# Eckard v. Smith > Court of Appeals of North Carolina · October 5, 2004 · 166 N.C. App. 312 URL: https://www.frixlaw.com/law-library/cases/9580699 ## Case - **Full name:** EUNICE C. ECKARD, Executrix of the Estate of Steven Vincent Eckard, Deceased, and STATE OF NORTH CAROLINA, Ex. Rel., Eunice C. Eckard, Executrix of the Estate of Steven Vincent Eckard, Deceased, Plaintiffs v. CHANAE EVON SMITH, MARK STEPHEN McCOLLUM, STEVE WALLACE, PHILLIP H. REDMOND, Sheriff of Iredell County, HARTFORD FIRE INSURANCE COMPANY, and IREDELL COUNTY, Defendants - **Court:** Court of Appeals of North Carolina - **Decided:** October 5, 2004 - **Citations:** 166 N.C. App. 312; 603 S.E.2d 134; 2004 N.C. App. LEXIS 1778 - **Precedential status:** Published - **Opinion:** Concurring in part by Geer - **Judges:** Bryant, Geer, McGEE - **Cited by:** 18 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9580699 ## How later opinions describe it (automated extraction) - stating that in spite of the risks to “ ‘passengers, pedestrians, and other drivers that high-speed chases engender, but also the fact that if police are forbidden to pursue, then many more suspects will flee — and successful flights not only reduce the number of crimes solved… - affirming summary judgment for lack of evidence to establish gross negligence ## Opinion text GEER, Judge, concurring in part and dissenting in part. I concur fully with the majority opinion as to plaintiff’s claims against the uninsured motorist carrier, Indemnity Insurance. With respect to the claims asserted against the Iredell defendants, I agree that plaintiff failed to demonstrate gross negligence in defendants’ decision to initiate and continue the pursuit of Chanae Smith, but I would hold that plaintiff’s evidence creates an issue of fact as to whether defendants McCollum and Wallace executed a moving roadblock to force Smith to stop and whether, in doing so, they were grossly negligent. *328 I believe that plaintiff’s evidence — elicited from defendants themselves — that there was a 90% chance of an accident resulting from the maneuver, that the pursuit was surrounded on either side by “heavy citizen traffic,” and that there was no need to stop Smith at that particular spot on 1-40 is sufficient evidence to permit a jury to find defendants grossly negligent. If a 90% chance of an accident in the midst of heavy traffic, as a matter of law, cannot prove gross negligence, then it is difficult to imagine what evidence would be enough. Accordingly, I would reverse the trial court’s order granting summary judgment to the Iredell defendants. As the majority acknowledges, when the evidence is viewed in the light most favorable to the plaintiff, it would permit a reasonable juror to conclude that defendants Wallace and McCollum intended to terminate the pursuit on 1-40 by forcing the Blazer to a stop through a moving roadblock. While defendants deny performing a moving roadblock and claim that “[a]t most, the Iredell Defendants were trying to contain the Blazer by maintaining a box between it and civilian traffic[,]” this assertion ignores the requirement that the evidence be viewed in the light most favorable to the plaintiff. A jury could construe Wallace’s radio transmission about moving a marked unit up to “stop this” as expressing a desire to force the Blazer to stop. Deputy Drye understood Wallace to mean “that . . . we were going to try to box her in, try to slow her down and force her to the shoulder of the road or the emergency strip of the road.” Lt. McCollum’s written statement explained the intent in greater detail: Somewhere near the US 21/1-40 interchange Chief Deputy Wallace was able to position his patrol vehicle in front of the suspect vehicle, everyone was still traveling I-40-W. ... As the pursuit neared the NC 115/I-40(W) interchange, Chief Wallace and myself were going to attempt to slow the pursuit down even more, and hopefully to an uneventful end. This was going to be attempted by Wallace staying in front of the suspect vehicle, and myself staying close behind the suspect vehicle; and for Wallace and myself gradually decreasing our speed to a steady even stop. In order to do this, Wallace and myself had to contain the suspect vehicle in a safe zone or “Box”, between our 2 vehicles. Wallace began slowing his vehicle, the suspect was abruptly also slowing. I was likewise slowing my vehicle. We all decreased our speeds down to approximately 40 MPH. Wallace started slowing again, the suspect did not slow immediately, but did then begin. I moved *329 my patrol vehicle close in order to tighten the safe zone or “Box”. This would hopefully close off escape routes and bring everything to a safe conclusion. (Emphasis added) This description of Wallace’s and McCollum’s strategy matches up with Lt. McCollum’s description of a “moving roadblock”: . The definition of a moving roadblock is surrounding of a vehicle that’s failing to stop to the point to where you, whether they want to stop or not, force them to stop. You start slowing the speed down even if they don’t wish to slow the speed down. . . . A moving roadblock ends up being the same [as a stationary roadblock], other than you try to surround this particular car or vehicle that’s failing to stop with as many units as you can to where ideally it is totally encapsulated, and then it is forced to stop by the car in front bringing everything to a stop. (Emphasis added) I believe that a jury could, based on this evidence, conclude that defendants Wallace and McCollum were executing a moving roadblock with the intent of forcing the Blazer to stop on 1-40. The majority and I differ on the question whether evidence of this conduct, under the circumstances, is sufficient to prove gross negligence. Although no prior North Carolina appellate opinion has found sufficient evidence of gross negligence in a police pursuit case, I believe the evidence in this case regarding the attempted moving roadblock was sufficient to survive defendants’ motion for summary judgment. First, our appellate courts’ prior opinions have not addressed moving roadblocks or other attempts to bring the fleeing vehicle to a halt. In fact, in finding no gross negligence, our courts have specifically relied upon the fact that officers kept their distance from the fleeing vehicle and on the lack of evidence that officers tried to force the fleeing vehicle to stop. Thus, in Parish v. Hill, 350 N.C. 231, 245 , 513 S.E.2d 547, 555 (1999), the Supreme Court cited the following facts as dispositive on the question of gross negligence: In the instant case, [the officers] pursued defendant over a stretch of approximately ten miles of roadway, during a time of the day when traffic was very light. At no time did they attempt to overtake defendant’s vehicle or force defendant’s vehicle from the roadway. In fact, when defendant’s vehicle crashed on US 70 *330 on its way to Durham, [the officers] were well behind defendant’s vehicle and were traveling at a reduced speed. See also Bullins v. Schmidt, 322 N.C. 580, 582 , 369 S.E.2d 601, 602-03 (1988) (by the time of the accident, officers had reduced their speed and increased the distance between them and the fleeing vehicle because of the presence of other vehicles); Clark v. Burke County, 117 N.C. App. 85, 90 , 450 S.E.2d 747, 748 (1994) (there was no evidence that the officer ever pulled beside the vehicle or tried to pass it or run it off the road). Here, by contrast, a jury could find that defendants McCollum and Wallace were attempting to force the Blazer from the road, and, to achieve that purpose, they were each less than a car’s length from the Blazer when they sandwiched the car. Second, plaintiff also offered evidence that defendants knew that a moving roadblock created a substantial hazard. Lt. McCollum testified that with a moving roadblock, “[n]ine times out of ten, there’s going to be some contact with other units around or civilians” if the fleeing vehicle does not wish to slow down. He acknowledged, “That’s why there’s a high liability issue.” In addition, after Wallace’s radio transmission, there was discussion over the radio about choosing an older patrol car to move up next to the Blazer, suggesting defendants expected that there would likely be a collision. Yet, according to plaintiff’s evidence, defendants did not wait until a patrol car could move alongside before attempting to force the Blazer to stop. Third, the jury could take into account the fact that the officers initiated the moving roadblock maneuver, with its 90% chance of collision, at a time when the traffic was heavy and moving at significant speeds. No prior case has involved the degree of traffic present in this case. See, e.g., Bullins, 322 N.C. at 584 , 369 S.E.2d at 604 (“traffic was light and the road was dry”); Norris v. Zambito, 135 N.C. App. 288, 291 , 520 S.E.2d 113, 115 (1999) (“the roads were in good condition and free of other motorists”); Fowler v. N.C. Dep’t of Crime Control & Pub. Safety, 92 N.C. App. 733, 736 , 376 S.E.2d 11, 13 , disc. review denied, 324 N.C. 577 , 381 S.E.2d 773 (1989) (trooper encountered only one other vehicle during pursuit). While the amount of traffic did not necessarily, given the circumstances of this case, mean that the pursuit itself was gross negligence, a jury could view an attempt to execute a moving roadblock in heavy citizen traffic as being grossly negligent. As defendants acknowledge, the pursuit was in the left lane immediately prior to the accident, but the flow of traffic in the right *331 lane made it impossible for a marked unit to move up alongside the Blazer in the right lane. Plaintiff’s evidence would permit the jury to conclude that defendants effectively allowed the civilian traffic in the right lane to serve as a side of the “box” for the moving roadblock. The evidence also indicates that defendants knew (1) that there was a strong possibility that defendant Smith would change lanes or otherwise move sideways; and (2) Smith did not fear a collision. Defendant Wallace reported that while he was in front of the Blazer, it was “jerking from side to side within the lane, changing lanes, you know, obviously á danger.” At times, the Blazer’s left tires fell off the pavement and into the relatively narrow median before returning to the pavement. According to defendant Wallace, the Blazer “would turn sharply from side to side” and “would run up behind” his vehicle. Defendant Wallace also believed that the Blazer attempted to hit him from behind. Thus, the record contains evidence that would allow, but not require, a jury to find that defendants were executing a moving roadblock with the intent of forcing the Blazer to stop while in the left-hand lane of 1-40; that defendants knew that a moving roadblock with an uncooperative suspect would result in a collision 90% of the time; that defendants did not wait until the Blazer, which had been weaving between lanes and into the median, could be surrounded by patrol cars; and that defendants proceeded with the moving roadblock despite heavy citizen traffic in the right lane and across the relatively narrow median. This evidence would permit a jury to conclude that there was a high probability of injury to the public from the execution of the moving roadblock. 2 I agree with the majority that the probability of injury from the moving roadblock must be weighed against any law enforcement need to terminate the pursuit at that point on 1-40. Defendants have, however, pointed to no reason that they needed to stop the Blazer at the point on 1-40 where the accident occurred rather than wait until a more rural setting when traffic had cleared. Instead, they have argued *332 that there was no effort to halt the Blazer and that they were, in fact, trying to continue the pursuit and protect the public from a collision with the Blazer. As explained above, that is an issue of fact for the jury to decide. The majority opinion attempts to supply the missing evidence, stating: “The dissent focuses on the fact that traffic on 1-40 that afternoon was moderate to heavy, a fact that may lead a jury to believe initiating a moving roadblock at that time was grossly negligent. However, the amount of traffic could also be considered as a motivating factor in the defendants’ decision to initiate a moving roadblock, thereby reducing the possibility of injury to other motorists on 1-40 that day.” Although this supposition appears to conflict with the requirement that this Court view all evidence and draw all inferences in favor of the non-moving party, it also conflicts with defendants’ own brief. Defendants stated: “[T]he risks to continuing the pursuit were attenuated by the moderate speed, the absence of cross intersections or traffic signals, the one-way flow of traffic, and the clear road conditions.” In addition, Wallace testified that he heard a deputy report over the radio that the deputies could have “put her in the ditch. But at that point she had not done anything to warrant that type of activity.” Another deputy testified in his deposition that Smith’s erratic driving did not justify forcing her into a ditch — one of the outcomes of a moving roadblock. Thus, even if defendants had relied upon the law enforcement reason articulated by the majority opinion, plaintiff offered evidence that placed the legitimacy of that reason in dispute. The majority also points to the fact that only one officer lost control of the vehicle during the execution of the moving roadblock. Since the risk, as defendant McCollum testified, was from the recalcitrant driver being pursued, I do not understand how the fact that only one officer lost control establishes a lack of gross negligence as a matter of law. Bray v. N.C. Dep’t of Crime Control & Pub. Safety, 151 N.C. App. 281 , 564 S.E.2d 910 (2002), cited by the majority, does not support the result reached by the majority opinion. In Bray , this Court was reviewing a decision by the Industrial Commission under the State Tort Claims Act — the equivalent of reviewing a jury verdict. Bray cannot support the granting of a motion for summary judgment. Moreover, the plaintiff in Bray argued only that the trooper’s crossing of the middle line on a rural road while conducting a high speed pursuit constituted gross negligence. Bray did not address a decision to force a car to stop on a *333 heavily-traveled interstate when, viewing the evidence in the light most favorable to the plaintiff, there was no need to stop the car at that point. I would reverse the trial court’s grant of summary judgment because I believe plaintiff forecast sufficient evidence to permit a reasonable juror to find that defendants were grossly negligent in attempting to perform a moving roadblock under the existing circumstances, especially given that defendants have offered no evidence of any legitimate law enforcement reason for attempting to stop the Blazer in the midst of heavy citizen traffic. . The majority appears to misconstrue the nature of a “moving roadblock” when it states that defendants “conducted the moving roadblock in such a manner that it lasted for only about three miles and was undertaken at relatively low speeds.” The majority mistakes the pursuit with Wallace in front and McCollum behind the Blazer for the moving roadblock. As McCollum’s testimony explained, a “moving roadblock” is an attempt to force a vehicle to stop. It is a form of roadblock. The risk here did not arise from the low-speed pursuit, but from the decision to try to force the Blazer to stop. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9580699. Public record. Not legal advice.