The opinion of the court was delivered by: Timmons-goodson, Judge.
Appeal by plaintiff from order entered 21 October 1996 by Judge Orlando F. Hudson, Jr. in Durham County Superior Court. Heard in the Court of Appeals 8 October 1997.
This action arises out of a high speed chase involving law enforcement officers of the Hillsborough Police Department, defendant Clarence Louis Hill, III, and plaintiff's intestate, Louis Lyle Parish. The facts tend to show that on 20 February 1993, at approximately 2:20 a.m., Lieutenant Nathaniel Eubanks, a police officer with the City of Hillsborough Police Department, initiated the chase of a speeding vehicle traveling north on North Carolina State Highway 86 (NC 86), approximately 1.4 miles outside of the Hillsborough city limits. Defendant Hill was driving the vehicle and Parish was a passenger.
Lieutenant Eubanks initiated the chase after the vehicle passed his marked police cruiser in a no passing zone, traveling at speeds between 75 and 80 miles per hour. The speed limit on NC 86 was 55 miles per hour. After realizing that he had passed a police officer, defendant Hill maintained and subsequently increased his speed in order to elude the officer. Consequently, Lieutenant Eubanks decided to stop the speeding vehicle and notified dispatch of his location and his intention. Lieutenant Eubanks activated his blue lights and siren, but the vehicle failed to stop. Instead, the vehicle increased its speed to approximately 90 miles per hour and turned right onto Interstate 85 (I-85), and proceeded in a northerly direction. The lieutenant followed the vehicle onto I-85, alerting the dispatcher that he was in pursuit of a vehicle that would not stop. In addition, Lieutenant Eubanks requested that the dispatcher alert the Durham Police Department about the pursuit moving towards Durham.
The pursuit continued on I-85 for approximately 5 miles, with both vehicles reaching speeds between 120 and 130 miles per hour. At times, defendant Hill turned off his headlights and moved in and out of traffic in an effort to evade capture. Lieutenant Eubanks estimates that he passed more than 10 or 12 vehicles on I-85 and notes that several drivers pulled to the shoulder of the road after noticing his lights and sirens.
Defendant Hill exited I-85 at Exit 170, but circled around and got back on I-85, traveling in a southerly direction. Defendant Hill traveled South on I-85 for approximately 3/4 of a mile, whereupon he crossed the median and once again proceeded in a northerly direction on I-85. At this point, defendant Hill, with Lieutenant Eubanks still in pursuit but some distance behind him, exited I-85 a second time and proceeded in an easterly direction on US 70 towards Durham. At the interchange of I-85 and US 70, Lieutenant Eubanks narrowly avoided a collision with a tractor trailer.
At the same time Lieutenant Eubanks was pursuing defendant Hill, Officer Kevin Dean of the Hillsborough Police Department positioned his squad car near a truck stop located at the interchange of I-85 and US 70 and began monitoring radio transmissions regarding the pursuit. After seeing the two speeding vehicles traveling on I-85 and exiting onto US 70, the officer pulled out from the shoulder of the road and joined in the pursuit of the suspect vehicle. Upon Officer Dean joining the chase, Lieutenant Eubanks, traveling at a high rate of speed, almost rear-ended Officer Dean's vehicle. The lieutenant avoided the accident, however, by applying his brakes and driving onto the median.
Because of the distraction of the near-accident, Lieutenant Eubanks and Officer Dean lost the vehicle driven by defendant Hill, but proceeded on US 70 with blue lights flashing. Defendant Hill continued to travel along US 70 at the vehicle's maximum speed as he neared its intersection with Highway 751.
At this point in the pursuit, Officer Bennie Bradley of the Durham City Police Department positioned his vehicle at the US 70/Highway 751 intersection to assist in the chase after having received radio transmissions alerting him to the pursuit. Officer Bradley waited until defendant Hill's vehicle passed him at a speed in excess of 90 miles per hour and then turned on his blue lights and siren and gave chase. At no time did Officer Bradley notice any other vehicles pursuing defendant Hill. After traveling approximately 375 feet, Officer Bradley then saw defendant Hill veer left, cross the westbound lane of the highway and crash into a residence. Immediately thereafter, Officer Bradley called for rescue, drove to the accident scene, exited his vehicle and located the driver. Defendant Hill was found lying face-down near the wrecked vehicle, while plaintiff's intestate was found lying dead between the wrecked vehicle and the residence the car had hit.
On appeal, plaintiff argues that the trial court erred in granting defendants' motion for summary judgment for the following reasons: (1) defendants Eubanks and Dean were grossly negligent in their pursuit of the suspect vehicle in which Parish was a passenger; (2) defendants Larry Biggs and the City of Hillsborough were grossly negligent in that they failed to develop a substantive high speed chase policy to properly train the officers and to properly supervise the officers during the pursuit; and (3) defendants violated plaintiff's intestate's constitutional rights under § 1983. For the reasons detailed herein, we conclude that summary judgment was improvidently allowed as to plaintiff's gross negligence claim against defendants Eubanks and Dean. As to plaintiff's remaining claims, we discern no error in the trial court's order.
The purpose of the Rule 56 summary judgment is to provide an expeditious method of determining whether a genuine issue as to any material fact actually exists, and if not, whether the moving party is entitled to judgment as a matter of law. Gudger v. Furniture, Inc., 30 N.C. App. 387, 389, 226 S.E.2d 835, 837 (1976). However, this Court has cautioned, "[s]ummary judgment is a drastic measure and should be used with caution, especially in a negligence action in which the jury ordinarily applies the reasonable person standard to the facts." Laughter v. Southern Pump & Tank Co., Inc., 75 N.C. App. 185, 186, 330 S.E.2d 51, 52, cert. denied, 314 N.C. 666, 335 S.E.2d 495 (1985)(citation omitted).
A motion for summary judgment is properly granted only "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to judgment as a matter of law." N.C.R. Civ. P. 56. The moving party bears the burden of proving the lack of triable issue of fact. Collingwood v. G.E. Real Estate Equities, 324 N.C. 63, 66, 376 S.E.2d 425, 427 (1989). Once the moving party has met its burden, the nonmoving party must then "produce a forecast of evidence demonstrating that the [nonmoving party] will be able to make out at least a prima facie case at trial." Id. The evidence is to be viewed in the light most favorable to the nonmoving party. Davis v. Town of Southern Pines, 116 N.C. App. 663, 666, 449 S.E.2d 240, 242 (1994), disc. review denied, 339 N.C. 737, 454 S.E.2d 648 (1995).
A. Gross Negligence Claims
1. Lieutenant Eubanks and Officer Dean
Plaintiff purports to allege claims against Lieutenant Eubanks and Officer Dean in both their individual and official capacities. However, because the officers are protected as public officials from liability for discretionary acts when such acts are done without a showing of malice or corruption, Young v. Woodall, 119 N.C. App. 132, 458 S.E.2d 225 (1995), rev'd on other grounds, 343 N.C. 459, 471 S.E.2d 357 (1996), and the record in this case is devoid of any evidence of malice or corruption on the part of Lieutenant Eubanks and Officer Dean, we conclude that summary judgment was properly granted for these two defendants in their individual capacities. We ...