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Dobrowolska v. Wall5/16/2000
Appeal by plaintiffs from an order entered 14 August 1998 by Judge Melzer A. Morgan, Jr. in Guilford County Superior Court. Heard in the Court of Appeals 5 October 1999.
Plaintiffs appeal from an order granting defendants Michael W. Wall ("Wall") and the City of Greensboro ("City") summary judgment. The issues relevant to this appeal are whether defendants may assert governmental immunity for damages incurred by plaintiffs in an auto accident with Wall while he was driving the City's van; whether the City participates in a local government risk pool; and, whether the City has violated plaintiffs' equal protection and substantive due process rights by its assertion of governmental immunity as to their claims while it has admitted settling claims of similar tort claimants. We affirm in part and reverse in part.
Evidence submitted to the trial court indicated that on Monday, 13 February 1995, defendant Wall, a Greensboro police officer, was driving a van owned by the City when he struck a vehicle operated by Alicja Dobrowolska. Her children, the two minor plaintiffs Marta and Pawel Dobrowolska, were passengers in the vehicle and were injured as a result of the accident.
Wall was on his way to work when the accident occurred. He had driven the van home over the weekend because he had taken it for repairs the preceding Friday afternoon, and returning to work that same day would have caused him to work past his shift. Wall also performed minor repairs while the van was at his home during the weekend, for which he received permission by his supervisor.
This suit was subsequently filed, wherein plaintiffs made claims against defendants for Wall's negligence in the auto accident and violation of a city ordinance, waiver of governmental immunity by the City due to participation in a local government risk pool, and the City's violation of plaintiffs' equal protection and substantive due process rights. On 14 August 1998, the trial court granted summary judgment to defendants on all claims, stating in pertinent part:
IT APPEARING TO THE COURT that at the time of the accident defendant Michael W. Wall was performing a duty as a police officer, a purely governmental function; that the City of Greensboro has not waived governmental immunity by the purchase of insurance for claims of $2,000,000.00 or less and $4,000,000.00 or more; that plaintiffs and defendants stipulate that plaintiffs' damages do not exceed $2,000,000.00; that the City of Greensboro does not participate in a risk pool; that the Local Government Excess Liability Fund, Inc. is not an illegal risk pool and therefore, [defendants] are entitled as a matter of law to summary judgment . . . [.]
The court concluded that there was no showing that Wall acted outside of and beyond the scope of his duties as a police officer in returning the police van to storage, and therefore he was immune from liability in his individual capacity. It also ruled that the City was not a person under U.S.C.A. ยง 1983 when the remedy sought is monetary damages, thus plaintiffs' substantive due process and equal protection claims were dismissed.
First, we note that summary judgment is the device whereby judgment is rendered if the pleadings, depositions, interrogatories, and admissions on file, together with any affidavits, show that there is no genuine issue as to any material fact and that any party is entitled to judgment as a matter of law. N.C.R. Civ. P. 56. "The party moving for summary judgment has the burden of clearly establishing the lack of any triable issue of material fact by the record properly before the court." Johnson v. Insurance Co., 300 N.C. 247, 252, 266 S.E.2d 610, 615 (1980).
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