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Arrington v. Hensley

United States District Court, E.D. North Carolina, Western Division

February 6, 2017

LYNN ARRINGTON, as Administratrix of the Estate of Luther Burton, Jr., Plaintiff,



         This 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.


         Plaintiff 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.

         Mr. 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.

         Plaintiff 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. §§ 1331; 1441.

         By 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].


         At the 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 judgment.

         A 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).

         The 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.

         Smithfield 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.

         Plaintiff's 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 reached him”).

         Accordingly, 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, [1]plaintiff has failed to proffer any evidence which would tend to establish an element of his ...

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