Opinion
No. 61190-9-I.
October 6, 2008.
Appeal from a judgment of the Superior Court for King County, No. 06-2-13964-0, Catherine D. Shaffer, J., entered January 4, 2008.
UNPUBLISHED OPINION
An agent of a municipality has a duty to enforce the statutory prohibition against those who drive under the influence of intoxicating liquor or drugs. Such an agent, when acting as the driver of an emergency vehicle, has a statutory duty to drive with due regard for the safety of all persons. In this personal injury action by Melissa Somerville against the City of Mountlake Terrace and certain of its police officers, she fails to identify any genuine issue of material fact to avoid dismissal. Accordingly, we affirm the summary judgment in favor of the City and its police officers.
Bailey v. Town of Forks, 108 Wn.2d 262, 269, 737 P.2d 1257 (1987).
On May 9, 2003, at 9:11 p.m. an anonymous 911 caller reported that a man in his neighborhood was going door to door attempting to sell stolen property from the back of a pickup truck in exchange for drugs. The caller reported that the man was drinking heavily and "whacked out of his brain" under the influence of methamphetamine. The caller also provided the truck's license plate number. A subsequent check revealed to police that the truck was stolen. Police dispatch advised officers in the area about the stolen vehicle and the fact that the driver was likely heavily intoxicated.
At 9:34 p.m., Mountlake Terrace Police Officers Patrick Thomas and Tracey Dunmire, riding together in a marked police car, spotted the stolen truck. Officer Thomas, who was driving, followed the suspect's vehicle into a residential area, waiting for another police car to arrive to assist with the stop. When another marked police car approached with its overhead lights on, the driver of the truck turned and accelerated, attempting to elude police. Officer Thomas then activated his lights and siren in pursuit. Officer Dunmire communicated with the police dispatcher that they were pursuing the stolen vehicle while Officer Thomas focused on driving. Officer Brian Oswalt, the driver of the other police car, assisted with the pursuit. A supervising officer monitored the pursuit by radio from his car.
The man driving the stolen truck ran both a stop sign and traffic signal and then, accelerating to over 65 miles per hour, ran another red light near the I-5 overpass. The driver maneuvered the pickup truck through several cars on the overpass, nearly colliding with them. He then turned onto the southbound I-5 on-ramp, sliding sideways while making the turn before gaining control of his vehicle. Continuing south on I-5, the driver accelerated to over 100 miles per hour, swerving in and out of traffic.
Despite being urged to drive faster by Officer Dunmire, in the interest of safety, Officer Thomas kept his speed down but maintained visual contact of the suspect's truck. Officer Dunmire reported the path of the pursuit and conditions to police dispatch. He indicated that I-5 was dry and traffic was medium.
The suspect exited I-5 at the NE 145th Street exit. Officers observed the driver continue to weave between vehicles on the exit ramp, but they lost sight of the truck as it approached the top of the off-ramp. When officers arrived at the top of the off-ramp, they saw that the truck had collided with another vehicle in the intersection. That vehicle was driven by Melissa Somerville.
Approximately three minutes elapsed between the time police initiated pursuit of the DUI suspect to the time of the collision with Somerville. The police eventually located the driver of the truck in a nearby culvert pipe where he had hidden after fleeing from the accident. They arrested him, identifying him as Joseph Primeau. A blood test later confirmed Primeau was under the influence of methamphetamine at the time of the accident.
Somerville's vehicle was severely damaged, and she was seriously injured. She continues to experience pain and dysfunction, limiting her activities.
Somerville commenced this action against the City and its police officers involved in the pursuit, alleging breach of the duty of care imposed by RCW 46.61.035(4) in unreasonably continuing the pursuit of Primeau. She also alleged that the officers' failure to terminate the pursuit was the proximate cause of her injuries.
The City and officers moved for summary judgment, asking the court to also strike all of the expert opinions of sociologist Geoffrey Alpert, Ph.D. The trial court granted in part the motion to strike and granted the motion for summary judgment in its entirety.
Somerville appeals.
INITIATION AND CONTINUATION OF PURSUIT
Somerville argues that the trial court erred in granting the City's motion for summary judgment because there are genuine issues of material fact regarding the officers' decision to continue pursuit of the suspect. We disagree.
A motion for summary judgment may be granted when there is no genuine issue as to any material fact, and the moving party is entitled to a judgment as a matter of law. The burden is on the moving party to show there is no genuine issue of material fact. All facts and reasonable inferences are viewed in the light most favorable to the nonmoving party. If the moving party satisfies its burden, the nonmoving party must present evidence that demonstrates that material facts are in dispute. Summary judgment is proper if, in view of all the evidence, reasonable persons could reach only one conclusion. This court reviews a trial court's summary judgment order de novo.
Vallandigham v. Clover Park School Dist. No. 400, 154 Wn.2d 16, 26, 109 P.3d 805 (2005).
Atherton Condominium Apartment-Owners Ass'n Board of Directors v. Blume Development Co., 115 Wn.2d 506, 516, 799 P.2d 250 (1990).
Id.
Vallandigham, 154 Wn.2d at 26.
Folsom v. Burger King, 135 Wn.2d 658, 663, 958 P.2d 301 (1998).
Here, Somerville argues that the record contains evidence that officers violated a governing statute as well as police policies and procedures, creating genuine issues of material fact as to the reasonableness of the officers' conduct.
RCW 46.61.502, which criminalizes driving a vehicle while intoxicated by alcohol or drugs, imposes a duty on police officers to enforce the statute by apprehending intoxicated drivers. Somerville does not dispute that police officers and the municipalities that employ them have this duty.
See Bailey, 108 Wn.2d at 269 (police officers are governmental agents with duty to enforce statutory requirements).
The essence of Somerville's claim in this case is that the City and the officers breached another statutory duty while pursuing the suspect. Police are authorized by RCW 46.61.035 to operate their vehicles as emergency vehicles in pursuit of criminal suspects. RCW 46.61.035 states in relevant 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 . . . 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;
(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.
(Emphasis added.)
Somerville bases her claims on the alleged breach of the duty imposed under section 4 of the above statute. In Mason v. Bitton, our supreme court construed the scope of this duty "to provide for the safety of all persons and property from all consequences resulting from negligent behavior of the enforcement officers." In doing so, the court recognized that the safety of individuals can be jeopardized by the negligence of the pursuer just as it can by the negligence of the party being pursued.
85 Wn.2d 321, 534 P.2d 1360 (1975).
Id. at 325.
Id.
In determining whether a claim of negligence under RCW 46.61.035 may proceed, courts look to whether the record contains any evidence of negligent conduct by the officers during the pursuit.
See Id. at 327 (reversing summary judgment where record contained evidence that police conduct during high speed chase violated city and state policies).
Here, Somerville argues that the record contains ample facts from which a jury could find that the officers were unreasonable in failing to terminate the pursuit. But the facts here differ from those in Mason.
There, police attempted to stop Richard Bitton for speeding on I-5. Instead of stopping, Bitton sped off, traveling as fast as 140 miles per hour. Although officers made no efforts to organize the pursuit, at least seven police vehicles joined the high speed chase on I-5 through Seattle. One officer attempted to set up a moving roadblock by slowing traffic ahead of Bitton, but Bitton evaded the barrier. North of Seattle, Bitton lost control, crossed the median, and collided with Mason's car in the southbound lane. The occupants of both cars were instantly killed.
Id. at 322.
Id. at 323.
Id. at 322-23.
Id. at 323.
Mason's estate brought an action against the State of Washington and the City of Seattle, alleging that officers had been negligent in the manner in which the pursuit was carried out. The defendants moved for summary judgment, and the trial court granted the motion. Our supreme court took direct review and reversed.
Id.
Id.
In Mason, the record contained evidence that officers' conduct during the pursuit violated both city and state policies. During the pursuit, no one informed the officers involved about the purpose of the pursuit or that Bitton might have been inebriated. Moreover, during the chase, several officers independently determined that Bitton would not voluntarily stop and there was no realistic way they could stop him, and that continuing the chase would pose a serious risk of a fatal accident. However, no one communicated these opinions to a supervisor, radio dispatcher, or to other officers involved. Because the court determined that this constituted evidence of possible negligence, it concluded that genuine issues of material fact existed and, therefore, that summary judgment was improper.
Id. at 327.
Id. at 326.
Id.
Id.
Id. at 326-27.
Here, unlike in Mason, the record is devoid of evidence that officers violated either the statute or Mountlake Terrace Police Department (MLTPD) policies.
Moreover, this record shows that officers had reason to believe the suspect was high on methamphetamine and driving a stolen vehicle. When officers attempted to stop him, they observed the suspect drive erratically and have difficulty controlling his vehicle, confirming the likelihood the driver was impaired. Based on this knowledge, officers had a legal duty to take reasonable steps to detain the suspect. Accordingly, the officers decided to enforce the DUI statute and pursue the suspect.
See RCW 46.61.502 (criminalizing driving a vehicle while intoxicated by alcohol or drugs); Bailey, 108 Wn.2d at 269 (police are governmental agents with duty to enforce statutory requirements).
Furthermore, nothing in this record suggests that officers violated the statute or MLTPD policies in initiating or continuing the pursuit, which lasted approximately three minutes. Officer Thomas waited for a backup car before attempting to stop the suspect, as required by policy. Officers used emergency lights and sirens while pursuing the suspect. Officers acknowledged their responsibility to continually assess the risk associated with the pursuit. Significantly, Officer Thomas stated that he focused on driving and pursued the suspect only as fast as he felt he could drive safely. Officers remained in contact with dispatch regarding the time, road conditions, traffic, and visual distance from the suspect. Although officers continued the pursuit beyond their jurisdiction, they did not disregard any policy or other directive in doing so. And because the truck was stolen, officers had no way to identify the suspect through the vehicle to allow them to apprehend him later.
MLTPD vehicular pursuit policy, in effect at the time of this incident, required officers to consider specific factors when initiating, continuing, or terminating a pursuit. It states in relevant part:
Officers must take the following considerations into account when initiation [sic] or continuing a pursuit:
a. The seriousness of the originating crime and its relationship to the community safety (traffic infraction or inherently dangerous felony).
b. The safety of the public in the area of the pursuit.
c. The safety of the pursing officer(s).
d. The time of day.
e. Visibility.
f. The volume of vehicular traffic.
g. The volume of pedestrian traffic.
h. Location of pursuit.
i. Weather conditions.
j. Road conditions.
k. Familiarity with the area of the pursuit.
l. Speeds involved.
m. Quality of radio communications between pursuing unit(s), the dispatcher, and the supervisor.
n. The capability of the police vehicle(s) involved.
o. The personal ability, experience, and the training of the officer(s) involved.
p. Is the nature of the driving by the fleeing vehicle such that it represents a serious threat to the safety of the persons along the vehicle's path if allowed to continue?
q. Is a subsequent arrest possible or probable? If so, there may be no reason to pursue.
r. Availability of assistance.
Clerk's Papers at 46-47.
In sum, this record contains no evidence of negligence. Rather, the evidence shows that officers complied with policies, remained in close radio contact with dispatch and each other, and that none of the officers involved formed an opinion that the chase should be terminated or that it created a serious risk of fatal accident. There is no genuine issue of material fact on this record regarding breach of any duty. The City and its officers were entitled to judgment as a matter of law.
Somerville contends the record contains evidence that officers violated police policies in continuing the pursuit. She asserts that the danger created by the pursuit outweighed the need to immediately apprehend the suspect. She asserts that officers "saw that the driver was not going to stop and was going to place the public in harm's way to avoid being stopped." She also argues that the suspect began driving dangerously and erratically only when police activated their sirens and lights. But Somerville points to no evidence in the record to support her factual conclusions and arguments. Indeed, as discussed earlier, the record contains no evidence that any officer formed an opinion that the danger of pursuit outweighed the need to apprehend the suspect, requiring termination of the pursuit.
Applicable MLTPD policy states in relevant part:
A pursuit shall be terminated under the following conditions:
a. in the opinion of the officer, the field supervisor, or the watch commander, the level of danger created by the pursuit outweighs the necessity for immediate apprehension. . . .
b. The suspect's identity has been established to the point that later apprehension can be accomplished and there is no longer any need for immediate apprehension (e.g., the suspect is known, he is a resident of the area vs. a transient, he is employed and can be found on the job, etc.). This restriction may be waived if the suspect has committed an inherently dangerous felony.
Clerk's Papers at 48-49.
Brief of Appellant at 21.
In a related argument, Somerville next asserts that police should have abandoned the chase because the suspect's identity was adequately established to the point that officers could apprehend him later. She argues that because the driver was not suspected of an "inherently dangerous felony," department policy did not permit officers to continue pursuing the suspect under the circumstances here.
Contrary to Somerville's assertion, the record does not contain evidence that police knew the identity of the suspect. Rather, police did not have more than a physical description of the suspect from the 911 caller. Although police had a license plate number for the stolen truck, it did not belong to the suspect. In addition, the stolen vehicle report indicates that the thief's identity was unknown. Somerville points to no evidence that officers violated MLTPD policy.
Somerville next asserts that the fact that officers continued the pursuit beyond their jurisdiction is evidence of negligence. She points to the fact that Officers Thomas and Dunmire did not request permission to leave their jurisdiction and entered an unfamiliar area where the crash occurred. But Somerville cites to no authority requiring that officers in pursuit must seek permission to pursue the suspect outside their jurisdiction. Likewise, she points to no evidence that officers violated MLTPD's pursuit policy by leaving the jurisdiction.
Applicable MLTPD pursuit policy states in relevant part:
21.10.9. Pursuits Leaving Our Jurisdiction — Should an officer of this department initiate a pursuit which takes him/her out of the jurisdiction, the decision to continue or terminate must be reevaluated in terms of the factors outlined under Officer Responsibility. If the decision is to continue, then the officer involved should remain the primary pursuit unit, not expecting the other agency to take over the pursuit. Should the pursuit be terminated while in another agency's jurisdiction, that agency MUST be notified immediately of that decision. When deciding to continue pursuit outside the city, we must also consider that our primary responsibility is to our citizens, and we cannot leave them unprotected.
Clerk's Papers at 48.
Somerville next argues that Dr. Alpert's expert opinion — "The need to apprehend the driver of a stolen vehicle is not nearly as great as the risk created by this pursuit on surface streets and I-5" — establishes that officers unreasonably failed to terminate the pursuit and, alone, is sufficient to defeat the City's motion for summary judgment. She is mistaken.
Here, the risk that officers were required to assess during the pursuit was whether the need to apprehend a driver of a stolen vehicle who is known to be high on methamphetamine outweighs the risk created by the pursuit. Dr. Alpert's opinion does not address this set of facts. Accordingly, it does not raise a genuine issue of material fact.
Somerville next argues that the fact that the collision was with an unlawfully driven vehicle does not exonerate pursuing officers from liability. This may be true where officers are deemed to be "concurrent tort-feasors." But this principle of liability is not applicable here, where there is no evidence of negligence of the police.
See Litts v. Pierce County, 5 Wn. App. 531, 536, 488 P.2d 785 (1971) (holding that tort-feasors whose independent acts of negligence have concurred to produce the proximate cause of an injury to a third person are "concurrent tort-feasors").
Finally, Somerville argues that the officers' failure to terminate the pursuit was the proximate cause of her injuries. Absent a breach of a duty, proximate cause does not create a genuine issue of material fact. Here, because there is no breach of any duty, whether there is proximate cause is immaterial and thus does not create a genuine issue of material fact for a jury to decide.
MOTION TO STRIKE
Somerville argues in her opening brief that the trial court improperly excluded a specific portion of the opinions of her expert, Dr. Alpert. The record shows otherwise.
This court reviews de novo the trial court's evidentiary rulings made for summary judgment.
Seybold v. Neu, 105 Wn. App. 666, 678, 19 P.3d 1068 (2001); see Folsom, 135 Wn.2d at 663.
Here, the City moved to strike all of Dr. Alpert's expert opinions contained in his declaration. The trial court's order grants, in part, the City's motion:
IT IS HEREBY ORDERED that Defendants' Motion to Strike the Opinions of Geoffrey Alpert is hereby GRANTED in part and denied in part.
The Court strikes the opinions that:
• Had Officers Thomas and Dunmire terminated their active attempt to apprehend the fleeing suspect, it is more likely than not that he would have slowed down and this crash would not have occurred.
• The need to apprehend the driver of a stolen vehicle is not nearly as great as the risk created by this pursuit on surface streets and I-5.
• Knowing that the driver was high on methamphetamine should have provided the officers with information to understand that the fleeing suspect was likely to act irrationally while being chased and would continue to do so until he felt safe.
• The failure to terminate the pursuit is a proximate cause of the crash.
Clerk's Papers at 1393 (Order granting defendants' motion to strike opinions of Geoffrey Alpert in part and denying in part).
On appeal, Somerville assigns error to the trial court's ruling. Specifically, she argues that the court erroneously struck the portion of the above excerpt that is crossed out. She neither assigns error to nor argues any other portion of the court's order in her opening brief.
A plain reading of the order indicates that those opinions listed, with the exception of the opinion that is crossed out, were stricken by the trial court. Since the portion of Dr. Alpert's opinion that is lined out was not stricken by the court, there is no basis for Somerville's claim that it was.
For the first time in her reply, Somerville argues that the trial court erred by striking other portions of Dr. Alpert's opinions. Arguments first raised in a reply brief are not generally addressed. Accordingly, we do not address those arguments.
Cowiche Canyon Conservancy v. Bosley, 118 Wn.2d 801, 809, 828 P.2d 549 (1992); see RAP 10.3(c).
We affirm the order on the motion to strike and the summary judgment order.