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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.

NO. COA12-512 NORTH CAROLINA COURT OF APPEALS Filed: 19 March 2013

AUDREY LOWDER, as Administratrix of the Estate of ANTHONY WAYNE FURR, Plaintiff v. ANTHONY PAYNE, in his capacity as Officer of Charlotte Mecklenburg Police Department, and the CITY OF CHARLOTTE, Defendants Mecklenburg County No. 07 CVS 1129

Appeal by plaintiff and defendant-City of Charlotte from order entered 19 September 2011 by Judge Forrest D. Bridges in Mecklenburg County Superior Court. Heard in the Court of

Appeals 14 November 2012. Robinson Elliott & Smith, by William C. Robinson, W. Lewis Smith, Jr., and Katherine Tenfelde and James, McElroy & Diehl, by Gary S. Hemric, John R. Buric, and Preston O. Odom, III, for plaintiff-appellant. Parker Poe Adams & Bernstein LLP, by Lori R. Keeton, for defendant-appellant City of Charlotte. Womble Carlyle Sandridge & Rice, by James P. Cooney, III, for defendant-appellee Anthony Payne. CALABRIA, Judge.

-2Audrey Lowder ("plaintiff") and the City of Charlotte ("the City") each appeal from the trial court's order granting in part and denying in part the City and Anthony for Payne's ("Payne") We

(collectively affirm.

"defendants")

motion

summary

judgment.

I. Background Anthony Services, Furr ("Furr"), an employee for A.F.L. and Network upgrade

LLC

("A.F.L."),

provided

maintenance

services for cellular phone towers. generally worked from late evening

Furr and his coworkers to early morning, when

cellular traffic was low.

Furr drove a white Chevrolet truck

bearing an A.F.L. logo ("Furr's truck"). On 20 July 2006, between 1:00 a.m. and 2:00 a.m., Payne, Adam Benson ("Benson") and Steven Branan ("Branan")(collectively "the officers") of the Charlotte-Mecklenburg Police Department ("CMPD"), responded to a 911 call regarding a suspicious vehicle at a cell phone tower which was located in an area of Charlotte where armed robberies and other thefts had been reported. The

officers were dressed in CMPD uniforms and were driving marked CMPD patrol cars. Upon arriving at the tower, Benson spoke with the 911

caller, Allen Hodge ("Hodge"), who told Benson that he saw two

-3individuals in a truck parked at the entrance to the enclosed tower area and asked them to leave. The officers inspected When Benson checked

Furr's truck to ensure it was unoccupied.

the license plate, he was informed that the vehicle was rented. The officers then entered the tower enclosure ("the enclosure"), where there were no signs of forced entry. Since the officers

had limited visibility in the enclosure, they had to use their flashlights. The officers also had difficulty hearing because

there was a loud hum emanating from the equipment. After the officers passed through the gate and into the enclosure, they heard some movement from their right. Payne and

Branan separated from Benson, moved to the right, and approached the shed which housed the tower's operating system. The door to the shed was open and light was spilling out onto the ground outside the doorway. Payne and Branan approached the open door Payne took the lead position, drew

with their weapons in-hand.

his weapon even with the shed's open door, and observed Furr crouched down in the shed holding tools with his back to the door. Furr appeared to be working two on a piece of equipment. stepped

Because

Hodge

reported

seeing

individuals,

Payne

into the shed to check the blind spot to the left of the door to ensure that Furr was the only occupant in the shed. Branan stood

-4behind Payne, and he was unable to see the interior of the shed clearly. Payne stepped away from the shed door, identified himself as a police officer, and instructed Furr not to move. Branan was unable to observe himself Furr as or an detect his movements after Payne

identified

officer.

Following

Payne's

announcement and instruction not to move, Furr stood up, turned around, and produced a handgun from somewhere on his person. Approximately three to five seconds later, Payne fired his

weapon once, and the bullet lodged in the left doorjamb of the shed entrance. Then Payne shouted, "gun, drop the gun." Both

Benson, who was standing on the far side of the enclosure, and Hodge, who was standing next to the fence outside the enclosure, heard Payne gunshots. According to Payne, rather than complying, Furr raised his gun to a 30-degree angle. times. Payne then fired his weapon two more make exclamations prior to the second and third

Furr suffered two gunshot wounds to his chest and died

almost immediately. The autopsy report confirmed that Furr was standing at the time both bullets entered his body. Bloodstain patterns on the

floor of the shed indicated that Furr continued to move forward

-5after he was struck by the first bullet. Furr's handgun was

found on the ground outside the building, approximately 5 to 6 feet from the doorway. precisely determine when However, forensic experts could not or how Furr released his weapon The before with

relative to the time Payne fired the second two shots. experts were only Furr able to agree the gun that, in a at some point

collapsing,

released

forward

motion

sufficient force to propel the gun to its final resting place. Plaintiff, who is Furr's sister, filed an action against Payne in his individual and official capacity as well as against the City for direct and vicarious for, liability. alia: Plaintiff's death,

complaint

included

claims

inter

wrongful

negligence and gross negligence, assault and battery, negligent hiring, training, and supervision, and punitive damages. On 19

Defendants filed a joint motion for summary judgment.

September 2011, the trial court granted defendants' motion as to claims against Payne in his individual capacity, finding that no genuine issue of material fact existed as to whether Payne

engaged in acts which were malicious, corrupt, or beyond the scope of his duties. Additionally, the trial court granted

defendants' motion as to plaintiff's claims against the City, except for her claims for negligence, gross negligence, and

-6assault and battery against Payne in his official capacity and her claim of vicarious liability against the City. and the City appeal. II. Interlocutory Appeal Plaintiff and the City appeal from an order granting Plaintiff

partial summary judgment as to some, but not all, of the parties and claims in the of case. the Since rights the of order the is not a "final it is In

determination interlocutory.

parties,"

N.C. Gen. Stat.

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