer and the insurance companies would have been improper on the basis of governmental immunity, at least as to potential damages up to the amount of a $25,000.00 bond,. Furthermore, it has been recognized that actions brought pursuant to N.C.G.S. \u00a7 20-145 fall outside the general rule of governmental immunity.\nAppeal by Defendant and Third-Party Plaintiff Susan P. Walston from orders entered 7 October 2013 and 4 November 2013 by Judge Kendra D. Hill in Superior Court, Wayne County. Heard in the Court of Appeals 6 May 2014.\nTeague, Campbell, Dennis & Gorham, L.L.P, by Bryan T. Simpson and Natalia K. Isenberg, for Daniel Joseph Truh\u00e1n, Plaintiff-Appellee and Western Surety Company, Third-Party Defendant-Appellee.\nPoyner Spruill LLP, by Timothy W. Wilson, for North Carolina Farm Bureau Mutual Insurance Company, Third-Party Defendant-Appellee.\nBattle, Winslow, Scott & Wiley, P.A., by M. Greg Crumpler, for United Services Automobile Association, Third-Party Defendant-Appellee.\nWhitley Law Firm, by Ann C. Ochsner, for Susan P. Walston, Defendant and Third-Party Plaintiff-Appellant." }, "file_name": "0406-01", "first_page_order": 416, "last_page_order": 432 }