Heard in the Court of Appeals: April 10, 2013.
Appeal by plaintiff from order entered 5 September 2012 by Judge Orlando F. Hudson, Jr. in Durham County Superior Court.
Unpublished opinion filed 6 August 2013. Petition for discretionary review
allowed by the North Carolina Supreme Court for remand to this Court for
reconsideration 23 December 2013, Durham County. No. 11 CVS 3999.
M. Alexander Charns, for plaintiff-appellant.
Office of the City Attorney, by Kimberly M. Rehberg, for defendant-appellee City of Durham.
Kennon Craver, PLLC, by Joel M. Craig, for defendant-appellee Daniel J. Kuszaj.
CALABRIA, Judge. Judges ERVIN and DILLON concur.
Bryan DeBaun (plaintiff" ) appeals from the trial court's order granting summary judgment in favor of Daniel J. Kuszaj (" Officer Kuszaj" ) and the City of Durham (collectively " defendants" ) with respect to plaintiff's claims for assault and battery, use of excessive force, malicious prosecution, and violation of plaintiff's rights under the North Carolina Constitution. Initially, this Court filed an unpublished opinion which affirmed the trial court's order. Debaun v. Kuszaj, ___ N.C.App. ___, 749 S.E.2d 110, 2013 WL 4007747 (2013) (unpublished). Plaintiff then filed a petition for discretionary review (" PDR" ) with the North Carolina Supreme Court, which entered an order granting the PDR " for the limited purpose of remanding to the Court of Appeals for reconsideration in light of Craig ex rel. Craig v. New Hanover County Board of Education, 363 N.C. 334, 678 S.E.2d 351 (2009)." Upon reconsideration, we affirm.
On the evening of 23 July 2009 and in the early morning hours of 24 July 2009, Officer Kuszaj of the Durham Police Department (" DPD" ) was on patrol and observed plaintiff standing or walking in a turning lane, carrying a twelve-pack of beer. Officer Kuszaj approached plaintiff and asked him for identification, which plaintiff provided. Since plaintiff appeared to Officer Kuszaj to be intoxicated, Officer Kuszaj decided to take plaintiff into custody for his own safety. When Officer Kuszaj began to restrain plaintiff with handcuffs, plaintiff asked whether he was under arrest, and Officer Kuszaj said no. Officer Kuszaj then continued trying to restrain plaintiff, but plaintiff attempted to run away. Officer Kuszaj then directed his electronic impulse device (" taser" ) into plaintiff's back. As a result, plaintiff immediately fell down, hitting his face on the concrete and breaking his nose and jaw. Plaintiff incurred medical and dental expenses in excess of $30,000.00 for permanent injuries he sustained in the fall.
Plaintiff was transported to Duke Hospital, where Officer Kuszaj issued plaintiff a citation for impeding the flow of traffic, drunk and disorderly conduct, and resisting, delaying
or obstructing an officer (" resisting an officer" ). After a trial in Durham County District Court, plaintiff was found not guilty of drunk and disorderly conduct and resisting an officer, but found guilty of impeding traffic.
On 14 July 2011, plaintiff filed a complaint seeking damages and permanent injunctive relief. Plaintiff asserted claims of assault and battery, use of excessive force, and malicious prosecution against the City of Durham and against Officer Kuszaj in both his official and individual capacities. In the alternative, plaintiff claimed defendants violated his rights under Article I, Sections 19, 20, 21, and 35 of the North Carolina Constitution. Defendants filed an answer denying the ...