United States District Court, E.D. North Carolina, Western Division
LYNN ARRINGTON, as Administratrix of the Estate of Luther Burton, Jr., Plaintiff,
TRENTON KYLE HENSLEY and TOWN OF SMITHFIELD, Defendants.
TERRENCE W. BOYLE UNITED STATES DISTRICT JUDGE.
cause comes before the Court on defendant Town of
Smithfield's (Smithfield) motions for summary judgment
and to strike. The appropriate responses and replies having
been filed, or the time for doing so having expired, the
motions are ripe for ruling. A hearing was held on the
matters before the undersigned on February 1, 2017, at
Raleigh, North Carolina. For the reasons discussed below,
Smithfield's motion to strike is denied and its motion
for summary judgment is granted in part.
is the administratrix of the Estate of Luther Burton, Jr. At
the time relevant to the allegations in the amended
complaint, Mr. Burton was employed as a security guard at a
private club and bar in Smithfield called the Hookah House.
Defendant Hensley was a patron of the bar and was highly
intoxicated during the early morning hours of February 2,
2013. Mr. Burton approached Hensley in an attempt to request
that Hensley leave the premises and, without provocation,
Hensley punched Mr. Burton in the head near his right eye.
Burton was knocked unconscious and fell to the pavement.
Johnston County Emergency Services were notified and three
police officers were the first to respond to the scene.
Emergency medical personnel arrived shortly thereafter. The
emergency medical personnel examined Mr. Burton and found him
to be unresponsive and without a pulse. Mr. Burton was
allegedly resuscitated but went into cardiac arrest again.
Mr. Burton was ultimately transported to WakeMed Hospital in
Raleigh, North Carolina where he remained until his death on
February 5, 2013.
filed this action on behalf of Mr. Burton's estate in
Johnston County Superior Court alleging claims of assault and
battery against Hensley, negligence under North Carolina law
by the police officers, and 42 U.S.C. § 1983 claims for
the officers' deprivation of constitutional rights and
Smithfield's failure to train its police officers.
Smithfield removed the action to this Court on the basis of
its federal question jurisdiction. 28 U.S.C. §§
order entered August 17, 2015, the Court allowed plaintiff to
file an amended complaint and denied Smithfield's motion
to dismiss. [DE 20]. Clerk's default was entered against
defendant Hensley on August 18, 2015. [DE 21].
outset, the Court addresses Smithfield's motion to
strike. As stated at the hearing, the Court reopened the
period of discovery in order to accept the filing of the
affidavits of Dylan Morris, Matt Lanier, and Nathan Pearson
by plaintiff. See U.S. ex rel. Becker v. Westinghouse
Savannah River Co., 305 F.3d 284, 290 (4th Cir. 2002)
(substantial discretion afforded to district court in
managing discovery). Smithfield's motion to strike is
therefore denied and the Court will consider the
above-mentioned affidavits in deciding the motion for summary
motion for summary judgment may not be granted unless there
are no genuine issues of material fact for trial and the
movant is entitled to judgment as a matter of law.
Fed.R.Civ.P. 56(a). The moving party bears the initial burden
of demonstrating the absence of a genuine issue of material
fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323
(1986). If that burden has been met, the non-moving party
must then come forward and establish the specific material
facts in dispute to survive summary judgment. Matsushita
Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
588 (1986). In determining whether a genuine issue of
material fact exists for trial, a trial court views the
evidence and the inferences in the light most favorable to
the nonmoving party. Scott v. Harris, 550 U.S. 372,
378 (2007). However, “[t]he mere existence of a
scintilla of evidence” in support of the nonmoving
party's position is not sufficient to defeat a motion for
summary judgment; “there must be evidence on which the
[fact finder] could reasonably find for the [nonmoving
party].” Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 252 (1986). Speculative or conclusory allegations
will not suffice. Thompson v. Potomac Elec. Power
Co., 312 F.3d 645, 649 (4th Cir. 2002).
contested facts in this case center around what happened or
did not happen between the time of the arrival of the police
officers and the arrival of EMS. Plaintiff submits, and the
video evidence supports, that this period of time lasted for
approximately seven minutes. Plaintiff has proffered evidence
that a trained Marine Corps medic, Dylan Morris, was present
at the scene during the relevant period, identified himself
and his training to the police officers, was attempting to
assist Mr. Burton with medical attention, was told by the
police officers that he should “get away” from
Mr. Burton, and was prevented by the police from rendering
aid. [DE 41-1], Morris Aff. ¶¶ 6-9.
has proffered the affidavit of a different Marine medic, Zack
Upton, who states that he was present at the scene during the
relevant period, that he provided first aid and CPR to Mr.
Burton, that the police officers did not prevent him from
rendering assistance, and rather that the police officers
kept the crowd under control so that Upton could provide aid.
[DE 32-1], Upton Aff. ¶¶ 9 - 14. Each of the police
officers present and an EMS technician who was first to
arrive have also provided affidavits which support that a
third-party was permitted to administer first aid of some
sort to Burton prior to EMS's arrival. See [DE
32-2-4], Wilson Aff., Gray Aff., Jones Aff. It is undisputed
that none of the police officers themselves rendered aid
prior to the arrival of EMS. Id.
first claim against Smithfield is one for negligence. The
elements of a claim for negligence under North Carolina law
are duty, breach, proximate cause, and damages. See,
e.g., Estate of Mullis by Dixon v. Monroe Oil Co., Inc.
349 N.C. 196, 201 (1998). While the arguments of the parties
in their briefs and the factual evidence presented to the
Court focus on whether the police officers at the scene owed
a duty to Mr. Burton to either act themselves to render
medical care or to not prevent a third-party from providing
medical care prior to the arrival of EMS, what is absent from
the record before the Court is any evidence of proximate
cause. As counsel for Smithfield agreed at the hearing, and
counsel for plaintiff did not contest, there are no medical
records or opinions in this case which would suggest that had
someone, either the police officers or a third-party,
rendered assistance during the relevant period prior to the
arrival of EMS, Mr. Burton would have survived. Indeed,
though they conflict as to how events unfolded that morning,
the affidavits in the record submitted by plaintiff and
Smithfield all support that Mr. Burton was seriously injured
and was unresponsive, having difficulty breathing, and
without a pulse for a period of time of time prior to
EMS's arrival. See [DE 41- 1], Morris Aff.
¶ 6 (Burton “breathing lightly with some
difficulty”); [DE 32-1], Upton Aff. ¶ 9
(“Burton's breath was short”); [DE 32-5],
Parker Aff. ¶ 9 (Burton “had no pulse when we
irrespective of whether the Smithfield police officers did in
fact prevent a third-party from providing Burton aid or would
be protected by the public duty doctrine, plaintiff has
failed to proffer any evidence which would tend to establish
an element of his ...