Davis v. Lambert-St. Louis International Airport, No. ED 85007 (MO 9/20/2005)

• Decision Date: 20 September 2005
• Docket Number: No. ED 85007,ED 85007
• Citation: Davis v. Lambert-St. Louis International Airport, No. ED 85007 (MO 9/20/2005), No. ED 85007 (Mo. Sep 20, 2005)
• Parties: LEE DAVIS, Plaintiff/Respondent, v. LAMBERT-ST. LOUIS INTERNATIONAL AIRPORT and WILLIAM POWELL, Defendants/Appellants.
• Court: Missouri Supreme Court

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LEE DAVIS, Plaintiff/Respondent, v. LAMBERT-ST. LOUIS INTERNATIONAL AIRPORT and WILLIAM POWELL, Defendants/Appellants.

No. ED 85007

Court of Appeals of Missouri, Eastern District, Division Three.

September 20, 2005

NOTE: THIS OPINION IS SUBJECT TO MODIFICATION OR TRANSFER TO THE SUPREME COURT.

Appeal from the Circuit Court of the City of St. Louis, Hon. Donald L. McCullin.

Charles H. Billings, St. Louis, Missouri, for respondent.

Edward J. Hanlon, St. Louis, Missouri, for appellant.

OPINION

GLENN A. NORTON, Judge.

The primary issue in this case is whether a police officer's employer can be held liable under the doctrine of respondeat superior for the officer's negligence while operating a vehicle during the course of his employment when the officer is entitled to official immunity. We would hold that it can and affirm the judgment. But we transfer the case to the Supreme Court because of the general importance of and interest in this issue and so that the Supreme Court can reexamine existing law relating to this issue.

I. BACKGROUND

This case arises out of a motor vehicle collision between Lee Davis and William Powell. At the time of the collision, Powell was responding to an emergency call in furtherance of his duties as a police officer for the Lambert-St. Louis International Airport, which is owned and operated by the City of St. Louis.

Davis sued Powell and the Airport, alleging that during the course and scope of his employment, Powell negligently operated his motor vehicle in a number of respects, including failing to keep a careful lookout, driving too fast and failing to maintain control of his vehicle. Davis sought to hold the Airport vicariously liable for Powell's negligence under the doctrine of respondeat superior, making no allegations of direct negligence by the Airport. The defendants denied these allegations, asserted that Davis was also negligent and claimed that Powell was protected by official immunity.

The case was tried before a jury. At trial, it was undisputed that Davis heard Powell's siren and saw the vehicle's emergency lights as Powell approached the intersection and that Powell was responding to an emergency. Much of the parties' dispute focused on whether Davis pulled out in front of Powell's vehicle. According to the judgment, the jury found that Powell was 25% at fault for the accident, Davis was 75% at fault and Davis's damages were $25,000. The court entered judgment in accordance with the jury's fault allocation and damage award, but ordered only the Airport to pay. The defendants filed a motion for judgment notwithstanding the verdict, or alternatively for a new trial, in which they argued that they were entitled to judgment as a matter of law based on Powell's official immunity and the derivative nature of respondeat superior liability. That motion was denied. On appeal, the defendants argue that Powell was entitled to official immunity and that, therefore, the Airport cannot be held vicariously liable for his negligence.¹

II. DISCUSSION

A defendant is only entitled to judgment notwithstanding the verdict if the plaintiff failed to present a submissible case. Jungerman v. City of Raytown, 925 S.W.2d 202, 204 (Mo. banc 1996). In reviewing the denial of a motion for judgment notwithstanding the verdict, we construe the evidence in a light most favorable to the prevailing party and disregard all contrary evidence. Pace v. Pacific Fire Protection District, 945 S.W.2d 7, 8-9 (Mo. App. E.D. 1997). The jury decides how to weigh the evidence and may choose to believe or disbelieve any part of a witness's testimony. Id. at 9. We do not disturb the verdict where reasonable minds can disagree about the questions presented to the jury. Id. Where the issue is a question of law, we review the trial court's conclusions regarding judgment notwithstanding the verdict de novo. See Jungerman, 925 S.W.2d at 204.

A. Powell's Liability

Although it did not expressly hold so, the trial court apparently—and correctly—concluded that Powell was entitled to official immunity. First, the court refused to instruct the jury on this issue because the facts relating to official immunity were undisputed, had "already been decided" and were "not for the jury to decide." Moreover, in the judgment, the court only ordered the Airport to pay. We agree that Powell was entitled to official immunity.

While a police officer is responding to an emergency, official immunity protects him from tort liability for any alleged acts of ordinary negligence when it is undisputed that he "(1) responded to an emergency call in his emergency vehicle, (2) had activated his siren and lights [in compliance with section 304.022 RSMo 1994²] and (3) reasonably exercised his discretion in determining his speed and observance of traffic regulations." Creighton v. Conway, 937 S.W.2d 247, 251 (Mo. App. E.D. 1996). Here, it was undisputed that at the time of the collision, Powell was responding to an emergency call in his emergency vehicle and was operating his lights and siren as required by section 304.022. And we find nothing in the record to indicate that his decisions regarding how fast to travel or which traffic regulations to disregard amounted to an abuse of discretion or anything more than ordinary negligence. Therefore, "any negligence committed was integrally bound to the officer's use of discretion in determining how to respond to an emergency, thus fitting squarely within the doctrine of official immunity and precluding liability" on Powell's part. Costello v. City of Ellisville, 921 S.W.2d 134, 136 (Mo. App. E.D. 1996).

B. The Airport's Liability

Since Powell was protected by official immunity, the defendants argue that his employer cannot be held liable under the doctrine of respondeat superior because its liability is derivative of Powell's. We disagree.

Sovereign immunity and official immunity are distinct legal concepts³ Oberkramer v. City of Ellisville, 650 S.W.2d 286, 294 (Mo. App. E.D. 1983). Sovereign immunity protects the government itself from tort liability. Id. Official immunity, on the other hand, protects public officials from liability for negligent acts committed during the course of their official duties while acting in a discretionary capacity, but it affords no protection to their governmental employers. Id.; McGuckin v. City of St. Louis, 910 S.W.2d 842, 844 (Mo. App. E.D. 1995). Even though the Airport, which is owned and operated by the City of St. Louis, may have otherwise been entitled to sovereign immunity with respect to its police functions, the legislature has expressly waived such immunity with respect to the negligent operation of motor vehicles by public employees during the course of their employment. See section 537.600.1(1) RSMo 1994; McGuckin, 910 S.W.2d at 844. Thus, "it is now settled that a governmental employer is liable under the doctrine of respondeat superior for the negligence of its employee in the operation of a motor vehicle." Best v. Schoemehl, 652 S.W.2d 740, 742 (Mo. App. E.D. 1983). Since sovereign immunity does not protect the Airport in this case, we consider whether its employee's official immunity automatically shields it from vicarious liability.

Under the doctrine of respondeat superior, an employer is liable for the negligence of its employees, even if the employer was not directly negligent itself, as long as the employee's acts were within the scope of his duties to the employer. Helm v. Wismar, 820 S.W.2d 495, 497 (Mo. banc 1991). But "if a jury finds that the employee is not negligent, the employer is exonerated as a matter of law." Id. In other words, as many cases demonstrate, where a claim is made under the doctrine of respondeat superior and the judgment truly exonerates the employee of liability because of the absence of negligence, the employer is also exonerated. See, e.g., Peoples v. Conway, 897 S.W.2d 206, 208 (Mo. App. E.D. 1995) (officer was exonerated because his actions were not proximate cause of collision and therefore employer was also exonerated).

Here, if the jury had truly exonerated Powell—such as by finding that he was not negligent or that he did not cause the collision—then the Airport could not be held vicariously liable for Powell's conduct. But the jury found Powell to be 25% at fault for the collision, and it is only by virtue of official immunity that Powell is shielded from personal liability for the resulting damage to Davis. We recognize that a number of relatively recent cases indicate that an employer cannot be held liable for the negligence of its employee under the doctrine of respondeat superior when that employee is protected by the doctrine of official immunity. But in accordance with earlier precedent—which is still good law and still persuasive—we would hold that official immunity is personal to the official and does not automatically shield the official's employer from vicarious liability for its employee's negligence.

1. Personal Nature of Official Immunity

In addressing the relationship between respondeat superior and spousal immunity, Missouri courts have long stated that an employee's immunity does not protect an employer from vicarious liability for its employee's negligence. As far back as 1936, Missouri courts found that although spousal immunity protected the husband from liability to his wife, it did not prevent his employer from being vicariously liable to the wife based on the husband's negligent operation of a motor vehicle during the course of his employment. Mullally v. Langenberg Brothers Grain Co., 98 S.W.2d 645 (Mo. 1936); Rosenblum v. Rosenblum, 96 S.W.2d 1082 (Mo. App. 1936); see also Riordan v. Corporation of the Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints, 416 F.3d 825, 829-31 (8th Cir. 2005) (predicting Missouri Supreme Court would hold parental immunity does not bar child's respondeat superior claim against parent's employer).⁴

In Mullally, the...