- The North Carolina Court of Appeals issued rulings Tuesday in three traffic injury cases pitting plaintiffs against local government.
- The court ruled against Cornelius and Surf City. It ruled in favor of Charlotte but against two Queen City employees.
- Two cases involved a vehicle striking a pedestrian, while the third involved an electric scooter crash.
The North Carolina Court of Appeals issued three decisions Tuesday in traffic injury cases pitting plaintiffs against local governments. The court ruled against Cornelius and Surf City while offering a mixed ruling to Charlotte officials.
Orsbon v. Milazzo
In 2021 driver Matthew Milazzo struck pedestrian Patricia Bosworth-Jones while Milazzo was turning left at the intersection of Archdale Drive and Park South Drive in Charlotte. The incident caused “devastating injuries, including a traumatic brain injury,” wrote Appeals Court Judge Julee Flood.
A lawsuit filed in 2022 on Bosworth-Jones’ behalf alleged negligence on behalf of the city and employees Geoffrey Sloop and Saleem Barakzai. The suit cited the city’s failure to install a “leading pedestrian interval,” a tool that gives pedestrians a “walk” signal several seconds before turning drivers see a green light.
In a split 2-1 decision, the Appeals Court agreed with a trial judge’s ruling granting summary judgment to the city. But the Appeals Court ruled that the two city employees could not rely on public official immunity.
“Viewing the evidence in the light most favorable to Plaintiff, there is no genuine issue of material fact — Defendant City had no legal requirement to exercise a discretionary function in installing an LPI, it did not delay in installing the LPI, Defendant Barakzai did not delay in addressing the resident’s complaint, and Bosworth-Jones was injured due to Defendant Milazzo’s negligence in failing to yield,” Flood wrote.
Yet Sloop and Barakzai, as city employees, do not enjoy immunity from lawsuits.
“Here, Defendants failed to present a statute that creates the positions held by Defendants Sloop, Senior Engineer Project Manager, or Barakzai, Engineer Project Manager, or one that ‘delegates such statutory authority to employees,’” Flood wrote. “Further, because Defendants have failed to demonstrate the positions held by Defendants Sloop and Barakzai were created by statute, they cannot have exercised a portion of sovereign power.”
Judge Jefferson Griffin joined Flood’s opinion. Judge Carolyn Thompson dissented. She would have allowed the lawsuit to continue against the city as well.
“Because I would conclude that plaintiff has stated facts that, when viewed in the light most favorable to plaintiff, raise genuine issues of material fact — specifically, whether defendant City of Charlotte’s (defendant Charlotte) delay in correcting the dangerous conditions posed by the crosswalk timing for approximately seven months after defendant Charlotte was notified of the danger the crosswalk posed was reasonable — I would conclude that the trial court erred in granting defendant Charlotte’s motion for summary judgment,” Thompson wrote.
Creech v. Town of Cornelius
In 2017, morning television news reporter Richard Devayne Creech was walking in a parking lot after a 6 a.m. live shot at the Huntersville town hall. A truck struck Creech, fracturing his tibia.
Creech sued the driver, Electricities of North Carolina, and the Town of Cornelius. A jury found the driver negligent and awarded the reporter more than $760,000.
The defendants appealed, but a unanimous Appeals Court panel upheld the trial court’s decision.
“Defendants contend that Plaintiff, through the exercise of reasonable care, could have escaped from his position of peril by getting out of the parking lot as soon as he saw the truck turn in. At that point, however, Plaintiff did not believe he was in danger because the truck’s headlights had shined on him before it began traveling in the direction opposite of Plaintiff,” wrote Judge Allegra Collins. “Plaintiff did not see [the driver] turn the truck around and thus did not see the truck approaching him in time to remove himself from the dangerous situation.”
“When viewed in the light most favorable to Plaintiff, the evidence was sufficient to support a reasonable inference that Plaintiff ‘placed himself in a position of peril from which he could not escape by the exercise of reasonable care,’” Collins added.
Saad v. Town of Surf City
In 2019, Adam Saad suffered injuries after driving his electric scooter over a section of Surf City bike lane that had been disturbed because of water and sewer installation work.
“According to Mr. Saad’s complaint, the backfilled site was entirely unmarked and uncovered,” wrote Chief Judge Chris Dillon. “That is, there were no cones, barricades, signs or lights to warn cyclists of the unpaved backfilled site at the time of Mr. Saad’s accident.”
A trial judge dismissed Saad’s claims of negligence and gross negligence against the town.
The Appeals Court agreed on the issue of gross negligence. “Assuming the Town failed to provide a warning of a two-inch depression in the bicycle lane caused by the backfilled area, Mr. Saad has not forecasted evidence from which a jury could conclude that the Town acted with a bad purpose or with reckless indifference,” Dillon wrote.
Yet appellate judges ruled that Saad could move forward with negligence claims.
“It is undisputed that the Town caused the excavation to take place. And based on Mr. Saad’s allegation in his verified complaint, there is an issue of fact whether the Town placed something in front of the backfilled site ‘sufficient to warn the public’ of the danger,” Dillon explained.
Appellate judges rejected Surf City’s argument that Saad should lose his case because he drove an electric scooter in a bike lane.