Debra McMurray v. US
Filing
UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 4:12-cv-00086-D. Copies to all parties and the district court/agency. [999272211].. [13-1129]
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-1129
DEBRA ROSE MCMURRAY,
Plaintiff - Appellant,
v.
UNITED STATES OF AMERICA,
Defendant - Appellee.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Greenville. James C. Dever III,
Chief District Judge. (4:12-cv-00086-D)
Argued:
October 31, 2013
Before TRAXLER,
Judges.
Chief
Judge,
Decided:
and
KING
and
January 7, 2014
THACKER,
Circuit
Vacated and remanded by unpublished per curiam opinion.
ARGUED: Mark A. Sternlicht, BEAVER, HOLT, STERNLICHT & COURIE,
PA, Fayetteville, North Carolina, for Appellant.
Joshua Bryan
Royster, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North
Carolina, for Appellee.
ON BRIEF: Thomas G. Walker, United
States Attorney, R.A. Renfer, Jr., Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Debra
Rose
McMurray
was
a
passenger
in
a
vehicle
being
driven by Michael Rumfalo, a recruiter for the United States
Marine Corps.
ran
a
red
McMurray sustained serious injuries when Rumfalo
light
and
filed
suit
subsequently
collided
with
against
the
Federal Tort Claims Act (“FTCA”).
another
United
car,
States
and
she
under
the
The district court granted
summary judgment in favor of the United States, and McMurray
appeals.
We
vacate
the
judgment
of
the
district
court
and
remand for further proceedings.
I.
The
Marine
Corps
occasionally
conducts
workshops
for
teachers and other educational professionals at its facility on
Parris Island, South Carolina.
valuable
information
about
The workshops give the educators
the
Corps
and
the
opportunity
to
experience first-hand some elements of basic training.
McMurray,
a
guidance
counselor
at
a
high
school
near
Fayetteville, North Carolina, frequently counsels students who
are deciding whether to join the military or which branch of the
military would be a good fit.
the
workshops,
McMurray
Interested in attending one of
contacted
recruiter she knew from school.
Rumfalo,
the
Marine
Corps
Rumfalo told McMurray that a
workshop would be held on March 29 through April 2, 2010, and he
forwarded her the necessary paperwork to be completed in order
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to attend.
Agreement”
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The paperwork included a “Release and Hold Harmless
(the
“Release”)
that
released
the
government
from
liability for any injuries arising out of participation in the
workshop,
including
transportation
(to
“riding
include
Educator’s Workshop).”
in
government-provided
transportation
to
and
from
the
J.A. 15.
When Rumfalo came to pick up the paperwork from McMurray,
she had not yet completed the Release.
She asked Rumfalo if she
would be allowed to participate if she did not sign the Release
and
was
told
participate.”
that
“everyone
J.A. 18.
has
to
sign
[the
Release]
to
McMurray also asked Rumfalo if she
could drive herself to Raleigh to meet the bus that would take
them to Parris Island, rather than being picked up at her house
and driven to Raleigh by Rumfalo.
The answer to that question
was also “no,” an answer that “made it clear” to McMurray that
she “could not negotiate the terms of [her] participation in the
Workshop.”
J.A. 19.
McMurray therefore signed the Release and
attended the workshop.
After the workshop, a Marine Corps bus brought the workshop
attendees back to Raleigh.
Rumfalo was there, waiting to drive
McMurray and an attendee from Fayetteville back to their homes.
While still in Raleigh, Rumfalo ran a red light and collided
with a car that had the right-of-way.
McMurray suffered serious
injuries, including a traumatic brain injury.
3
McMurray missed
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work for the remainder of the 2010 school year and through the
entire summer as well.
Her medical bills and lost wages exceed
$48,000.
McMurray thereafter commenced this action under the FTCA.
The
district
court
granted
summary
judgment
in
favor
of
the
government, concluding that the Release was enforceable under
North Carolina law and that it barred McMurray’s claims against
the government.
This appeal followed.
II.
The FTCA provides a limited waiver of sovereign immunity
for torts committed by federal employees acting within the scope
of
their
employment
“under
circumstances
where
the
United
States, if a private person, would be liable to the claimant in
accordance with the law of the place where the act or omission
occurred.”
28 U.S.C. § 1346(b)(1).
“In other words, a claimant
has an FTCA cause of action against the government only if she
would also have a cause of action under state law against a
private person in like circumstances.
Thus, the substantive law
of each state establishes the cause of action.”
Anderson v.
United States, 669 F.3d 161, 164 (4th Cir. 2011) (citation and
internal quotation marks omitted).
The
act
or
omission
at
issue
here
took
place
in
North
Carolina, and the substantive law of North Carolina therefore
governs McMurray’s FTCA claim.
The sole issue on appeal is the
4
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enforceability
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of
the
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Release.
If
North
Carolina
law
would
enforce the Release had it been executed in favor of a private
person, then we must likewise enforce the Release as barring
McMurray’s claim.
--
and
See id. (“[S]ubstantive state law establishes
circumscribes
resolving
that
--
issue,
FTCA
this
causes
court
of
“must
action.”).
rule
as
When
the
North
Carolina courts would, treating decisions of the Supreme Court
of North Carolina as binding, and departing from an intermediate
court’s fully reasoned holding as to state law only if convinced
that the state’s highest court would not follow that holding.”
Iodice
v.
United
States,
289
F.3d
270,
275
(4th
Cir.
2002)
party
from
(internal quotation marks and alteration omitted).
III.
A.
Although
contracts
seeking
to
release
a
liability for his own negligence “are not favored by the law,”
such
contracts
Refining
clauses
Co.,
or
are
89
generally
S.E.2d
contracts,
enforceable.
396,
397
however,
(N.C.
“are
void
Hall
1955).
and
v.
Sinclair
Exculpatory
unenforceable”
where the “contractual provisions [are] violative of the law or
contrary to some rule of public policy,” or where a party to the
contract has unequal bargaining power and “must either accept
what
is
offered
or
forego
the
advantages
of
the
contractual
relation in a situation where it is necessary for him to enter
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into the contract to obtain something of importance to him which
for all practical purposes is not obtainable elsewhere.”
Id. at
398; see Fortson v. McClellan, 508 S.E.2d 549, 551 (N.C. Ct.
App. 1998) (“[A]n exculpatory contract will be enforced unless
it
violates
bargaining
a
statute,
power,
or
is
is
gained
contrary
through
to
a
inequality
substantial
of
public
interest.”).
McMurray
contends
that
each
of
the
exceptions
general rule of enforceability applies in this case.
to
the
She argues
that the release is unenforceable under the violation-of-statute
exception
because
Carolina’s
158(b)(2)
the
red-light
(“When
a
Release
statute.
traffic
is
inconsistent
See
signal
N.C.
is
Gen.
emitting
with
Stat.
a
North
§
20-
steady
red
circular light controlling traffic approaching an intersection,
an approaching vehicle facing the red light shall come to a stop
and shall not enter the intersection. . . .”).
argues
that
the
Release
bargaining-power
provided
is
exception
information
and
unenforceable
because
the
experience
under
She further
the
educator’s
important
to
unequalworkshop
her
as
a
guidance counselor that could not be replicated elsewhere and
she lacked the ability to negotiate the terms of her attendance.
As
to
the
operating
heavily
public-policy
motor
vehicles
regulated
exception,
on
public
activity.
roads
Given
6
McMurray
the
is
a
contends
that
dangerous
significant
and
public
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interests at stake, McMurray argues that it would violate public
policy to permit drivers to absolve themselves of the duty to
exercise reasonable care when driving.
We need not consider
McMurray’s arguments under the violation-of-statute or unequalbargaining-power exceptions, because we agree that the publicpolicy exception renders the Release unenforceable.
B.
As explained by the Supreme Court of North Carolina, the
public-policy exception prohibits a person from contracting to
protect
himself
from
“liability
for
negligence
in
the
performance of a duty of public service, or where a public duty
is
owed,
or
public
interest
is
involved,
or
where
interest requires the performance of a private duty.”
S.E.2d
at
398
omitted).
is
(emphasis
added;
internal
public
Hall, 89
quotation
marks
We think it clear that an important public interest
involved
in
this
case
--
the
public’s
interest
in
safe
streets and safe driving.
There can be no dispute that driving on public roads is a
dangerous
activity,
recognized.
as
North
Carolina
courts
have
repeatedly
See Williams v. Henderson, 55 S.E.2d 462, 463 (N.C.
1949) (“A motorist operates his vehicle on the public highways
where others are apt to be. . . .
Should he lapse into a state
of carelessness or forgetfulness his machine may leave death and
destruction in its wake.”).
Accordingly, in North Carolina, as
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elsewhere, numerous statutes, regulations, and cases spell out
the rules of the road and the duties of a driver.
And as the
case law makes clear, the point of these rules and regulations
is to protect not merely the driver and his passengers, but to
protect the safety of the public:
Our motor traffic regulations are not intended merely
to protect those who are using the highways. They are
designed to protect the life, limb, and property of
any and every person on or about the highway who may
suffer injury to his person or damage to his property
as a natural and proximate result of the violation
thereof.
Aldridge
v.
Hasty,
82
S.E.2d
331,
337
(N.C.
1954)
(emphasis
added); see also State v. Anderson, 164 S.E.2d 48, 50 (N.C. Ct.
App. 1968) (“Death on the highway can no longer be considered as
a personal and individual tragedy alone.
has
long
since
reached
proportions
of
The mounting carnage
a
public
disaster.”),
aff’d, 166 S.E.2d 49 (N.C. 1969).
We therefore conclude that,
under
is
North
Carolina
law,
there
a
strong
public-safety
interest in careful driving and the observance of all trafficrelated rules and regulations.
absolve
itself
of
the
duty
Permitting the government to
to
exercise
reasonable
care
when
driving puts members of the public at great risk and is contrary
to that strong public interest.
The district court, however, held -- and the Government
argues on appeal -- that the public-policy exception applies
only to “‘entities or industries that are heavily regulated.’”
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J.A. 25 (quoting Bertotti v. Charlotte Motor Speedway, Inc., 893
F. Supp. 565, 569 (W.D.N.C. 1995)).
In the district court’s
view, the activity of driving is not heavily regulated (at least
where
no
common
carriers
are
involved),
such
that
the
enforcement of the Release would not “contradict a substantial
public interest.”
J.A. 27.
As an initial matter, we question the correctness of the
district court’s determination that the public-policy exception
is
limited
to
activities.
cases
North
involving
Carolina
heavily
courts
regulated
have
applied
entities
the
or
public-
policy exception to invalidate exculpatory contracts and clauses
executed under widely varying circumstances, not all of which
can be said to involve heavily regulated entities or activities.
See Fortson, 508 S.E.2d at 551-52 (invalidating release signed
as
condition
of
participation
in
motorcycle-safety
training
program); Alston v. Monk, 373 S.E.2d 463, 467 (N.C. Ct. App.
1988)
(invalidating
release
signed
by
customer
having
hair
colored by student of cosmetology school); Brockwell v. Lake
Gaston Sales & Serv., 412 S.E.2d 104, 106 (N.C. Ct. App. 1992)
(invalidating clause in boat-repair contract that purported to
relieve mechanic of liability for negligence that led to theft
of personal property contained in boat).
While the practice of
cosmetology may be heavily regulated, teaching motorcycle safety
or
repairing
boats
is
not,
yet
9
the
releases
in
Fortson
and
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Brockwell
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were
still
Pg: 10 of 14
invalidated
under
the
public-policy
exception.
In our view, the Hall court’s formulation of the exception,
with
its
focus
on
public
service,
public
duty,
and
public
interest, see Hall, 89 S.E.2d at 398, makes it clear that the
public-policy exception turns not on the level of regulation,
but on the presence or absence of a public interest in the
transaction at issue.
The actual application of the exception
by the North Carolina courts confirms this view -- the courts
enforce
exculpatory
clauses
where
no
public
interest
is
at
stake, without regard to whether the entity seeking protection
is regulated.
See Gibbs v. Carolina Power & Light Co., 144
S.E.2d 393, 400 (N.C. 1965) (“Even a public service corporation
is
protected
casual
and
by
an
private
exculpatory
and
in
no
clause
way
when
connected
the
with
contract
its
is
public
service.” (emphasis added)); Fortson, 508 S.E.2d at 553 (“[W]hen
[a] public utility engage[s] in non-public activity, freedom of
contract principles appl[y], and the public utility’s contracts
[are] not limited by public policy.” (internal quotation marks
omitted)); see also Blaylock Grading Co. v. Smith, 658 S.E.2d
680, 683 (N.C. Ct. App. 2008) (enforcing exculpatory clause in
land-surveying contract despite regulation of surveying industry
because “the limitation on liability in the contract at issue
does not implicate the public health or safety”); Sylva Shops
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Ltd. P’ship v. Hibbard, 623 S.E.2d 785, 790, 792 (N.C. Ct. App.
2006)
(enforcing
because
exculpatory
relationship
was
clause
not
in
heavily
commercial
regulated,
lease
but
not
because
exculpatory clause at issue “[did] not create a risk of injury
to the public or the rights of third parties” and therefore
“[did] not affect the public interest”).
Heavy regulation of an activity or entity may well reflect
the
presence
of
an
important
public
enforcement of an exculpatory clause.
interest
that
precludes
See Fortson, 508 S.E.2d
at 551 (“An activity falls within the public policy exception
when the activity is extensively regulated to protect the public
from danger, and it would violate public policy to allow those
engaged in such an activity to absolve themselves from the duty
to use reasonable care.” (internal quotation marks omitted)).
Nonetheless, we do not read the relevant North Carolina cases as
requiring heavy regulation of the activity or entity before the
public-policy exception may be invoked. 1
The government also contends driving is not the kind of
activity
that
would
justify
application
1
of
the
public-policy
In any event, even if heavy regulation were required under
North Carolina law, it is apparent that driving on public roads
is a heavily regulated activity, with numerous statutes and
regulations establishing the requirements for getting and
keeping a license to drive on public roads, and setting out the
driver’s obligations under various circumstances.
11
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exception.
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We
disagree.
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In
our
view,
the
public-safety
interest at stake in this case is at least as important as the
safety
interests
involved
in
motorcycle
instruction,
see
Fortson, 508 S.E.2d at 552, or the practice of cosmetology, see
Alston, 373 S.E.2d at 467, and significantly more important that
the public interest in the safeguarding of a boat while under
repair,
see
Brockwell,
412
S.E.2d
at
106.
Moreover,
the
government’s argument in this regard is largely foreclosed by
the North Carolina Court of Appeals’ decision in Fortson.
In Fortson, the plaintiff executed a release when signing
up for a two-day motorcycle safety program and was injured when
the motorcycle she was assigned malfunctioned.
The court found
the release unenforceable under the public-policy exception.
To
reach its conclusion, the court focused on the risks associated
with
motorcycle
minimizing
interest
statute.”
the
that
use
risks
is
and
the
associated
“recognized
in
public-safety
with
case
Id. at 552 (emphasis added). 2
2
interest
motorcycle
law
and
“in
use,”
an
regulated
by
In the court’s view,
As an example of a case recognizing the public interest in
minimizing the risks of motorcycle use, the Fortson court cited
to State v. Anderson, 164 S.E.2d 48 (N.C. Ct. App. 1968), a case
which upheld North Carolina’s helmet law as valid exercise of
police powers because the law bore “a substantial relation to
the promotion of the welfare and safety of the general public as
distinguished from the welfare solely of the individual riders
of motorcycles.” Id. at 50 (emphasis added).
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the “same interests in public safety” addressed by the cases and
statutes involving motorcycle use “are significantly present in
motorcycle safety instruction,” id. at 554 (emphasis added), and
the court therefore found the release unenforceable:
“Given the
hazards to the public associated with motorcycle instruction,
and the extensive regulation of motorcycle use, it would violate
public
policy
to
allow
instructors
in
a
motorcycle
safety
instruction course, such as the one operated by defendant, to
absolve themselves from the duty to use reasonable care.”
Id.
at 552.
The
Fortson
court’s
analysis
is
thus
premised
on
an
implicit determination that the public-safety interest in the
safe use of motorcycles is substantial enough to invalidate a
release implicating that interest.
If the public interest in
the safe use of motorcycles is enough to invalidate a release,
then the public interest in the safe use and operation of cars
is likewise enough.
IV.
As the North Carolina courts have made clear, every driver
owes the public the duty to exercise due care when driving on
public roads; the failure to exercise due care puts people and
property
at
Williams,
public,
55
not
great
risk.
S.E.2d
merely
at
the
See
Aldridge,
82
S.E.2d
463.
Careless
driving
driver
and
passenger,
13
his
at
337;
exposes
to
the
great
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danger, and the Release therefore cannot be viewed as a simple
private contract that should be enforced according to its terms.
See Blaylock Grading Co., 658 S.E.2d at 683; Sylva Shops, 623
S.E.2d at 790.
Accordingly, we conclude that, under the circumstances of
this
case,
it
would
violate
public
policy
to
permit
the
government to “absolve [itself] from the duty to use reasonable
care”
when
driving.
Fortson,
508
S.E.2d
at
552;
cf.
Sylva
Shops, 623 S.E.2d at 790 (“Public policy has been defined as the
principle of law which holds that no citizen can lawfully do
that which has a tendency to be injurious to the public or
against
the
public
good.”).
Because
the
Release
is
unenforceable under North Carolina law, we vacate the district
court’s
order
granting
summary
judgment
in
favor
of
the
government, and we remand for further proceedings on McMurray’s
FTCA claim.
VACATED AND REMANDED
14
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