Green ex rel. Crudup v. Kearny

739 S.E.2d 156, 225 N.C. App. 281, 2013 WL 427131, 2013 N.C. App. LEXIS 140
CourtCourt of Appeals of North Carolina
DecidedFebruary 5, 2013
DocketNo. COA12-678
StatusPublished
Cited by1 cases

This text of 739 S.E.2d 156 (Green ex rel. Crudup v. Kearny) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Green ex rel. Crudup v. Kearny, 739 S.E.2d 156, 225 N.C. App. 281, 2013 WL 427131, 2013 N.C. App. LEXIS 140 (N.C. Ct. App. 2013).

Opinions

ERVIN, Judge.

Plaintiffs Larry Donnell Green, through his guardian ad Litem Sharon Crudup; Larry Alston; and Ruby Kelly appeal from an order granting a motion for costs filed by Defendants Wade R. Kearney, II; Pamela Ball Hayes; Ronnie Wood; and Louisburg Rescue and [283]*283Emergency Services, Inc. On appeal, Plaintiffs contend that the trial court erroneously granted Defendants’ motion for costs on the grounds that (1) the trial court lacked authority to find Mr. Alston or Ms. Kelly liable for costs incurred after the trial court granted summary judgment in favor of Defendants with respect to Mr. Alston and Ms. Kelly’s negligent infliction of emotional distress claims; (2) Defendants’ motion for costs was untimely; and (3) the order taxing costs against Mr. Alston and Ms. Kelly was contrary to public policy. In addition, Plaintiffs argue that, to the extent, if any, that the trial court taxed costs against Ms. Crudup, it lacked the authority to do so. After careful consideration of Plaintiff’s challenges to the trial court’s order in light of the record and the applicable law, we conclude that the trial court did not err by taxing costs against Mr. Alston and Ms. Kelly, that the trial court did not tax costs against Ms. Crudup, and that the trial court’s order should be affirmed.

I. Factual Background

A. Substantive Facts

The present proceeding represents the third time that this Court has been called upon to consider issues arising from an accident in which Mr. Green was injured on 24 January 2005. See Green v. Kearney, 203 N.C. App. 260, 262, 690 S.E.2d 755, 758-59 (2010) (“Green I”), and Green v. Kearney, _N.C. App __, 719 S.E.2d 137 (2011) (“Green II”). We summarized the underlying facts in our opinion in Green I as follows:

The facts as alleged in plaintiffs’ complaint show that on 24 January 2005, at approximately 8:53 p.m., emergency services were dispatched in Franklin County, North Carolina to the scene of an accident involving a pedestrian — Green—and a motor vehicle. Green suffered an open head wound as a result of the accident. Defendant Wade Kearney (“Kearney”) with the Epsom Fire Department was the first to arrive at the scene and checked Green for vital signs. Kearney determined that Green was dead and did not initiate efforts to resuscitate him.
Several minutes later, defendants Paul Kilmer (“Kilmer”) and Katherine Lamell (“Lamell”) with Franklin County EMS arrived. Kearney asked Kilmer to verify that Green did not have a pulse, but Kilmer declined to do so, stating that Kearney had already checked and that was suf[284]*284ficient. Without checking the pupils or otherwise manually rechecking for a pulse, Kearney and Kilmer placed a white sheet over Green’s body.
At approximately 9:00 p.m., defendants Pamela Hayes (“Hayes”) and Ronnie Wood (“Wood”) with the Louisburg Rescue Unit arrived at the scene. After being informed by Kearney and Kilmer that Green was dead, neither Hayes nor Wood checked Green for vital signs. At around 9:31 p.m., Perdue, the Franklin County Medical Examiner, arrived at the scene. He first conducted a survey of the scene, taking notes regarding the location of Green’s body and the condition of the vehicle that struck him. Once the Crime Investigation Unit arrived, Perdue inspected Green’s body. While Perdue was examining Green, eight people saw movement in Green’s chest and abdomen. Kearney asked Perdue whether Green was still breathing and Perdue responded: “That’s only air escaping the body.” Once Perdue finished examining Green, he directed that Green should be taken to the morgue located at the Franklin County jail.
At approximately 10:06 p.m., Green was transported to the morgue by Hayes and Wood where Perdue examined him. Perdue lifted Green’s eyelids, smelled around Green’s mouth to determine the source of an odor of alcohol that had been previously noted, and drew blood. During this particular examination, Perdue, Hayes, and Wood all observed several twitches in Green’s upper right eyelid. Upon being asked if he was sure Green was dead, Perdue responded that the eye twitch was just a muscle spasm. Plaintiffs claim that Hayes did not feel comfortable with Perdue’s response and went outside to report the eye twitch to Lamell. Hayes then returned inside and asked Perdue again if he was sure Green was dead. Perdue reassured Hayes that Green was, in fact, dead. Green was then placed in a refrigeration drawer until around 11:23 p.m. when State Highway Patrolman Tyrone Hunt (“Hunt”) called Perdue and stated that he was trying to ascertain the direction from which Green was struck. To assist Hunt, Perdue removed Green from the drawer and unzipped the bag in which he was sealed. Perdue then noticed movement in Green’s [285]*285abdomen and summoned emergency services. Green was rushed to the hospital where he was treated from 25 January 2005 to 11 March 2005. Green was alive at the time this action was brought. His exact medical condition is unknown, though plaintiffs allege that he suffered severe permanent injuries.

Green I, 203 N.C. App. at 262, 690 S.E.2d at 758-59. “There is no dispute that Mr. Green was immediately disabled by his injuries.” Green II,_N.C. App at_, 719 S.E.2d at 139.

B. Procedural History

On 22 May 2008, Ms. Crudup was appointed to serve as Mr. Green’s guardian ad Litem. On the same date, Plaintiffs filed a complaint against Defendants Wade R. Kearney, II; Paul Kilmer; Katherine Lamell; Pamela Hayes; Ronnie Wood; Philip Grissom, Jr.; Dr. J.B. Perdue, both individually and in his official capacity as Medical Examiner for Franklin County; Louisburg Rescue and Emergency Medical Service, Inc.; Franklin County Emergency Medical Service, Inc.; Epsom Fire and Rescue Association, Inc.; and Franklin County, North Carolina. In the complaint, Mr. Green asserted negligence claims and Ms. Kelly and Mr. Alston asserted negligent infliction of emotional distress claims against all Defendants.

At different times and in different ways, each of Plaintiffs’ claims was resolved. On 6 July 2009, a settlement between Plaintiffs and Defendants Franklin County EMS, Mr. Kilmer, Ms. Lamell, and Franklin County received judicial approval. On 12 March 2009, a dismissal motion filed by Defendants Epsom Fire and Rescue Association, Inc., and Philip Grissom, Jr., was granted. On 23 July 2008, Dr. Perdue filed a motion to dismiss the claims that had been asserted against him on the grounds that he was immune from suit. The trial court denied Dr. Perdue’s motion on 12 March 2009, a decision from which Dr. Perdue noted an appeal to this Court. On 6 April 2010, this Court issued an opinion reversing the denial of Dr. Perdue’s dismissal motion on the grounds that Dr. Perdue was entitled to rely on a defense of sovereign immunity with respect to any claim filed against him in his official capacity and that Plaintiffs’ complaint did not adequately assert a claim against Dr. Perdue in his individual capacity. Green I, 203 N.C. App. at 275, 690 S.E.2d at 766.

On 29 July 2008 and 1 August 2008, the remaining Defendants, Mr. Kearney, Ms. Hayes, Mr.

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Green v. Kearney
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739 S.E.2d 156, 225 N.C. App. 281, 2013 WL 427131, 2013 N.C. App. LEXIS 140, Counsel Stack Legal Research, https://law.counselstack.com/opinion/green-ex-rel-crudup-v-kearny-ncctapp-2013.