Creighton v. Conway, 69464

• Decision Date: 12 November 1996
• Docket Number: No. 69464,69464
• Citation: 937 S.W.2d 247
• Parties: Jacquelyn CREIGHTON, Plaintiff/Appellant, v. James F. CONWAY, et al., Defendants/Respondents.
• Court: Missouri Court of Appeals

Page 247

937 S.W.2d 247

Jacquelyn CREIGHTON, Plaintiff/Appellant, v. James F. CONWAY, et al., Defendants/Respondents.

No. 69464.

Missouri Court of Appeals,

Eastern District,

Division Four.

Nov. 12, 1996.

Motion for Rehearing and/or Transfer to

Supreme Court Denied Jan. 8, 1997.

Application to Transfer Denied

Feb. 25, 1997.

Helton Reed, St. Louis, for Plaintiff/Appellant.

Michael R. Stelzer, Patricia A. Hageman, Asst. City Counselors, St. Louis, for Defendants/Respondents.

KAROHL, Judge.

Plaintiff, Jacquelyn Creighton, appeals after summary judgment in favor of defendants, members of the Board of Police Commissioners of the City of St. Louis, entered on October 2, 1995, on her petition for personal injuries sustained when her vehicle was struck by a police vehicle operated by Officer John Sabin.

In her petition, Creighton alleged, 1) defendants were members of the Board of Police Commissioners of the City of St. Louis, employer of City of St. Louis Police Officers; 2) Sabin was a City of St. Louis police officer acting in his official capacity; 3) Sabin, as such a police officer, was the employee, servant and agent of the Board of Police Commissioners acting within the course and scope of his employment; 4) on October 28, 1991, Creighton was driving east on Switzer Avenue at its intersection with Riverview Boulevard; 5) at the same time, Sabin was driving his patrol car north on Riverview Boulevard; 6) the electric signal at the Switzer and Riverview intersection showed green in Creighton's favor and red for north-south traffic on Riverview; 7) Sabin's patrol car collided with Creighton's car because Sabin was negligently driving at a dangerous and excessive speed, failed to give a signal or warning of his approach, failed to slow, stop or swerve, and drove in violation of the red light; 8) Creighton suffered, as a direct and proximate result of Sabin's negligence, several injuries; and, 9) Creighton spent approximately $1,000.00 for medical care and treatment and will have to spend more in the future.

Defendants filed a motion for summary judgment on the theory of official immunity. In the motion, defendants alleged there was no genuine issue of material fact that at the time of the collision, Sabin was responding to an emergency call regarding a fatal traffic accident and he had his light and siren activated. Defendants alleged Sabin was entitled to official immunity because he was an officer "engaged in a discretionary act proceeding with the lights and siren activated." They also alleged where there are "no grounds for recovery due to the alleged negligence of a police officer, and where the officer's employer is sued under the theory of respondeat superior [as in this action], there are also no grounds for recovery against the officer's employer." In support of the motion for summary judgment, defendants filed a memorandum of law, an affidavit of Minnie Phillips, an independent witness and deposition testimony of Officer Sabin and Creighton.

Creighton filed a response but did not file counter affidavits. She argued there was a genuine issue of material fact whether: (1) Sabin was responding to a "fatal" accident and (2) Sabin was merely performing a ministerial act while violating department regulations. Creighton relied on Sabin's testimony, he did not learn of the traffic death until hours after his collision with her car. She also relied on Sabin's reference to the pursuit policy of the Metropolitan Police Department-City of St. Louis.

The trial court granted defendants' motion for summary judgment. It found Creighton had failed to demonstrate any genuine issue of fact that:

THE POLICE OFFICER WAS RESPONDING TO A RADIO DISPATCH FOR AN AUTOMOBILE ACCIDENT WITH INJURIES; SUCH CALLS ARE PRIORITY ONE CALLS REQUIRING ACTIVATION OF LIGHTS AND SIREN; AND THE OFFICER WAS RESPONDING TO THE CALL WITH LIGHTS AND SIRENS ACTIVATED.

It concluded:

THE OFFICER'S ACTIONS IN RESPONDING TO THE CALL WERE WITHIN THE SCOPE AND COURSE OF HIS EMPLOYMENT, AND THAT THEY REQUIRED THE EXERCISE OF HIS DISCRETION IN DETERMINING SPEED, OBSERVANCE OF TRAFFIC REGULATIONS AND OTHER MATTERS GENERALLY RELATED TO THE SAFE CONTROL OF HIS VEHICLE. THE OFFICER IS, THEREFORE, ENTITLED TO THE PROTECTION OF OFFICIAL IMMUNITY FROM TORT LIABILITY; AND THE DEFENDANTS, WHO ARE SUED UNDER THE THEORY OF RESPONDEAT SUPERIOR, ARE, LIKEWISE, CLOTHED WITH SUCH IMMUNITY.

Defendants have responded on the merits without comment on Creighton's reliance on an outdated standard of review in summary judgment cases. Creighton should be aware "unassailable proof" that there is no issue of fact to be tried is no longer the standard. Her reliance on Swink v. Swink, 367 S.W.2d 575 (Mo.1963) is misplaced. In 1988, the Missouri Supreme Court amended Rule 74.04 removing the "unassailable proof" standard. ITT Commercial Finance v. Mid-Am. Marine, 854 S.W.2d 371, 378 (Mo. banc 1993).

When considering appeals from summary judgments, we will review the record in the light most favorable to the party against whom judgment was entered. Id. at 376. Facts set forth by affidavit or otherwise in support of a party's motion are taken as true unless contradicted by the non-moving party's response to the summary judgment motion. Id. Summary judgment is appropriate if the motion and response thereto show "there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Rule 74.04(c)(3).

As a governmental official, Officer Sabin is shielded from liability for torts arising out of his discretionary acts or omissions. Kanagawa v. State By and Through Freeman, 685 S.W.2d 831, 835 (Mo. banc 1985); Anderson v. Jones, 902 S.W.2d 889, 891 (Mo.App. E.D.1995). However, he may be liable for negligently performing ministerial duties. Id. A police officer driving on the public streets and highways in a non-emergency situation is not shielded from liability for the negligent operation of his vehicle. Brown v. Tate, 888 S.W.2d 413, 415 (Mo.App. W.D.1994).

Creighton's first point on appeal confuses the concepts of "emergency vehicle" and "emergency call." An "emergency vehicle" is defined in the statute as including "those vehicles operated by ... traffic officer." Section 304.022.3(1) RSMo 1994. "Emergency call" is a separate concept. Section 304.022.4(1) provides "[t]he driver of any vehicle referred to in subsection 3 of this section shall...