Court revives fallen tree branch lawsuit against two Raleigh employees

The North Carolina Court of Appeals will allow a man to pursue a lawsuit against two Raleigh city employees. The suit stems from injuries the man sustained from a fallen tree branch in a city-maintained park.

Michael Creech was injured in June 2022 when a “large section of an oak tree” fell and struck him when he was sitting on a park bench in Nash Square.

Creech sued Raleigh and three named employees: urban forester Zach Manor, city arborist Anthony McLamb, and former Parks Department director Oscar Carmona.

A trial judge issued a January 2025 order dismissing the suit against the city and all three employees in their official and individual capacities.

Yet a state Appeals Court panel ruled Wednesday in an unpublished opinion that two of the three named plaintiffs — Manor and McLamb — did not have “public official immunity” protection from Creech’s complaint. Unpublished opinions have limited value as precedents for future court disputes.

Creech’s lawyers argued that all three individual defendants “are public employees — not public officials,” Judge Michael Stading wrote.

“Plaintiff has neither alleged nor argued the actions of Defendants Carmona, Manor, and McLamb were malicious, corrupt, or fell outside and beyond the scope of their duties; instead, Plaintiff’s complaint alleges ‘negligent acts and/or omissions [attributable to the individual Defendants] occurred in the ordinary course of their employment,’” Stading wrote. “Accordingly, we only address whether Defendants Carmona, Manor, and McLamb were public officials capable of asserting immunity.”

“In determining whether an individual is a public official or public employee, our courts have noted distinctions between a public official and a public employee: ‘(1) a public office is a position created by the constitution or statutes; (2) a public official exercises a portion of the sovereign power; and (3) a public official exercises discretion, while public employees perform ministerial duties,’” Stading explained.

The Appeals Court determined that Carmona met the “public official” standard, while Manor and McLamb did not qualify.

Judge Jefferson Griffin joined Stading’s opinion. Judge John Arrowood concurred in the case’s result.

The case had attracted media attention last fall when a city lawyer raised concerns about the use of artificial intelligence in Creech’s 50-page opening brief.

“The Court should view Plaintiff-Appellant’s principal brief with extreme skepticism,” wrote Andrew Seymour, Raleigh’s senior associate city attorney, in October. “In an attempt to show error in the trial court’s decision, Plaintiff-Appellant not only misstates the law throughout his brief, but also — and most egregiously — cites to and relies upon multiple fictitious cases to support his baseless arguments.”

Seymour mentioned two phony cases in Creech’s brief: Feldman v. City of Fayetteville from 1979 and Polk v. Davison from 1993.

“Transposing numbers in a citation or misspelling a party’s name is one thing,” Seymour wrote. “But citing multiple cases that simply do not exist is something else altogether.”

Jason Burton, Creech’s lawyer, filed multiple court documents on Oct. 21. Burton admitted the error and asked the court for permission to correct the brief. “These citations were included inadvertently and without any intent to mislead this Court or opposing counsel,” he wrote.

Burton “was shocked to learn that two (2) unverified citations were inadvertently included” in Creech’s brief. He pointed toward an unnamed contract attorney who conducted manual research “supplemented by his use of a legal industry-specific large language model application known as Vincent AI.”

While Burton knew that the contractor used AI “to conduct general legal research in the early stages of the briefing process,” he had been “unaware that the technology was utilized in compiling citations for a research memorandum that was incorporated into aspects of the Appellant’s Brief.”

“At no point did my office, or anyone working on behalf of my office, knowingly incorporate non-existent cases or fictitious citations,” Burton explained.

Neither phony citation influenced Creech’s legal argument, Burton emphasized. He suggested that removing the AI-invented cases would cause little impact.

The Raleigh defendants “neither consent to nor oppose” Creech’s motion to amend the original brief, Seymour wrote on Oct. 30. “The City-Appellees acknowledge there appears to be no North Carolina appellate decision addressing the use of or citation to non-existent, AI-generated cases in briefs filed with this Court.”

Issues related to “the use of emerging technologies — particularly artificial-intelligence tools — are increasingly arising in litigation and appellate practice,” Seymour wrote. “The present issue illustrates some of the dangers that improvident reliance upon artificial intelligence can create for practitioners and the courts alike.”

Creech’s motion “appears to be one of first impression,” Seymour added. That means no North Carolina precedent resolves the issue.

“[T]he Court may view this as opportunity to deter future practitioners from overreliance on artificial intelligence tools for legal research and writing without independent verification prior to Court submission,” Seymour suggested.

Appellate judges granted Burton’s motion on Nov. 3. They ordered him to cover the cost personally for printing a new brief. The unanimous court order took no other action on the AI-related error.

“Court revives fallen tree branch lawsuit against two Raleigh employees” was originally published on www.carolinajournal.com.