Opinion
C.A. No. 04C-04-116-JRS.
Submitted: May 16, 2005.
Decided: July 28, 2005.
Upon Consideration of Defendants' Motion for Summary Judgment. GRANTED in Part and DENIED in Part.
Gary S. Nitsche, Esquire, W. Christopher Componovo, Esquire, WEIK, NITSCHE, DOUGHERTY COMPONOVO, Wilmington, Delaware. Attorneys for the Plaintiffs.
Andrea J. Faraone, Esquire, CITY OF WILMINGTON LAW DEPARTMENT, Wilmington, Delaware. Attorney for the Defendants.
MEMORANDUM OPINION
I.
In this case, the Court considers whether Delaware's Authorized Emergency Vehicle Statute ("the AEVS") bars a claim sounding in negligence against a police officer whose police vehicle struck the plaintiff's vehicle while the officer was responding to an emergency call. For the reasons that follow, the Court finds that the defendant, Gerald Connor, a City of Wilmington police officer ("Officer Connor"), was privileged by virtue of the AEVS to disregard otherwise applicable rules of the road because he was responding to a valid police emergency. To the extent his conduct was not privileged, Officer Connor is immune from claims of negligence under the express provisions of the AEVS. Accordingly, the motion for summary judgment as it relates to the claims against Officer Connor must be GRANTED. The claims against the City of Wilmington ("the City"), however, will survive this motion to the extent they are based upon allegations of negligence against Officer Connor that involve conduct not covered by the enumerated privileges of the AEVS. As to the City, then, the motion for summary judgment must be GRANTED in part and DENIED in part.
DEL. CODE ANN., tit. 21, § 4106 (1995).
II.
On March 18, 2002, Officer Connor was traveling westbound on 18th street in his police cruiser responding to an emergency call involving a man armed with a shotgun who had fired shots and made threats of suicide. According to Officer Connor, he approached the intersection of 18th and Washington Streets traveling approximately 5-10 miles per hour. He slowed down as he entered the intersection against a red light after looking both ways for oncoming traffic. While in the intersection his police vehicle was struck in the left quarter panel by a vehicle operated by the plaintiff, Marie Sikander. Ms. Sikander alleges that she sustained personal injuries as a proximate result of Officer Connor's negligence; her husband, Zolfiker Sikander, alleges loss of consortium. The plaintiffs allege that the City, as Officer Connor's employer, is liable under the doctrine of respondeat superior.
III.
The defendants have moved for summary judgment on two grounds. First, they allege that, under the AEVS, Officer Connor was authorized by statute to enter the intersection at 18th Washington Streets against a red light, and that he cannot be held liable for any accident that occurred as a result of this conduct unless the plaintiffs are able to demonstrate gross negligence or willful and wanton conduct on his part. Because plaintiffs have failed to establish either of these exceptions to the privilege created by the AEVS, plaintiffs' claims must fail as a matter of law. The defendants also argue that they are immune from liability under the County and Municipal Tort Claims Act ("the Act").Plaintiffs oppose the motion and argue that there are disputed issues of material fact regarding Officer Connor's level of culpability for the automobile accident. In addition, they argue that Officer Connor does not enjoy a privilege under the AEVS because the specific duties that he allegedly breached — the duty to maintain a proper lookout and the duty to maintain proper control over his vehicle — are not specifically addressed by the AEVS. Plaintiffs also contend that necessary predicates to the application of the AEVS — Officer Connor's activation of audible or visual emergency signals on his police vehicle and slowing down prior to entering the intersection — are, at the very least, matters of fact that are disputed in this summary judgment record. Finally, plaintiffs contend that, under the express provisions of the AEVS, the Act cannot apply here.
IV.
When considering a motion for summary judgment, the Court's function is to examine the record to determine whether genuine issues of material fact exist. A dispute about a material fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the non-moving party." It has been said, then, that "the availability of summary judgment turn[s] on whether a proper jury question . . . [has been] presented."
Oliver B. Cannon Sons, Inc. v. Dorr-Oliver, Inc., 312 A.2d 322, 325 (Del.Super.Ct. 1973).
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
Id. at 249.
In reviewing a motion for summary judgment, the Court's function "is not . . . to weigh the evidence and [itself] determine the truth of the matter, but [rather] to determine whether there is a genuine issue for trial." Since the grant of summary judgment will deny the non-moving party his day in court, the Court must view the record in a light most favorable to the party opposing the motion. The moving party bears the initial burden of establishing the absence of any genuine issues of material fact. If the moving party carries its initial burden, then the burden will shift to the non-moving party to demonstrate the existence of material issues of fact. When the party opposing summary judgment is the party who will bear the burden of persuasion at trial, that party is obliged to point to facts in the record that will support its prima facie case at trial.
Id.
Id.
Moore v. Sizemore, 405 A.2d 679, 680 (Del. 1979).
Id. at 681.
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
V.
The AEVS provides:
(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 within the meaning of this chapter mean vehicles of a fire department, police vehicle, ambulances. . . . .
DEL. CODE ANN., tit. 21, § 4106 (1995) (emphasis supplied) (hereinafter "Section 4106").
A. The Use of Emergency Audible or Visual Signals
As an initial matter, the Court readily can dispose of the plaintiffs' claim that Officer Connor is not entitled to avail himself of the AEVS because his emergency lights were not activated at the time of the accident. Although the parties clearly dispute vel non Officer Connor's emergency equipment (lights or siren) were activated at the time of the accident, the dispute is of no more significance under the AEVS than a match on a burning fire. Under the clear terms of the statute, at Section 4106(c), the General Assembly recognized that a police officer may elect not to activate his vehicle's audible or visual signals while responding to an emergency call. This decision is left to the discretion of the police officer and he will not be punished for choosing not to announce that he is coming to a police emergency with sirens blaring and lights flashing. The statute protects the police officer whether or not his emergency equipment is activated when the accident occurs. Thus, even if Officer Connor did not activate his vehicle's lights or siren prior to the accident, he may still avail himself of the AEVS, assuming he meets the other criteria of the statute.
B. The Interaction Between Subsections (b) and (d) of the Statute
At Section 4106(b), the AEVS identifies four specific actions that the driver of an emergency vehicle may engage in while responding to an emergency. If not authorized by statute, each of the actions enumerated in Section 4106(b) would constitute a violation of the so-called "rules of the road" (as set forth in Title 21, Chapter 41 of the Delaware Code) and would, therefore, be considered negligence per se. At Section 4106(d), the AEVS provides that the driver of an emergency vehicle is not liable for "any damage . . . caused by the negligent . . . act . . . of such driver." Plaintiffs read these two provisions of the AEVS as providing protection for Officer Connor only to the extent that the allegations of negligence against him fall within the four enumerated activities set forth in Section 4106(b). Since the plaintiffs' allegations of negligence extend beyond the Section 4106(b) activities, plaintiffs contend that the AEVS does not apply.
See Nance v. Rees, 161 A.2d 795, 797 (Del. 1960) (a proven violation of a rule of the road is negligence per se). These actions, taken on the part of an officer without a privilege to do so, may also constitute violations of the traffic laws that could expose the officer to other liability. Such exposure is also extinguished by the AEVS.
In short, Section 4106(b) provides that the operator of an emergency vehicle may proceed through red lights and stop signs without stopping, may travel in excess of posted limits, may stop or park in throughways, and may travel in disregard to posted lane directions. Here, plaintiffs allege that in addition to running a red light, Officer Connor operated his vehicle without maintaining proper lookout for other vehicles and without maintaining proper control of the vehicle. See DEL. CODE ANN., tit. 21, § 4176 (1995).
Plaintiffs' position finds some support in the case law interpreting the AEVS. Specifically, in Curtis v. Martelli, this court suggested that the protection against a claim of negligence set forth in Section 4106(d) was available to the extent the operator of an emergency vehicle was "exercising one of the four privileges" set forth in Section 4106(b). Although not explicitly limiting the scope of Section 4106(d) to the privileges enumerated in Section 4106(b), litigants have since argued that Curtis binds the two provisions of the AEVS together in a manner consistent with the plaintiffs' interpretation here. Six years later, in Shepard, this court questioned whether Curtis was intended to stand for the proposition ascribed to it by Mr. and Mrs. Shepard (and by the plaintiffs here). To the extent Curtis was intended to link subsection (b) or (d) together, Shepard made clear that:
1996 WL 111168 (Del.Super.).
Id. at *2.
See Shepard v. Reinoehl, 2002 WL 1978931 at * 6 n. 23 (Del.Super.) ("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 [AEVS], citing Curtis. . . .").
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.
Id.
The Court is satisfied that Shepard correctly interpreted the AEVS. Section 4106(b) provides four specific instances where the operator of an emergency vehicle may violate the rules of the road without engaging in negligent conduct. Stated differently, the privileges set forth in the AEVS set a statutory standard of care for the operators of emergency vehicles that supercedes the standards established by the rules of the road. If the driver is engaged in privileged conduct under the AEVS, he is not negligent.
For instance, Section 4106(b)(2) provides that it is not negligent for the operator of an emergency vehicle to proceed through a red light, but only if he first "slows down as may be necessary for safe operation."
The Court's interpretation of Section 4106(b) fits harmoniously with the clear provisions of Section 4106(d). The latter subsection protects the operator of an emergency vehicle from liability for the negligent operation of the vehicle while responding to an emergency call. Thus, where Section 4106(b) provides the operator with a "privilege" to engage in conduct that is, by definition, not negligent, Section 4106(d) offers "immunity" to the operator for actions that are not privileged and might give rise to negligence liability. To read the AEVS in the manner urged by the plaintiffs, the Court would have to draw the untenable conclusion that the General Assembly in Section 4106(b) intended to permit (and even encourage) emergency vehicle operators to engage in negligent conduct. This, of course, would make a muddle of the AEVS as a whole and would be contrary to the tenet of statutory construction that directs the Court to read statutory provisions "in their context and with a view to their place in the overall statutory scheme."
See RESTATEMENT (SECOND) OF AGENCY § 217cmt. a b (2005) ("Privilege denotes the fact that conduct which under ordinary circumstances subjects the actor to liability, under particular circumstances, does not subject him thereto;" whereas "immunity denotes the absence of civil liability for what would be tortious but for the relation between the parties or the status or position of the actor.").
See Davis v. Michigan Dept. Of Treasury, 489 U.S. 803, 809 (1989). See also Coastal Barge Corp. V. Coastal Zone Indus. Control Board, 492 A.2d 1242, 1246 (Del. 1985) ("To apply a statute the fundamental rule is to ascertain and give effect to the intent of the legislature.") (citation omitted).
In this case, if Officer Connor was, at the time of the accident, engaged in conduct authorized by Section 4106(b), he was privileged to do so and was not negligent. If he was engaged in conduct proscribed by the rules of the road and not authorized by Section 4106(b), he was negligent. But, to the extent his conduct was the product of ordinary negligence, he is immune from liability under Section 4106(d). It is within this statutory framework that the viability of plaintiffs' claims against Officer Connor must be considered.
By its terms, Section 4106(d) does not immunize grossly negligent or willful/wanton conduct.
C. Officer Connor Was Privileged to Enter the Intersection Against a Red Traffic Signal
The essence of plaintiffs' claim is that Officer Connor was negligent because he disregarded a red light when entering the intersection. The AEVS says otherwise. Officer Connor was privileged to enter the intersection against a red light so long as he first slowed down as was "necessary for safe operation." Officer Connor testified unequivocally under oath that he slowed to less than five miles per hour prior to entering the intersection. Given this testimony, the burden on summary judgment has shifted to the plaintiffs to demonstrate a material issue of fact with respect to this question. They have not done so. Indeed, Mrs. Sikander candidly acknowledged that she did not see Officer Connor's vehicle until after it had entered the intersection. She cannot say, therefore, whether or not Officer Connor slowed his vehicle before entering the intersection. Nor has she estimated his speed or otherwise contradicted his testimony that he was traveling less than five miles per hour at the time he entered the intersection immediately prior to the collision. Under these circumstances, the Court concludes that the undisputed record supports Officer Connor's claim of privilege under Section 4106(b)(2).
See Section 4106(b)(2).
See D.I. 14, Ex. C at 26-27, Ex. B. ¶ 5.
See D.I. 14, Ex. C at 11-12.
At oral argument, counsel for the plaintiffs appropriately conceded that the record was undisputed regarding Officer Connor's speed upon entering the intersection. Nevertheless, counsel argued that there remains the factual question of whether the speed was such as to allow for the "safe operation" of Officer Connor's police vehicle — a predicate for the privilege under Section 4106(b)(2). The Court rejects this argument for the simple reason that, under the plaintiffs' logic, an officer's claim of privilege would always have to be resolved at trial because the mere fact of an accident might suggest that the speed of the vehicle (even if only slightly greater than a dead stop) did not allow for "safe operation." In the face of uncontroverted testimony that the emergency vehicle was traveling less than five miles per hour upon entering the intersection, the plaintiff must present more than an argument to create a genuine issue of material fact regarding this predicate to the privilege under Section 4106(b)(2).
D. Officer Connor Is Immune From Liability
Plaintiffs also allege that Officer Connor was inattentive and/or careless in the operation of his vehicle, i.e., he did not maintain a proper lookout or maintain proper control over his vehicle. Plaintiffs correctly observe that such conduct, if proven, would not be subject to the privileges specifically identified in Section 4106(b). Nevertheless, even if these allegations could be proven at trial, they would amount to no more than ordinary negligence. Viewing the evidence in a light most favorable to the plaintiffs, no reasonable jury could conclude that Officer Connor's conduct constituted an "extreme departure from the ordinary standard of care" tantamount to "criminal negligence." Nor could a reasonable jury conclude that Officer Connor demonstrated "a conscious indifference to consequences" amounting to "willful or wanton negligence." Thus, the undisputed record also supports Officer Connor's claim of statutory immunity under Section 4106(d).
See Browne v. Robb, 583 A.2d 949, 953 (Del. 1990).
See Jardel Co., Inc. V. Hughes, 523 A.2d 518, 530 (Del. 1987).
See Shepard, supra at *7. The Court notes that it does not appear as though the plaintiffs have alleged gross or willful/wanton negligence in their complaint. Given the Court's ruling here, such an amendment would be futile and, therefore, not appropriate under Del. Super. Ct. Civ. R. 15.
The Court acknowledges that "questions of gross negligence are ordinarily for the jury. . . ." See Pauley v. Reinoehl, 848 A.2d 569, 574 (Del. 2004). But in this case, where the undisputed record reveals that the officer slowed his vehicle to less than five miles per hour before entering the intersection, and looked for oncoming traffic and saw none, the Court is satisfied that this is the rare case where the defendant has met his burden on summary judgment and the plaintiffs have not responded in kind as they are, obliged, by law, to do.
Officer Connor cannot be held liable for entering the intersection against a red light because he was privileged to do so. He cannot be held liable for operating his emergency vehicle inattentively or carelessly because he is immune from claims of ordinary negligence. And the undisputed record reveals that the plaintiffs cannot prove gross or willful/wanton negligence. Consequently, Officer Connor's motion for summary judgment must be GRANTED.
E. The City of Wilmington's Liability
1. The City May Avail Itself of Officer Connor's Privilege
"The principal has a defense if the agent had a privilege which he properly exercised in the principal's behalf." Having found that Officer Connor was privileged to enter the intersection against a red light, the City of Wilmington may not be found vicariously liable for its agent's exercise of this privilege. The City, therefore, may not be found liable because Officer Connor entered an intersection against a red traffic signal.
Danias v. O'Malley, C.A. No. 92C-10-207, Balick, J. (Del.Super. May 9, 1994) (ORDER) (not reported online) (citing RESTATEMENT (SECOND) OF AGENCY § 217(b)(ii)).
Id.
2. The City May Not Avail Itself Of Officer Connor's Immunity
Under the express provisions of Section 4106(d), "the owner of [an] emergency vehicle may not assert the defense of governmental immunity." In Shepard, the court traced the legislative history of the current version of Section 4106(d) and concluded that the reference to "governmental immunity" in that provision was not intended to "waive sovereign immunity. . . ." Accordingly, the trial court concluded that the State was immune from suit beyond the limits of its insurance coverage for the accident. On appeal, the Supreme Court agreed that the reference to "governmental immunity" in Section 4106(d) would not preclude the State from arguing that its liability was capped at the amount of insurance it had procured to cover a particular loss in accordance with the State Insurance Program. Yet the Court went on to hold that Section 4106(d) expressly precluded the owner of an emergency vehicle from arguing that it was entirely immune from suit, either on the basis of "governmental immunity," "sovereign immunity" or both.
See Shepard, supra at *6 ("subsection (d) clarif[ies] 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."); Danias, supra at 2 (`if the agent commits unprivileged negligence, the principal would not have the benefit of the agent's immunity under (Section) 4106(d)").
Id. (referring to Section 4106(d)'s provision that "[t]he owner of such emergency vehicle may not assert the defense of governmental immunity in any action on account of . . . personal injury or death caused by the negligent . . . act or omission of such driver or owner.").
See Pauley v. Reinoehl, 848 A.2d 569, 576 (Del. 2003).
Id. at 572. Indeed, the Supreme Court ultimately concluded that the terms "governmental immunity," as used in the AEVS, and "sovereign immunity" are interchangeable.
The City seeks cover under the umbrella of immunity, either as offered by Section 4106(d) or the Act. This immunity, however, while available to its employee, Officer Connor, is not available to the City, either as the owner of Officer Connor's emergency vehicle or as Officer Connor's employer. The AEVS was enacted after the Act and the General Assembly is presumed, therefore, to have known of the Act's existence when it enacted Section 4106(d). And the only harmonious interpretation of the two statutes reveals that the City is exposed to liability for claims of simple negligence against one of its police officers in the operation of an emergency vehicle even though, in the absence of the AEVS, such claims would be limited to claims of gross or wanton negligence under the Act. While this result may appear, at first glance, to offend traditional notions of governmental immunity, it is a result that has been dictated by the very governmental body that is empowered by the Delaware Constitution to define the scope and limitations of municipal and county immunity in the first instance — the legislature. In the absence of a viable claim of governmental immunity, the City's motion for summary judgment must be DENIED.
DEL. CODE ANN., tit. 10, § 4010, et seq. (2004).
Pauley, 848 A.2d at 572.
Id. at 572-73.
See Doe v. Cates, 499 A.2d 1175, 1176 (Del. 1985) (the State and its "agencies," including counties and municipalities, are immune from suit under the Delaware Constitution unless suit is expressly permitted by statute); Fiat Motors of N. Amer. v. Mayor of Wilmington, 498 A.2d 1062, 1064 (Del. 1985) (same).
VI.
Officer Connor was privileged to enter the intersection against a red light and cannot, therefore, as a matter of law, be found negligent for that conduct. He is immune from claims of ordinary negligence and cannot, therefore, as a matter of law, be found liable for careless or inattentive driving as defined in the rules of the road. Finally, the undisputed facts of record do not give rise to a legally viable claim of gross or wanton negligence. Accordingly, Officer Connor's motion for summary judgment must be GRANTED.The City may avail itself of Officer Connor's privilege to enter the intersection against a red traffic signal. Accordingly, as to the plaintiffs' claim of negligence based on this conduct, the City's motion for summary judgment is GRANTED. The City may not, however, avail itself of Officer Connor's statutory immunity from claims of negligence as granted by the AEVS or the Act. Accordingly, to the extent the plaintiffs allege that Officer Connor engaged in unprivileged acts of ordinary negligence, the disputed facts of record relating to such claims require that the City's motion for summary judgment, as to those claims, be DENIED.