Opinion
Nos. 59732-9-I; 60229-2-I.
September 22, 2008.
Appeals from a judgment of the Superior Court for King County, No. 05-2-04447-1, William L. Downing, J., entered February 26, 2007.
UNPUBLISHED OPINION
While trying to avoid pursuit by the City of Seattle police, Ronisha Kelley struck Ronald and Jeanette Ashley as they crossed the street, seriously injuring them. The Ashleys sued Kelley, the owners of the car she was driving, and the City of Seattle (the City) for negligence. At the conclusion of the trial, the court instructed the jury that the duty of care owed by a police officer in pursuit of a suspected violator of the law is "to drive with due regard for the safety of all persons under the circumstances" and to "exercise reasonable care in deciding whether to initiate a police pursuit and, once commenced, when to terminate a police pursuit." The jury found the Ashleys were without fault and that Kelley and the City of Seattle were negligent. The jury awarded the Ashleys $4.57 million in damages. The court entered a judgment on the jury verdict finding Kelley and the City jointly and severally liable for the damages awarded. After entry of the judgment, the court granted the City's motion under CR 60 to modify the judgment to impose several liability.
On appeal, the City argues that because the trial court erred in ruling that RCW 46.61.035(4) imposes a duty on a police officer to use reasonable care in deciding whether to initiate pursuit of a law violator, the judgment must be reversed and the Ashleys' lawsuit against the City dismissed. On cross appeal, the Ashleys contend the trial court abused its discretion in granting the motion to modify the judgment under CR 60.
The Washington Supreme Court's decision in Mason v. Bitton, 85 Wn.2d 321, 534 P.2d 1360 (1975) interpreting the statutory duty under RCW 46.61.035(4), controls, and we conclude the trial court did not err in ruling that RCW 46.61.035(4) imposes a duty on police officers to use reasonable care in deciding whether to initiate pursuit of a law violator. However, we conclude that the trial court's decision to correct an error of law by modifying the judgment under CR 60(b) and impose several liability was an abuse of discretion. And because there is no dispute that the City did not timely challenge entry of the judgment that imposed joint and several liability, the City cannot raise that issue for the first time on appeal. We affirm the jury verdict, vacate the order modifying the judgment, and reinstate the judgment imposing joint and several liability on Kelley and the City.
FACTS
On June 11, 2003, Seattle Police Officer Ted Mansour observed a green Volkswagen Passat make an illegal right hand turn against a red light. Officer Mansour activated his overhead lights to stop the driver for the traffic violation. The driver was 21-year-old Ronisha Kelley. Kelley worked as a nanny for Julie and Chris Yaw and was housesitting for the Yaws while they were on vacation. Earlier, Kelley had taken the Yaws' Volkswagen to drive to another job that she had babysitting two-year-old Lili Jameson. Kelley did not have permission to drive the Yaws' car. When Officer Mansour stopped Kelley, Lili was in the backseat of the car.
Kelley pulled over and parked in an underground parking structure. Kelley said she was nervous because she did not have a driver's license. Kelley only had a learner's permit. Officer Mansour parked his patrol car, approached the Volkswagen, and asked Kelley for her driver's license and the car registration. As she was looking for her learner's permit, Officer Mansour left to move his patrol car because it was blocking the exit. After Officer Mansour left, Kelley drove away. Kelley testified that she drove away because "I was scared. I just wanted to leave." Kelley drove to a Quality Food Center (QFC) a few blocks away and parked in the QFC lot.
Meanwhile, Officer Mansour activated the lights and the siren of his police car and pursued Kelley. As he did so, Officer Mansour transmitted a radio message requesting assistance and describing Kelley and the green Volkswagen. While Kelley was in the QFC parking lot she saw Officer Mansour drive by. After waiting awhile, Kelley left the QFC parking lot to drive Lili home.
At the intersection of Mercer and Warren, Officer Mansour drove up next to the Volkswagen with his lights and siren activated. He turned off his siren, jumped out of the patrol car, pointed his gun at Kelley, and yelled at her to get out of the car. Kelley drove away at a high rate of speed. Office Mansour got back in his patrol car, activated the siren again, and took off after Kelley. As Kelley turned right from Mercer onto Fifth Avenue North, Ronald and Jeanette Ashley were walking across the street. According to expert testimony at trial, when Kelley hit the Ashleys with the Volkswagen, the car was traveling at a speed of more than 50 miles per hour. The Ashleys suffered severe and serious injuries, including orthopedic, pelvic, abdominal, and head injuries.
Kelley was convicted of two counts of vehicular assault and attempting to elude a police officer.
On February 2, 2005, the Ashleys filed a lawsuit against Kelley, the Yaws, and the City of Seattle. The Ashleys alleged Kelley was negligent and the City was liable for the negligent pursuit of Kelley for a traffic violation. The Ashleys alleged the Yaws were liable for giving Kelley either knowing or constructive permission to use their car.
The Yaws were insured by Progressive Max Insurance Company (Progressive). Progressive provided legal representation to the Yaws, but did not provide legal representation to Kelley. On April 13, Progressive filed a declaratory judgment action against the Yaws and Kelley, asserting there was no coverage under the Yaws' policy for Kelley's actions.
On September 25, the trial court entered an order of default against Kelley in the Ashleys' lawsuit. On January 19, 2006 the court entered a default judgment against Kelley of $2.5 million for Jeannette Ashley and a $2.25 million for Ronald Ashley. The City and Progressive were given notice of the hearing on entry of the default judgments against Kelley.
Without objection, the court granted the Ashleys' motion to intervene in Progressive's declaratory judgment action against the Yaws and Kelley. Progressive filed a motion for summary judgment on the grounds that there was no coverage and no duty to indemnify. The Ashleys filed a motion for partial summary judgment asking the court to rule there was coverage by estoppel as a result of Progressive's failure to provide Kelley with legal representation. The court granted the Ashleys' motion. On reconsideration, Progressive argued that the Ashleys did not have standing. In response, the court gave the Ashleys the opportunity to obtain an assignment of Kelley's claims against Progressive.
On June 28, 2006, Kelley entered into an "Assignment of Claims Against Progressive Insurance Company." Kelley agreed to assign her indemnification, coverage, and bad faith claims against Progressive to the Ashleys. In exchange, the Ashleys agreed to not execute on the default judgments entered against Kelley.
The Agreement also provides that "[t]he assignor, Ronisha Kelley, recognizes the fact that this agreement has no impact on any potential rights to contribution or other rights the City of Seattle may have with respect to claims arising out of the injuries and damages sustained by the Ashley's [sic] on June 11, 2003."
The jury trial in the Ashleys' lawsuit against Kelley and the City of Seattle began on January 8 and concluded on January 25, 2007. The primary issue was whether Officer Mansour breached the duty under RCW 46.61.035(4) to exercise reasonable care in deciding whether to initiate and continue the police pursuit of Kelley. Before trial, the court rejected the City's argument that as a matter of law Officer Mansour did not breach the duty to drive with due regard for the safety of others under RCW 46.61.035(4). In denying the City's motion for summary judgment, the trial court relied on Mason to conclude that the City was subject to liability for Officer Mansour's initial decision to pursue and the decision whether to terminate the pursuit:
Mason v. Bitton held that an officer's "initial decision to give or not to give chase, and the decision as to whether to continue pursuing are properly characterized as operational" and can, therefore, subject the officer's government employer to liability for breach of the duty enunciated in RCW 46.61.035. In this case, plaintiff's [sic] expert witness has opined that the officer's "decisions to initiate, continue and not terminate this pursuit" were inconsistent with driving "with due regard for the safety of all persons." The City did have a duty to the Ashleys. Whether or not that duty was breached, involves resolution of a genuine issue of material fact.
At trial, the City argued that the duty, as defined by the court based on RCW 46.61.035(4), did not apply because Officer Mansour was not pursuing Kelley when she struck the Ashleys. In the alternative, the City argued that Officer Mansour was not negligent in pursuing Kelley. In answer to special interrogatories, the jury found the City engaged in a police pursuit of Kelley, the City was "negligent in the commencement and/or continuation" of the pursuit of Kelley, and the City's negligence was a proximate cause of the injury and damage to the Ashleys. The jury awarded the Ashleys $4.57 million in damages. The jury attributed no fault to the Ashleys, 90% fault to Kelley, and 10% fault to the City.
The City does not appeal the jury finding that Officer Mansour engaged in a police pursuit of Kelley.
On February 20, the City filed a motion for judgment as a matter of law under CR 50 or, in the alternative, for a new trial under CR 59. The City argued that the trial court erred in ruling that Officer Mansour could be liable under RCW 46.61.035(4) for deciding to pursue and continuing to pursue Kelley. The court denied the City's motion. On February 22, the court entered judgment on the jury verdict finding that the City and Kelley were jointly and severally liable for the total amount of the damages awarded.
On March 14, the City filed a notice of appeal. In April, the Ashleys, the City, and Progressive engaged in mediation. The Ashleys were unable to reach an agreement with the City. However, the Ashleys and Progressive entered into a settlement agreement for $2.75 million, subject to a reasonableness hearing and the agreement to treat the settlement as an offset to the judgment against Kelley and the City.
On May 2, the City filed a motion to modify the judgment under CR 60(b)(1), (6), and (11). For the first time, the City argued that as a matter of law liability for the judgment against Kelley and the City was several instead of joint and several. The court granted the City's motion and entered an order modifying the judgment, finding Kelley and the City were severally liable for the judgment. On June 26, the Ashleys filed a notice of appeal of the order modifying the judgment under CR 60. We granted the Ashleys' motion to consolidate the Ashleys' appeal with the City's appeal.
ANALYSIS
Duty under RCW 46.61.035(4)
The City asserts the trial court erred in ruling that RCW 46.61.035(4), the authorized emergency vehicle statute, imposes a duty on police officers to use reasonable care in deciding whether to pursue law violators. The court instructed the jury on the duty of care owed by the driver of a police vehicle in pursuit of a violator of the law as follows:
This instruction is intended to explain the duty that is at issue in this case and the breach of which would constitute negligence.
A police officer driving an emergency vehicle in pursuit of a suspected violator of the law may disregard some provisions of the traffic code but still has a duty to drive with due regard for the safety of all persons under the circumstances. Specifically, the city's police department has a duty to exercise reasonable care in deciding whether to initiate a police pursuit and, once commenced, when to terminate a police pursuit. A police officer's failure to exercise such reasonable care in connection with a police pursuit constitutes negligence for which the employer is liable.
Except as explained in this instruction, a city is not liable for routine investigative decisions and actions that may be made by a police officer employee. In this case, evidence of Officer Mansour's alleged acts or failures to act in connection with his interactions with Ronisha Kelley are relevant only insofar as they pertain to the decisions to initiate or terminate a police pursuit.
The emergency vehicle statute, RCW 46.61.035, allows police in pursuit of violators of the law to exercise certain privileges, such as running red lights, but it imposes a duty to "drive with due regard for the safety of all persons." RCW 46.61.035 provides in pertinent part:
(1) 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.
(2) The driver of an authorized emergency vehicle may:
. . .
(c) Exceed the maximum speed limits so long as he does not endanger life or property;
(d) Disregard regulations governing direction of movement or turning in specified directions.
. . .
(4) 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.
The Seattle Police Department policies and procedures governing police pursuits of vehicles with respect to suspected or actual violators specifically address the decision to pursue. "Seattle Police Department Policies and Procedures, Section 1.141, Vehicle Pursuits" provides in pertinent part:
II. General
A. Vehicles containing victims, witnesses, suspects, complainants, citizen riders, or other non-sworn personnel should not become engaged in pursuit driving situations.
B. Before engaging in a pursuit, officers should consider the seriousness of the offense committed, and the potential danger to themselves and others.
. . .
D. Although attempting to elude a pursuing police vehicle is a class C felony (RCW 46.61.024), the decision to pursue and to continue pursuit is to be evaluated in terms of the seriousness of the original offense, the risks created by the pursuit, and the potential consequences of allowing the violator to escape.
E. Officers intending to stop vehicles should attempt to be as close as practical to the violator before activating their emergency equipment. To do otherwise may encourage some violators to flee, increasing the danger to the public.
F. Officers should consider such factors as the nature of the offense, time of day, weather conditions, location and population density, familiarity with the area, and the capability and reliability of the police vehicle before instituting a police pursuit.
Seattle Police Department Policies and Procedures § 1.141; Ex. 1, tab 20. Brief of Respondent, Appendix A.
The City asserts that under the plain and unambiguous language of RCW 46.61.035, a police officer does not have a duty to exercise reasonable care in deciding whether to initiate pursuit of a law violator. The existence of a duty under RCW 46.61.035 is a question of law. Hertog, ex rel. S.A.H. v. City of Seattle, 138 Wn.2d 265, 275, 979 P.2d 400 (1999).
The Washington Supreme Court's decision in Mason v. Bitton, 85 Wn.2d 321, 534 P.2d 1360 (1975) interpreting the statutory duty under RCW 46.61.035(4), controls. In Mason, police officers pursued a suspect in a high speed chase. The suspect lost control of his car and crashed into another car, killing two people. The estate sued the police agencies, alleging they were negligent in pursuing the suspect. The trial court dismissed the estate's suit on summary judgment on the grounds that the police agencies did not owe a duty to the two people who were killed, there was no proximate cause, and the police agencies' decision to pursue the suspect was a discretionary act that precluded liability. On appeal, the police agencies admitted they had a duty under RCW 46.61.035(4) to act with due regard for the safety of others, but argued the duty was limited and is violated only when a police vehicle is involved in the accident. Mason, 85 Wn.2d at 325. The supreme court rejected the police agencies' statutory argument, reversed the trial court, and held,
The statutory construction urged by the defendants would impose only half a duty and would disregard the intended purpose underlying the statute; i.e., to provide for the safety of all persons and property from all consequences resulting from the negligent behavior of the enforcement officers. The safety of those individuals within the intended class of persons protected by RCW 46.61.035, can be jeopardized just as much by the negligence of the pursuer as it can by the negligence of the party being pursued. The defendants' own policy statements recognize that at times it would be more prudent to cease a pursuit in order to protect the public. This clearly evidences that the defendants are aware that innocent third parties may be injured by the individual being pursued, and that it is their responsibility to determine whether the purpose of the pursuit warrant this risk.
Mason, 85 Wn.2d at 325-26.
The court held there were genuine issues of fact regarding proximate cause and breach of the statutory duty under RCW 45.61.035 and the departmental policies.
In conclusion, considering the record of this case in its entirety, it is clear that genuine issues of fact exist in regard to whether the defendants did breach their statutory duty, as enunciated in both RCW 46.61.035 and the departmental policies; and secondly, if they did breach their duty, was such a proximate cause of Mason's death. Mason, 85 Wn.2d at 327.
Finally, in rejecting the trial court's determination that the police agencies' discretionary decision to pursue the suspect was entitled to immunity, the court held:
We are fully convinced that the initial decision to give or not to give chase, and the decision as to whether to continue the pursuit are properly characterized as operational and not the "basic policy decision" discussed in King, supra at 246, 525 P.2d 228. To now hold that this type of discretion, exercised by police officers in the field, cannot result in liability under RCW 46.61.035, due to an exception provided for basic policy discretion, would require this court to close its eyes to the clear intent and purpose of the legislature when it abolished sovereign immunity under RCW 4.96.010. If this type of conduct were immune from liability, the exception would surely engulf the rule, if not totally destroy it.
Mason, 85 Wn.2d at 328-29.
The City's attempt to distinguish Mason by arguing that the duty applies only to the officer's decision as to whether to terminate pursuit but not to the decision to initiate pursuit is unpersuasive. Based on the court's decision in Mason and the Seattle Police Department's policies and procedures, it is clear that the initial decision to pursue a law violator is a part of the officer's duty to drive with reasonable care and due regard for the safety of others under RCW 46.61.035(4).
Moreover, the City's attempt to artificially separate the decision to initiate a pursuit from the act of negligently driving in pursuit of a suspected law violator is illogical. If an officer decides not to pursue a law violator, obviously there can be no liability for negligent pursuit. But when an officer decides to pursue and operates or continue to operate the police vehicle in pursuit of the law violator, there is a duty to exercise reasonable care in doing so.
We conclude that the trial court did not err in ruling that under RCW 46.61.035(4) police officers have a duty to exercise reasonable care in deciding whether to initiate and when to terminate a pursuit of a law violator driving a vehicle. Motion to Modify the Judgment for Joint and Several Liability Under CR 60
On cross appeal, the Ashleys contend that, because CR 60 cannot be used to correct an error of law, the trial court abused its discretion by granting the City's motion to modify the judgment to impose several liability under CR 60(b)(1), (6), and (11). We agree.
CR 60(b) provides in pertinent part:
On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons:
(1) Mistakes, inadvertence, surprise, excusable neglect or irregularity in obtaining a judgment or order;
. . .
(6) The judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; [or]
. . .
(II) Any other reason justifying relief from the operation of the judgment.
We review a trial court's decision to modify a judgment under CR 60 for abuse of discretion. In re Marriage of Tang, 57 Wn. App. 648, 653, 789 P.2d 118 (1990). A trial court abuses its discretion if the decision was is based on untenable grounds or untenable reasons. Grigsby v. City of Seattle, 12 Wn. App. 453, 454, 529 P.2d 1167 (1975).
In the amended CR 60 motion to modify the February 22 judgment imposing joint and several liability, the City admits that it is asking the trial court to correct an error of law.
Here, the February 22nd judgment contains a clear error of law in that it provides that the City is jointly and severally liable for liability the jury apportioned to Kelley and from which Kelley has been released, and the provisions of CR 60(b)(1), (6) and (11) pertains.
The trial court's decision denying the Ashleys' motion for reconsideration also states that the reason the court granted the motion was to correct an error of law.
An issue has been raised as to whether this corrective action is appropriate at this time under CR 60. Having been persuaded that the most recent Order [Order Granting the City's CR 60 Motion] reflects the correct ANALYSIS of the legal issue, it would be this Court's preference to take remedial action now rather than leaving it for the Court of Appeals.
It is well established that the trial court cannot correct errors of law under CR 60. Port of Port Angeles v. CMC Real Estate Corp., 114 Wn.2d 670, 673, 790 P.2d 145 (1990); In re Marriage of Adler, 131 Wn. App. 717, 728, 129 P.3d 293 (2006); Haley v. Highland, 142 Wn.2d 135, 156, 12 P.3d 119 (2000). Nevertheless, the City argues that based on a mistake or excusable neglect under CR 60(b)(1), the trial court did not abuse its discretion by modifying the judgment to impose several liability. Below, the City relied on the attorney's mistake or excusable neglect as grounds to modify the judgment.
Plaintiffs and Progressive [actually Kelley] argue that the City should have raised the issue of joint and several sooner. The City agrees. But the failure was due to oversight and excusable neglect. . . .
The City's attorney simply did not recognize the full implications of the default judgments and the assignment of rights until after the judgment had been entered. This failure was not equivalent to waiver. It was due to excusable neglect, and can be cured by a Motion to Modify.
However, the excusable neglect based on the error of an attorney is not grounds to vacate or modify a judgment under CR 60(b)(1). Haller v. Wallis, 89 Wn.2d 539, 544-46, 573 P.2d 1302 (1978); Lane v. Brown Haley, 81 Wn. App. 102, 107, 912 P.2d 1040 (1996).
Likewise, CR 60(b)(6), by its own terms, does not apply because the judgment against Kelley was not "satisfied, released, or discharged." And the Ashley's agreement with Kelley did not release or discharge the default judgments entered against her. The Ashleys only agreed not to execute on the judgments against Kelley. Lastly, CR 60(b)(11), applies only in extraordinary circumstances. CR 60(b)(11) is "confined to situations involving extraordinary circumstances not covered by any other section of the rule." State v. Keller, 32 Wn. App. 135, 140, 647 P.2d 35 (1982). The circumstances must relate to irregularities that are "extraneous to the action of the court." In re Marriage of Yearout, 41 Wn. App. 897, 902, 707 P.2d 1367 (1985). Here, no such circumstances exist. Based on the record, the trial court granted the City's CR 60 motion to modify the February 22, 2007 judgment to correct an alleged legal error. We conclude the trial court abused its discretion and vacate the amended judgment imposing several liability.
And because there is no dispute that the City did not timely challenge entry of the February 22, 2007 judgment finding Kelley and the City joint and severally liable for the total amount of the jury verdict, the City cannot do so for the first time on appeal. Wingert v. Yellow Freight Systems, Inc., 146 Wn.2d 841, 853, 50 P.3d 256 (2002); RAP 2.5(a).
CONCLUSION
We affirm the jury verdict and the award of $4.57 million in damages, vacate the order modifying the judgment under CR 60, and affirm the judgment entered on February 22, 2007.