The North Carolina Court of Appeals has affirmed the dismissal of a wrongful death lawsuit brought against Cabarrus County emergency responders stemming from a 2020 flood incident that resulted in the death of a motorist.

The case arose after Roger Armistead attempted to drive across a flooded bridge on Miami Church Road during a period of heavy rain. According to the decision, Armistead’s slid off the road into floodwaters. Despite rescue efforts by the West Stanly Fire Department, the Georgeville Volunteer Fire Department, Cabarrus County Fire Squad 41, Armistead drowned before he could be extricated.

Quoting from the decision:

• When Mr. Armistead got to Dutch Buffalo Creek bridge water was crossing over the road.
• There was a Jeep sitting stationary in the left lane. Mr. Armistead passed the Jeep in the right lane and his right rear tire went slightly off the pavement and the rear of the car slid around to the right and came to rest on a gentle sloping ground with rip rap and rock. The front of the car was pointed on a slightly upward angle with the front of the car facing against the flow of water.
• Mr. McManus was the operator of the Jeep in the left lane. His Jeep was a lifted four-wheel drive 2001 Wrangler, equipped with thirty-five-inch off-road tires.
• After crossing the bridge in his Jeep, Mr. McManus made a U-turn to attempt to assist Mr. Armistead by using a winch mounted on his Jeep; unfortunately, the winch’s cable was too short.
• As Mr. McManus contemplated moving his Jeep closer, multiple emergency responders arrived on the scene. Mr. McManus left the scene after he was told to move his jeep so the emergency responders could attempt to save Mr. Armistead.
• Georgeville Volunteer Fire Department’s report reflects an arrival time of 3:19 p.m.
• Shortly thereafter, Cabarrus County Squad 410 arrived with Fire Captain Timothy Mills and Firefighter Brandon Musik. “Upon arrival, [the] Georgeville [Volunteer Fire Department] advised that there was a … vehicle with one occupant trapped in floodwater.”
• The emergency responders concluded that accessing the vehicle on foot was unsafe and rescue by boat was the best method.
• West Stanly Fire Department arrived, with a boat, at 3:32 p.m. Assistant Chief Timothy Lankford requested Fire Captain Mills and Firefighter Musik to board a boat to assist with the rescue.
• As they prepared, Mr. Armistead’s vehicle shifted and became three-quarters submerged.
• When the emergency responders approached the car by boat, they observed Mr. Armistead in the front seat with his seatbelt fastened; he appeared conscious but did not move.
• Firefighter Musik created a hole in the rear window with a spring-loaded window breaker. As the emergency responders worked to enlarge the hole, water filled the car, and it became fully submerged.
• Despite their efforts, the strong flow of the water thwarted further rescue attempts.
• Mr. Armistead’s car was eventually located and pulled from the water, but tragically, he had drowned.

His estate and a family member filed suit against various emergency responders, their agencies, and the county, alleging negligence, gross negligence, wrongful death, and related claims.

The trial court granted summary judgment to the defendants based upon sovereign immunity, the public duty doctrine, and public official immunity. On appeal, the plaintiffs argued that the emergency responders were not entitled to immunity protection, and that there are triable issues of fact that warrant a jury trial.

The Court of Appeals affirmed the dismissal, concluding that irrespective of the immunity issue, Armistead’s contributory negligence barred recovery.

• Plaintiffs’ complaint asserts three claims based in tort against Defendants: (1) negligence; (2) wrongful death; and (3) gross negligence.
• The trial court’s order, granting summary judgment against Plaintiffs, fails to indicate which, if any, of these claims it considered before concluding Defendants were shielded from liability under sovereign immunity, the public duty doctrine, and public official immunity.
• We decline to address whether Plaintiffs’ claims are barred by these immunities as our de novo review leads us to conclude Mr. Armistead was contributorily negligent and Plaintiffs are barred from recovery under this theory.
• Here, the uncontroverted evidence shows at the time Mr. Armistead drove off the road, a considerable amount of water flowed over the road and bridge.
• Despite a considerable amount of water rushing over the bridge on Miami Church Road, Mr. Armistead drove on that bridge, past another vehicle traveling in the same direction, ran off the road, spun out, and landed in flood waters.
• Considering the apparent danger Mr. Armistead exposed himself to leading up to the attempted rescue, we hold Plaintiffs are barred from recovery under the theories of negligence, liability on official bond, loss of consortium, and wrongful death.

Here is a copy of the decision.