Brown v. Avery, 91-249

• Decision Date: 09 April 1993
• Docket Number: No. 91-249,91-249
• Citation: 850 P.2d 612
• Parties: Teresa BROWN, Appellant (Plaintiff), v. Officer AVERY; and City of Laramie, Wyoming, Appellees (Defendants).
• Court: Wyoming Supreme Court

Page 612

850 P.2d 612

Teresa BROWN, Appellant (Plaintiff), v. Officer AVERY; and City of Laramie, Wyoming, Appellees (Defendants).

No. 91-249.

Supreme Court of Wyoming.

April 9, 1993.

Mary T. Kloeckner, Cheyenne, for appellant.

Joseph B. Meyer, Atty. Gen., John W. Renneisen, Deputy Atty. Gen., and Dennis Coll, Sr. Asst. Atty. Gen., for appellee Avery.

C.M. Aron, Aron & Hennig, Laramie, for appellee City of Laramie.

Before MACY, C.J., THOMAS, CARDINE and GOLDEN, JJ., and URBIGKIT, J., Retired.

THOMAS, Justice.

The issues in this case evolve from the failure of a police officer to arrest a driver whom the officer had stopped for a traffic violation and whom the officer realized had consumed alcoholic beverages. The significant legal question relates to whether there was a causal relationship, qualifying under the concept of proximate cause, between the failure to arrest and a roll over of the vehicle driven by the individual who was not arrested. The case was decided by a summary judgment and presents the usual threshold question of whether a genuine issue of material fact is found in the record. Collateral issues are raised with respect to whether the trial court abused its discretion in refusing to grant a continuance to permit the deposition of a non-moving party, and whether the trial court committed a second abuse of discretion in failing to grant a motion for a change of judge. Our review of the record persuades us there is no genuine issue of material fact, and the trial court correctly concluded that the police officer and his employer, the City of Laramie, were entitled to judgment as a matter of law. In addition, we hold the trial court did not abuse its discretion in refusing to grant the continuance sought or in refusing to grant the motion for a change of judge. The summary judgment entered by the trial court is affirmed.

The appellant, Teresa Brown (Brown), sets forth the issues for review in her brief in this way:

I. Whether summary judgment was improper because:

a. there was non-existent and/or insufficient factual basis;

b. genuine question of material fact existed; or,

c. the court below did not properly apply the law.

II. Whether the court below abused its discretion in denying the non-moving party's request for an extension of time to obtain the deposition of moving party.

III. Whether the court below properly denied Appellant's motion for a change of judge.

In his Brief of Appellee, the police officer states the issues in this way:

I. Summary judgment was properly entered by the lower court as there was no genuine issue of any material fact.

II. The lower court granted the non-moving parties ample time to respond to the motion for summary judgment.

III. There was no reason whatsoever for the court below to change judges.

The City of Laramie, in its separate brief as an appellee, sets forth the issues in this way:

1. Was there a genuine issue of material fact so as to preclude summary judgment?

2. Is summary judgment proper concerning the issue of proximate cause in the circumstances of this case; specifically,

a. Is a police officer's failure to arrest a driver a remote cause or a proximate cause of the driver's accident more than one hour later?

b. After a police stop, is the drinking of beer and vodka by a driver an efficient intervening cause of an automobile accident?

3. If a police officer observes signs of drinking by a driver, does the officer have a duty to perform sobriety tests or blood alcohol tests when he does not have probable cause to do so?

4. Was the appellant denied reasonable time for discovery?

5. Was the appellant entitled to a change of judge?

On the night of August 31-September 1, 1987, Timothy Mendoza (Mendoza) had been at a party where he drank beer and either gin or vodka. Mendoza left the party accompanied by Brown, Brown's sister, and another man. They went to a liquor store where they purchased a twelve-pack of beer and a bottle of either vodka or gin. They drove around Laramie, and Mendoza continued to drink from the bottle of liquor.

The police officer, then employed by the City of Laramie in its police department, was on duty during the early morning hours of September 1, 1987. While on routine patrol, in Laramie, at 1:53 A.M., the officer watched a red 1973 Plymouth Duster ease slowly into the intersection at Ninth Street and Reynolds Street against a red light. The vehicle encroached approximately one-fourth to one-half its length into the intersection. The police officer stopped that vehicle at the intersection of Ninth Street and West Hill. The driver, Mendoza, got out of his vehicle at the same time the police officer got out of his car. When he was five to six feet from Mendoza, the officer explained why he had stopped Mendoza and asked to see his driver's license. Mendoza told the officer the driver's license was in the jockey box, and he then walked around the vehicle to the passenger's side and retrieved his wallet. He turned around, walked to within two or three feet of the officer, and produced his driver's license.

With Mendoza within three feet, the officer could smell alcohol on his breath. He studied Mendoza carefully, paying close attention to his balance, eyes, and speech. The officer observed Mendoza's speech was not slurred or strained, his eyes were not glassy or bloodshot, and his balance was not impaired. The police officer did not check the status of Mendoza's driver's license, and he did not subject Mendoza to any field sobriety test. He did check for outstanding warrants against Mendoza and, learning there were none, he released him without issuing a citation. Brown testified she heard the officer tell Mendoza to "take the car home and park it now" when he released him.

Following the stop by the police officer, Mendoza and his passengers went to a convenience store where they purchased potato chips. Between the time he was stopped by the officer and the time of the accident, Mendoza drank an unknown quantity of the vodka or gin. At 3:00 A.M., Mendoza was traveling west on Interstate 80, just east of Laramie, when he lost control of the vehicle and drove onto the median. The vehicle was airborne for some forty feet before landing and rolling over twice. Brown was injured in the accident, and Mendoza and Brown's sister were killed. The third passenger suffered minor injuries.

Brown filed a complaint against Mendoza's estate, Mendoza's father, the police officer, and the City of Laramie. Her complaint against the police officer and the City of Laramie alleged the failure of the officer to administer a sobriety test when he stopped Mendoza and asserted this constituted negligence that had proximately caused Brown's injuries. Brown's contention is that, had the officer tested Mendoza, he would have realized Mendoza was intoxicated; he would have arrested Mendoza for driving while under the influence of intoxicating beverages; and, thus, the accident would not have occurred. The district court dismissed Brown's claim against Mendoza's estate because the estate did not exist, and the court ordered Brown's attorney to pay attorney fees incurred in the defense of the action on behalf of Mendoza's estate. Later, the district court granted a summary judgment to Mendoza's father to which Brown agreed by stipulation. A little over one month later, the district court, ruling there was no genuine issue of material fact and holding that, as a matter of law, the officer's failure to administer a sobriety test to Mendoza did not proximately cause Brown's injuries, entered a summary judgment in favor of the police officer and the City of Laramie. Brown appeals from that summary judgment.

In reviewing the propriety of a summary judgment, we examine the facts in the light most favorable to the party opposing the motion. Keehn v. Town of Torrington, 834 P.2d 112 (Wyo.1992); Boehm v. Cody Country Chamber of Commerce, 748 P.2d 704 (Wyo.1987). Even in cases arising out of alleged negligent conduct, a summary judgment is appropriate when no genuine issue of material fact exists, and the moving party is entitled to judgment as a matter of law. Allmaras v. Mudge, 820 P.2d 533 (Wyo.1991); DeWald v. State, 719 P.2d 643 (Wyo.1986). An issue of material fact exists when a disputed fact, if proven, would establish or refute an essential element of the cause of action or defense asserted by the parties. McLaughlin v. Michelin Tire Corp., 778 P.2d 59 (Wyo.1989); Johnson v. Soulis, 542 P.2d 867 (Wyo.1975).

In its facts, as disclosed by the record, this case resembles Keehn. In Keehn, we analyzed the conduct of the police officers under traditional negligence principles, and we held a police officer's duty in assessing a person's fitness to drive a vehicle is to act as a reasonable police officer under the existing circumstances.

The record discloses the officer detected alcohol on Mendoza's breath, but after observing Mendoza closely, he exercised his judgment and concluded Mendoza was not impaired. As we noted in Keehn, a person can legally drink and drive in Wyoming, and the odor of alcohol on a driver's breath by itself is not a ground for arrest of that driver. Keehn. Furthermore, we do not perceive it is within our judicial prerogatives to require that a police officer administer a field sobriety test in every instance in which he stops a vehicle and detects the odor of alcohol on the driver's breath.

In Keehn, we noted "[p]eace officers are encouraged, if not constitutionally obliged, to employ 'the least intrusive means reasonably available to verify or dispel the officer's suspicion in a short period of time.' " Keehn, 834 P.2d at 116 (citing Florida v. Royer, 460 U.S. 491, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983) (plurality)). We went on to comment:

As to the factual realities, governments simply do not have the resources to protect all citizens at all times from the consequences of all illegal or tortious activity. Consequently, law...