Orsbon v. Milazzo

• Court: Court of Appeals of North Carolina
• Decided: December 17, 2024
• Docket: 23-1170
• Status: Published

Opinion

IN THE COURT OF APPEALS OF NORTH CAROLINA

No. COA23-1170

Filed 17 December 2024

Mecklenburg County, No. 22CVS12431

R. ANTHONY ORSBON, as Guardian ad Litem for PATRICIA BOSWORTH-JONES, Plaintiff,

v.

MATTHEW TAYLOR MILAZZO and CITY OF CHARLOTTE, Defendants.

Appeal by plaintiff from order entered 7 June 2023 by Judge Carla N. Archie

in Mecklenburg County Superior Court. Heard in the Court of Appeals 28 May 2024.

Comerford Chilson & Moser, LLP, by Zachary M. Harris, W. Thompson Comerford, and John A. Chilson, for plaintiff-appellant.

The Law Offices of Lori Keeton, by Lori R. Keeton, for defendants-appellees.

O’Malley Tunstall, PC, by Peter J. Tomasek, Amiee A. Nwabuike, for amicus curiae North Carolina Advocates for Justice.

White & Stradley, PLLC, by J. David Stradley, for amicus curiae North Carolina Advocates for Justice.

Cranfill Sumner LLP, by Steven A. Bader, for amicus curiae North Carolina Association of Defense Attorneys.

FLOOD, Judge.

Plaintiff R. Anthony Orsbon appeals from the trial court’s order granting

Defendants Geoffrey Sloop and Saleem Barakzai’s motion for judgment on the

pleadings and Defendant City of Charlotte’s motion for summary judgment. After

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Opinion of the Court

careful review, we conclude the trial court erred in granting Defendants Sloop and

Barakzai’s motion for judgment on the pleadings because Defendants Sloop and

Barakzai are not public officials, and therefore not entitled to public official

immunity. The trial court, however, did not err in granting Defendant City’s motion

for summary judgment, because there is no genuine issue of material fact, and

Defendant City is entitled to judgment as a matter of law. We therefore affirm in

part, reverse in part, and remand for further proceedings.

I. Factual and Procedural Background

On 9 May 2021, Patricia Bosworth-Jones, a pedestrian, was crossing the

intersection of Archdale Drive and Park South Drive in Charlotte, North Carolina

(the “Intersection”) via a marked crosswalk upon receiving a “Walk” signal.

Defendant Matthew Taylor Milazzo, after stopping his vehicle on a red light at the

Intersection, received a circular green light, turned left, and struck Bosworth-Jones

in the marked crosswalk, causing devastating injuries, including a traumatic brain

injury.

Prior to the accident, in July 2020, the Intersection received pedestrian signals

and a crosswalk. The Intersection was designed so that the crosswalk “Walk” signal

would turn on simultaneously with the circular green light for left turning traffic, a

design contemplated by North Carolina law and the Manual on Uniform Traffic

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Control Devices (“MUTCD”).1 Defendant Milazzo, following the accident, testified he

did not understand that a circular green light meant turning vehicles must yield the

right of way to oncoming traffic and pedestrians.

Between May 2010 and 2021, there were no pedestrian accidents at the

Intersection, and only two left-turn accidents involving motor vehicles. On 30

October 2022, Defendant City received an online complaint about the Intersection,

which requested “pedestrian cross walk timing to be adjusted to run when cars are

not driving through [the I]ntersection[,]” expressing concern that “[i]ndividuals and

families are put in danger when crossing the street while cars are turning into the

same lane.” In response to the complaint, Defendant Barakzai, Engineer Project

Manager for Defendant City, based on his experience, installed a “no Turn on Red”

sign at the Intersection, and no further complaints or additional communications

following up on the complaint were received by Defendant City.

In 2019, Defendant City adopted its “Vision Zero Action Plan” (the “Action

Plan”) to address and eliminate serious traffic injuries and fatalities. The Action Plan

included a tool, a Leading Pedestrian Interval (“LPI”), to help eliminate serious

1 North Carolina law specifically requires drivers turning left on circular green lights to yield

to pedestrians who lawfully cross the intersection: “When the traffic signal is emitting a steady green light, vehicles may proceed with due care through the intersection subject to the rights of pedestrians and other vehicles as may otherwise be provided by law.” N.C. Gen. Stat. § 20-158(2a).

Section 4D.04 of the MUTCD states: “Vehicular traffic facing a CIRCULAR GREEN signal indication is permitted to proceed straight through or turn right or left or make a U-turn movement[.] Such vehicular traffic, including vehicles turning . . . left . . . shall yield the right-of-way to (a) Pedestrians lawfully within an associated crosswalk[.]”

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pedestrian injuries and fatalities. LPIs are timing devices that give pedestrians a

“Walk” signal several seconds before a driver gets a green light. Installation of LPIs

at intersections is not required under any national standards or under the MUTCD.

Defendant City, however, set a goal of installing LPIs at certain intersections during

retiming of the intersections, which occurs every two years. Under the goal set by

Defendant City, the Intersection was scheduled to have received an LPI at retiming

in 2022.

On 28 July 2022, Plaintiff filed suit in Mecklenburg County Superior Court as

guardian ad litem of Bosworth-Jones, asserting negligence as to Defendant Milazzo,

and “[n]egligence as to [Defendant City], Defendant Sloop[, Senior Engineer Project

Manager] (individually and in his official capacity), and Defendant Barakzai

(individually and in his official capacity).” Plaintiff’s theory of negligence was the

failure to include an LPI at the crosswalk. In his complaint, Plaintiff also asserted

that Defendant City had waived its governmental immunity. Prior to these events,

in October 2009, the city council of Charlotte passed a resolution waiving Defendant

City’s sovereign immunity from civil liability in tort.

On 27 October 2020, Defendants filed a motion for judgment on the pleadings.

On 3 January 2023, the matter came on for hearing in Mecklenburg County Superior

Court, and by order entered 24 January 2023, the trial court granted Defendants

Sloop and Barakzai’s motion for judgment on the pleadings, finding they were public

officials rather than public employees, but denied Defendant City’s motion for

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judgment on the pleadings. On 13 April 2023, Defendant City filed a motion for

summary judgment, which came on for hearing on 24 May 2023 in Mecklenburg

County Superior Court. By order entered 7 June 2023, the trial court granted

Defendant City’s motion for summary judgment, concluding that “there is no genuine

issue as to any material fact, and Defendant City . . . is entitled to judgment as a

matter of law.” Plaintiff timely filed written notice of appeal from this order.

II. Jurisdiction

This Court has jurisdiction to review Plaintiff’s appeal as an appeal from a

final judgment of a superior court, pursuant to N.C. Gen. Stat. § 7A-27(b) (2023).

III. Analysis

On appeal, Plaintiff alleges the trial court erred in: (A) granting judgment on

the pleadings in favor of Defendants Sloop and Barakzai because Defendants Sloop

and Barakzai are not public officials entitled to sovereign immunity, and (B) granting

summary judgment in favor of Defendant City because there are genuine issues of

material fact from which a jury could reasonably conclude Defendant City violated

its duties to Bosworth-Jones. We address each argument, in turn.

A. Motion for Judgment on the Pleadings

Plaintiff first argues that Defendants Sloop and Barakzai are not public

officials, and therefore not entitled to public official immunity, because their positions

were “neither created by statute nor the constitution, do[] not involve the use of

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discretionary decision making, and do[] not exercise ‘a legally significant portion of

sovereign power in the performance of their duties.’” We agree.

“Judgment on the pleadings is appropriate where the pleadings fail to reveal

any material issue of fact with only questions of law remaining.” Bauman v.

Pasquotank Cnty. ABC Bd., 270 N.C. App. 640, 642, 842 S.E.2d 166, 168 (2020)

(citation and internal quotation marks omitted). “Granting judgment on the

pleadings is not favored by law and the trial court is required to view the facts and

permissible inferences in the light most favorable to the nonmovant.” Id. at 642, 842

S.E.2d at 168 (citation and internal quotation marks omitted).

“This Court reviews de novo a trial court’s ruling on motions for judgment on

the pleadings. Under a de novo standard of review, this Court considers the matter

anew and freely substitutes its own judgment for that of the trial court.” Id. at 642,

842 S.E.2d at 168 (citation omitted).

It has long been established that “[w]hen a governmental worker is sued

individually, or in his or her personal capacity, our courts distinguish between public

employees and public officers in determining negligence liability.” Reid v. Roberts,

112 N.C. App. 222, 224, 435 S.E.2d 116, 119 (1993) (citation omitted). “[A] public

official, engaged in the performance of governmental duties involving the exercise of

judgment and discretion, may not be held personally liable for mere negligence in

respect thereto.” Isenhour v. Hutto, 350 N.C. 601, 609, 517 S.E.2d 121, 127 (1999). A

public “employee, on the other hand, is personally liable for negligence in the

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performance of his or her duties proximately causing an injury.” Id. at 610, 517

S.E.2d at 127 (citation omitted). An individual will not enjoy public official immunity

if his or her action “was (1) outside the scope of official authority, (2) done with malice,

or (3) corrupt.” Bartley v. City of High Point, 381 N.C. 287, 294, 873 S.E.2d 525, 533

(2022) (citation omitted).

Our Supreme Court has recognized “several basic distinctions between a public

official and a public employee, including: (1) a public office is a position created by the

constitution or statutes; (2) a public official exercises a portion of the sovereign power;

and (3) a public official exercises discretion, while public employees perform

ministerial duties.” Isenhour, 350 N.C. at 610, 517 S.E.2d at 127. “Discretionary acts

are those requiring personal deliberation, decision and judgment”; duties are

ministerial when they are “absolute and involve merely the execution of a specific

duty arising from fixed and designated facts.” Id. at 610, 517 S.E.2d at 127 (citations

and internal quotation marks omitted) (cleaned up). “Who[]ever is asserting public

official immunity must show all three factors of the Isenhour test exist.” Baznik v.

FCA US, LLC, 280 N.C. App. 139, 142, 867 S.E.2d 334, 336 (2021).

A person occupies a position created by statute if the position “ha[s] a clear

statutory basis.” Id. at 142, 867 S.E.2d at 337 (citation omitted). If, however, “a

statute expressly creates the authority to delegate a duty, [and the] person or

organization who is delegated [a duty] . . . performs the duty on behalf of the person

or organization in whom the statute vests the authority to delegate[,]” their position

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is sufficient to meet the first of the three factors for a public official. Cline v. James

Bane Home Bldg., LLC, 278 N.C. App. 12, 24, 862 S.E.2d 54, 63 (2021). Sovereign

power can be exercised only if it is granted by statute or the North Carolina

Constitution: “a defendant claiming themself a public official for immunity purposes

must show that they have exercised a portion of some power that only the sovereign

may exercise, as granted to the sovereign by either the Constitution or a statute.”

McCullers v. Lewis, 265 N.C. App. 216, 224–25, 828 S.E.2d 524, 533 (2019).

In Cline, this Court considered on first impression whether an “Environmental

Health Administrator” was a position created by statute, and held the defendant

failed to establish the position was created by statute because the statute did not

“provide a clear statutory basis for the position . . . nor allow a person or organization

created by statute to delegate any statutory duties to [the position].” 278 N.C. App.

at 23, 25–26, 862 S.E.2d at 63, 65. In Baznik, this Court considered whether a North

Carolina Department of Transportation (“NCDOT”) “Division Traffic Engineer” and

a “Division Sign Supervisor” held positions created by statute, and held that the

statutes presented by the defendant did not delegate “statutory authority to

employees of NCDOT.” 280 N.C. App. at 143, 867 S.E.2d at 337.

Relevant to this matter before us, North Carolina law provides that “[a] city

shall have general authority and control over all public streets [and] sidewalks[.]”

N.C. Gen. Stat. § 160A-296(a) (2023). The Charlotte City Code of Ordinances

authorizes the director to:

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Determine and provide for the installation, removal, relocation and change of official traffic control devices in accordance with accepted traffic engineering principles and standards. All traffic control devices shall conform to the manual and specifications approved by the state board of transportation or a resolution adopted by the city council. All traffic control devices so erected and not inconsistent with the provisions of state law or this chapter shall be official traffic control devices.

Charlotte, N.C., Code of Ordinances § 14-36(1) (2024).

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,” because

Ordinance § 14-36 fails to create the positions held by Defendants Sloop and Barakzai

or delegate statutory authority to them. See Baznik, 280 N.C. App. at 143, 867 S.E.2d

at 337; Cline, 278 N.C. App. at 25, 862 S.E.2d at 65; cf. Baker v. Smith, 224 N.C. App.

423, 428–30, 737 S.E.2d 144, 148–49 (2012) (holding that an assistant jailer has a

delegated statutory authority where the constitutionally-created Sheriff has the

authority to “appoint a deputy or employ others to assist him in performing his official

duties” (emphasis omitted)). 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. See McCullers, 265 N.C. App. at

224–25, 828 S.E.2d at 533; Baznik, 280 N.C. App. at 143, 867 S.E.2d at 337. Neither

the first nor second factor of the Isenhour test was met, and we need not reach the

third factor. See 350 N.C. at 610, 517 S.E.2d at 127; see also Cline, 278 N.C. App. at

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26, 862 S.E.2d at 65 (“As the first factor is not met, we need not reach the other

two Isenhour factors.”).

Because Defendants have not shown that “all three factors of

the Isenhour test” were met, Defendants have failed to demonstrate that Defendants

Sloop and Barakzai are public officials subject to public official immunity.2 Baznik,

280 N.C. App. at 142, 867 S.E.2d at 336; see Isenhour, 350 N.C. at 609–10, 517 S.E.2d

at 127. Accordingly, the trial court erred in holding Defendants Sloop and Barakzai

enjoyed public official immunity. See McCullers, 265 N.C. App. at 224–25, 828 S.E.2d

at 533; Baznik, 280 N.C. App. at 143, 867 S.E.2d at 337.

B. Summary Judgment

Plaintiff next contends the trial court erred in granting summary judgment in

favor of Defendant City because “there are genuine disputes of material fact from

which a jury could reasonably conclude that [Defendant City] . . . breached the duty

it owed to . . . Bosworth-Jones . . . by instructing her to cross into a dangerous

situation.” We disagree.

The “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

2 Defendants, citing to Reid, suggest that even if Defendants Sloop and Barakzai are public

employees, they are not liable in their individual capacities because they did not “directly participate in the events that caused [Bosworth-Jones’] injuries[.]” The parties, however, did not argue Defendants Sloop’s and Barakzai’s liability in their individual capacities before the trial court. See In re J.B., 257 N.C. App. 299, 303, 809 S.E.2d 353, 356 (2018) (“A contention not raised at the trial court may not generally be raised for the first time on appeal.”).

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as to any material fact and that any party is entitled to a judgment as a matter of

law.” In re Will of Jones, 362 N.C. 569, 573, 669 S.E.2d 572, 576 (2008) (internal

quotation marks omitted). “When considering a motion for summary judgment, the

trial judge must view the presented evidence in a light most favorable to the

nonmoving party.” Id. at 573, 669 S.E.2d at 576.

To make out a prima facie case of negligence, “a plaintiff must show 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) damages resulted from the injury.” Parker v. Town of Erwin, 243 N.C. App.

84, 110, 776 S.E.2d 710, 729–30 (2015) (citation omitted). Because Defendant City

did not breach its duty to Bosworth-Jones nor did it proximately cause her injuries,

Plaintiff cannot show that Defendant City was negligent.

1. Breach of Duty of Care

Plaintiff argues Defendant City breached its duty of care to Bosworth-Jones

“to reasonably install and maintain the pedestrian signal by instructing her to cross

into a dangerous situation.”

“Any city is authorized to waive its immunity from civil liability in tort by the

act of purchasing liability insurance.” Wilkerson v. Norfolk S. Ry. Co., 151 N.C. App.

332, 340, 566 S.E.2d 104, 110 (2002) (citation omitted) (cleaned up). “If a plaintiff

does not allege a waiver of immunity by the purchase of insurance, the plaintiff has

failed to state a claim against the governmental unit.” Id. at 341, 566 S.E.2d at 110

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(citation omitted).

A city “shall have general authority and control over all public streets,

sidewalks, alleys, bridges[,]” and that authority and control includes “(1) [t]he duty

to keep the public streets, sidewalks, alleys, and bridges in proper repair[,]” and “(2)

[t]he duty to keep the public streets, sidewalks, alleys, and bridges open for travel

and free from unnecessary obstructions[.]” N.C. Gen. Stat. § 160A-296(a), (a)(1)—(2)

(2023).

“[A] municipality which is under a duty to conform its traffic control devices to

the MUTCD and which has also waived immunity for civil liability in tort is subject

to possible liability for designing or installing a traffic control device not in

substantial conformity with MUTCD specifications.” Lonon v. Talbert, 103 N.C. App.

686, 692, 407 S.E.2d 276, 281 (1991). Generally, however, “[a]bsent a statute

imposing liability, cities acting in the exercise of police power . . . conferred by their

charters or by statute, and when discharging a duty imposed solely for the public

benefit . . . are not liable for the tortious acts of their officers or agents.” Id. at 691,

407 S.E.2d at 280 (citation and internal quotation marks omitted). The “installation,

maintenance and timing of traffic control signals at intersections are discretionary

governmental functions[,]” and where traffic signals are in compliance with

controlling authorities, a city is not under an “obligation” to make discretionary

changes to improve safety that were not otherwise required. Talian v. City of

Charlotte, 98 N.C. App. 281, 286–87, 390 S.E.2d 737, 741 (1990) (emphasis added);

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see also Cooper v. Town of Southern Pines, 58 N.C. App. 170, 173–74, 293 S.E.2d 235,

236–37 (1982) (holding that a municipality is not negligent when, absent an abuse of

discretion, it exercises a discretionary power).

In Talian, the plaintiffs brought suit against the city of Charlotte for damages

arising out of a traffic accident, arguing the city of Charlotte negligently failed “to

install a protected left turn signal” at the intersection where the accident occurred.

98 N.C. App. at 283, 390 S.E.2d at 738. This Court found that “[t]he undisputed

evidence of record showed that the traffic signal in place at the time of the collision

complied with all requirements of federal, state, and local law and was in proper

working order[,]” and that the plaintiffs “failed to offer evidence legally sufficient to

support a finding of negligence[.]” Id. at 289, 390 S.E.2d at 742. This Court also

addressed the plaintiffs’ argument that failure to install a new signal within a

reasonable time “after the decision to do so was made” constituted negligence,

concluding that a “[m]ere delay in meeting a recognized need does not, without more,

establish that the delay was unreasonable[.]” Id. at 288–89, 390 S.E.2d at 742. This

Court concluded that, as a result, the “trial court did not err in granting a directed

verdict for [the] defendant.” Id. at 289, 390 S.E.2d at 742.

Here, Plaintiff correctly alleged that Defendant City “has waived any and all

such governmental and/or sovereign immunity . . . by the act of purchasing (or

otherwise procuring, obtaining, or having in place) liability insurance[.]” See

Wilkerson, 151 N.C. App. at 340, 566 S.E.2d at 110. Thus, Defendant City could in

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theory be held liable for negligence towards Plaintiff. See id. at 340, 566 S.E.2d at

110. It is undisputed, however, that LPIs are optional under the MUTCD. Just as

the Court in Talian found that the traffic signals “were in proper working order and

complied in every way with all requirements of the MUTCD,” so here has Plaintiff

presented no evidence the traffic signals installed at the Intersection were not in

compliance with the MUTCD or the North Carolina Traffic Signal Manual at the time

of the accident. See 98 N.C. App. at 288, 390 S.E.2d at 741. Furthermore, just as the

Court in Talian held that the plaintiffs “failed to offer evidence legally sufficient to

support a finding of negligence,” because the evidence demonstrated that the traffic

signal “complied with all requirements of federal, state, and local law[,]” so here has

Plaintiff failed to offer evidence legally sufficient to support a finding of negligence

by Defendant City. See id. at 289, 390 S.E.2d at 742.

Additionally, Defendant City did not delay in installing the LPI, much less

unreasonably delay in doing so. In Talian, the left turn signal was to be installed “in

about a year” from December 1982, but its installation was delayed until July 1984,

about one month after the accident. Id. at 283–84, 288–89, 390 S.E.2d at 739, 742.

Here, by contrast, the LPI was scheduled to be installed at retiming in 2022, about

one year after the accident, but its installation was in fact moved up following the

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accident.3 See id. at 288–89, 390 S.E.2d at 742. Defendant City’s decision to install

LPIs at retiming rather than upon initial installation of a new signal, or even

following a resident’s complaint about an intersection, was reasonable, because the

decision ensured the LPI installation projects were completed in an organized fashion

and allowed for intersection timing data to be collected concurrent with installation.

The decision here to install the LPI at retiming was a component of Defendant City’s

“exercise of discretion[,]” and even had there been a delay in installing the LPI, such

“[m]ere delay [by Defendant City] in meeting a recognized need d[id] not, without

more, establish that the delay was unreasonable[.]” See id. at 289, 390 S.E.2d at 742.

Plaintiff has not presented evidence “from which the jury could infer that the

delay was unreasonable[,]” and so, just as in Talian, Plaintiff cannot establish

Defendant City’s negligence. See id. at 289, 390 S.E.2d at 742. Accordingly, because

the Intersection was MUTCD compliant at the time of the accident, and Defendant

City did not delay in installing the LPI, much less unreasonably delay in doing so,

Defendant City did not breach a duty towards Plaintiff. See id. at 287, 390 S.E.2d at

741.

2. Proximate Cause

3 Although Defendant City installed an LPI at the Intersection nine days after the accident,

Defendant City should not be penalized for choosing to install an optional traffic safety device ahead of schedule and in response to an accident. See, e.g., N.C.R. Evid. 407 advisory committee’s note (discussing the policy of excluding “evidence of subsequent remedial measures as proof of an admission of fault[,]” explaining that “evidence of . . . installation of safety devices” should be excluded because of the “social policy of encouraging people to take, or at least not to discourage them from taking, steps in furtherance of added safety”).

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Even if Defendant City owed a duty to Plaintiff, neither the Intersection

design, the resident’s complaint, nor Defendant City’s response to the resident’s

complaint were the proximate cause of Bosworth-Jones’ injuries. To prove proximate

cause, a plaintiff must show that the injury would not have occurred but for the

defendant’s negligence. Liller v. Quick Stop Food Mart, Inc., 131 N.C. App. 619, 624,

507 S.E.2d 602, 606 (1998). “Foreseeable injury is a requisite of proximate cause,

which is, in turn, a requisite for actionable negligence.” Thornton v. F.J. Cherry

Hosp., 183 N.C. App. 177, 182, 644 S.E.2d 369, 373 (2007) (citation omitted). To

prove foreseeability, a plaintiff must show “that consequences of a generally injurious

nature might have been expected.” Id. at 182, 644 S.E.2d at 373 (citation omitted).

Here, for ten years prior to the date of the accident, there had been only two

left turn, motor-vehicle related accidents. There were no pedestrian accidents during

that time, nor between the time the crosswalk was completed in mid-2020 and the

accident in this case. Although Defendant City received a complaint about “walk

timing” at the Intersection, this single complaint does not reasonably indicate

“consequences of a generally injurious nature” were to be expected, meaning that

Plaintiff failed to prove Bosworth-Jones’ injuries were foreseeable. See id. at 182, 644

S.E.2d at 373. Defendant Barakzai nonetheless quickly addressed the complaint by

installing a “no Turn on Red” sign within three days of receiving the complaint, and

no further complaints or additional communications following up on the resident’s

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complaint were received by Defendant City.4 Moreover, Bosworth-Jones was injured

when Defendant Milazzo failed to yield to the pedestrian in the crosswalk while

making a left hand turn on a circular green light; therefore, Defendant Milazzo’s

negligence—not Defendant City’s—was the proximate cause of Bosworth-Jones’

injuries. See Liller, 131 N.C. App. at 624, 507 S.E.2d at 606.

Defendant City did not create an overly dangerous situation, as the

Intersection design was contemplated by both MUTCD and under North Carolina

law. See N.C. Gen. Stat. § 20–158(b)(2a) (2023). Thus, neither the Intersection

design, the resident’s complaint, nor Defendant City’s response to the complaint was

the proximate cause of Bosworth-Jones’ injuries. See Liller, 131 N.C. App. at 624,

507 S.E.2d at 606.

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.

See In re Will of Jones, 362 N.C. at 573, 669 S.E.2d at 576. Defendant City is entitled

4 Defendant Barakzai’s quick response in addressing the resident’s complaint by installing a

“no Turn on Red” sign, based on Defendant Barakzai’s experience that installing the sign would address the resident’s complaint, further demonstrates Defendant City did not delay in addressing a danger the Intersection might have posed to pedestrians. See Talian, 98 N.C. App. at 289, 390 S.E.2d at 742.

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to judgment as a matter of law because it breached no duty to Bosworth-Jones, and

even if it had breached a duty, it did not proximately cause her injuries. See id. at

573, 669 S.E.2d at 576. Accordingly, because there is no genuine issue of material

fact, and Defendant City is entitled to judgment as a matter of law, the trial court did

not err in granting summary judgment in favor of Defendant City. See id. at 573, 669

S.E.2d at 576.

IV. Conclusion

The trial court erred in granting its judgment on the pleadings in favor of

Defendants Sloop and Barakzai because Defendants Sloop and Barakzai are not

public officials, and therefore not entitled to public official immunity. The trial court

did not err, however, in granting summary judgment to Defendant City as,

irrespective of its waiver of governmental immunity, there is no genuine issue of

material fact, and Defendant City is entitled to a judgment as a matter of law. We

therefore remand the trial court’s order as to the judgment on the pleadings and

affirm the trial court’s order as to the granting of the motion for summary judgment.

AFFIRMED In Part; REVERSED AND REMANDED In Part.

Judge GRIFFIN concurs.

Judge THOMPSON dissents in separate opinion.

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THOMPSON, Judge, dissenting.

Failure to comply with the Manual on Uniform Traffic Control Devices

(MUTCD) is not the only way by which a city that has waived its governmental

immunity in tort can be liable for negligence. The majority’s conclusion that, “because

the [i]ntersection was MUTCD compliant at the time of the accident, and [d]efendant

[Charlotte] did not delay in installing the LPI, much less unreasonably delay in doing

so, [d]efendant [Charlotte] did not breach a duty towards [p]laintiff[,]” is not an

appropriate determination for this court at the summary judgment stage.

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, and I respectfully dissent.

In order to bring a prima facie claim for negligence, a plaintiff must show (1)

defendant owed a duty to the plaintiff, (2) defendant breached the duty, (3) the breach

constituted the actual and proximate cause of plaintiff’s injury, and (4) plaintiff

suffered damages as a result of the breach. Cucina v. Jacksonville, 138 N.C. App. 99,

102, 530 S.E.2d 353, 355 (2000). Generally, “[a]bsent a statute imposing liability,

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Thompson, J., dissenting

cities acting in the exercise of police power, or judicial, discretionary, or legislative

authority, conferred by their charters or by statute, and when discharging a duty

imposed solely for the public benefit are not liable for the tortious acts of their officers

or agents.” Lonon v. Talbert, 103 N.C. App. 686, 691, 407 S.E.2d 276, 280 (1991)

(internal quotation marks, ellipsis, and citation omitted). Simply because “a city has

authority to make discretionary decisions does not mean the city is thereby under

any obligation[;] [a]uthority or power to control traffic does not create a mandate of

action.” Id.

However, “[a] city may waive its immunity from civil liability in tort by

purchasing liability insurance.” Id. Similarly, “[a]s to traffic control devices, a

governmental subdivision [that] has waived immunity from civil liability in tort may

be liable for its negligent failure to conform to a published standard such as the

Manual on Uniform Traffic Control Devices.” Id. at 692, 407 S.E.2d at 280. “With

respect to state roads within municipal corporate limits, traffic signs, signals,

markings, islands, and all other traffic[ ]control devices must be installed or erected

in substantial conformance with the specifications of the MUTCD.” Id. “[A]

municipality [that] is under a duty to conform its traffic control devices to the

MUTCD and which has also waived immunity for civil liability in tort is subject to

possible liability for designing or installing a traffic control device not in substantial

conformity with MUTCD specifications.” Id. at 692, 407 S.E.2d at 281.

Here, defendant Charlotte did not have a mandate or warrant in the MUTCD

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regarding Leading Pedestrian Intervals (LPIs). As the majority correctly identifies,

plaintiff has not pled facts that demonstrate defendant Charlotte was not in

“substantial conformity” with the MUTCD. In fact, defendants were in “substantial

conformity with MUTCD specifications[,]” id., and if non-compliance with the

MUTCD was the only means by which defendant Charlotte could be found liable for

negligence, our analysis would end here.

However, in Talian v. City of Charlotte, our Court’s analysis of whether

summary judgment was appropriate did not end with a determination of whether the

defendant, ironically also the City of Charlotte, had been in “substantial conformity”

with the MUTCD; the defendant was in conformity with the MUTCD. Talian, 98 N.C.

App. 281, 288, 390 S.E.2d 737, 741 (1990). After determining that the defendant was

in conformity with the MUTCD, our Court then considered whether the defendant

was liable—not for their failure to comply with the MUTCD—but whether their delay

was unreasonable, and thereby, negligent. See id. at 288–89, 390 S.E.2d at 742

(addressing plaintiff’s argument that the defendant “was negligent in failing to [fix

the dangerous condition] within a reasonable time after the decision to do so was

made”).

Here, as in Talian, our analysis of whether summary judgment was

appropriate should not end with a determination of whether defendant Charlotte was

in conformity with the MUTCD, which it was, but whether defendant Charlotte’s

delay in installing an LPI—which again, was not required by the MUTCD—after

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being notified of the dangerous conditions that the crosswalk created was reasonable.

Again, simply because “a city has authority to make discretionary decisions

does not mean the city is thereby under any obligation[;] [a]uthority or power to

control traffic does not create a mandate of action.” Lonon, 103 N.C. App. at 691, 407

S.E.2d at 280. Similarly, in the exercise of discretionary governmental functions,

“[m]ere delay in meeting a recognized need does not, without more, establish that the

delay was unreasonable or that the municipality abused its discretion.” Talian, 98

N.C. App. at 289, 390 S.E.2d at 742. However, it is fundamental that, “[u]pon notice

of defects and dangers in the streets, the city must remove them in a reasonable time,

and failure to do so is negligence, and such negligence is the basis of an action by

anyone injured by reason thereof.” Jones v. Greensboro, 124 N.C. 310, 310, 32 S.E.

675, 676 (1899) (emphasis added).

In Talian, much like the present case, the majority concluded that, “[t]he

undisputed evidence of record showed that the traffic signal in place at the time of

the collision complied with all requirements of federal, state, and local law and was

in proper working order” and therefore, “the trial court did not err in granting a

directed verdict for defendant.” Talian, 98 N.C. App. at 289, 390 S.E.2d at 742.

However, Judge Phillips offered a dissenting opinion, wherein he argued that, “[t]he

question properly posed by the record is whether between the determination that

additional signals were necessary and the accident[,] more than a reasonable time

went by without the improvement being made. In my opinion the question is one of

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fact that should have been submitted to the jury.” Id. (emphasis added) (Phillips, J.,

dissenting). I concur with Judge Phillips and apply the same reasoning to the case at

bar.

In his complaint, plaintiff alleged that defendant Charlotte, “by and through

its agents and employees . . . had a duty to exercise ordinary care for the safety of the

general public, including Ms. Bosworth-Jones, in the design of the crosswalk and

signal timing . . . and in its response to the resident’s complaint that the intersection

was unsafe for pedestrians.” (Emphasis added). Moreover, the complaint also alleged,

inter alia, that, “[d]efendants Sloop and Barakzai . . . in their official capacities, and

as agents and employees of [defendant Charlotte], failed to implement an LPI after

being placed on notice of the danger to pedestrians that the signal timing caused” and

“failed to separate the pedestrian phase from the traffic phase of the signal timing

after being placed on notice that the intersection was dangerous for pedestrians . . . .”

(Emphases added).

Plaintiff alleged that, “[a]s a direct, proximate, and reasonably foreseeable

result of the negligence of [defendant Charlotte], by and through its agents and

employees . . . [Ms. Bosworth-Jones] suffered severe, lifelong, and debilitating

injuries.” Finally, in the complaint, plaintiff alleged that defendant Charlotte “has

waived any and all such governmental and/or sovereign immunity . . . by the act of

purchasing (or otherwise procuring, obtaining, or having in place) liability

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insurance . . . .”5

Indeed, on 31 October 2020, defendant Charlotte was warned by a local

resident that “individuals and families are put in danger when crossing the street [at

issue in the present case] while cars are turning into the same lane” and requested

“the pedestrian [crosswalk] timing to be adjusted to run when cars are not driving

through [the] intersection.” As plaintiff notes in his appellate brief, defendant

Charlotte “chose to leave the crossing unsafe” while “[t]he fix to correct the danger

was simple and could be quickly implemented with little to no cost.” (Emphasis added).

Plaintiff’s theory of negligence in the present case was not that defendant

Charlotte failed to comply with the MUTCD, but that defendant Charlotte had a duty

to exercise ordinary care, and defendant Charlotte breached that duty by “fail[ing] to

implement an LPI after being placed on notice of the danger to pedestrians that the

signal timing caused” and by “fail[ing] to separate the pedestrian phase from the

traffic phase of the signal timing after being placed on notice that the intersection was

dangerous for pedestrians . . . .” (Emphases added).

The majority then asserts that “[e]ven if [d]efendant [Charlotte] owed a duty

to [p]laintiff, neither the [i]ntersection design, the resident’s complaint, nor

[d]efendant [Charlotte]’s response to the resident’s complaint were the proximate

cause of [Ms. Bosworth-Jones]’s injuries.” Moreover, the majority claims that

5 I also note that any reference to the MUTCD is entirely absent from plaintiff’s complaint.

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“[a]lthough [d]efendant [Charlotte] received a complaint about ‘walk timing’ at the

[i]ntersection, this single complaint does not reasonably indicate ‘consequences of a

generally injurious nature’ were to be expected, meaning that [p]laintiff failed to

prove Bosworth-Jones’[s] injur[ies] were foreseeable.” Finally, they assert that

defendant Charlotte “did not delay in installing the LPI, much less unreasonably

delay in doing so.”

To support their contentions that there was no foreseeability (and in turn, no

proximate cause), the majority claims that, “for ten years prior to the date of the

accident, there had been only two left turn, motor-vehicle related accidents [at the

intersection, and] [t]here were no pedestrian accidents during that time, nor between

the time the crosswalk was completed in mid-2020 and the accident in this case.” In

reality, the crosswalk project did not begin until 2017, and the design for the

crosswalk at the intersection, which plaintiff contends in his complaint, “created a

trap for pedestrians using the crosswalk exactly as they were directed[,]” was not

completed until March 2019. The crosswalk itself was not completed until “July 2020.”

As the majority notes, for ten years prior to the accident “[t]here were no

pedestrian accidents [at the intersection,]” and then, less than a year after the

crosswalk was completed in mid-2020, Ms. Bosworth-Jones was struck by a vehicle

while using the crosswalk. The difference between the timeframe where there were

no pedestrian accidents at the intersection and when there was a pedestrian accident

at the intersection: the crosswalk at the intersection. If anything, the fact that there

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were no pedestrian accidents at the intersection for ten years, and then seven months

after the crosswalk was completed, Ms. Bosworth-Jones was struck by a vehicle—is

further evidence of the foreseeability of the harm in this case—that a pedestrian,

using the newly created crosswalk as it was designed, would be struck and seriously

injured by a vehicle entering the intersection due to the crosswalk’s timing

mechanism.

For seven of the ten months after the crosswalk was completed, from 31 October

2020 until 9 May 2021 when the accident occurred, defendant Charlotte was on notice

that “[i]ndividuals and families are put in danger when crossing the street while cars

are turning into the same lane” and that a citizen had requested that the “crosswalk

timing be adjusted to run when cars are not driving through [the] intersection[,]”

(emphasis added). It was at this point, “[u]pon notice of defects and dangers in the

streets[,]” Jones, 124 N.C. at 676, that defendant Charlotte’s duty to correct the

dangerous condition arose, but defendant Charlotte failed to correct the dangerous

condition by adjusting the crosswalk timing. Instead, they installed a no right turn

on red sign that did not address the “crosswalk timing” noted in the complaint.6

Finally, the majority asserts on several occasions that defendant Charlotte’s

“[m]ere delay in meeting a recognized need does not, without more, establish that the

delay was unreasonable[,]” that defendant Charlotte “did not delay in installing an

6 It should also be noted that “[n]ine days after the collision, [defendant Charlotte] installed a

five-second LPI at the intersection.”

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LPI, much less unreasonably delay in doing so[,]” and that plaintiff “has not

presented evidence ‘from which the jury could infer that the delay was

unreasonable.’ ” However, “[i]n this jurisdiction, questions of proximate cause and

insulating negligence are for the jury except in cases so clear there can be no two

opinions among men of fair minds whether the intervening act and the resultant

injury were such that the author of the original wrong could reasonably have expected

them to occur as a result of his own negligent act.” Lonon, 103 N.C. App. at 695–96,

407 S.E.2d at 282 (internal quotation marks, ellipsis, and citation omitted) (emphases

added).

This is not a case so clear, and determinations about the reasonableness of

defendant Charlotte’s actions are not appropriate for this Court at the summary

judgment stage of a negligence action.7 Plaintiff did not just assert that defendant

had simply delayed in meeting a recognized need, he also asserted that defendant

Charlotte’s response to the complaint, by installing a no turn on red signal, did not

address the harm identified by the complaint: crosswalk timing.

Upon my review, viewing the evidence “in [the] light most favorable to the non-

moving party[,]” In re Will of Jones, 362 N.C. 569, 573, 669 S.E.2d 575, 576, I would

7 Moreover, this “mere delay” of seven months resulted in “broken bones, fractured ribs, severe lacerations, a dislocated shoulder, and, most significantly, a permanent, traumatic, and debilitating brain injury[,]” to an individual who was utilizing the crosswalk, created just seven months earlier, exactly how she was supposed to. The delay in correcting the dangerous condition here was not per se reasonable simply because of the fact that it constituted less time than the delay in Talian. Reasonableness is a question of fact for the jury.

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conclude that plaintiff’s allegation that defendant Charlotte negligently “failed to

separate the pedestrian phase from the traffic phase of the signal timing after being

placed on notice that the intersection was dangerous for pedestrians[,]” raised a

question of material fact: whether defendant Charlotte was unreasonable in its delay

in correcting the dangerous conditions in the roadway that were created by the

crosswalk, after being notified seven months earlier that the crosswalk was dangerous

to pedestrians.

“Summary judgment is an extreme remedy and should only be awarded where

the truth is quite clear[;] . . . [it] is rarely appropriate in negligence cases[,]” Nick v.

Baker, 125 N.C. App. 568, 570–71, 481 S.E.2d 412, 414 (1997), and I would posit that

the question properly posed by the record is—between the determination that there

were dangerous conditions in the roadway created by the crosswalk and the

accident—whether more than a reasonable time went by without correcting the

dangerous condition. “In my opinion[,] the question is one of fact that should have

[survived summary judgment].” Talian, 98 N.C App. at 289, 390 S.E.2d at 742

(Phillips, J., dissenting). For these reasons, I would conclude that the trial court erred

in granting summary judgment to defendant Charlotte, and I respectfully dissent.

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