City of Little Rock v. Weber

• Decision Date: 10 April 1989
• Docket Number: No. 88-100,88-100
• Citation: 767 S.W.2d 529,298 Ark. 382
• Parties: CITY OF LITTLE ROCK, Appellant, v. Virginia WEBER, Appellee.
• Court: Arkansas Supreme Court

Page 529

767 S.W.2d 529

298 Ark. 382

CITY OF LITTLE ROCK, Appellant, v. Virginia WEBER, Appellee.

No. 88-100.

Supreme Court of Arkansas.

April 10, 1989.

Mark Stodola, City Atty., by Victra L. Fewell, Asst. City Atty., Little Rock, for appellant.

Perroni, Rauls & Looney by Rita S. Looney, Little Rock, for appellee.

DAVID N. LASER, Special Justice.

Appellee Virginia Weber sued the City of Little Rock, appellant, for damages she sustained when a Little Rock policeman, driving a city patrol car with blue lights and siren engaged, entered an intersection against a red light and struck her vehicle. The city moved for summary judgment on the basis of governmental immunity, which was denied by the trial court. The case proceeded to trial, resulting in a jury verdict for Weber in the amount of $4,750.00. The city lodged its appeal, contending that a municipality is absolutely immune from tort liability arising out of a city policeman's negligent operation of an authorized emergency vehicle. The city also argues on appeal that the trial court erroneously instructed the jury on the standard of care applicable to the operation of an emergency vehicle. We affirm.

In response to a decision of this court setting aside the common law immunity of municipalities, Parish v. Pitts, 244 Ark. 1239, 429 S.W.2d 45 (1968), the Arkansas Legislature passed Act 165 of 1969 restoring governmental immunity. That Act, however, also included the following provision:

All political subdivisions shall carry liability insurance on all their motor vehicles in the minimum amounts prescribed in the Motor Vehicle Safety Responsibility Act....

Ark.Code Ann. § 21-9-303 (1987).

This statute was first interpreted in Sturdivant v. City of Farmington, 255 Ark. 415, 500 S.W.2d 769 (1973), a case arising out of a fatal collision between the city marshal of Farmington and plaintiff's intestate. Sturdivant held that the purpose of § 21-9-303 was to provide the public with a remedy against cities when injured by municipally owned vehicles. That purpose would be defeated unless the city, either through insurance or self-insurance, were liable to the extent of the stated limits. This result was reaffirmed in Thompson v. Sanford, 281 Ark. 365, 663 S.W.2d 932 (1984). (Section 21-9-303 has subsequently been amended to specifically state that political subdivisions shall carry liability insurance or become self-insured. Ark.Code Ann. § 21-9-303 (Supp.1987)).

It is argued by the City of Little Rock that this court should return to a test previously used to determine whether a state employee could be liable for negligently injuring another even though the state was constitutionally prohibited from being made a defendant in her own courts. Ark. Const. art. 5, § 20. Using that test, the state employee could be liable when his negligence constituted a violation of a duty imposed upon him by law in common with all other people, as opposed to negligent conduct arising out of a duty peculiar to his employment. Kelly v. Wood, 265 Ark. 337, 578 S.W.2d 566 (1979); Grimmett v. Digby, 267 Ark. 192, 589 S.W.2d 579 (1979). For instance, in Kelly this court held that a state trooper could be liable for negligently running a stop sign while driving his patrol car to meet a friend for dinner. Using that test, the city argues that the operation of an authorized emergency vehicle by the police officer was obviously unique to his employment and thus the city should be immune from tort liability.

The city's reliance on these cases is misplaced. The test used previously in those cases allowed an injured party to side step governmental immunity and seek relief against the employee when the duty of the employee breached was common to all people. It cannot be used by the city to create governmental immunity not otherwise available, as where a statute specifically provides that all political subdivisions shall carry liability insurance on their motor vehicles.

There is no indication in § 21-9-303 that the legislature intended to distinguish in any manner the circumstances to which it applied. In any event, we see no reason why a person injured by an emergency vehicle should be left without a remedy while persons may seek redress against a municipality for its employees' negligence in the operation of all other vehicles.

To avoid confusion in this area, it should be pointed out that the rule in Grimmett and Kelly allowing suit against certain government employees has subsequently been abolished by Ark.Code Ann. § 19-10-305 (1987). That statute specifically provides immunity to officers and employees of the State of Arkansas from civil liability for acts or omissions within the course and scope of their employment. See Beaulieu v. Gray, 288 Ark. 395, 705 S.W.2d 880 (1986).

The City of Little Rock also argues for reversal that the trial court erred in its jury instructions regarding the standard of care applicable to the operation of authorized emergency vehicles. The trial court instructed the jury pursuant to Arkansas Model Jury Instruction (AMI) 305 that it was the duty of both parties to use ordinary care for their own safety and the safety of others. An instruction was also given based upon AMI 911 which sets out certain statutory privileges for drivers of emergency vehicles. These privileges allow the driver to proceed cautiously through a red light and give the right-of-way to emergency vehicles over other vehicles. The instruction also provided that these privileges do not relieve the driver of the emergency vehicle of the duty to exercise ordinary care.

The City of Little Rock argues that AMI 911 was incorrect, and contends that the jury should have been instructed that the city could be liable only if the driver acted with reckless disregard for the safety of others.

We first must address the issue which has been raised concerning whether this point of appeal has been properly preserved. The parties sent the city's proposed jury instructions to the judge before trial which included proposed instructions as to the city's standard of care. The instructions submitted by Weber defining negligence and holding the city to the standard of ordinary care were given over the objections of the city. The city attorney objected to the instructions for the record, stating with specificity how he contended such instructions incorrectly defined the city's standard of care. The proposed instructions which the city submitted prior to trial were never given to the court reporter to be included in the transcript. Realizing this omission after receipt of the trial transcript and while the case was on appeal, the city requested that the record be supplemented to include the proposed instructions. This court granted certiorari to allow the trial court to consider the city's request. Following a hearing, the trial court ruled that the instructions were not correctly proffered and refused to allow the record to be supplemented.

The city contends that submitting the instructions prior to trial and objecting to the instructions given preserved this issue for appeal. Weber argues that absent a proffer to the court reporter with a request that the instructions be made a part of the record, the objection is waived.

The procedure for preserving a jury instruction issue for appeal is stated in A.R.C.P. Rule 51 as follows No party may assign as error the giving or the failure to give an instruction unless he objects thereto before or at the time the instruction is given, stating distinctly the matter to which he objects and the grounds of his objection, and no party may assign as error the failure to instruct on any issue unless such party has submitted a proposed instruction on that issue.

Thus, when a party objects to an erroneous instruction of law which should not be given, all that is required is to timely state valid reasons for the objection. For instance, in Tandy Corp. v. Bone, 283 Ark. 399, 678 S.W.2d 312 (1984), the appellant argued the trial court erred in giving an instruction on punitive damages in a case involving an intentional tort. This court held it was not necessary for the appellant to proffer a substitute instruction to preserve that objection for appeal.

When the argument on appeal is a failure to give an instruction, then the party appealing must submit a proposed instruction on the issue. Peoples Bank & Trust Co. v. Wallace, 290 Ark. 589, 721 S.W.2d 659 (1986). In Wallace, the appellant argued that the instruction given by the trial court on the issue of agency did not instruct the jury on apparent or implied authority of an agent. The appellant had a duty to submit a proposed instruction on that issue, and its failure to do so prohibited that argument on...