                              NO. COA14-43

                   NORTH CAROLINA COURT OF APPEALS

                        Filed: 5 August 2014


DANIEL JOSEPH TRUHAN,
     Plaintiff-Appellee,

    v.                                Wayne County
                                      No. 12-CVS-450
SUSAN P. WALSTON and
DAVID M. WALSTON,
     Defendants and Third-Party
     Plaintiff-Appellant Susan P.
     Walston,

    v.

NORTH CAROLINA FARM BUREAU
MUTUAL INSURANCE COMPANY,
UNITED SERVICES AUTOMOBILE
ASSOCIATION, and WESTERN
SURETY COMPANY,
     Third-Party Defendants.



    Appeal   by   Defendant   and   Third-Party   Plaintiff   Susan   P.

Walston from orders entered 7 October 2013 and 4 November 2013 by

Judge Kendra D. Hill in Superior Court, Wayne County.         Heard in

the Court of Appeals 6 May 2014.


    Teague, Campbell, Dennis & Gorham, L.L.P., by Bryan T.
    Simpson and Natalia K. Isenberg, for Daniel Joseph Truhan,
    Plaintiff-Appellee and Western Surety Company, Third-Party
    Defendant-Appellee.

    Poyner Spruill LLP, by Timothy W. Wilson, for North
    Carolina Farm Bureau Mutual Insurance Company, Third-Party
    Defendant-Appellee.
                                      -2-
    Battle, Winslow, Scott & Wiley, P.A., by M. Greg Crumpler,
    for United Services Automobile Association, Third-Party
    Defendant-Appellee.

    Whitley Law Firm, by Ann C. Ochsner, for Susan P. Walston,
    Defendant and Third-Party Plaintiff-Appellant.


    McGEE, Judge.


    We review an order from the trial court that (1) granted

summary judgment in favor of Daniel Joseph Truhan (“Plaintiff”),

Western Surety Company (“Western Surety”), North Carolina Farm

Bureau    Mutual   Insurance   Company      (“Farm    Bureau”),         and    United

Services      Automobile        Association           (“United           Services”)

(collectively,      “Third-Party      Defendants”);       (2)        dismissed    all

counterclaims,     and   third-party      claims     of   Defendant       Susan    P.

Walston    (“Defendant”);    and    (3)   denied   the    motion       for    summary

judgment   filed    by   Defendant,    Defendant     David      M.    Walston,    and

unnamed    Defendant     Argonaut     Great   Central      Insurance          Company

(“Argonaut”).      Therefore, the following recitation of the “facts”

presents the evidence that was before the trial court in the

light most favorable to Defendant and ignores evidence favorable

to Plaintiff.      Peter v. Vullo, __ N.C. App. __, __, 758 S.E.2d

431, 434 (2014) (for summary judgment “the evidence presented by

the parties must be viewed in the light most favorable to the

non-movant”) (citations omitted).
                                      -3-
    The     following    is   the   evidence      taken   in   the   light   most

favorable    to   Defendant.        The   North    Carolina      Highway   Patrol

(“Highway    Patrol”)    received     a   call     from   Kaye    Howell     (“Ms.

Howell”), a witness to a two-vehicle accident, at approximately

7:08 a.m. on 30 December 2009.               Ms. Howell then called Wayne

County Communications to report the accident, and to inform them

that no emergency services were needed because there had been no

injuries.         The   Highway     Patrol    also    called      Wayne    County

Communications to report the accident and also informed them that

there were no injuries.        However, the Highway Patrol did inform

Wayne County Communications that the accident was on a curve in

the road and a trooper could not get to the scene right away;

therefore, traffic control was needed.               Ms. Howell called Wayne

County Communications again to inform them that a woman who was

involved in the accident was arguing with a man she apparently

knew, who had arrived at the scene, and that the woman had pushed

the man.    Ms. Howell asked for the estimated time of arrival of

the dispatched deputy, because the woman was “getting a little

bit out of hand.”       However, Joshua Carroll, who was also involved

in the accident, stated: “At no time while I was present at the

scene of the collision did I observe any physical violence by

anyone.”
                                               -4-
       Plaintiff        was   a     deputy     for   the    Wayne      County    Sheriff’s

Office.     He was leaving a Kangaroo Express located at Highway 117

and Carolina Commerce Drive in Goldsboro on 30 December 2009.

Plaintiff overheard the call from the Highway Patrol to Wayne

County    Communications            requesting       that   a   Wayne     County      deputy

respond to the accident and provide traffic control.                             Plaintiff

indicated       to   Wayne      County       Communications      that     he    was   free,

closer to the accident, and could respond.                          Plaintiff received

the okay to respond to the accident at approximately 7:19 a.m.

About     one    minute       later,         Wayne   County     Communications        began

receiving       calls    of     a    second     accident      involving     injuries        at

Highway 117 North and Woodview Drive, approximately one and one-

half    miles    from     the       Kangaroo    Express.        This    second    accident

involved Plaintiff and Defendant.

       At the time of the accidents, Plaintiff had been working as

a deputy for just under three years.                        Plaintiff was a warrant

officer and spent his days serving warrants.                             Plaintiff only

responded to calls when no patrol deputy was available, or there

was     some    other     circumstance           that   warranted       departure      from

Plaintiff’s usual duties.                Before becoming a deputy, Plaintiff

had    worked    briefly      for      the    Goldsboro     Police     Department      as    a

school     resource       officer.             Plaintiff      explained    his     “skill,

ability, and training” for high speed driving as follows:
                                -5-
         I know my limitations of driving.    I know
         when I’m on the limits of traction or
         handling a vehicle. Everybody – you know if
         you’re going into a curve whether you’re
         going too fast. You can – it’s a perception
         thing. It’s not something I can quantify to
         you. At no time during that time did I feel
         that I had exceeded my ability to control
         that vehicle.

Plaintiff had received no training for emergency driving beyond

the Basic Law Enforcement Training certification curriculum he

had taken at Wayne Community College in 2004.

    Wayne County Sheriff’s Office policy recognizes three kinds

of police driving:

         Emergency    Response Driving: is driving to the
         scene of    a call where there may be a danger
         to life,    or a threat to officer safety, or
         reported     violence or threat of imminent
         violence.

         Pursuit Driving: is the attempt to apprehend
         a person subject to arrest who is fleeing in
         a vehicle, and includes “catch up” driving
         for traffic enforcement purposes before a
         violator attempts to flee.

         Routine driving: is all on-duty driving other
         than   “emergency   response   driving”   [or]
         “pursuit   driving”   and   includes   routine
         patrol, service of warrants, transportation
         of prisoners, going to location of non-
         emergency   calls,   or   other   driving   in
         performance of duty.

POLICY TITLE: Emergency Response & Vehicle Pursuits, Wayne County

Sheriff’s Office General Order (Revised January 7, 2002).
                                              -6-
       According to the evidence most favorable to Defendant, in

the approximately one to two minutes between the time Plaintiff

received    the    call      regarding        the    first    accident     and   the   time

Plaintiff and Defendant were involved in the second accident, the

following      occurred.          Plaintiff         headed    north   on    Highway    117,

passed    an     exit    that     connected         with   Interstate      95,   passed    a

school,     and    passed        a     fire   station        before   he    reached     the

intersection of Highway 117 and Woodview Drive.                          The fire station

was about three tenths of a mile south of Woodview Drive.                                 At

some     point     before        his    collision      with     Defendant,       Plaintiff

activated his blue lights, but he did not activate his siren.

Trooper L. J. Bunn (“Trooper Bunn”) of the Highway Patrol, who

investigated the accident, believed the speed limit along part of

that section of the road was thirty-five miles per hour (“mph”).

       According        to   a       collision      analysis     report     produced      by

Collision Analyst William J. Kluge, Jr., along that mile-and-a-

half section of road, Plaintiff reached speeds over one hundred

mph, passed automobiles traveling both north and south, and had

his accelerator fully depressed at times.                      The speed limit at the

site of the accident was forty-five mph.                         Four and one-half to

five     seconds    before        the    collision,          Plaintiff     was   traveling

eighty-six to eighty-seven mph, and was accelerating.                            Plaintiff

was maintaining full throttle acceleration “for at least a couple
                                         -7-
of seconds when [Defendant’s truck] would have come into view[,]”

and   maintained      full   throttle     acceleration          until    approximately

one-half     second    before    the     impact,     at    which    time       Plaintiff

removed his foot from the accelerator and began to depress the

brake.     Plaintiff was traveling approximately ninety-five mph at

the time of impact.           Plaintiff “should have been on alert and

noticed [Defendant’s truck] before [Defendant] began to make her

turn and [should have] adjusted his speed accordingly.”

      Continuing      with    evidence     presented        in     the    light     most

favorable    to   Defendant,     Defendant     left       her    house    on    Woodview

Drive,   a   residential      street,     shortly     after       7:00    a.m.    on   30

December     2009.     As    Defendant     approached       the    intersection        of

Woodview Drive and Highway 117, she slowed down, and came to a

complete stop at the stop sign.                Defendant pulled forward to

obtain a better view up and down Highway 117, and again stopped.

Defendant looked to the left, looked to the right, looked back to

the left, and then pulled onto Highway 117, initiating a left-

hand turn onto Highway 117 South.              Before Defendant pulled onto

Highway 117, she did not see any vehicles coming from the left,

but did see a truck coming from the right, which turned into a

drive,   then     Defendant     looked    to   the    left       again    and    saw   no

vehicles.       As Defendant “made [her] effort to leave the stop

sign, there was nobody to the left.”                 As Defendant was entering
                                         -8-
the southbound lane of Highway 117, she saw blue lights out of

the corner of her eye and was immediately hit by Plaintiff’s

cruiser.

    Both Plaintiff and Defendant were seriously injured in the

accident.     Plaintiff filed his complaint on 29 February 2012,

alleging    that     Defendant    was    negligent,       and    that     Defendant’s

negligence     caused     the     accident        and    Plaintiff’s        injuries.

Plaintiff also brought suit against Defendant’s husband, David M.

Walston, pursuant to “the Family Purpose Doctrine.”                         Defendant

answered and counterclaimed on 23 May 2012.                          Defendant denied

that any negligence on her part caused the accident, alleged that

Plaintiff’s    negligence       was    responsible       for    her    injuries,     and

requested    both    compensatory       and    punitive    damages.         Defendant

filed a “Motion for Leave to Amend Counterclaim and File Third

Party     Complaint”    against       Farm     Bureau,    United       Services,     and

Western    Surety,     Third-Party      Defendants,       on    14    December     2012.

Defendant’s motion was granted by order filed 21 December 2012.

    Plaintiff        answered     Defendant’s       amended      counterclaim        and

third-party complaint on 31 Jan 2013, and pleaded the affirmative

defenses of governmental immunity and contributory negligence.

Plaintiff and Western Surety moved for summary judgment against

Defendant on 20 June 2013, arguing that Defendant’s counterclaims

should fail as a matter of law.                Farm Bureau filed a motion for
                                            -9-
summary judgment on 25 June 2013, and United Services filed a

motion for summary judgment on 9 July 2013.                          Defendant, along

with David M. Walston and Argonaut, filed a motion for summary

judgment on 8 August 2013.               The trial court, in an order entered

7 October 2013, granted summary judgment in favor of Plaintiff,

Western    Surety,       Farm    Bureau,     and    United    Services         “as       to   all

claims, counterclaims and/or third-party claims asserted against

them by Defendant[.]”

      In that same order, the trial court denied the motion for

summary    judgment       filed     by    Defendant,     David       M.    Walston,           and

Argonaut.      On    4    October        2013,    Defendant       filed    a    Motion        for

Reconsideration of the grant of summary judgment in favor of

Plaintiff, Western Surety, Farm Bureau, and United Services or,

in   the   Alternative,          for     Certification       of    Order       as    a    Final

Judgment.     By order entered 4 November 2013, the trial court

denied     Defendant’s          motion    for      reconsideration,            but    granted

Defendant’s    motion       for    certification        pursuant      to       Rule      54(b),

whereby the trial court certified as a final judgment the order

granting summary judgment in favor of Plaintiff, Western Surety,

Farm Bureau, and United Services.                  Defendant appeals.

                                             I.

            “Our standard of review of an appeal from
            summary judgment is de novo; such judgment is
            appropriate only when the record shows that
            there is no genuine issue as to any material
                                    -10-
           fact and that any party is            entitled   to   a
           judgment as a matter of law.”

                  The moving party bears the burden
                  of establishing the lack of a
                  triable issue of fact.       If the
                  movant   meets   its  burden,   the
                  nonmovant   is  then   required  to
                  produce a forecast of evidence
                  demonstrating that the [nonmoving
                  party] will be able to make out at
                  least a prima facie case at trial.
                  Furthermore, the evidence presented
                  by the parties must be viewed in
                  the light most favorable to the
                  non-movant.

Peter, __ N.C. App. at __, 758 S.E.2d at 434 (citations omitted).

“‘[I]ssues of negligence are generally not appropriately decided

by way of summary judgment, [unless] there are no genuine issues

of material fact, and an essential element of a negligence claim

cannot be established[.]’”        Greene v. City of Greenville, __ N.C.

App. __, __, 736 S.E.2d 833, 835, disc. review denied, __ N.C.

__, 747 S.E.2d 249 (2013).

                                     II.

    In Defendant’s first argument, she contends the trial court

erred in granting summary judgment in favor of Plaintiff because

her “forecast of the evidence establishes a genuine issue of

material   fact   regarding   [Plaintiff’s]      gross   negligence.”     We

agree.

    Defendant argues that N.C. Gen. Stat. § 20-145, which allows

police   officers   to   exceed   the   posted   speed   limit   in   certain
                                -11-
situations, applied to Plaintiff on the morning of the accident,

but that, because Plaintiff’s conduct rose to the level of gross

negligence,    Defendant   should   recover      in   negligence   from

Plaintiff.    N.C. Gen. Stat. § 20-145 states:

         The speed limitations set forth in this
         Article shall not apply to vehicles when
         operated with due regard for safety under the
         direction of the police in the chase or
         apprehension of violators of the law or of
         persons charged with or suspected of any such
         violation, nor to fire department or fire
         patrol vehicles when traveling in response to
         a fire alarm, nor to public or private
         ambulances and rescue squad emergency service
         vehicles when traveling in emergencies, nor
         to vehicles operated by county fire marshals
         and civil preparedness coordinators when
         traveling   in  the   performances  of  their
         duties.   This exemption shall not, however,
         protect the driver of any such vehicle from
         the consequence of a reckless disregard of
         the safety of others.

N.C. Gen. Stat. § 20-145 (2011) (emphasis added).1          This Court

has discussed relevant factors in the N.C. Gen. Stat. § 20—145

analysis as pertains to pursuit as follows:

         N.C. Gen. Stat. § 20–145 exempts police
         officers from speed laws when pursuing a law
         violator.    However, the exemption “does not
         apply to protect the officer from the
         consequence of a reckless disregard of the
         safety of others.”      Our Supreme Court has
         held that “an officer's liability in a civil
         action   for   injuries   resulting from  the
         officer's vehicular pursuit of a law violator
         is to be determined pursuant to a gross
1
  N.C. Gen. Stat. § 20-145 was amended effective 1 October 2013.
We cite to the version in effect at the time of the collision.
                                -12-
            negligence  standard of care.”   Grossly
            negligent behavior is defined as “wanton
            conduct done with conscious or reckless
            disregard for the rights and safety of
            others.” . . . .

            When determining whether an officer's actions
            constitute gross negligence, we consider: (1)
            the   reason  for   the   pursuit,  (2)   the
            probability of injury to the public due to
            the officer's decision to begin and maintain
            pursuit, and (3) the officer's conduct during
            the pursuit.

            Relevant considerations under the first prong
            include whether the officer “was attempting
            to apprehend someone suspected of violating
            the law” and whether the suspect could be
            apprehended by means other than high speed
            chase. . . . .

            When assessing prong two, we look to the   (1)
            time and location of the pursuit, (2)      the
            population of the area, (3) the terrain    for
            the chase, (4) traffic conditions, (5)     the
            speed limit, (6) weather conditions, and   (7)
            the length and duration of the pursuit.

            . . . .

            Under the third prong we look to [the
            officer’s]   conduct   during  the   pursuit.
            Relevant factors include (1) whether an
            officer made use of the lights or siren, (2)
            whether the pursuit resulted in a collision,
            (3) whether an officer maintained control of
            the cruiser, (4) whether an officer followed
            department policies for pursuits, and (5) the
            speed of the pursuit.

Greene,   __ N.C. App.   at __, 736 S.E.2d   at 835-36       (citations

omitted).    We believe similar factors are useful in evaluating an
                                            -13-
officer’s conduct when “emergency response driving” to the scene

of an incident, as well.

      We note ‒ absent knowledge that there is a reasonable risk

of death, serious bodily injury, or some other grave threat ‒

that the need for an officer to engage in emergency response

driving is not as apparent as when engaging in a vehicle pursuit.

A vehicle fleeing at high speed constitutes, by its very nature,

a   great    risk   of     death    or   injury    to   multiple     persons.      When

engaged in a pursuit, an officer often must drive at high speed

to maintain contact with the fleeing vehicle.                            Of course, an

officer must still engage in risk analysis and cease pursuit if

the   risk    of    harm     to    others    becomes    too    great.       Id.        The

justification       for     an    emergency    response       to   the    scene   of    an

incident may not be as immediately apparent.

      We will view the three factors stated in Greene in the light

most favorable to Defendant:

                           A. The reason for the pursuit

Plaintiff was responding to a request for traffic control at the

scene   of    a    minor    accident     involving      no    injuries.      Though      a

witness informed Wayne County Communications that a woman was

arguing with        a man     and had pushed him, and though Plaintiff

testified he was concerned there was a “violent” situation in the

vicinity of a school, there is no evidence in the audio recording
                                          -14-
from   that     morning      that     Plaintiff    was    ever      informed    of    any

disturbance.         Therefore, we do not consider the disturbance in

our summary judgment analysis, as it is for the trier of fact to

resolve      the    issue     of    whether      Plaintiff    was     aware    of     the

disturbance prior to his collision with Defendant.                     However, even

assuming arguendo Plaintiff was aware of the disturbance, there

is no evidence that the disturbance was serious, or that anyone

was in danger of being injured, much less seriously injured.

Plaintiff admitted that he did not believe there was any officer

safety issue involved.              Investigating officer Lieutenant Carter

Hicks (“Lieutenant Hicks”), of the Wayne County Sheriff’s Office,

testified     that        policy    dictates,     even   in     emergency      response

situations,        that    officers    must    “drive    in   due    regards    to    the

safety of others[;]” that this policy applies to all driving, not

just pursuits, and that he considers “domestic violence calls[,]

unless there’s a life-threatening situation involved[,]” to be

non-emergency response situations.                  Lieutenant Hicks testified

that   the    situation       involving      Plaintiff    required      Plaintiff     to

“balance the need to pursue or apprehend a violator against the

risk of damage to property or injury to persons.”                             “Deputies

. . . must always be aware that their first obligation is to

protect   the      public.”         Policy    dictated   that    Plaintiff      had    to

evaluate the reason for the emergency response “and seriousness
                                     -15-
of the suspected violation.”         Blair Tyndall (“Mr. Tyndall”), the

Director    of    Emergency    Medical   Services   and   Safety   for   Wayne

County,    testified    that    Plaintiff,   when   deciding   how   fast   to

proceed to the accident site, should have weighed the fact that

he was “responding to a motor vehicle accident that had already

occurred.”       Mr. Tyndall “felt” like Plaintiff was not following

“due regard there under [N.C. Gen. Stat. § 20-145] for safety to

others.”     Mr. Tyndall also believed Plaintiff was in violation of

Wayne County Emergency Response and Vehicle Pursuit Policy that

stated: “Driving that is a wanton and reckless disregard for

safety of others is illegal and never justified by any emergency,

no matter how serious.”          Mr. Tyndall understood that emergency

response driving could be justified when “driving to the scene

where there may be a danger to life, or a threat to officer’s

safety, or reported violence or threat of imminent violence[,]”

but he “was not aware that there was any of those occurring at

the accident [Plaintiff] was responding to.”              In Mr. Tyndall’s

opinion, Plaintiff was “operating unsafely[.]”

           B. The probability of injury to the public due to

  Plaintiff’s decision to begin and maintain emergency response

                                   driving


    (a) Time and location of the pursuit.             Plaintiff began his

high-speed response at approximately 7:19 in the morning, and
                                             -16-
crashed a minute or two later.                 This was a time when people were

generally heading to work, and children were heading to school.

It is uncertain from the evidence presented whether school was in

session at the time of the accident, but Plaintiff testified that

he    believed    it    was.      Along      that    section    of    Highway     117    are

located a school, an on/off ramp for a nearby interstate, a fire

station, and multiple residential driveways and side streets.

Although that section of Highway 117 was not heavily developed,

Defendant     was      pulling   out    of    a     residential      neighborhood       onto

Highway 117 when Plaintiff’s vehicle impacted her vehicle.

       (b) The population of the area.                   The area was not densely

populated, but there was a mix of residential, commercial, and

governmental        buildings     along      the     highway.        Highway    117     also

connects Goldsboro with Pikeville and other towns.

       (c) The terrain for the chase.                 Highway 117 is mostly flat,

but    has   some      curves    in    the    section    on     which   Plaintiff        was

traveling on the morning of 30 December 2009.                             There was “a

right-hand curve that ended about 2/10th of a mile south of the

intersection” of Highway 117 and Woodview Drive.                        A witness, who

Plaintiff passed while driving north on Highway 117, stated there

was    a   line   of    trees    that     prevented      the    witness    from    seeing

Defendant’s vehicle until Defendant’s vehicle began to pull out

onto Highway 117.
                                 -17-
    (d) Traffic conditions.        There is no evidence suggesting

heavy traffic on Highway 117 at the time of the accident, but

there were a number of automobiles in the area.           One witness

stated that Plaintiff passed him as they were both traveling

north on Highway 117.     Another, heading south, passed Plaintiff,

and then saw the collision in his rear-view mirror.            Two other

witnesses in separate vehicles were very near the scene of the

accident when it happened, one of whom considered honking her

horn to warn Defendant not to pull out, but worried that might

cause more harm by making Defendant hesitate.

    (e) The speed limit.       The speed limit was forty-five mph.

Trooper Bunn believed the speed limit was thirty-five mph just

south of where the accident occurred.     Plaintiff was traveling at

speeds over one hundred mph, and was accelerating at a speed of

approximately ninety-five mph immediately before the collision.

    (f) Weather conditions.       There is no evidence of adverse

weather conditions; however, it was early morning in winter.

              C. Plaintiff’s conduct during the pursuit

      When considering the evidence in the light most favorable

to Defendant, we have to assume that Plaintiff failed to activate

his siren.    Trooper Bunn testified that Plaintiff should have had

his lights and siren on, and that it is a violation for any law

enforcement    vehicle   to   initiate   emergency   driving     without
                                          -18-
activating both.           Trooper Bunn explained: “I mean, as far as

traffic hazard; somebody pull out in front of you, they will know

you’re coming.         If you got your blue lights on, they’re not going

to hear your siren – I mean, know you’re coming until you’re

right there on them.”            Lieutenant Hicks testified that Plaintiff

was    required    to    notify   Communications         that   he   was   initiating

emergency response driving, but Plaintiff failed to notify and

“identify that he [was] running an emergency response of some

sort[.]”      Plaintiff was traveling at speeds that prevented him

from utilizing the “four-second path of travel rule,” and the

“industry standards for visual lead time.”                       According to the

Basic Law Enforcement Training Driver Training manual: “The four-

second path of travel is the vehicle’s immediate path of travel.

When you consider a four-second path of travel, you have time to

take an escape route, or you have sufficient stopping distance

from    any     object    that    may    appear     in   your   path   of    travel.”

Further:

              A visual lead time of twelve (12) seconds in
              rural areas . . . provides officers with
              needed   time  to   appropriately  select an
              immediate path of travel.      It also gives
              officers time to search the areas beside the
              road, adjust their speed, or to make lane
              changes well in advance of any problems.”

Plaintiff “did not consider the residential homes along [Highway]

117    during    his     emergency      response”    and   therefore       “failed   to
                                         -19-
consider the number of intersections (public streets, residential

driveways, etc.).”        Plaintiff could not recall traffic conditions

at the time of the accident, and was not monitoring his speed.

Plaintiff   was     accelerating        out     of    a   curve      at    the   time        the

accident occurred.        “It is reasonable to believe that [Plaintiff]

experienced     tunnel    vision.”        “The        effectiveness         of   the    eyes’

central and peripheral visions is reduced and becomes more narrow

and blurred as the vehicle’s speed is increased.”                                Plaintiff

should   have      been     able   to     see        Defendant’s          vehicle      as    he

approached, but he did not.             Plaintiff should have been operating

at a speed allowing him to brake or take evasive action to avoid

the   collision      with     Defendant’s        vehicle,         but      he    was        not.

According     to    Collision      Analyst           Kluge,    had        Plaintiff         been

traveling at a speed at or below seventy-four mph, the collision

would not have occurred.           Trooper Bunn testified that he could

not recall why he had not charged Plaintiff for not engaging his

siren or for excessive speed, but he opined: “I think he could

have been at a lower speed, I mean, going to an accident.”                                  “I’d

say [Plaintiff should have been going] 55 or 60 at the most.                                  I

mean, it was a [property damage] wreck.                       It wasn’t no life-and-

death situation there.”            In his Safety Director’s Report, Mr.

Tyndall stated that Plaintiff was “in violation of the sheriff’s

department standing policy for vehicle use and response.                            This is
                                   -20-
also [Plaintiff’s] second incident in 2009 with a motor vehicle

collision.       Recommend     appropriate     disciplinary       action   and

remedial law enforcement drivers training.”           Mr. Tyndall believed

Plaintiff was not operating his vehicle with “due regard for

safety” and was exhibiting “a wanton and reckless disregard for

safety of others[.]”

    This Court addressed a similar situation in Jones v. City of

Durham, 168 N.C. App. 433, 608 S.E.2d 387 (“Jones I”), aff'd, 360

N.C. 81, 622 S.E.2d 596 (2005), opinion withdrawn and superseded

on reh'g, 361 N.C. 144, 638 S.E.2d 202, and reversed in part

based   upon   dissenting    opinion,   361   N.C.   144,   638   S.E.2d   202

(2006) (“Jones II”), together with Jones I, (“Jones”).              The facts

in Jones were as follows:

           [A]t approximately 9:00 a.m., Officer Tracy
           Fox   (“Officer  Fox”)   was   dispatched   to
           investigate a domestic disturbance[.]     Soon
           after arriving at the scene, Officer Fox
           determined that she would need assistance and
           called for backup.   Dispatch, upon receiving
           her call, issued a “signal 20” requiring all
           other officers give way for Officer Fox's
           complete access to the police radio by
           holding all calls.   Officer Joseph M. Kelly
           (“Officer Kelly”[)] was approximately 2½
           miles from [the disturbance], as were fellow
           Officers H.M. Crenshaw (“Officer Crenshaw”)
           and R.D. Gaither (“Officer Gaither”).

           In response to the first call by Officer Fox,
           Officers Kelly, Crenshaw, and Gaither got in
           their separate vehicles and began driving
           towards [the disturbance].   Officer Fox then
           made a second distress call, stating with a
                      -21-
voice noticeably shaken, that she needed more
units. Officers Kelly and Crenshaw activated
their blue lights and sirens and increased
the speed of their vehicles[.]        Officer
Gaither took a different route.

At approximately 9:09 a.m. on the same
morning,    Linda    Jones     (“plaintiff”)   was
leaving her sister's apartment complex at the
southwest corner of the intersection of
Liberty Street and Elizabeth Street (“the
intersection”).     The posted speed limit for
motorists traveling upon Liberty Street was
35 miles per hour.        At the curb of Liberty
Street,    plaintiff      observed   no   vehicles
approaching, but heard sirens coming from an
undeterminable     direction.        A   bystander
outside the apartment complex also heard the
sirens,    but    could    not   determine   their
direction.     Plaintiff, some 95 feet west of
the intersection, began to cross Liberty
Street outside of any designated cross walk
and against the controlling traffic signal.
At this point in the road, Liberty Street had
three undivided lanes: two eastbound lanes
(the second or middle eastbound lane was for
making northbound right turns only) and a
westbound lane.      Reaching the double yellow
lines dividing the two eastbound lanes which
she crossed, plaintiff first saw a police
vehicle heading towards her in the westbound
[lane].    The vehicle came over the railroad
tracks    on    the     eastern    side   of   the
intersection.       Sergeant Willie Long, an
eyewitness who was in his vehicle at the
corner of Grace Drive and Liberty Street, and
plaintiff    both    observed    Officer   Kelly's
vehicle go completely airborne over the
railroad tracks.       Once his vehicle crossed
the railroad tracks, defendant saw plaintiff
at a distance of between 300-332 feet and
standing at the double-yellow lines.

Plaintiff turned and began running back in
the direction from which she came, across the
two eastbound lanes. Officer Kelly, crossing
                              -22-
         the intersection and accelerating, turned his
         vehicle with one hand into the eastbound
         lanes and struck plaintiff on her side as she
         was retreating to the curb. She was launched
         six feet into the air over the vehicle and
         landed in a gutter approximately 76 feet down
         along the eastbound lane of Liberty Street.
         Officer      Kelly's      vehicle    traveled
         approximately    160  feet    after  striking
         plaintiff and came to a complete stop in the
         eastbound lane of Liberty Street.   Plaintiff
         suffered severe injuries.

         While Officer Kelly was en route to Officer
         Fox's two distress calls, he was aware at
         least four other officers were responding.
         . . . .   [A]n accident reconstruction expert
         determined Officer Kelly's speed to have
         varied between 55 and 74 miles per hour.

Jones I, 168 N.C. App. at 434-35, 608 S.E.2d at 388-89.      This

Court held that, on these facts, the “plaintiff has not forecast

sufficient evidence to show a genuine issue of material fact as

to gross negligence on the part of Officer Kelly, [and that]

defendants are entitled to judgment as a matter of law.”    Jones

I, 168 N.C. App. at, 443, 608 S.E.2d at 393.   The Court in Jones

I reasoned:

         In response to Officer Fox's two distress
         calls, Officer Kelly responded to apprehend
         the threatening suspect and defuse what he
         believed to be a life or death situation of a
         fellow Durham police officer. In pursuit of
         the situation, there was some dispute as to
         what speed Officer Kelly was alleged to have
         been traveling. In a light most favorable to
         plaintiff, this speed varied between 55 and
         74 miles per hour on a road where the speed
         limit was 35 miles per hour.
                                  -23-
Jones I, 168 N.C. App. at 441, 608 S.E.2d at 393.           Our Supreme

Court eventually reversed on this issue in Jones II, adopting the

dissenting opinion in Jones I.        Jones II, 361 N.C. at 146, 638

S.E.2d at 203.      The dissent in Jones I, adopted by Jones II,

reasoned:

            [T]he question is whether the evidence raises
            any genuine issue of material fact on the
            issue of gross negligence.    Regarding gross
            negligence by a law enforcement officer, this
            Court has held:

                 An    officer     ‘must     conduct    a
                 balancing     test,      weighing    the
                 interests       of       justice      in
                 apprehending the fleeing suspect
                 with the interests of the public in
                 not being subjected to unreasonable
                 risks     of       injury.’       ‘Gross
                 negligence’ occurs when an officer
                 consciously         or        recklessly
                 disregards    an   unreasonably     high
                 probability of injury to the public
                 despite the absence of significant
                 countervailing       law     enforcement
                 benefits.

            Viewed, as it must be, in the light most
            favorable  to   the  plaintiff,   the  record
            evidence would allow a jury to find that: (1)
            Kelly was not pursuing an escaping felon, but
            was responding to Officer Fox's call for
            assistance with a situation whose nature
            Kelly knew nothing about; (2) Kelly knew
            other officers had also responded to the call
            for backup, so that Officer Fox was not
            solely dependent on his aid; (3) Kelly was
            familiar with the street where the accident
            occurred, and knew it was a densely populated
            urban area; (4) as Kelly approached the
            accident site he was driving between 50 and
            74 mph, and did not have his blue light and
                                        -24-
            siren activated; (5) Kelly knew that the
            intersection of Liberty and Elizabeth Streets
            had been the site of several previous
            accidents,   and  that   there   were   “people
            hanging out” there; (6) Kelly knew from
            previous experience that the safest maximum
            speed on the relevant stretch of Liberty
            Street was 45 mph; (7) Kelly did not apply
            his brakes when he saw plaintiff in his way;
            (8) Kelly lost control of his vehicle and
            struck plaintiff with such force that she
            suffered serious injuries; and (9) Kelly's
            failure to drive at a safe speed for road
            conditions was a violation of the Basic Law
            Enforcement Training manual. I conclude that
            this evidence, if believed by the jury,
            tended to show a “high probability of injury
            to   the   public  despite   the   absence   of
            significant countervailing law enforcement
            benefits,” and thus raises a genuine issue of
            material fact on the question of gross
            negligence.

Jones I, 168 N.C. App. at 444, 608 S.E.2d at 394-95 (citations

omitted).

       Viewed in the light most favorable to Defendant, the record

evidence    in    this   case   would    allow    a    jury   to   find    that:   (1)

Plaintiff was responding to a minor traffic accident involving

only    property    damage,     and     the    sole    purpose     of     Plaintiff’s

response was to provide traffic flow assistance; (2) Plaintiff,

against department policy, initiated emergency response driving

without     any    justifiable    reason,        and    without     notifying      his

department; (3) Plaintiff engaged his blue lights at some point,

but failed to engage his siren, which was also a violation of

department policy; (4) Plaintiff sped along Highway 117 at speeds
                                     -25-
topping one hundred mph where the posted speed limit was forty-

five mph and possibly even thirty-five mph at certain points; (5)

Plaintiff was a warrant officer and he did not usually engage in

driving that required high speeds; (6) Plaintiff had no high-

speed driving training beyond that obtained in his Basic Law

Enforcement   Training;   (7)   Plaintiff     sped   past   a   school,   not

knowing whether the school was in session; (8) Plaintiff also

sped past an Interstate exit and a fire station before reaching

Defendant’s residential neighborhood; (9) Plaintiff, because of

his high speed, either did not see Defendant before she pulled

out to cross the north-bound lane and head south on Highway 117,

or saw Defendant and did not take appropriate measures to avoid a

collision; (10) if Plaintiff did not see Defendant, it was either

because he was traveling around a blind curve, or because he was

not paying proper attention to the road ahead of him, perhaps

suffering from tunnel vision due to his excessive speed; (11)

Plaintiff was traveling ninety-five mph and still accelerating

until   immediately   before    he     made   contact   with    Defendant’s

vehicle, when he finally removed his foot from the accelerator

and apparently attempted to depress the brake; (12) this was the

second automobile accident Plaintiff had been involved in in a

single year; and (13) the accident would not have occurred had

Plaintiff been engaged in “routine driving,” which was all that
                                           -26-
was warranted in this situation – in fact, the accident would

probably not have occurred had Plaintiff simply been driving at a

speed less than seventy-five miles per hour.

      We find there was a “‘high probability of injury to the

public     despite    the    absence     of     significant     countervailing    law

enforcement benefits[.]’”               Id.     We hold these facts are, at a

minimum, as persuasive as the facts in Jones and, therefore, as

our Supreme Court did in Jones II, we reverse the trial court’s

grant of summary judgment in favor of Plaintiff and remand for

further action on Defendant’s counter-claims against Plaintiff.

                                           III.

      Defendant also argues the trial court erred, to the extent,

if any, that it based its award of summary judgment to Plaintiff,

Western Surety, Farm Bureau, and United Services on the defense

of governmental immunity.           We agree.

      It does not appear that the trial court granted summary

judgment in favor of Plaintiff based upon governmental immunity.

It   is    clear     that   the    Wayne      County    Sheriff’s   Office   had    a

$25,000.00 bond, issued by Western Surety, that was in effect at

the time of the 30 December 2009 accident.                      “According to N.C.

Gen. Stat. § 58–76–5, a sheriff waives governmental immunity by

purchasing a bond as is required by N.C. Gen. Stat. § 162–8.”

White     v.   Cochran,     __   N.C.    App.     __,   __,   748 S.E.2d   334,   339
                                       -27-
(2013).    Therefore, summary judgment would have been improper on

the basis of governmental immunity, at least as to potential

damages up to the amount of the $25,000.00 bond issued by Western

Surety.    Id.

       Furthermore,     this   Court    has     recognized     actions     brought

pursuant to N.C. Gen. Stat. § 20-145 as falling outside the

general rule of governmental immunity.                Young v. Woodall, 119

N.C. App. 132, 139-40, 458 S.E.2d 225, 230 (1995) (“Young I”),

rev'd,    343    N.C.   459,   471     S.E.2d   357   (1996)     (“Young     II”),

(together with Young I, “Young”).                In Young, a Winston-Salem

police officer, Officer Woodall, was sued, wherein the

            plaintiff apparently argue[d] Officer Woodall
            failed to exercise reasonable care in the
            exercise   of  an   alleged    ministerial   or
            proprietary function carried out for his own
            private   purposes    in    contravention    of
            departmental   policy.        Plaintiff    also
            allege[d] that Officer Woodall failed to
            comply with the statutory standard of care
            codified in N.C. Gen. Stat. § 20–145.

Young I, 119 N.C. App. at 137, 458 S.E.2d at 228.                  The City of

Winston–Salem had purchased liability insurance that would cover

the    alleged   negligence    of    Officer    Woodall,   but   only    for   any

damages in excess of $2,000,000.00.              Id. at 136, 458 S.E.2d at

228.    This Court held:

            In summary, we conclude that the City of
            Winston–Salem and Officer Woodall, in his
            official capacity, are entitled to partial
            summary   judgment based   on  governmental
                                        -28-
              immunity for any damages up to and including
              two million dollars, except as to the
              contentions of negligence arising under N.C.
              Gen. Stat. § 20–145.    We also conclude that
              Officer Woodall, in his individual capacity,
              is entitled to summary judgment, except as to
              the contentions of negligence arising under
              N.C. Gen. Stat. § 20–145.         As to the
              contention that Officer Woodall failed to
              observe the standard of care provided in
              section 20–145, we affirm the trial court's
              denial of summary judgment on behalf of the
              City of Winston–Salem and Officer Woodall.

Id. at 139-40, 458 S.E.2d at 230.              Stated another way, this Court

held that governmental immunity did not apply to actions brought

pursuant to N.C. Gen. Stat. § 20-145.                  Our Supreme Court granted

discretionary        review,   and    reversed    in    part,   holding     that   the

Court of Appeals had applied the wrong standard pursuant N.C.

Gen.    Stat.    §    20-145,     ordinary       negligence,      instead    of    the

appropriate standard, gross negligence.                  Young II, 343 N.C. at

462,   471    S.E.2d    at     359.     Our    Supreme    Court     reversed      after

applying the gross negligence standard and determining that the

actions of Officer Woodall did not meet that standard.                         Id. at

463, 471 S.E.2d at 360.

       Our Supreme Court did not overrule that part of the Court of

Appeals’     decision    holding      that    governmental      immunity    did    not

apply to actions brought pursuant to N.C. Gen. Stat. § 20-145.

In   fact,    though    not    specifically       addressing      this   issue,    our

Supreme      Court    implicitly      accepted    this    Court’s    holding       that
                               -29-
governmental immunity does not apply to actions brought pursuant

to N.C. Gen. Stat. § 20-145.   Bound by this precedent, we hold in

the present case that Defendant’s counterclaim based upon the

alleged gross negligence of Plaintiff pursuant to N.C. Gen. Stat.

§ 20-145 is not barred by governmental immunity.

    Reversed and remanded.

    Judges HUNTER, Robert C. and ELMORE concur.
