In May 2007, Plaintiff Mary Ann Wilcox was shot by Asheville Police Department (“APD”) officers during APD’s pursuit of a vehicle in which Wilcox was the only occupant other than the driver. The pursuit began when the driver of the vehicle sped away from an APD officer during a traffic stop. At several points during the approximately 20-minute pursuit, which involved multiple APD officers and reached speeds up to 45 miles per hour, APD officers Defendant Stony Gonce, Defendant Brian Hogan, and Defendant Cheryl Intveld attempted to stop the vehicle by shooting at the vehicle and its driver. A total of 27 bullets were fired; Gonce fired six, Hogan fired 17, and Intveld fired four. Later investigation revealed that the vehicle was hit with 16 bullets, the driver was not hit by any of the bullets, and Wilcox was hit by two bullets.
Thereafter, Wilcox commenced the present action in Buncombe County Superior Court against Defendant City of Asheville, as well as against APD Chief Defendant William Hogan (“Chief Hogan”) and officers Gonce, Hogan, and Intveld (collectively, the “Individual Defendants”) in both their official and individual capacities, asserting claims for (1) “negligence, gross negligence, recklessness, wilfull [sic] and wanton conduct” by Gonce, Hogan, and Intveld in shooting Wilcox; (2) “imputed liability” of the City of Asheville for Gonce’s, Hogan’s, and Intveld’s actions; (3) “negligence, gross negligence, recklessness, willful and wanton conduct” by the City of Asheville and Chief Hogan in failing to adequately train and supervise Gonce, Hogan, and Intveld; (4) “violation of [Wilcox’s] state constitutional rights” by all Defendants; and (5) punitive damages for the “egregiously wrongful, malicious, willful and/or wanton” conduct of the Individual Defendants.
Subsequently, pursuant to a motion by the City of Asheville and the Individual Defendants in their official capacities, the trial court dismissed all claims against those Defendants as barred by governmental immunity. Defendants later filed a motion for summary judgment seeking dismissal of Wilcox’s remaining claims as follows: (1) public official immunity as barring all claims against the Individual Defendants in their individual capacities; and (2) the existence of an adequate state remedy as barring the claims arising under the North Carolina Constitution. The trial court partially granted the motion, dismissing the state constitutional claims and leaving as Wilcox’s only viable claims those against the Individual Defendants in their individual capacities. From that order partially granting summary judgment for Defendants, both Wilcox and Defendants appeal.
Defendants’ appeal
Defendants appeal from that portion of the trial court’s order denying summary judgment for the Individual Defendants on
Public official immunity is “a derivative form” of governmental immunity, Epps v. Duke Univ.,
As long as a public officer lawfully exercises the judgment and discretion with which he is invested by virtue of his office, keeps within the scope of his official authority, and acts without malice or corruption, he is protected from liability.
Smith v. State,
As for the first question, the most commonly-cited definition of malice in this context is from our Supreme Court’s decision in In re Grad v. Kaasa, which states that “[a] defendant acts with malice when he wantonly does that which a man of reasonable intelligence would know to be contrary to his duty and which he intends to be prejudicial or injurious to another.”
While Wilcox contends that the intent to injure may be implied by the actor’s conduct such that direct evidence of a defendant’s actual intent to injure the plaintiff is unnecessary, the Individual Defendants contend in their brief that only direct evidence of a defendant’s actual intent to injure the plaintiff is sufficient. Hardening this position at oral argument, the Individual Defendants asserted that nothing but a statement by each of them that he or she was intending to injure Wilcox would be sufficient to show intent to injure and, thus, show malice. The authority in this State, however, does not
Although there are no decisions in North Carolina addressing the sufficiency of evidence of an implied intent to injure specifically in the public official immunity context, our Supreme Court has held generally that “the intention to inflict injury may be constructive as well as actual” and that constructive intent to injure exists where the actor’s conduct “is so reckless or so manifestly indifferent to the consequences, where the safety of life or limb is involved, as to justify a finding of [willfulness] and wantonness equivalent in spirit to an actual intent.” Foster v. Hyman,
The policy underpinnings of public official immunity have been described as follows:
It is generally recognized that public officers and employees would be unduly hampered, deterred and intimidated in the discharge of their duties, if those who acted improperly, or even exceeded the authority given them, were not protected to some reasonable degree by being relieved from private liability. Accordingly, the rationale for official immunity is the promotion of fearless, vigorous, and effective administration of policies of government. The threat of suit could also deter competent people from taking office.
Pangburn v. Saad,
Although undeterred and vigorous enforcement of official duties is a generally laudable goal in this State, with respect to the use of deadly force in apprehending criminal suspects, our legislature has evinced a clear intent to hamper and deter officers performing that specific duty. As noted by our Supreme Court, North Carolina General Statutes Section 15A-401(d)—which delimits those situations in which use of deadly force by law enforcement officers may be “justified,” N.C. Gen. Stat. § 15A-401(d) (2011)—was designed solely “to codify and clarify those situations in which a police officer may use deadly force without fear of incurring criminal or civil liability. ” State v. Irick,
the law[ ] enforcement officer cannot act with indifference to the safety of others in the use of force. Shooting into a crowded street would be an obvious example of criminally negligent conduct, and this section would not justify such action.
N.C. Gen. Stat. § 15A-401 (official commentary to subsection(d)). Thus, because our legislature has already “clarified” for law enforcement officers that they may be liable for reckless conduct that is short of being intentionally injurious, we cannot conclude that allowing constructive intent to satisfy the malice exception to public official immunity would unduly hamper officials’ use of deadly force or would undermine effective democratic government in this State in any way. We conclude instead that adopting the constructive intent doctrine in this context would not hinder the achievement of the goals of public official immunity, and we hold that evidence of constructive intent to injure may be allowed to support the malice exception to that immunity.
We are satisfied that this conclusion does not, as the Individual Defendants contended at oral argument, effectively turn the malice exception into a “reckless indifference” exception. As noted in previous decisions of this Court, a plaintiff may not satisfy her burden of proving that an official’s acts were malicious through allegations and evidence of mere reckless indifference. See, e.g., Schlossberg v. Goins,
Although we have concluded that Wilcox may satisfy her burden of proving the malice exception by forecasting sufficient evidence of the Individual Defendants’ implied intent to injure, along with evidence that satisfies the other two elements of malice — that the Individual Defendants’ acts were contrary to their duty and done wantonly — whether she has done so is a separate factual question to be answered for each Individual Defendant based on the evidence presented in “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits,” N.C. Gen. Stat. § 1A-1, Rule 56(c) (2011), viewed in the light most favorable to Wilcox. Craig v. New Hanover Cty. Bd. of Educ.,
First, with respect to Chief Hogan, Wilcox alleged in her complaint that she was entitled to recover compensatory and punitive damages from Chief Hogan in his individual capacity based on his reckless, willful, wanton, and malicious failure to provide “adequate policies and procedures,” “adequate training,” and “adequate control and supervision.” The trial court denied summary judgment for Defendants as to all of Wilcox’s “individual-capacity tort law and punitive damages claims,” allowing these individual-capacity claims against Chief Hogan to proceed.
As for Gonce, the evidence before the trial court tended to show the following: During the pursuit, Gonce heard radio transmissions indicating that there was a passenger in the vehicle. Later, despite being told over the radio not to join the pursuit, Gonce drove to an apartment complex where the pursuit was expected, exited his patrol car, and positioned himself in front of his car with the intention of deploying “stop sticks.” When the pursued vehicle arrived at Gonce’s location and began approaching him at 25 miles per hour, Gonce fired six bullets, one of which was later determined to have struck Wilcox. In our view, the foregoing evidence, taken in the light most favorable to Wilcox, is sufficient to raise a genuine issue of fact as to the existence of the elements of malice, i.e., that Gonce’s actions were contrary to his duty, wanton, and so reckless as to justify a finding of intent to injure.
As for the requirement that Gonce’s actions must have been contrary to his duty, we first note that section 15A-401(d) provides that a “law[ ]enforcement officer is justified in using deadly physical force” only when it is reasonably necessary to defend himself or a third person from the imminent use of deadly force. N.C. Gen. Stat. § 15A-401(d)(2). There is a question of fact as to whether Gonce could have timely moved from his position in front of his car to avoid any potential threat from the slow-approaching vehicle. Further, this Court has stated that evidence of “gross violations of generally accepted police practice and custom” contributes to the finding that officers acted contrary to their duty. Prior v. Pruett,
Furthermore, the evidence is sufficient to raise an issue of fact as to whether Gonce’s
The evidence before the trial court regarding officer Hogan’s actions revealed the following: Hogan responded to the pursuit as a passenger in Intveld’s patrol car. Despite having been called off the pursuit,
First, the evidence tends to show that Hogan’s actions were contrary to his duty. Hogan claimed he fired to defend himself from the oncoming vehicle. However, Hogan was positioned off the street, away from the path of the vehicle, and began firing when the vehicle was 75 feet away and approaching slowly. Further, although Hogan allegedly continued firing after the vehicle passed him because the threat had not ceased for the other officers, the evidence tends to show that Hogan was unaware of where the other officers were located. Considering the distance between Hogan and the vehicle, the vehicle’s slow speed, and Hogan’s position away from the street, a reasonable juror could conclude that Hogan’s use of deadly force was contrary to his duty and was not justified. Accordingly, we conclude that there is a genuine issue of fact as to whether Hogan acted contrary to his duty.
Regarding the requirement of wantonness — that the act be done “needlessly, manifesting a reckless indifference to the rights of others,” In re Grad,
Further, that same evidence is sufficient to raise an issue of fact as to whether Hogan’s actions were so reckless as to justify a finding of intent to injure. Hogan fired 17 bullets into a slow-moving car with an unknown number of occupants. Not only did he fire upon the vehicle’s approach, he also followed behind the vehicle and continued shooting. He made a second ammunition change, loading a third magazine, indicating that he would have fired more bullets had the vehicle stayed in sight. In our view, this evidence raises an issue of material fact as to whether Hogan’s actions in firing at the vehicle were so reckless and manifestly indifferent to Wilcox’s rights that application of the constructive intent doctrine is justified. Therefore, we conclude that the forecast of evidence is sufficient to raise a genuine issue of fact as to the existence of malice with respect to Hogan’s actions.
As for Intveld, the evidence before the trial court tended to show the following: Although Intveld had been called off the pursuit because the pursuit speeds “were not
As for the requirement that Inveld’s actions must have been contrary to her duty, we note that Intveld admitted she did not feel that she was in danger of imminent force being used against her. While Intveld claimed she shot at the vehicle to defend other officers, she also admitted she was unsure where other officers were positioned. Further, the vehicle was moving at approximately 20 miles per hour and driving on a flat tire, which was about to fall off. In our view, this evidence is sufficient to establish a genuine issue of fact as to whether Intveld acted contrary to her duty.
. Moreover, we think this evidence is sufficient to raise a genuine issue as to whether Intveld’s actions were reckless in such a way as to support a finding of intent to injure. Although Intveld denied knowing there was a passenger in the vehicle, she “remembered hearing that it was occupied,” and most officers involved in the incident knew there were two occupants. More importantly, there is no indication that Intveld believed there was only one person in the vehicle. In addition, Intveld fired from a hidden position, away from any danger posed by the vehicle, and she was unaware of whether any other officers were in danger. In our view, this evidence raises a genuine issue of material fact as to whether Intveld’s actions were so reckless and manifestly indifferent to Wilcox’s rights that they support the application of the constructive intent doctrine. As such, we conclude that the forecast of evidence is sufficient to raise a genuine issue of fact as to the existence of malice with respect to Intveld’s involvement with the incident.
Based on the foregoing, we hold that the evidence before the trial court, viewed in the light most favorable to Wilcox, establishes that there are genuine issues of material fact regarding the applicability of the malice exception to public official immunity with respect to officers Gonce, Hogan, and Intveld.
Nevertheless, Hogan and Intveld argue in the alternative that summary judgment should have been granted for them on the ground that Wilcox has failed to “show that her injuries or damages were proximately caused by [Hogan and Intveld’s] use of force.” We are unpersuaded.
In McMillan v. Mahoney,
In sum, we hold that the trial court did not err in denying summary judgment for officers Hogan, Intveld, and Gonce on Wilcox’s claims against them in their individual capacities. However, with respect to any claims Wilcox has asserted against Chief Hogan in his individual capacity, this case is remanded to the trial court for entry of summary judgment in Chief Hogan’s favor.
Wilcox’s appeal
Wilcox appeals from that portion of the trial court’s order granting summary judgment for Defendants on Wilcox’s state constitutional claims.
Direct claims against the State arising under the North Carolina Constitution “[are] permitted only ‘in the absence of an adequate state remedy,’ ” and where an adequate state remedy exists, those direct constitutional claims must be dismissed. Davis v. Town of S. Pines,
As we have reversed the trial court’s grant of summary judgment on plaintiff’s state tort law claims against [the individual defendant], there is an adequate state remedy for plaintiff’s alleged injury resulting from [the individual defendant’s] conduct.
Id. at 632,
As in Glenn-Robinson, in this case we have held that the applicability of public official immunity is a question for the jury and have allowed Wilcox’s state law tort claims to proceed. Thus, we must conclude, as we did in Glenn-Robinson, that Wilcox has an adequate state remedy that precludes her state constitutional claims. See In re Civil Penalty,
This conclusion, and our reading of Glenn-Robinson, comports with our Supreme Court’s decision in Craig. There, our Supreme Court held that the existence of a state common law action that would generally serve as an “adequate remedy at state law” does not foreclose a plaintiff’s claims arising directly under our State constitution where “governmental immunity stands as an absolute bar” to that state common law claim. Craig,
Our Supreme Court stated in Craig that an adequate remedy must give the plaintiff “at least the opportunity to enter the courthouse doors and present his claim” and must “provide the possibility of relief under the circumstances.” Id. at 339-40,
Furthermore, like governmental immunity, public official immunity is immunity from suit, not just from liability. Blevins v. Denny,
Although, as concluded supra, Wilcox has a remedy alternative to her state constitutional claims in that she may pursue her common law claims against the Individual Defendants in their individual capacities, Wilcox contends that this remedy is inadequate because her claims under the state constitution — which she contends seek redress of the violation of her right “to be free from seizure
Although this Court has previously stated that, pursuant to the public official immunity doctrine, public officials cannot be held liable for “mere negligence,” see, e.g., Hare v. Butler,
Wilcox goes on to argue, however, that such a remedy is not an adequate alternative to her state constitutional claims because it requires her to prove, in addition to the elements of her common law tort claim, that the Individual Defendants acted with a “subjective bad motive,” or malice. This heightened burden, Wilcox argues, warrants a conclusion that her remedy is inadequate. We disagree.
Initially, we note that the imposition of an additional “element” to be proved by Wilcox does not impact her chance or opportunity to obtain relief. And even if, as Wilcox suggests, that imposition makes it less likely that Wilcox’s claims will succeed, it does not make relief an impossibility. Indeed, we have already held that summary judgment is inappropriate because there is a genuine issue of material fact as to whether malice exists in this case, which holding itself implicitly indicates that there is at least a possibility that a jury could find in Wilcox’s favor on the issue. See Sloan v. Miller Bldg. Corp.,
Based on the foregoing, we hold that Wilcox has an adequate state remedy such that her claims arising directly under the North Carolina Constitution were properly dismissed
The trial court’s order granting summary judgment for Defendants on Wilcox’s state constitutional claims is affirmed. The trial court’s order denying summary judgment for Defendants on Wilcox’s tort claims against officers Gonce, Hogan, and Intveld in their individual capacities is affirmed. The trial court’s order denying summary judgment on Wilcox’s tort claims against Chief Hogan in his individual capacity is reversed, and we remand that portion of the case to the trial court for entry of summary judgment for Chief Hogan.
AFFIRMED in part; REVERSED and REMANDED in part.
Notes
. On 9 September 2011, Defendants gave notice of appeal from the trial court’s order entered that same day. Pursuant to Wilcox’s subsequent motion for certification of the court’s order “as a final ruling under Rule 54(b) of the [North Carolina] Rules of Civil Procedure,” the trial court entered a 15 September'2011 order amending its previous order to include a Rule 54(b) certification. On 16 September 2011, Wilcox gave notice of appeal from both of the trial court’s orders.
. Wilcox contends that her complaint “inartfully” raises the issue of whether the Individual Defendants acted beyond the scope of their official authority. However, those portions of the complaint that Wilcox claims raise that issue address only the Individual Defendants’ alleged negligence, recklessness, and maliciousness. As Defendants correctly note, this Court has previously held that a plaintiff must separately allege the exceptions to public official immunity. See Epps,
. We also note that while the Individual Defendants argue on appeal that summary judgment should have been granted for all “Defendant-officers,” including Chief Hogan, Wilcox’s appellate brief does not mention any alleged liability of Chief Hogan for failure to adequately train and supervise.
. Early in the pursuit, Hogan and Intveld heard an APD sergeant’s radio communication announcing that “there were enough cars involved in the chase and that the speeds were not excessive” and that Hogan, Intveld, and other responding officers “needed to cut back.”
. The Individual Defendants also argue that summary judgment should have been granted on Wilcox’s punitive damages claims because the evidence does not “establish that the [Individual Defendants] acted with malice or willful or wanton conduct in discharging their firearms.” We find this argument unconvincing with respect to Gonce, Hogan, and Intveld for all those reasons discussed above regarding the genuine issues of material fact as to the existence of malice. Thus, this argument is overruled.
. Wilcox’s cross-appeal of the trial court’s order is properly before this Court because, as discussed in Wilcox’s brief, the order affects a substantial right of Wilcox’s, viz., the right to avoid two trials on the same issues. See Green v. Duke Power Co.,
. We note that in Craig, the plaintiff also filed individual-capacity claims against a defendant, which were dismissed early in the proceedings (based on public official immunity, according to the appellate briefs in that case) and were not appealed by the plaintiff. Though this fact raises a question as to the adequacy of an individual-capacity state common law claim preliminarily dismissed (and potentially absolutely precluded) on grounds of public official immunity, it does not alter our conclusion in this case, as we find Wilcox’s possibility of relief here dispositive.