Green v. Kearney
719 S.E.2d 137
N.C. Ct. App.2011Background
- Second appeal involving Larry Green’s post-accident treatment; EMS and medical examiner defendants sought immunity under N.C. Gen. Stat. § 90-21.14; court held immunity applies unless gross negligence, wanton conduct, or intentional wrongdoing is shown.
- Plaintiff alleged EMS/medical personnel failed to competently determine life status and provide treatment after Green was alive at scene, leading to delayed or no resuscitation.
- Trial court granted summary judgment for all defendants based on § 90-21.14 immunity; subsequent appeal challenged dismissals and affidavit-striking issues.
- Court evaluated whether the defendants’ actions rose to gross negligence or wanton conduct; evidence showed lack of knowledge Green was alive, not conscious disregard for safety.
- Court also addressed whether affidavits presenting legal conclusions about gross negligence were properly excluded; concluded they did not foreclose ordinary negligence but did not show gross negligence.
- This appeal affirms the summary judgment under § 90-21.14.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 90-21.14 immunity applies | Green argues immunity does not apply due to gross negligence and willful conduct by defendants | Defendants contend the immunity applies unless gross negligence or willful misconduct is forecast | Yes, immunity applies; no forecast of gross negligence or willful misconduct |
| Whether plaintiff forecast gross negligence/willful conduct | Green forecast intentional wrongdoing or deliberate misconduct | Defendants claim lack of knowledge that Green was alive negates gross negligence | No forecast of intentional wrongdoing or gross negligence; ordinary negligence shown but not gross |
| Whether trial court properly struck affidavits | Affidavits should be admissible to show gross negligence | Affidavits improperly stated legal conclusions; not helpful to prove gross negligence | Correctly struck; affidavits did not raise gross negligence necessary for § 90-21.14 review |
Key Cases Cited
- Yancey v. Lea, 354 N.C. 48 (2001) (defines gross negligence as conscious disregard of safety; distinguishes from ordinary negligence)
- Fagocki v. Algonquin Fire Protection Dist., 496 F.3d 623 (7th Cir. 2007) (Illinois’ EMS immunity; willful and wanton standard requires aggravating knowledge or conduct)
- Norris v. Zambito, 135 N.C. App. 288 (1999) (expert may not testify to legal conclusions; underlying facts may be considered)