              IN THE COURT OF APPEALS OF NORTH CAROLINA

                                   No. COA17-1123

                                  Filed: 19 June 2018

Craven County, No. 16 CVS 265

JESSIE M. MCCLEASE, Plaintiff,

             v.

DOVER VOLUNTEER FIRE DEPT., Defendant.


      Appeal by plaintiff from order entered 2 June 2017 by Judge John E. Nobles in

Craven County Superior Court. Heard in the Court of Appeals 4 April 2018.


      J. Elliott Field for plaintiff-appellant.

      Sumrell, Sugg, Carmichael, Hicks and Hart, P.A., by Scott C. Hart, for
      defendant-appellee.


      ZACHARY, Judge.


      Jessie McClease (“plaintiff”) appeals from an order granting Dover Volunteer

Fire Department’s (“defendant” or “Dover VFD”) motion for summary judgment on

plaintiff’s claims for negligence and negligent infliction of emotional distress. On

appeal, plaintiff argues that the trial court erred by granting summary judgment in

favor of defendant because genuine issues of material fact existed as to whether

defendant was negligent in that defendant: (1) failed to respond to the structure fire

in a timely manner, and (2) failed to maintain or otherwise ensure that the North
                       MCCLEASE V. DOVER VOLUNTEER FIRE DEPT.

                                   Opinion of the Court



Oak Street fire hydrant was working properly. After careful review, we affirm the

trial court’s order.

                                         Background

       Plaintiff is a former resident of the Town of Dover, which is located in Craven

County, North Carolina. In 1983, plaintiff and her husband purchased a residence on

North Oak Street in Dover, where they lived until the residence was destroyed by a

fire on 3 August 2013. Defendant is a non-profit corporation established under

Chapter 55A of the North Carolina General Statutes that “provides fire suppression

services to a six square mile area within Craven County.” Plaintiff’s residence was

located within defendant’s fire district.

       On 14 October 2015, plaintiff filed a verified complaint in which she asserted

claims for negligence and negligent infliction of emotional distress against defendant

and the Town of Dover arising from a structure fire on 3 August 2013 that resulted

in the destruction of plaintiff’s residence. Plaintiff specifically alleged that defendant

was negligent in that defendant (1) failed to respond to the structure fire in a timely

manner, and (2) failed to maintain or otherwise ensure that the North Oak Street fire

hydrant near her home was working properly.

       In support of her claims, plaintiff submitted three affidavits. In the first

affidavit, plaintiff’s niece, Monica Garris, asserts that when she arrived at plaintiff’s

residence on 3 August 2013, (1) plaintiff’s house “was already burned-down to the



                                            -2-
                    MCCLEASE V. DOVER VOLUNTEER FIRE DEPT.

                                  Opinion of the Court



ground”; (2) “[t]he fire was out and the house was gone”; (3) “the Dover [] VFD was

not there”; (4) “Dover VFD came after I arrived”; and (5) “[w]hen Dover VFD got there,

they were asking the other fire departments . . . what happened.” In the second

affidavit, plaintiff’s former son-in-law, James Mock, asserts that when he arrived at

plaintiff’s residence on 3 August 2013, (1) “[t]he house was engulfed in flames”; and

(2) “I did not see the Dover VFD at the scene.” In the third affidavit, Burt Staton, a

former volunteer for defendant, asserts that (1) he heard a fire alarm for fire

assistance on Oak Street and drove toward defendant’s fire station; (2) there was no

response from defendant for assistance after dispatch; (3) when he arrived at the

scene, he saw Cove City Volunteer Fire Department had arrived; (4) Cove City

Volunteer Fire Department could not use the fire hydrant in front of plaintiff’s house

so they hooked up a fire hydrant approximately 20 feet away; and (5) Dover VFD

finally arrived and was followed by the Jones County Volunteer Fire Department,

Fort Barnwell Volunteer Fire Department, and Township 9 Volunteer Fire

Department. Staton asserted that he stayed at the scene for approximately thirty

minutes.

      The affidavits submitted by defendant and the parties’ pleadings allege the

following additional facts: Craven County’s Communications Center is responsible

for receiving all emergency 9-1-1 calls within the county and for dispatching the

appropriate response units. If a dispatch remains unanswered for two minutes, the



                                         -3-
                     MCCLEASE V. DOVER VOLUNTEER FIRE DEPT.

                                   Opinion of the Court



dispatcher will contact additional response units. The dispatch keeps an electronic

“Detail Call For Services Report” (“Report”) of the total communications made to and

from all responding emergency personnel.

      When a structure fire is reported, Craven County has an automatic aid policy

pursuant to which more than one fire department is automatically dispatched. When

a structure fire is reported within defendant’s fire district, the Cove City Volunteer

Fire Department and the Fort Barnwell Volunteer Fire Department are also

dispatched. Because defendant operates with an entirely volunteer staff, there is no

internal policy requiring staffing of the station house where defendant’s apparatuses

are stored. However, each volunteer is issued a pager by which the volunteer is

notified when an emergency call is received from within defendant’s fire district.

Additionally, defendant’s leadership, including the Fire Chief, Assistant Chief, and

Captains, keep VHF radios in their personal vehicles with which they respond to the

Communications Center whenever a call is received. A response from defendant’s

leadership via VHF radio is transmitted to the other volunteers’ pagers to inform

them that an emergency call has been received and that defendant is responding.

      Upon confirmation that defendant is responding to an emergency, its

volunteers may proceed either to defendant’s fire station or directly to the location of

the emergency, whichever is closer to their location at the time. As defendant’s

volunteers could be spread throughout the county upon dispatch, many of its



                                          -4-
                     MCCLEASE V. DOVER VOLUNTEER FIRE DEPT.

                                   Opinion of the Court



volunteers keep their “turnout-gear” in their personal vehicles rather than at the fire

house to put on at the scene of the fire.

      On 3 August 2013, plaintiff’s husband, Mr. McClease, was mowing grass in the

yard when he observed smoke coming from the attic of plaintiff’s residence and

realized that the residence was on fire. He immediately asked the neighbor to call 9-

1-1. At 3:07 p.m., the Communications Center received an emergency call from

plaintiff’s neighbor reporting that plaintiff’s residence was on fire. At 3:08 p.m., the

Communications Center placed a dispatch call to defendant. Pursuant to the

automatic aid agreement, the Cove City Volunteer Fire Department and the Fort

Barnwell Volunteer Fire Department were dispatched at that time as well.

      Assistant Chief Eric Pitts and his brother, Captain Ethan Pitts, were at their

parents’ house when the dispatch came through. They proceeded directly to plaintiff’s

residence, arriving at 3:11 p.m. according to the Communications Center Report.

Defendant’s Captain Tyler Whitney was already at the scene performing a “size-up”

to determine the appropriate course of action. Capt. Pitts remained at the scene with

Capt. Whitney, while Asst. Chief Pitts proceeded to defendant’s fire station to get a

pumper truck.

      Asst. Chief Pitts returned with the pumper truck at 3:21 p.m., and defendant’s

volunteers hooked up the apparatus to a fire hydrant on Johnson Street,

approximately 500 feet from plaintiff’s residence. Defendant had notified the Town



                                            -5-
                     MCCLEASE V. DOVER VOLUNTEER FIRE DEPT.

                                    Opinion of the Court



of Dover that the hydrant across from plaintiff’s residence was inoperable

approximately a month prior to the fire. However, according to Asst. Chief Pitts, even

if the McClease hydrant had been operable, “[i]t was safer and more efficient to

simply pull water from the Johnson Street hydrant” because “[c]onnecting either

apparatus to the McClease fire hydrant would [have] require[d] a hose to be run

around the apparatus thereby creating a trip hazard and limiting the mobility of both

apparatus at the scene.”

      Defendant filed its motion for summary judgment on 12 May 2017, which the

trial court granted on 2 June 2017. Plaintiff gave timely notice of appeal.

                                    Standard of Review

      This Court reviews a trial court’s order granting or denying summary

judgment de novo. In re Will of Jones, 362 N.C. 569, 573, 669 S.E.2d 572, 576 (2008).

Summary judgment is proper where “the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, if any, show that

there is no genuine issue as to any material fact and that any party is entitled to a

judgment as a matter of law.” N.C. Gen. Stat. § 1A-1, Rule 56(c) (2017). “Summary

judgment is not appropriate where matters of credibility and determining the weight

of the evidence exist.” Draughon v. Harnett County Bd. of Educ., 158 N.C. App. 208,

212, 580 S.E.2d 732, 735 (2003) (citing Moore v. Fieldcrest Mills, Inc., 296 N.C. 467,

470, 251 S.E.2d 419, 422 (1979)).



                                           -6-
                    MCCLEASE V. DOVER VOLUNTEER FIRE DEPT.

                                  Opinion of the Court



      The burden of proof governing motions for summary judgment is well

established. Initially, the movant “bears the burden of establishing that there is no

triable issue of material fact.” DeWitt v. Eveready Battery Co., 355 N.C. 672, 681, 565

S.E.2d 140, 146 (2002) (citing Nicholson v. American Safety Util. Corp., 346 N.C. 767,

774, 488 S.E.2d 240, 244 (1997)). The movant may meet this burden “ ‘by proving

that an essential element of the opposing party’s claim is non-existent, or by showing

through discovery that the opposing party cannot produce evidence to support an

essential element of his claim . . . .’ ” Id. (quoting Collingwood v. G.E. Real Estate

Equities, 324 N.C. 63, 66, 376 S.E.2d 425, 427 (1989)). “ ‘[O]nce the party seeking

summary judgment makes the required showing, the burden shifts to the nonmoving

party to produce a forecast of evidence demonstrating specific facts, as opposed to

allegations, showing that he can at least establish a prima facie case at trial.’ ”

Pacheco v. Rogers & Breece, Inc., 157 N.C. App. 445, 448, 579 S.E.2d 505, 507 (2003)

(quoting Gaunt v. Pittaway, 139 N.C. App. 778, 784-85, 534 S.E.2d 660, 664 (2000),

cert. denied, 353 N.C. 371, 547 S.E.2d 810 (2001)).

      “Summary judgment is seldom appropriate in a negligence action. A trial court

should only grant such a motion where the plaintiff’s forecast of evidence fails to

support an essential element of the claim.” Wallen v. Riverside Sports Ctr., 173 N.C.

App. 408, 411, 618 S.E.2d 858, 861 (2005) (citing Bostic Packaging, Inc. v. City of

Monroe, 149 N.C. App. 825, 830, 562 S.E.2d 75, 79 (2002)).            Nonetheless,“[a]



                                         -7-
                     MCCLEASE V. DOVER VOLUNTEER FIRE DEPT.

                                   Opinion of the Court



‘[p]laintiff is required to offer legal evidence tending to establish beyond mere

speculation or conjecture every essential element of negligence, and upon failure to

do so, [summary judgment] is proper.’ ” Frankenmuth Ins. v. City of Hickory, 235 N.C.

App. 31, 34, 760 S.E.2d 98, 101 (2014) (quoting Young v. Fun Services-Carolina, Inc.,

122 N.C. App. 157, 162, 468 S.E.2d 260, 263 (1996)).

                                         Discussion

      I. Negligence Claim

      Plaintiff argues that the trial court erred by granting summary judgment for

defendant on plaintiff’s claim for negligence because there existed genuine issues of

material fact.   After careful review, we conclude that plaintiff failed to produce

evidence of genuine issues for trial on the issue of negligence.

      It is well established that in order to establish a prima facie case of negligence

against the defendant, the plaintiff must demonstrate that “(1) the defendant owed

the plaintiff a duty of care; (2) the defendant’s conduct breached that duty; (3) the

breach was the actual and proximate cause of the plaintiff’s injury; and (4) plaintiff

suffered damages as a result of the injury.” Wallen, 173 N.C. App. at 411, 618 S.E.2d

at 861 (quoting Vares v. Vares, 154 N.C. App. 83, 87, 571 S.E.2d 612, 615 (2002), disc.

review denied, 357 N.C. 67, 579 S.E.2d 576-77 (2003)).

      In the present case, plaintiff alleged that defendant was negligent in that

defendant (1) failed to respond to the structure fire in a timely manner, and (2) failed



                                          -8-
                     MCCLEASE V. DOVER VOLUNTEER FIRE DEPT.

                                    Opinion of the Court



to maintain or otherwise ensure that the North Oak Street fire hydrant was working

properly. However, plaintiff failed to produce evidence of each element of these

claims.

      There was no evidence before the trial court that defendant failed to respond

in a timely manner. The record established that defendant responded within three

minutes of the dispatch and was the primary unit at the scene of the fire. This is a

reasonable response time and does not amount to a breach of the duty of reasonable

care. Moreover, the affidavits submitted by plaintiff do not support her claim that

defendant did not respond in a timely manner. Garris was not at the scene until after

the fire was extinguished, and Mock merely asserts that he “did not see [defendant]”

at the scene, which does not establish that defendant was not present. Staton’s

affidavit states that defendant arrived shortly after Cove City Volunteer Fire

Department; defendant’s apparatus did arrive after a Cove City Rescue Squad’s

ambulance, but this does not establish that none of defendant’s volunteers were on

scene and responding to the fire.

      In addition, there was no evidence before the trial court that defendant acted

in a negligent manner with regard to the fire hydrant in front of plaintiff’s residence.

Plaintiff failed to put forth any evidence that defendant had a duty to maintain the

fire hydrant. The evidence showed that it was the duty of the Town of Dover to

maintain the fire hydrant, not that of defendant. Moreover, plaintiff produced no



                                           -9-
                     MCCLEASE V. DOVER VOLUNTEER FIRE DEPT.

                                   Opinion of the Court



evidence that the inoperability of the fire hydrant was the proximate cause of

plaintiff’s damages. In fact, the evidence showed that defendant would not have used

this fire hydrant, even if it had been operable at the time of the fire.

      Plaintiff failed to meet her burden to set forth specific facts establishing every

element of her negligence claim. Therefore, defendant was entitled to judgment as a

matter of law.

II. Claim for Negligent Infliction of Severe Emotional Distress

      Plaintiff also argues that the trial court erred by granting summary judgment

for defendant on plaintiff’s claim for negligent infliction of emotional distress because

there existed genuine issues of material fact. We conclude that plaintiff failed to

produce specific facts showing any genuine issues for trial on this claim as well.

      A claim of negligent infliction of emotional distress requires proof of negligent

conduct. Pittman v. Hyatt Coin & Gun, Inc., 224 N.C. App. 326, 330, 735 S.E.2d 856,

858-59 (2012). Given that plaintiff failed to present evidence establishing a prima

facie negligence claim, she cannot recover on this cause of action.

      Furthermore, no evidence tends to show that plaintiff suffered severe emotional

distress. Plaintiff attended one appointment with a counselor and never filled the

prescription that the counselor provided. This does not establish a “severe and

disabling emotional or mental condition,” as such is defined under North Carolina




                                          - 10 -
                    MCCLEASE V. DOVER VOLUNTEER FIRE DEPT.

                                 Opinion of the Court



law. Wilkerson v. Duke Univ., 229 N.C. App. 670, 675-76, 748 S.E.2d 154, 159 (2013)

(citation and quotation marks omitted).

      Plaintiff failed to produce evidence to support a prima facie case of negligent

infliction of emotional distress. Therefore, defendant was entitled to judgment as a

matter of law.

III. Immunity

      The issues of sovereign, governmental, and statutory immunity were raised in

the parties’ complaint and answer. However, neither party addresses these issues in

their briefs submitted to this Court. Accordingly, we do not consider these issues on

appeal.

                                    Conclusion

      For the reasons set forth above, the trial court’s summary judgment order is

      AFFIRMED.

      Judges ELMORE and TYSON concur.




                                          - 11 -
