                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 13-1129


DEBRA ROSE MCMURRAY,

                Plaintiff - Appellant,

           v.

UNITED STATES OF AMERICA,

                Defendant - Appellee.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Greenville. James C. Dever III,
Chief District Judge. (4:12-cv-00086-D)


Argued:   October 31, 2013                 Decided:    January 7, 2014


Before TRAXLER,   Chief   Judge,   and   KING   and   THACKER,   Circuit
Judges.


Vacated and remanded by unpublished per curiam opinion.


ARGUED: Mark A. Sternlicht, BEAVER, HOLT, STERNLICHT & COURIE,
PA, Fayetteville, North Carolina, for Appellant.  Joshua Bryan
Royster, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North
Carolina, for Appellee.    ON BRIEF: Thomas G. Walker, United
States Attorney, R.A. Renfer, Jr., Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North
Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

      Debra       Rose       McMurray    was   a    passenger          in    a    vehicle       being

driven by Michael Rumfalo, a recruiter for the United States

Marine Corps.            McMurray sustained serious injuries when Rumfalo

ran   a     red    light        and     collided     with    another              car,    and     she

subsequently           filed    suit    against      the    United          States       under    the

Federal Tort Claims Act (“FTCA”).                      The district court granted

summary judgment in favor of the United States, and McMurray

appeals.          We    vacate    the     judgment     of    the       district          court    and

remand for further proceedings.

                                               I.

      The     Marine          Corps     occasionally        conducts              workshops       for

teachers and other educational professionals at its facility on

Parris Island, South Carolina.                   The workshops give the educators

valuable     information          about    the      Corps    and       the       opportunity       to

experience first-hand some elements of basic training.

      McMurray,          a     guidance    counselor        at     a    high        school       near

Fayetteville, North Carolina, frequently counsels students who

are deciding whether to join the military or which branch of the

military would be a good fit.                       Interested in attending one of

the   workshops,         McMurray        contacted     Rumfalo,             the    Marine       Corps

recruiter she knew from school.                      Rumfalo told McMurray that a

workshop would be held on March 29 through April 2, 2010, and he

forwarded her the necessary paperwork to be completed in order

                                               2
to attend.    The paperwork included a “Release and Hold Harmless

Agreement”   (the    “Release”)     that    released    the      government    from

liability for any injuries arising out of participation in the

workshop,       including         “riding       in          government-provided

transportation      (to   include    transportation         to    and   from    the

Educator’s Workshop).”      J.A. 15.

      When Rumfalo came to pick up the paperwork from McMurray,

she had not yet completed the Release.             She asked Rumfalo if she

would be allowed to participate if she did not sign the Release

and   was   told   that   “everyone    has    to     sign    [the   Release]    to

participate.”       J.A. 18.      McMurray also asked Rumfalo if she

could drive herself to Raleigh to meet the bus that would take

them to Parris Island, rather than being picked up at her house

and driven to Raleigh by Rumfalo.             The answer to that question

was also “no,” an answer that “made it clear” to McMurray that

she “could not negotiate the terms of [her] participation in the

Workshop.”    J.A. 19.      McMurray therefore signed the Release and

attended the workshop.

      After the workshop, a Marine Corps bus brought the workshop

attendees back to Raleigh.          Rumfalo was there, waiting to drive

McMurray and an attendee from Fayetteville back to their homes.

While still in Raleigh, Rumfalo ran a red light and collided

with a car that had the right-of-way.              McMurray suffered serious

injuries, including a traumatic brain injury.                    McMurray missed

                                       3
work for the remainder of the 2010 school year and through the

entire summer as well.          Her medical bills and lost wages exceed

$48,000.

      McMurray thereafter commenced this action under the FTCA.

The   district      court    granted    summary   judgment      in   favor    of   the

government, concluding that the Release was enforceable under

North Carolina law and that it barred McMurray’s claims against

the government.          This appeal followed.

                                          II.

      The FTCA provides a limited waiver of sovereign immunity

for torts committed by federal employees acting within the scope

of    their    employment      “under     circumstances      where     the    United

States, if a private person, would be liable to the claimant in

accordance with the law of the place where the act or omission

occurred.”      28 U.S.C. § 1346(b)(1).           “In other words, a claimant

has an FTCA cause of action against the government only if she

would also have a cause of action under state law against a

private person in like circumstances.               Thus, the substantive law

of each state establishes the cause of action.”                       Anderson v.

United States, 669 F.3d 161, 164 (4th Cir. 2011) (citation and

internal quotation marks omitted).

      The     act   or    omission   at   issue   here   took    place   in    North

Carolina, and the substantive law of North Carolina therefore

governs McMurray’s FTCA claim.             The sole issue on appeal is the

                                           4
enforceability            of    the   Release.           If     North      Carolina          law   would

enforce the Release had it been executed in favor of a private

person, then we must likewise enforce the Release as barring

McMurray’s claim.               See id. (“[S]ubstantive state law establishes

--     and    circumscribes            --    FTCA       causes        of    action.”).              When

resolving          that    issue,      this        court      “must        rule    as    the       North

Carolina courts would, treating decisions of the Supreme Court

of North Carolina as binding, and departing from an intermediate

court’s fully reasoned holding as to state law only if convinced

that the state’s highest court would not follow that holding.”

Iodice       v.    United       States,      289    F.3d      270,     275      (4th     Cir.      2002)

(internal quotation marks and alteration omitted).

                                                III.

                                                   A.

       Although           contracts         seeking        to    release          a     party       from

liability for his own negligence “are not favored by the law,”

such    contracts          are      generally       enforceable.             Hall       v.    Sinclair

Refining          Co.,    89    S.E.2d      396,    397       (N.C.     1955).          Exculpatory

clauses       or    contracts,         however,         “are     void       and    unenforceable”

where the “contractual provisions [are] violative of the law or

contrary to some rule of public policy,” or where a party to the

contract has unequal bargaining power and “must either accept

what    is    offered          or   forego    the       advantages         of     the   contractual

relation in a situation where it is necessary for him to enter

                                                    5
into the contract to obtain something of importance to him which

for all practical purposes is not obtainable elsewhere.”                                    Id. at

398; see Fortson v. McClellan, 508 S.E.2d 549, 551 (N.C. Ct.

App. 1998) (“[A]n exculpatory contract will be enforced unless

it   violates      a    statute,          is     gained          through        inequality         of

bargaining       power,       or    is    contrary          to     a    substantial         public

interest.”).

     McMurray      contends         that       each     of       the    exceptions          to   the

general rule of enforceability applies in this case.                                  She argues

that the release is unenforceable under the violation-of-statute

exception     because         the    Release          is     inconsistent            with    North

Carolina’s       red-light         statute.          See        N.C.    Gen.     Stat.       §     20-

158(b)(2)    (“When       a    traffic        signal       is    emitting       a    steady        red

circular light controlling traffic approaching an intersection,

an approaching vehicle facing the red light shall come to a stop

and shall not enter the intersection. . . .”).                                       She further

argues    that    the     Release        is    unenforceable           under     the    unequal-

bargaining-power          exception           because        the       educator’s       workshop

provided     information           and    experience            important       to    her     as    a

guidance counselor that could not be replicated elsewhere and

she lacked the ability to negotiate the terms of her attendance.

As   to    the    public-policy           exception,             McMurray       contends         that

operating    motor      vehicles         on    public      roads       is   a   dangerous          and

heavily     regulated         activity.             Given        the    significant          public

                                                6
interests at stake, McMurray argues that it would violate public

policy to permit drivers to absolve themselves of the duty to

exercise reasonable care when driving.                      We need not consider

McMurray’s arguments under the violation-of-statute or unequal-

bargaining-power exceptions, because we agree that the public-

policy exception renders the Release unenforceable.

                                             B.

      As explained by the Supreme Court of North Carolina, the

public-policy exception prohibits a person from contracting to

protect      himself       from      “liability       for    negligence        in     the

performance of a duty of public service, or where a public duty

is   owed,     or    public      interest     is    involved,     or   where    public

interest requires the performance of a private duty.”                      Hall, 89

S.E.2d    at     398     (emphasis       added;      internal     quotation         marks

omitted).      We think it clear that an important public interest

is   involved       in   this    case   --    the    public’s   interest       in    safe

streets and safe driving.

      There can be no dispute that driving on public roads is a

dangerous      activity,        as   North   Carolina    courts    have   repeatedly

recognized.         See Williams v. Henderson, 55 S.E.2d 462, 463 (N.C.

1949) (“A motorist operates his vehicle on the public highways

where others are apt to be. . . .                   Should he lapse into a state

of carelessness or forgetfulness his machine may leave death and

destruction in its wake.”).              Accordingly, in North Carolina, as

                                             7
elsewhere, numerous statutes, regulations, and cases spell out

the rules of the road and the duties of a driver.                              And as the

case law makes clear, the point of these rules and regulations

is to protect not merely the driver and his passengers, but to

protect the safety of the public:

      Our motor traffic regulations are not intended merely
      to protect those who are using the highways. They are
      designed to protect the life, limb, and property of
      any and every person on or about the highway who may
      suffer injury to his person or damage to his property
      as a natural and proximate result of the violation
      thereof.

Aldridge     v.   Hasty,    82   S.E.2d      331,    337      (N.C.    1954)    (emphasis

added); see also State v. Anderson, 164 S.E.2d 48, 50 (N.C. Ct.

App. 1968) (“Death on the highway can no longer be considered as

a personal and individual tragedy alone.                          The mounting carnage

has   long   since   reached       proportions       of       a    public    disaster.”),

aff’d, 166 S.E.2d 49 (N.C. 1969).                   We therefore conclude that,

under   North     Carolina       law,   there       is    a       strong    public-safety

interest in careful driving and the observance of all traffic-

related rules and regulations.                  Permitting the government to

absolve    itself    of    the   duty   to    exercise            reasonable   care   when

driving puts members of the public at great risk and is contrary

to that strong public interest.

      The district court, however, held -- and the Government

argues on appeal -- that the public-policy exception applies

only to “‘entities or industries that are heavily regulated.’”

                                          8
J.A. 25 (quoting Bertotti v. Charlotte Motor Speedway, Inc., 893

F. Supp. 565, 569 (W.D.N.C. 1995)).                    In the district court’s

view, the activity of driving is not heavily regulated (at least

where   no     common       carriers    are        involved),     such     that     the

enforcement of the Release would not “contradict a substantial

public interest.”        J.A. 27.

      As an initial matter, we question the correctness of the

district court’s determination that the public-policy exception

is   limited   to    cases    involving       heavily     regulated      entities    or

activities.         North    Carolina   courts       have    applied     the    public-

policy exception to invalidate exculpatory contracts and clauses

executed under widely varying circumstances, not all of which

can be said to involve heavily regulated entities or activities.

See Fortson, 508 S.E.2d at 551-52 (invalidating release signed

as   condition      of   participation        in    motorcycle-safety          training

program); Alston v. Monk, 373 S.E.2d 463, 467 (N.C. Ct. App.

1988)   (invalidating        release    signed       by     customer     having    hair

colored by student of cosmetology school); Brockwell v. Lake

Gaston Sales & Serv., 412 S.E.2d 104, 106 (N.C. Ct. App. 1992)

(invalidating clause in boat-repair contract that purported to

relieve mechanic of liability for negligence that led to theft

of personal property contained in boat).                    While the practice of

cosmetology may be heavily regulated, teaching motorcycle safety

or   repairing   boats      is   not,   yet    the    releases    in     Fortson    and

                                          9
Brockwell       were     still       invalidated        under     the       public-policy

exception.

       In our view, the Hall court’s formulation of the exception,

with   its      focus   on    public      service,      public       duty,    and   public

interest, see Hall, 89 S.E.2d at 398, makes it clear that the

public-policy exception turns not on the level of regulation,

but on the presence or absence of a public interest in the

transaction at issue.               The actual application of the exception

by the North Carolina courts confirms this view -- the courts

enforce    exculpatory        clauses      where      no     public    interest     is   at

stake, without regard to whether the entity seeking protection

is regulated.           See Gibbs v. Carolina Power & Light Co., 144

S.E.2d 393, 400 (N.C. 1965) (“Even a public service corporation

is   protected     by    an    exculpatory          clause    when    the    contract    is

casual    and    private      and    in   no    way    connected      with    its   public

service.” (emphasis added)); Fortson, 508 S.E.2d at 553 (“[W]hen

[a] public utility engage[s] in non-public activity, freedom of

contract principles appl[y], and the public utility’s contracts

[are] not limited by public policy.” (internal quotation marks

omitted)); see also Blaylock Grading Co. v. Smith, 658 S.E.2d

680, 683 (N.C. Ct. App. 2008) (enforcing exculpatory clause in

land-surveying contract despite regulation of surveying industry

because “the limitation on liability in the contract at issue

does not implicate the public health or safety”); Sylva Shops

                                               10
Ltd. P’ship v. Hibbard, 623 S.E.2d 785, 790, 792 (N.C. Ct. App.

2006)     (enforcing    exculpatory      clause    in   commercial    lease   not

because     relationship     was   not    heavily   regulated,      but   because

exculpatory clause at issue “[did] not create a risk of injury

to the public or the rights of third parties” and therefore

“[did] not affect the public interest”).

      Heavy regulation of an activity or entity may well reflect

the   presence     of   an   important    public    interest   that   precludes

enforcement of an exculpatory clause.               See Fortson, 508 S.E.2d

at 551 (“An activity falls within the public policy exception

when the activity is extensively regulated to protect the public

from danger, and it would violate public policy to allow those

engaged in such an activity to absolve themselves from the duty

to use reasonable care.” (internal quotation marks omitted)).

Nonetheless, we do not read the relevant North Carolina cases as

requiring heavy regulation of the activity or entity before the

public-policy exception may be invoked. 1

      The government also contends driving is not the kind of

activity    that   would     justify     application    of   the   public-policy


      1
       In any event, even if heavy regulation were required under
North Carolina law, it is apparent that driving on public roads
is a heavily regulated activity, with numerous statutes and
regulations establishing the requirements for getting and
keeping a license to drive on public roads, and setting out the
driver’s obligations under various circumstances.



                                         11
exception.           We       disagree.      In       our    view,      the    public-safety

interest at stake in this case is at least as important as the

safety      interests          involved     in        motorcycle        instruction,       see

Fortson, 508 S.E.2d at 552, or the practice of cosmetology, see

Alston, 373 S.E.2d at 467, and significantly more important that

the public interest in the safeguarding of a boat while under

repair,      see     Brockwell,       412    S.E.2d         at   106.         Moreover,    the

government’s argument in this regard is largely foreclosed by

the North Carolina Court of Appeals’ decision in Fortson.

       In Fortson, the plaintiff executed a release when signing

up for a two-day motorcycle safety program and was injured when

the motorcycle she was assigned malfunctioned.                            The court found

the release unenforceable under the public-policy exception.                               To

reach its conclusion, the court focused on the risks associated

with       motorcycle          use   and    the       public-safety           interest     “in

minimizing         the    risks      associated         with      motorcycle      use,”     an

interest      that       is    “recognized       in    case      law    and    regulated    by

statute.”       Id. at 552 (emphasis added). 2                    In the court’s view,


       2
       As an example of a case recognizing the public interest in
minimizing the risks of motorcycle use, the Fortson court cited
to State v. Anderson, 164 S.E.2d 48 (N.C. Ct. App. 1968), a case
which upheld North Carolina’s helmet law as valid exercise of
police powers because the law bore “a substantial relation to
the promotion of the welfare and safety of the general public as
distinguished from the welfare solely of the individual riders
of motorcycles.” Id. at 50 (emphasis added).



                                             12
the “same interests in public safety” addressed by the cases and

statutes involving motorcycle use “are significantly present in

motorcycle safety instruction,” id. at 554 (emphasis added), and

the court therefore found the release unenforceable:                          “Given the

hazards to the public associated with motorcycle instruction,

and the extensive regulation of motorcycle use, it would violate

public     policy    to    allow    instructors         in     a     motorcycle       safety

instruction course, such as the one operated by defendant, to

absolve themselves from the duty to use reasonable care.”                                   Id.

at 552.

     The     Fortson      court’s    analysis          is     thus      premised      on    an

implicit determination that the public-safety interest in the

safe use of motorcycles is substantial enough to invalidate a

release implicating that interest.                     If the public interest in

the safe use of motorcycles is enough to invalidate a release,

then the public interest in the safe use and operation of cars

is likewise enough.

                                           IV.

     As the North Carolina courts have made clear, every driver

owes the public the duty to exercise due care when driving on

public roads; the failure to exercise due care puts people and

property    at    great    risk.      See        Aldridge,         82   S.E.2d     at      337;

Williams,    55     S.E.2d    at    463.         Careless      driving      exposes        the

public,    not    merely     the    driver       and    his    passenger,        to     great

                                           13
danger, and the Release therefore cannot be viewed as a simple

private contract that should be enforced according to its terms.

See Blaylock Grading Co., 658 S.E.2d at 683; Sylva Shops, 623

S.E.2d at 790.

       Accordingly, we conclude that, under the circumstances of

this    case,    it    would   violate        public   policy     to     permit    the

government to “absolve [itself] from the duty to use reasonable

care”   when    driving.       Fortson,   508     S.E.2d    at    552;    cf.     Sylva

Shops, 623 S.E.2d at 790 (“Public policy has been defined as the

principle of law which holds that no citizen can lawfully do

that which has a tendency to be injurious to the public or

against    the        public   good.”).           Because     the      Release      is

unenforceable under North Carolina law, we vacate the district

court’s    order       granting   summary       judgment     in   favor     of     the

government, and we remand for further proceedings on McMurray’s

FTCA claim.

                                                            VACATED AND REMANDED




                                         14
