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Tise v. Yates Construction Co.2/10/1997
FRYE, Justice.
This case arose out of an accident involving two Winston-Salem police officers that resulted in the death of one police officer and the serious injury of the other. The following facts and circumstances are pertinent to this appeal. In June 1992, Aaron G. Tise, Jr. (Tise) was employed as a police officer with the Winston-Salem Police Department. The instant action was brought to recover damages for Tise's wrongful death, which plaintiff, as executrix of Tise's estate, alleged was proximately caused by the negligence of defendant, Yates Construction Company, Inc. (Yates).
In her complaint filed 24 June 1994, plaintiff alleged the following facts: At the time of his death on 26 June 1992, Tise was employed as a lieutenant with the Winston-Salem Police Department. Yates was engaged in a construction project in the vicinity of New Walkertown Road in Winston-Salem, North Carolina, and had several pieces of heavy grading equipment on the site. In the early morning hours of 26 June 1992, Winston-Salem police responded to a call that unknown persons were tampering with the equipment at the construction site. Upon arrival at the site, the officers were unable to locate any suspects and were also unable to locate any information regarding who should be contacted about the security of the equipment. The officers left the scene.
Plaintiff further alleged in her complaint that after the officers left the scene, four individuals went to the construction site and began tampering with the grading equipment. One of the individuals, later identified as Conrad Crews, climbed onto a grader, started it, and drove it onto the roadway and proceeded toward East Drive. The disturbance was reported to the Winston-Salem Police Department, and Lieutenant Tise, along with other officers, responded. As Tise was sitting in his parked patrol car on East Drive, Crews drove the grader onto the patrol car, crushing Tise, who died as a result of his injuries. Plaintiff alleged that Yates was negligent in various respects, including, inter alia, that it knew or should have known that there was a substantial risk that its construction equipment would be subject to tampering or attempted operation by unauthorized persons and that it failed to provide safety devices or other appropriate security to prevent the unauthorized operation of the equipment.
Yates filed its answer on 22 September 1994, denying plaintiff's allegations of negligence. Pursuant to N.C.G.S. § 97-10.2(e), Yates asserted that actionable negligence on the part of the City of Winston-Salem (City) had "joined and concurred with any negligence" on the part of Yates in causing Tise's death, thereby barring subrogation rights of the City for workers' compensation benefits paid to Tise's estate and reducing damages recoverable by plaintiff. Yates also alleged that the City had waived its governmental immunity pursuant to N.C.G.S. § 160A-485.
The City filed a notice of appearance and answer on 26 October 1994, denying any allegations of negligence and asserting North Carolina's public duty doctrine as a bar to Yates' attempt to cut off the City's subrogation rights under N.C.G.S. § 97-10.2(e). On 3 January 1995, the City moved to dismiss Yates' allegations against it, pursuant to Rule 12(b)(6) of the North Carolina Rules of Civil Procedure. Yates filed a motion to amend its answer on 28 February 1995 to allege the City's negligence in more detail. Yates' motion to amend its answer and the City's motion to dismiss were called for hearing before Judge Forrest D. Bridges at the 13 March 1995 Civil Session of Superior Court, Forsyth County. In an order entered 15 March 1995, Judge Bridges allowed both motions. Yates appe
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