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That's because in North Carolina, a sweeping legal shield called governmental immunity still protects local governments from liability for harm committed in the performance of a government function -- and allows cities and counties to choose who they will compensate, when they will be compensated, and the amount of that compensation, regardless of the extent of the damage done.
Governmental immunity is one of four defenses city attorneys have chosen to use in their answer to the Darwin family's lawsuit.
We are still investigating the case and incident and will present a fair response in court, said City Attorney Mac McCarley.
Darwin attorney Lee Olive said he suspects the city has chosen to use the immunity defense in this case because recent wrongful death awards by Mecklenburg County juries have run as high as $8 million.
In its reply, the city is also alleging that Darwin contributed to his own death, called gross contributory negligence, by having thoughtless disregard for the consequences of his actions when he turned into oncoming traffic without making any effort to avoid the collision that killed him.
Normally, a civil suit against a government employee for actions committed on government time would be summarily thrown out of court if the governmental body involved used the immunity defense. But Olive has thrown a relatively new twist at the court, a legal precedent of sorts that wasn't available a year ago.
In March, the NC Supreme Court heard Dobrowolska v. The City of Greensboro, a case stemming from an accident last year involving an on-duty Greensboro police officer who was at fault in an auto accident that permanently maimed two children. In that case, Attorney Joe Craig argued that by refusing to pay damages to the two children, the City of Greensboro violated their equal protection and due process rights under the state and US Constitution. Cities, Craig argued, cannot pick and choose whom they will compensate. A ruling in that case could trump the city's immunity claims in the Darwin case.
Like Greensboro, the City of Charlotte carries some insurance coverage that varies across various governmental functions. Police insurance, for instance, only covers settlements between $2 million and $4 million. That means that for settlements outside of those amounts, the city is uninsured, and by law can choose which victims it will reimburse.
If the state supreme court buys Craig's argument, it could rule in one of two ways. It could either force municipalities across the state to stop discriminating and settle all claims, which would force them to purchase insurance like the rest of the population. The courts could also go with a second option, forcing cities that choose to remain uninsured to claim governmental immunity in every liability case.
From a political standpoint, they can't do that, said Olive.
In the meantime, Olive said he's throwing every charge in the book against the city to keep the case alive and increase his clients' odds of getting their case before a jury despite the city's claims of immunity.
I don't think a jury will zero this family, said Olive.
The only charge that can overcome the city's immunity shield is one of recklessness or gross negligence -- an extremely difficult legal standard to prove, and one that would not normally be necessary had a regular citizen collided with Darwin in the same manner. Without the city's immunity claims, Darwin's clients could win compensation from the city by proving that the officer was negligent, a much lower legal standard.
All (Darwin) was doing was making a left turn, said Olive. I think I have enough to show recklessness.
Olive is currently fighting several additional battles with the city to get his hands on information he needs to make his case. He is currently in the process of obtaining the officer's on-duty driving record from the city, which the city to date has refused to turn over without a court order.
Olive estimates it could take at least another month to obtain the additional data he needs from the city to make his case, which will likely be heard some time this summer.
The Raw TruthPost stories stir national interest in Hispanic-Black tension. By Tara Servatius
Many Creative Loafing readers may not have ever read The Charlotte Post. But the Charlotte newspaper that dubs itself The Voice of the Black Community is now familiar to thousands, maybe millions of Americans.
Earlier this month, the paper's frank coverage of tensions between African-Americans and Hispanics sparked a flurry of national coverage, which included stories by national news media like FOX, NBC and The Wall Street Journal. National radio talk show host Rush Limbaugh read both articles aloud on the air.