DeWald v. State

• Decision Date: 23 May 1986
• Docket Number: 84-270,Nos. 84-269,s. 84-269
• Citation: 719 P.2d 643
• Parties: Lola J. DeWALD, Executrix and Personal Representative of the Estate of Allan F. DeWald, Deceased, Appellant (Plaintiff), v. The STATE of Wyoming and State Highway Commission of Wyoming and Jeff Baltimore and Steve Keigley, Appellees (Defendants), and Harold Maddox (Defendant). The STATE of Wyoming and State Highway Commission of Wyoming and Jeff Baltimore and Steve Keigley, Appellants (Defendants), and Harold Maddox (Defendant), v. Lola J. DeWALD, Executrix and Personal Representative of the Estate of Allan F. DeWald, Deceased, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

Page 643

719 P.2d 643

Lola J. DeWALD, Executrix and Personal Representative of the Estate of Allan F. DeWald, Deceased, Appellant (Plaintiff), v. The STATE of Wyoming and State Highway Commission of Wyoming and Jeff Baltimore and Steve Keigley, Appellees (Defendants), and Harold Maddox (Defendant).

The STATE of Wyoming and State Highway Commission of Wyoming and Jeff Baltimore and Steve Keigley, Appellants (Defendants), and Harold Maddox (Defendant), v. Lola J. DeWALD, Executrix and Personal Representative of the Estate of Allan F. DeWald, Deceased, Appellee (Plaintiff).

Nos. 84-269, 84-270.

Supreme Court of Wyoming.

May 23, 1986.

Rehearing Denied June 5, 1986.

John E. Stanfield (argued) John B. Scott, and Michael Sue Kern of Smith, Stanfield & Scott, Laramie, for appellant DeWald.

Robert W. Tiedeken (argued) and Richard Rideout, Amicus Curiae Committee, Wyoming Trial Lawyers Ass'n, in support of appellant DeWald.

Craig Kirkwood (argued), and Kennard F. Nelson of Kirkwood, Copenhaver & Nelson, Laramie, for appellees State of Wyo., et al.

Before THOMAS, C.J., and ROSE, ^* ROONEY, ^** BROWN and CARDINE, JJ.

CARDINE, Justice.

This is an appeal from a summary judgment granted the State of Wyoming and its employees in an action brought under the Wyoming Governmental Claims Act.

The issues we must determine in this appeal are whether patrolmen Baltimore and Keigley had a qualified immunity for their actions in operating their patrol cars at the time of this accident; whether summary judgment in favor of appellees, Officers Baltimore and Keigley and the State of Wyoming, was appropriate; and whether the officers owed a duty only to the public and not to appellant, Allan DeWald, as an individual.

We affirm.

FACTS

On the afternoon of July 21, 1982, Officer Steve Keigley of the Wyoming Highway Patrol Department was on duty in Laramie, Wyoming. As he left town in his patrol car, he was waved down by a citizen who informed him that a man driving a large yellow car had just headed north on U.S. Highway 30 and appeared to be extremely intoxicated. In response to that report, Officer Keigley proceeded north on Highway 30 until he spotted a yellow Oldsmobile making a U-turn. He watched as the vehicle completed its turn and headed south, back toward Laramie. He turned, followed the vehicle, and saw it cross over the no-passing line twice and weave within its lane a couple of times. Based on the report and his own observations, Officer Keigley concluded that the driver had been drinking. He called in a "possible 10-55" (driving while intoxicated) and turned on his overhead lights. When the driver, Harold Maddox, did not respond, Officer Keigley touched his siren a couple of times to get his attention. Maddox still did not respond. Officer Keigley continued to follow the Maddox vehicle as it travelled south in the right-hand lane on Third Street. As the vehicles approached downtown Laramie they were intercepted by a second highway patrol car driven by Officer Jeff Baltimore. Officer Baltimore was travelling north on Third and heard Officer Keigley's radio transmission. He turned on his red lights and made a U-turn, pulling up next to the Maddox vehicle in the left-hand, south-bound lane. He signaled Maddox to pull over. Harold Maddox turned and looked at Patrolman Baltimore and then accelerated rapidly. Officers Keigley and Baltimore pursued the Maddox vehicle as it sped toward downtown Laramie. The pursuit reached speeds of approximately 55 m.p.h. and covered several blocks before the officers backed off. It ended when the Maddox vehicle collided with a vehicle stopped at a red light at the intersection of Third and Clark streets. Neither of the officers' vehicles were involved in the collision. The driver of the stopped vehicle, Allan DeWald, was killed instantly.

Lola J. DeWald, wife of the decedent, brought suit against Harold Maddox, the State of Wyoming, the State Highway Commission, and the two highway patrolmen. She settled her wrongful death claim against Maddox, and he was dismissed from the case. She pursued her action against the remaining defendants under the Wyoming Governmental Claims Act "(a) The manner in which the said Harold Maddox was chased or pursued by Defendant Patrolman Baltimore and/or Defendant Patrolman Keigley in view of the circumstances then existing and the risk of harm or damage to persons using the streets within the City of Laramie including Decedent DeWald; and

charging them with negligence "in one or more of the following respects:

"(b) The failure of Defendant Patrolman Baltimore and/or Defendant Patrolman Keigley to take such action as was reasonable and prudent in order to avoid the risk of harm to the public and Decedent DeWald under the circumstances in this matter; and

"(c) The negligent or improper training and/or supervision of Defendant Patrolman Baltimore and/or Defendant Patrolman Keigley; and

"(d) The failure to establish and/or enforce safe and proper and appropriate procedures for the apprehension of violators of the law (actual or suspected); and

"(e) The failure to establish and/or enforce safe and proper and appropriate procedures for the apprehension of violators of the law (actual or suspected) who are evading or appear to be attempting to evade arrest or capture within an urban area or under circumstances where the danger or existence of other traffic and conditions is known or should be known; and

"(f) The failure to establish and/or enforce reasonable and safe and proper and appropriate procedures for the arrest or apprehension of a person known or suspected to have committed a traffic offense; and

"(g) The failure to establish and/or enforce reasonable or safe or proper or appropriate procedures or regulations which would govern or control the actions of Defendant Patrolman Baltimore and/or Defendant Patrolman Keigley under the circumstances in this matter."

Claiming immunity from suit, the State of Wyoming, State Highway Commission, and Officers Baltimore and Keigley moved for summary judgment. In granting the motion, the court found that Officers Baltimore and Keigley acted in good faith and reasonably under the circumstances and that they, therefore, as a matter of law, had a qualified immunity from liability for the death of Allan F. DeWald. The court concluded further that, as a matter of law, the State of Wyoming and State Highway Commission were immune from liability for the actions of Officers Baltimore and Keigley. Finally, the court found that there was no dispute as to any genuine issue of material fact which would alter or change the conclusion of immunity and, therefore, defendants were entitled to judgment as a matter of law.

STATUTORY IMMUNITY

The Wyoming Governmental Claims Act was adopted in 1979. The act retained governmental immunity as provided in § 1-39-104(a), W.S.1977, Cum.Supp.1985, unless legislation provided an exception to immunity. Thus, in Hurst v. State, Wyo., 698 P.2d 1130, 1132 (1985), we said:

"The Wyoming Governmental Claims Act reaffirmed and retained immunity from claims in tort against governmental entities and their employees. Unless that immunity was expressly waived, immunity was to be the rule; liability was to be the exception and then only when expressly provided for within the Wyoming Governmental Claims Act." (Footnote omitted.)

The statutory exceptions to immunity relevant here are:

"A governmental entity is liable for damages resulting from bodily injury, wrongful death or property damage caused by the negligence of public employees while acting within the scope of their duties in the operation of any motor vehicle, aircraft or watercraft." Section 1-39-105, W.S.1977, Cum.Supp.1985.

"A governmental entity is liable for damages resulting from tortious conduct of law enforcement officers while acting

within the scope of their duties." Section 1-39-112, W.S.1977, Cum.Supp.1985.

COMMON LAW IMMUNITY

The quoted statutes provide an express waiver of immunity as to both public employees operating motor vehicles and police officers. In this case, therefore, the officers were not immune unless there was a common law immunity preserved by § 1-39-102(a), W.S.1977, Cum.Supp.1985, which provides in part:

"This act is intended to retain any common law defenses which a defendant may have by virtue of decisions from this or other jurisdictions."

It is not entirely clear whether the legislature intended, by this section of the Governmental Claims Act, to retain common law immunities as well as common law defenses. One could argue that the term "common law defenses" meant defenses such as contributory negligence which, when compared with other negligence, might bar recovery but would not include immunity. In Kimbley v. City of Green River, Wyo., 663 P.2d 871, 883 (1983), however, we gave the term "common law defenses" a broad interpretation. The Governmental Claims Act, including § 1-39-102(a), was in effect when we decided that case, and we freely discussed and applied a qualified immunity for police officers. Therefore, we implicitly held in Kimbley v. City of Green River, supra, that a common law qualified immunity survived the passage of the Governmental Claims Act. If there is a legitimate common law qualified immunity applicable to the operation of a motor vehicle, then that immunity might bar recovery by appellant.

The trial court, upon the depositions, exhibits and extensive record before it, first found that Officers Baltimore and Keigley, in pursuing Maddox, acted reasonably and in good faith. The court then held that they should have summary judgment as a matter of law based upon a common law qualified immunity available for reasonable acts of police officers done in good faith. The source of the common law qualified immunity articulated by the district court was Kimbley v. City of Green River, supra, 663 P.2d at 878, wherein we stated:

"We * * * have dealt with the civil liability of law enforcement...