Brown v. Tate, WD
| Decision Date | 13 December 1994 |
| Docket Number | No. WD,WD |
| Citation | 888 S.W.2d 413 |
| Parties | Floyd BROWN, et al., Appellant, v. Bailus M. TATE, et al., Respondent. 49085. |
| Court | Missouri Court of Appeals |
David H. Bony, Kansas City, for appellant.
Vincent F. O'Flaherty, Kansas City, for respondent.
Before KENNEDY, P.J., and BRECKENRIDGE and SPINDEN, JJ.
Plaintiffs, who are the parents and minor child respectively, of Alfonso Brown, deceased, filed a wrongful death action against Kathryn Larson, a police officer of Kansas City, Missouri, and the Board of Police Commissioners. Plaintiffs alleged that Alfonso Brown's death resulted from a 2:00 a.m. intersectional collision between Alfonso's 1971 Chevrolet truck, being operated by him, and police officer Larson's 1989 GMC police paddy wagon, and that Officer Larson's negligence caused or contributed to cause the collision and Alfonso's death as a result thereof. The allegations of negligence were: that Officer Larson was driving too fast for conditions, that she failed to maintain a lookout, that she failed to maintain control of her vehicle, and that she failed to reduce speed prior to entering the intersection. The Board of Police Commissioners was Officer Larson's employer and the owner of the 1989 GMC paddy wagon she was driving. Police Officer Larson was responding to another officer's call for assistance. Facing her as she approached the intersection was a flashing yellow light, and facing Alfonso as he approached the intersection was a flashing red light. Alfonso did not stop his truck before entering the intersection.
Officer Larson's motion to dismiss plaintiffs' petition claimed Officer Larson was protected by the doctrines of official immunity and of public duty. A police officer is a public official for purpose of the official immunity doctrine. Bachmann v. Welby, 860 S.W.2d 31, 33 (Mo.App.E.D.1993). The Board of Police Commissioners claimed it could not be liable for Officer Larson's alleged negligence, since it would be liable only vicariously, as Larson's employer, and that Larson's defenses (of official immunity and public duty) shielded it as well.
The trial court sustained defendants' motions to dismiss, and plaintiffs have appealed. We treat the order of dismissal as a summary judgment, since the court considered an affidavit, detailing the facts of the accident and the investigation, which was attached to the motion to dismiss. See Rule 55.27(a).
We start with the general rule that a police officer is under a common duty with all drivers to observe traffic laws and regulations. In Oberkramer v. City of Ellisville, 706 S.W.2d 440, 441 (Mo. banc 1986), the court said: "A police officer is required to observe the care which a reasonably prudent person would exercise in the discharge of official duties of like nature under like circumstances." See also Frandeka v. St. Louis Public Service, Co., 361 Mo. 245, 234 S.W.2d 540, 545 (Mo. banc 1950); Roberson v. Griffeth, 57 N.C.App. 227, 291 S.E.2d 347 (1982).
The issues in the case before us have nothing to do with the police officer's negligence or non-negligence. The defendants claim that even if the officer was negligent, and her negligence contributed to cause Alfonso Brown's death, still the police officer is shielded from liability by the doctrines of official immunity and public duty. The Board of Police Commissioners claims it has a derivative immunity from the police officer's immunity.
The defendants in their brief expressly say that "defendants do not contend and have never stated that officer Larson was responding to an emergency, was on an emergency run, or that she was driving an emergency vehicle." That being the case, we believe the best reasoning holds the police officer enjoys no official immunity or public duty protection from liability. The doctrine of official immunity shields a police officer from liability for negligence in the performance of his discretionary, as opposed to ministerial, duties. Kanagawa v. State by and through Freeman, 685 S.W.2d 831, 835 (Mo. banc 1985); Boyle v. City of Liberty, Mo., 833 F.Supp. 1436, 1442 (W.D.Mo.1993). In Kanagawa, 685 S.W.2d at 836, the court said: "[I]n the final analysis, the decision as to whether a public official's acts are discretionary or ministerial must be determined by the facts of each particular case after weighing such factors as the nature of the official's duties, the extent to which the acts involve policymaking or the exercise of professional expertise and judgment, and the likely consequences of withholding immunity." We hold that a police officer, driving on the public streets and highways, in a non-emergency situation, has no blanket immunity from liability for negligence in the operation of his car. His driving does not "involve policymaking or the exercise of professional expertise and judgment." Kanagawa, 685 S.W.2d at 836. We point out, by way of contrast, there are many things a police officer does which do require professional expertise and judgment. Included in this list are: deciding whether to arrest or detain a person for driving while intoxicated, Schutte v. Sitton, 729 S.W.2d 208 (Mo.App.E.D.1987); deciding how best to apprehend a gunman when surrounding the gunman's apartment, Green v. Denison, 738 S.W.2d 861 (Mo. banc 1987); deciding whether to set up barricades or warning devices when investigating an accident, Beaver v. Gosney, 825 S.W.2d 870 (Mo.App.W.D.1992); disciplining prisoners, Shivers v. Barnes, 813 S.W.2d 121 (Mo.App.W.D.1991); executing a search warrant, DaVee v. Mathis, 812 S.W.2d 816 (Mo.App.W.D.1991); deciding when to pursue and end pursuit of a fleeing vehicle, Fonseca v. Collins, 884 S.W.2d 63 (Mo.App.W.D.1994); and pursuing another vehicle, Hagedorn v. Adams, 854 S.W.2d 470 (Mo.App.W.D.1993). In such situations, "the likely consequences of withholding immunity," Kanagawa, 685 S.W.2d at 836, would be that police officers would be overcautious, when they should act boldly and quickly. Bachmann, 860 S.W.2d at 34. We grant them immunity in order that they may act decisively, even though they might afterwards, by hindsight, be adjudged to have acted negligently. Green v. Denison, 738 S.W.2d 861 (Mo. banc 1987). But driving an automobile in a non-emergency situation is not that kind of case. 1
Defendants rely heavily on Bachmann, supra, 860 S.W.2d at 31. That case does not support defendants' position. The court there treated the police...
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