Opinion
C.A. Nos. 99C-06-030, 00C-08-042 (Consolidated)
Submitted: August 9, 2002
Decided: August 21, 2002
Upon Consideration of the Motions for Summary Judgment Filed by Defendants Kimberly A. Reinoehl, Delaware State Police, Department of Public Safety and State of Delaware.
GRANTED.
Richard E. Poole, Esq., Wilmington, Delaware. Attorney for Plaintiffs.
George H. Seitz, III, Esq., Wilmington, Delaware. Attorney for Defendants.
Delaware State Police, Department of Public Safety and State of Delaware. Jeffrey M. Weiner, Esq., Wilmington, Delaware. Attorney for Defendant Reinoehl.
OPINION
Plaintiffs Jason, Bryan, Louise and Patrick Pauley brought suit to recover for injuries from an auto accident. They claim that defendant Kimberly A. Reinoehl, a state police officer, caused the accident through negligence or gross negligence. They also claim that the Delaware State Police, the Department of Public Safety and the State of Delaware ("the State" or "the State defendants") are liable as her employer and the owner of the police car. They also claim that the state police were negligent in the way Officer Reinoehl was trained and supervised, and that this negligence was itself a proximate cause of the accident. The defendants have moved for summary judgment. They raise issues concerning sovereign immunity, the State Tort Claims Act, and 21 Del. C. § 4106 which pertains to authorized emergency vehicles. They also test the sufficiency of the evidence as it pertains to alleged gross negligence or willful or wanton negligence on the part of Defendant Reinoehl and alleged contributory negligence on the part of Louise Pauley.
THE FACTS
At approximately 8:15 a.m. on August 24, 1998, Louise Pauley was driving her automobile northbound in the center lane of State Route 1, a multilane highway, near its intersection with the entrance to Rehoboth Outlets, No. 3, in or near Rehoboth Beach, Delaware. Her sons Jason, age 12, and Bryan, age 9, and Bret Cooper Shepard and Andrew Lorence, both age 9, were passengers. As she approached the intersection, she had a green light. At the same time, Defendant Reinoehl, was responding to an emergency call that a burglar alarm had gone off at the Outlets. She was driving her police cruiser southbound on State Route 1 with her emergency siren and lights turned on. Rehoboth Outlets, No. 3 lies on the east side of Route 1. Initially, however, Officer Reinoehl thought the location of the alarm was on the west side of Route 1. About a half-mile north of the intersection, she deactivated her siren. There is some dispute as to whether she also deactivated her police lights, but for purposes of this motion it will be taken as fact that she turned them off as well. Shortly before the intersection, she realized that Rehoboth Outlets, No. 3 was on the east side and moved across the several lanes of State Route 1 southbound from the right hand lane to the right lane of two left-hand turn lanes to make the turn into the Outlets. As she arrived at the intersection, several vehicles were stopped in the northbound lanes of Route 1, obstructing the officer's view of the northbound lanes beyond the vehicles she could see stopped. These vehicles had apparently been stopped at a red light facing northbound traffic, and had not yet started moving although the light facing northbound traffic had turned green by the time the officer arrived at the intersection. A vehicle traveling in front of Mrs. Pauley in the northbound center lane went through intersection under the green light. The officer then started across the northbound lanes to the Outlets entrance. As she did so, she shifted her attention from the northbound lanes to the entrance to the Outlets. She did not see Mrs. Pauley's vehicle, which was at that time proceeding through the intersection. The vehicles then collided in the intersection, causing injury to Mrs. Pauley and her two sons and causing the death of Bret Cooper Shepard.
STANDARD OF REVIEW
Summary judgment should be rendered if the record shows that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. The facts must be viewed in the light most favorable to the nonmoving party. Summary judgment may not be granted if the record indicates that a material fact is in dispute, or if it seems desirable to inquire more thoroughly into the facts in order to clarify the application of the law to the circumstances. However, when the facts permit a reasonable person to draw but one inference, the question becomes one for decision as a matter of law.
Superior Court Civil Rule 56(c).
Guy v. Judicial Nominating Comm'n, 659 A.2d 777, 780 (Del.Super.Ct. 1995); Figgs v. Bellevue Holding Co., 652 A.2d 1084, 1087 (Del.Super.Ct. 1994).
Ebersole v. Lowengrub, 180 A.2d 467, 470 (Del. 1962).
Wooten v. Kiger, 226 A.2d 238 (Del. 1967).
SOVEREIGN IMMUNITY
The State is immune from suit unless the General Assembly has enacted a statute waiving that immunity. The defendants have advised the Court that the State has self-insurance in the amount of $1,000,000 for claims arising out of this accident. It is the State's position that sovereign immunity is waived to the extent of the $1,000,000 of self-insurance. The statutory basis for the waiver, the State says, is 18 Del. C. § 6511, which reads as follows:
The defense of sovereign immunity is waived and cannot and will not be asserted as to any risk or loss covered by the state insurance coverage program, whether same be covered by commercially procured insurance or by self-insurance, and every commercially procured insurance contract shall contain a provision to this effect, where appropriate.
This provision has been discussed in a number of Supreme Court cases. A history of that Court's analysis of § 6511 appears in the 1995 case of Turnbull v. Fink. The case reaffirms the reasoning of prior cases which held that 18 Del. C. § 6511 waives sovereign immunity where risks or losses are covered by the State Insurance Coverage Program. The case also restates the findings in earlier cases that the State Insurance Coverage Program had never come into existence. In this case I am content to acknowledge the State's willing concession that it may be sued in this case to the extent of its $1,000,000 of self-insurance. The State indicates that the claims against the defendants based upon the officer's operation of the police car are within that coverage. The State also indicates, however, that the claims based upon alleged negligent training and supervision are not within that coverage. The defendants do, therefore, assert the defense of sovereign immunity in full as to those claims. The plaintiffs have not challenged the State's view that the claims based upon alleged negligent training and supervision are not within the coverage of the self-insurance. I will therefore accept as fact that those claims are not covered.
668 A.2d 1370 (Del. 1995).
A portion of the $1,000,000 coverage has been used to settle the Shepard family's claim for the death of their son. At oral argument, counsel for the State defendants represented that the State has offered all of the remaining insurance coverage to settle the Pauley family's claims.
The amount paid in settlement to the Shepard family and the amount remaining and available to the Pauley family are part of the record of this case.
The plaintiffs, however, contend that their claims are not limited to the State's insurance coverage. They contend that the State Tort Claims Act waives sovereign immunity without regard to insurance coverage as to all claims against the State except those where the act itself preserves immunity. The act reads in relevant part as follows:
Except as otherwise provided by the . . . laws . . . of the State, as the same may expressly require . . ., no claim . . . . shall arise . . . against the State or any public officer or employee . . . in any civil suit . . . where the following elements are present:
(1) The act or omission complained of arose out of and in connection with the performance of an official duty requiring a determination of policy, the interpretation or enforcement of statutes, rules or regulations, the granting or withholding of publicly created or regulated entitlement or privilege or any other official duty involving the exercise of discretion on the part of the public officer, employee or member . . .
(2) The act or omission complained of was done in good faith and in the belief that the public interest would best be served thereby; and
(3) The act or omission complained of was done without gross or wanton negligence; . . .
This statute shields the State and its public officers or employees from liability where the act or omission complained of arises from (1) an official duty involving certain forms of discretion, (2) the public officer or employee acts in good faith with the belief that the public is best served by the act or omission, and (3) the act or omission is done without gross or wanton negligence. The presence of all three factors gives the State and the public officer or employee statutory immunity, but if any one of the three factors is absent, the act itself provides no immunity at all. The burden of proving the absence of one of the three elements is on the claimant.
The plaintiffs contend that the first factor is absent because driving a vehicle is a ministerial act, not a discretionary act as that term is used in the statute. The defendants, or at least the State defendants, concede this issue. The plaintiffs also contend that Officer Reinoehl drove with gross or wanton negligence. The act does not bar claims based upon gross or wanton negligence. The plaintiffs also contend that the training and supervision of state police officers is ministerial in nature, not discretionary, or at least that there are disputed, material facts as to that issue which preclude summary judgment at this time.
At oral argument, counsel for the plaintiffs agreed that for purposes of this litigation Officer Reinoehl should receive the same treatment as the State on the sovereign immunity issue.
The view advocated by the plaintiffs, however, is a misconception of the nature of the State Tort Claims Act. The act was enacted not to waive sovereign immunity, but to establish statutory limitations on civil liability of the State and its officers and employees where the General Assembly by some separate act waives sovereign immunity. This principle was authoritatively stated by then Justice Christie in Doe v. Cates, as follows:
499 A.2d 1175 (Del. 1985).
Appellants also claim that the State Tort Claims Act . . . provides for a waiver of all sovereign immunity except such sovereign immunity as is specifically preserved in that act. We find no merit to this contention.
* * *
The title of the bill speaks of limiting civil liability. It does not mention sovereign immunity at all.
* * *
In keeping with the purpose of the State Tort Claims Act, this Court holds that § 4001 must be applied to limit the State's liability where it has, by some means independent of 10 Del. C. § 4001, waived immunity.
Id. 1179-1181.
Judge Stapleton expressed a similar view in the earlier case of Space Age Products, Inc. v. Gilliam.
488 F. Supp. 775 (Dist. Del. 1980).
This principal was succinctly stated by Judge Quillen in the case of Stevenson v. Brandywine School District. as follows:
1999 Del. LEXIS 401 (Del.Super.Ct. 1999).
The doctrine of sovereign immunity provides that the State cannot be sued without its consent. (citing Doe). The only way the State can waive its sovereign immunity is by act of the General Assembly. Id. For the Plaintiff in this action to prevail, she must overcome two hurdles. First, the State must be said to have waived the defense of sovereign immunity for the actions mentioned in the Complaint. Second the Plaintiff must prove that the State Tort Claims Act, 10 Del. C. § 4001-05, does not bar the action.
The plaintiffs' claims that Officer Reinoehl was improperly trained and supervised do not get past the first hurdle. No statutory enactment has been identified in which the General Assembly has waived sovereign immunity for claims arising from the way the State Police trains and supervises its officers. Since the General Assembly has not waived sovereign immunity as to the plaintiffs' claims that Officer Reinoehl was not properly trained or supervised, summary judgment on those claims must be granted.
As to the claims based upon the officer's alleged improper driving, the plaintiffs get past the first hurdle to the extent of the remaining self-insurance based upon the State's non-assertion of sovereign immunity for that amount. They are limited to the amount of the remaining self-insurance, however, unless they can show that a statute contains a waiver of sovereign immunity in excess of that amount. They contend that 21 Del. C. § 4106 is such a statute.
It reads in relevant part as follows:
(a) The driver of an authorized emergency vehicle, when responding to an emergency call or when in the pursuit of an actual or suspected violator of the law or when responding to but not upon returning from a fire alarm, may exercise the privileges set forth in this section, but subject to the conditions herein stated.
(b) The driver of an authorized emergency vehicle may:
(1) Park or stand, irrespective of the provisions of this chapter;
(2) Proceed past a red or stop signal or stop sign, but only after slowing down as may be necessary for safe operation;
(3) Exceed the speed limits so long as the driver does not endanger life or property;
(4) Disregard regulations governing direction of movement or turning in specified directions.
(c) The exemptions herein granted to an authorized emergency vehicle shall apply only when such vehicle is making use of audible or visual signals meeting the requirements of this title, except that an authorized emergency vehicle operated as a police vehicle need not make use of such signals.
(d) The driver of an emergency vehicle is not liable for any damage to or loss of property or for any personal injury or death caused by the negligent or wrongful act or omission of such driver except acts or omissions amounting to gross negligence or willful or wanton negligence so long as the applicable portions of subsection (c) have been followed. The owner of such emergency vehicle may not assert the defense of governmental immunity in any action on account of any damage to or loss of property or on account of personal injury or death caused by the negligent or wrongful act or omission of such driver or owner.
(e) Authorized emergency vehicles . . . mean . . . police vehicles.
Officer Reinoehl was clearly driving an authorized emergency vehicle at the time of the accident. The plaintiffs contend that the second sentence of subsection (d), which prohibits the owner of the vehicle from asserting the defense of governmental immunity, is an unlimited waiver of sovereign immunity where people are injured by negligent drivers of state owned emergency vehicles.
This contention requires a brief review of the history of the authorized emergency vehicle statute. When originally enacted, subsection (d) read as follows:
(d) The foregoing provisions shall not relieve the driver of an authorized emergency vehicle from the duty to drive with due regard for the safety of all persons, nor shall such provisions protect the driver from the consequences of his reckless disregard for the safety of others.
On April 7, 1978 a case was decided in this Court which held that a volunteer fireman for the Millsboro Fire Company was liable for negligence for causing an accident while driving a fire truck to a fire. On July 11, 1978 an amendment to subsection was approved, which changed (d) to its current form. The subsection now limits the liability of drivers to gross negligence or willful or wanton negligence. While there is no express documentation linking the 1978 case with the amendment, given the timing of the case and the amendment, it is reasonable to infer that the case had a bearing on the passage of the amendment.
Green v. Millsboro Fire Co., Inc., 385 A.2d 1135 (Del.Super.Ct. 1978).
61 Del. Laws, c. 461.
In 1983, this Court had occasion to discuss revised subsection (d) in a case involving New Castle County. A county policeman in a county owned police car was in hot pursuit of a fleeing motorcyclist. The chase ended when the motorcyclist crashed into another vehicle. An injured passenger on the motorcycle sued the county, claiming that the accident was caused by negligence on the part of the police officer. The county acknowledged that it could not assert governmental immunity as a defense to a claim for injuries based on the officer's negligence, but argued that it could not be vicariously liable under respondeat superior where the employee had no liability. Noting that the County and Municipal Tort Claims Act expressly provides that a county is liable for a negligent act causing injury in the use of a county owned vehicle, the Court rejected the county's contention, and held that the county was still subject to suit for the policeman's ordinary negligence, although the policeman was not. The State here agrees that it is liable for negligent driving to the extent of the limits of the self-insurance.
Bradely v. New Castle County, 1983 Del. LEXIS 695, (Del.Super.Ct. 1983).
Apparently there was no allegation that the officer's alleged negligence was gross or willful or wanton.
The Court also briefly touched on subsection (d) in a case involving a fire policeman. There, the Court held that the fire policeman's properly equipped, privately owned vehicle was an authorized emergency vehicle, rejecting a contention that the term only applies to fire company owned vehicles. The Court observed that the second sentence of subsection (d) meant that the protections afforded by the statute were limited to drivers, not owners, a limitation consistent with 10 Del. C. § 4012 of the County and Municipal Tort Claims Act and the requirement that vehicles be insured.
Rohrer v. Faries, 1990 Del. LEXIS 401 (Del.Super.Ct. 1990).
The act also covers registered volunteer fire companies.
I am not persuaded that the 1978 amendment must or should be given the scope advocated by plaintiffs. If the General Assembly intended to waive sovereign immunity completely and expose the State to unlimited liability for injuries caused by emergency vehicles, it could have chosen far more direct language to express that intent. Why the General Assembly would chose to expand a waiver of sovereign immunity in an amendment, the apparent purpose of which was to grant immunity from negligence to the driver, is a question with no ready answer. The most reasonable explanation for the "government immunity" language in the amendment to subsection (d) is that it was intended simply to clarify that the grant of immunity from negligence was personal to the driver only, and not meant to apply to a government entity which, without the amendment, was subject to suit for the driver's negligence. I rule that subsection (d) does not waive sovereign immunity for any amount in excess of the State's self-insurance. Summary judgment for the moving defendants will be granted on condition that the State tender the Pauley plaintiffs the full, remaining amount of its self-insurance.
The plaintiffs urge the Court to consider the case of Carter v. McLaughlin, 2000 Del. LEXIS 162 (Del. 2000). However, the decision in that case was vacated. 758 A.2d 933.
GROSS, WILLFUL OR WANTON NEGLIGENCE
Officer Reinoehl has also moved for summary judgment on the grounds that, as a matter of law, her conduct does not amount to gross negligence or wanton or willful negligence.Officer Reinoehl's liability is governed by the express terms of the authorized emergency vehicle statute. Under subsection (d) she is not liable if her conduct was merely negligent. Gross negligence or willful or wanton negligence is required.
The Court also notes that the opening phrase of the State Tort Claims Act, § 4001, expressly subordinates that section to the express requirements of other statutes, such as, in this case, the authorized emergency vehicle statute which predicates a driver's liability on gross negligence or willful or wanton negligence.
The plaintiffs argue in their brief that the officer is liable for ordinary negligence if her conduct does not fall within one of the four privileges set forth in subsection (b) of the authorized emergency vehicle statute, citing Curtis v. Martelli, 1996 Del. LEXIS 23, (Del.Super.Ct. 1996). In that case, the plaintiff claimed that the emergency vehicle driver was negligent eight different ways. The Court stated that three of the grounds of negligence were within the privileges and were subject to a gross, willful or wanton negligence standard, but that five of them were not and were subject to an ordinary negligence standard. The five are not set out in the opinion. Subsection (b) simply gives drivers of emergency vehicles the privilege of disregarding the rules of the road under some circumstances. In any event, under the plain language of subsection (d), the driver of an authorized emergency vehicle is not liable for ordinary negligence, and to the extent the plaintiffs contend that the officer is liable for ordinary negligence, their contention is rejected.
There is evidence in the record that the officer's lights and siren were both off as the officer approached the intersection on Route 1 southbound. Debra Doucette described the officer's driving as follows:
Q: Can you tell me in your own words what you remember about the accident or the events leading up to the accident?
A: I was approaching Route 1 at the intersection with Atlantic Liquors and as I was turning onto Route 1 the police vehicle — I'm not sure whether the light was green or red for them, but came through at what I considered a dangerous rate of speed for the summertime, and with no lights, no siren, and in my mind I said "He's going to kill somebody," not knowing that the officer was a woman. And the police vehicle proceeded down the road at what I thought was a high rate of speed. And I continued on down the road approaching the intersection where the accident took place. I heard the noise of an accident. And when I approached the light where the accident was, I saw the overturned vehicle, the police cruiser, and bodies on the ground.
* * *
Q: You also made the statement something to the effect — and please correct me if I'm wrong — that he's going to kill somebody. What made you say that to yourself?
A: It's just what went through my mind when the vehicle passed me. I just had this shiver that went through me that something was going to happen.
In another answer she testified that the officer was going "too fast" without "warning on the vehicle for anybody to be aware that the vehicle was coming at you, to get out of their way."
Michael DiGangi, an eyewitness to the accident, said the officer was traveling "quite fast" as she came down Route 1 southbound. He also said that the officer was traveling about 30 miles per hour as she made her left turn across the northbound lanes. Peter Bercik, another eyewitness, saw the officer approach, enter the intersection and make her left turn. He said the officer did not come to a stop at the intersection and was traveling about 30 miles per hour from the time he first saw her vehicle until the point of impact.
Viewing the evidence in the light most favorable to the plaintiffs, the officer traveled down Route 1 southbound "quite fast," or "too fast," in Ms. Doucette's view, without emergency flashers or a siren. As she neared the intersection, she moved from the right hand lane across the middle and left lanes into a left hand turn lane. She remained in continuous motion, and by the time she began her left turn, had slowed to approximately 30 miles per hour. At the time there were several vehicles stopped facing northbound. There is no evidence that the officer saw the plaintiff's vehicle before the accident, or at least no evidence that she saw it before it was too late, and I do not think that a reasonable juror could infer that she did.
Gross negligence has been defined as a higher level of negligence representing an "extreme departure from the ordinary standard of care." It is the functional equivalent of criminal negligence, which is defined as failure to perceive a risk of harm of such a nature and degree that failure to perceive it constitutes a gross deviation from the standard of conduct that a reasonable person would observe in that situation. The words "willful or wanton" are not ordinarily used to describe a form of negligence, but where they are, as here, they refer to a lack of care involving a conscious indifference to consequences in circumstances where probability of harm to another is reasonably apparent, an "I-don't-care-a-bit-what-happens" attitude. They imply a degree of negligence higher than gross negligence. Summary judgment is appropriate only if the evidence viewed in the light most favorable to the plaintiff will not support a jury finding of either gross negligence or willful or wanton negligence.
Browne v. Robb, 583 A.2d 949, 953 (Del. 1990).
Jardel Co., Inc. v. Hughes, 523 A.2d 518, 530 (Del. 1987); 11 Del. C. § 231(d).
McHugh v. Brown, 125 A.2d 583, 586 (Del. 1956).
When the officer reached the intersection, she had slowed down to about 30 miles per hour. She looked at the northbound traffic, saw cars stopped and thought the intersection was clear to cross. While she may have been negligent and exercised mistaken judgment, I do not think a reasonable juror could conclude that her conduct amounted to gross negligence, or willful or wanton negligence, which proximately caused the accident. Therefore, summary judgment will be granted to defendant Reinoehl on this ground as well. The issue of Louise Pauley's alleged contributory negligence will be addressed in a separate order.
THEREFORE, the State defendants' motion for summary judgment is granted, subject to the State tendering to the Pauley plaintiffs all of the remaining self-insurance. Defendant Reinoehl's motion for summary judgment is granted.
IT IS SO ORDERED.