JESSIE M. MCCLEASE, Plaintiff,
DOVER VOLUNTEER FIRE DEPT., Defendant.
in the Court of Appeals 4 April 2018.
by plaintiff from order entered 2 June 2017 by Judge John E.
Nobles in Craven County No. 16 CVS 265 Superior Court.
Elliott Field for plaintiff-appellant.
Sumrell, Sugg, Carmichael, Hicks and Hart, P.A., by Scott C.
Hart, for defendant-appellee.
McClease ("plaintiff") appeals from an order
granting Dover Volunteer Fire Department's
("defendant" or "Dover VFD") motion for
summary judgment on plaintiff's claims for negligence and
negligent infliction of emotional distress. On appeal,
plaintiff argues that the trial court erred by granting
summary judgment in favor of defendant because genuine issues
of material fact existed as to whether defendant was
negligent in that defendant: (1) failed to respond to the
structure fire in a timely manner, and (2) failed to maintain
or otherwise ensure that the North Oak Street fire hydrant
was working properly. After careful review, we affirm the
trial court's order.
is a former resident of the Town of Dover, which is located
in Craven County, North Carolina. In 1983, plaintiff and her
husband purchased a residence on North Oak Street in Dover,
where they lived until the residence was destroyed by a fire
on 3 August 2013. Defendant is a non-profit corporation
established under Chapter 55A of the North Carolina General
Statutes that "provides fire suppression services to a
six square mile area within Craven County."
Plaintiff's residence was located within defendant's
October 2015, plaintiff filed a verified complaint in which
she asserted claims for negligence and negligent infliction
of emotional distress against defendant and the Town of Dover
arising from a structure fire on 3 August 2013 that resulted
in the destruction of plaintiff's residence. Plaintiff
specifically alleged that defendant was negligent in that
defendant (1) failed to respond to the structure fire in a
timely manner, and (2) failed to maintain or otherwise ensure
that the North Oak Street fire hydrant near her home was
support of her claims, plaintiff submitted three affidavits.
In the first affidavit, plaintiff's niece, Monica Garris,
asserts that when she arrived at plaintiff's residence on
3 August 2013, (1) plaintiff's house "was already
burned-down to the ground"; (2) "[t]he fire was out
and the house was gone"; (3) "the Dover  VFD was
not there"; (4) "Dover VFD came after I
arrived"; and (5) "[w]hen Dover VFD got there, they
were asking the other fire departments . . . what
happened." In the second affidavit, plaintiff's
former son-in-law, James Mock, asserts that when he arrived
at plaintiff's residence on 3 August 2013, (1)
"[t]he house was engulfed in flames"; and (2)
"I did not see the Dover VFD at the scene." In the
third affidavit, Burt Staton, a former volunteer for
defendant, asserts that (1) he heard a fire alarm for fire
assistance on Oak Street and drove toward defendant's
fire station; (2) there was no response from defendant for
assistance after dispatch; (3) when he arrived at the scene,
he saw Cove City Volunteer Fire Department had arrived; (4)
Cove City Volunteer Fire Department could not use the fire
hydrant in front of plaintiff's house so they hooked up a
fire hydrant approximately 20 feet away; and (5) Dover VFD
finally arrived and was followed by the Jones County
Volunteer Fire Department, Fort Barnwell Volunteer Fire
Department, and Township 9 Volunteer Fire Department. Staton
asserted that he stayed at the scene for approximately thirty
affidavits submitted by defendant and the parties'
pleadings allege the following additional facts: Craven
County's Communications Center is responsible for
receiving all emergency 9-1-1 calls within the county and for
dispatching the appropriate response units. If a dispatch
remains unanswered for two minutes, the dispatcher will
contact additional response units. The dispatch keeps an
electronic "Detail Call For Services Report"
("Report") of the total communications made to and
from all responding emergency personnel.
structure fire is reported, Craven County has an automatic
aid policy pursuant to which more than one fire department is
automatically dispatched. When a structure fire is reported
within defendant's fire district, the Cove City Volunteer
Fire Department and the Fort Barnwell Volunteer Fire
Department are also dispatched. Because defendant operates
with an entirely volunteer staff, there is no internal policy
requiring staffing of the station house where defendant's
apparatuses are stored. However, each volunteer is issued a
pager by which the volunteer is notified when an emergency
call is received from within defendant's fire district.
Additionally, defendant's leadership, including the Fire
Chief, Assistant Chief, and Captains, keep VHF radios in
their personal vehicles with which they respond to the
Communications Center whenever a call is received. A response
from defendant's leadership via VHF radio is transmitted
to the other volunteers' pagers to inform them that an
emergency call has been received and that defendant is
confirmation that defendant is responding to an emergency,
its volunteers may proceed either to defendant's fire
station or directly to the location of the emergency,
whichever is closer to their location at the time. As
defendant's volunteers could be spread throughout the
county upon dispatch, many of its volunteers keep their
"turnout-gear" in their personal vehicles rather
than at the fire house to put on at the scene of the fire.
August 2013, plaintiff's husband, Mr. McClease, was
mowing grass in the yard when he observed smoke coming from
the attic of plaintiff's residence and realized that the
residence was on fire. He immediately asked the neighbor to
call 9-1-1. At 3:07 p.m., the Communications Center received
an emergency call from plaintiff's neighbor reporting
that plaintiff's residence was on fire. At 3:08 p.m., the
Communications Center placed a dispatch call to defendant.
Pursuant to the automatic ...