Horta v. Sullivan

• Citation: 4 F.3d 2
• Decision Date: 07 January 1993
• Docket Number: No. 92-1962,92-1962
• Parties: 39 Fed. R. Evid. Serv. 508 Debra HORTA, Plaintiff, Appellant, v. Charles B. SULLIVAN, et al., Defendants, Appellees. . Heard
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

Page 2

4 F.3d 2

39 Fed. R. Evid. Serv. 508

Debra HORTA, Plaintiff, Appellant, v. Charles B. SULLIVAN, et al., Defendants, Appellees.

No. 92-1962.

United States Court of Appeals First Circuit.

Heard Jan. 7, 1993.

Decided Aug. 31, 1993.

Sheila M. Tierney with whom Tierney Law Office was on brief for plaintiff, appellant.

Linda M. Walsh with whom Kroll & Tract was on brief for defendants, appellees Charles B. Sullivan, Paul G. Sadeck, Edward Mello and the Town of Freetown.

James F. Gettens with whom Healy & Rocheleau, P.C. was on brief for defendants, appellees Jeffrey Mennino, James K. Bowles, and the Town of Lakeville.

Before TORRUELLA, Circuit Judge, CAMPBELL, Senior Circuit Judge, and STAHL, Circuit Judge.

LEVINE H. CAMPBELL, Senior Circuit Judge.

A passenger injured after police officers had chased the motorcycle on which she was riding sued the police officers, the towns, and the town police chiefs in the district court under 42 U.S.C. Sec. 1983 and state law. The district court granted summary judgment for all defendants on all counts. Appellant appeals, but only as to the Sec. 1983 claims against the police officers and the pendent Massachusetts Tort Claims Act claims against the two towns. We affirm in part, vacate and remand in part, and certify a question of law to the Massachusetts Supreme Judicial Court.

I.

The following facts are not in dispute. On Friday, August 5, 1988, at approximately 9:18 p.m., appellee Jeffrey Meninno, a Lakeville Police Officer, was traveling in his police cruiser north on County Road in Lakeville, Massachusetts, when he observed a motorcycle approaching him in the southbound lane in excess of the posted speed limit. ¹ Officer Meninno activated the cruiser's blue lights as the motorcycle approached. He then turned his cruiser around and began to pursue the motorcycle. Instead of pulling over, the motorcycle accelerated.

When appellant Debra Horta, riding on the back of the motorcycle, realized that the police car was following them, she told the motorcycle operator, James F. Demoranville, to stop because "it isn't worth it." Demoranville refused. "He just said to tuck my head Officer Meninno accelerated to keep up and followed the motorcycle along County Road from a distance of a few hundred feet, backing off a number of times when it appeared that the bike was wobbling and the riders might fall off. The chase reached speeds of seventy-five to eighty miles per hour, as Meninno watched the motorcycle drive erratically, pass at least one car, and swerve into and drive in the opposite lane. Meninno unsuccessfully attempted to record the motorcycle's license plate number.

                in between his shoulders and hang on."   Appellant remembers nothing about what occurred after that moment
                

As the pursuit continued on County Road, Officer Meninno radioed a report to the Lakeville police dispatcher, telling her of the pursuit and asking her to notify the police department in the neighboring town of Freetown that the motorcycle was heading toward the Lakeville-Freetown line. Appellee Charles B. Sullivan, a police officer in Freetown, heard Meninno's transmission but did not yet contact Lakeville. At that time Sullivan and appellee Paul G. Sadeck, another Freetown police officer, were parked in separate cruisers on Route 18 in Freetown. Sullivan told Sadeck about the chase and then drove south on Route 18 toward the intersection of Route 18 and Mason Road. Mason Road runs between County Road and Route 18. Meninno contacted the Lakeville dispatcher again, notifying her that the motorcycle had left Lakeville and entered Freetown. Sullivan then informed the Lakeville dispatcher and Meninno that the Freetown police would assist.

The motorcycle slowed down to thirty miles per hour, with Meninno doing the same, before turning left from County Road onto Mason Road and accelerating again to over sixty miles per hour. ² Officer Meninno kept up and told Sullivan by radio that he and the motorcycle were now proceeding eastbound on Mason Road. He also warned Sullivan that, "He's driving recklessly. Be careful." Sullivan informed Meninno that he was now coming in the other direction on Mason Road, getting closer to Meninno and the speeding motorcycle.

As the motorcycle and Meninno continued east on Mason Road, Officer Sullivan stopped his police cruiser in the eastbound lane of the two-lane road, facing west. He left the transmission in Drive and "stood on the brakes" to keep the cruiser stationary. The westbound lane directly next to Sullivan's cruiser was unobstructed. ³ In front of the cruiser, the road ran straight for approximately 480 feet before it turned. Sullivan could not see around the bend to the approaching motorcycle and police car, nor could the latter yet see his car. Sullivan illuminated the cruiser's blue lights, take-down lights, ⁴ and headlights. No streetlight illuminated the point at which the cruiser was parked, but the road was lit at the bend and the take-down lights illuminated part of the road in front of the cruiser.

Officer Meninno and the motorcycle were traveling along Mason Road at sixty or sixty-five miles per hour when Officer Sullivan advised Meninno by radio of his precise location, warned him to "back off" and that he had the road "blocked." Meninno says that he did slow down, but the motorcycle continued on apace.

Fifteen to twenty seconds elapsed before Sullivan saw the motorcycle, with Demoranville and appellant on it, round the bend in Mason Road with Meninno's cruiser some Three to four minutes elapsed from the time Officer Meninno began the pursuit to the time the motorcycle collided with Sullivan's cruiser. The pursuit covered 3.2 miles. At no time did Officer Meninno's police cruiser make physical contact with the motorcycle or its passengers. ⁶

                distance behind it. 5  Demoranville, still driving in the eastbound lane, appeared to slow the cycle down and steer toward the roadside on his right.  However, he apparently lost control of the motorcycle, which fell on its side and slid along the roadway until it collided with the front of Officer Sullivan's stationary police cruiser.  The cruiser rose up in the air on impact, Demoranville became wedged underneath the car, and appellant Horta fell backwards off the motorcycle.  Meninno eventually stopped without skidding or taking evasive action.  Demoranville died within the hour and Horta sustained serious, permanent injuries, resulting in a month-long coma and eventual amputation of her left leg
                

Appellant Horta brought this civil action for money damages on June 25, 1991, in the United States District Court for the District of Massachusetts against seven defendants--Officers Meninno, Sullivan, and Sadeck; the Town of Lakeville and the Town of Freetown; and Lakeville Police Chief James K. Bowles and Freetown Police Chief Edward Mello. The complaint contained six counts, alleging that Meninno, Sullivan, and Sadeck were liable to Horta under 42 U.S.C. Secs. 1983 and 1985 for violation of her constitutional rights (Count I); under Mass.Gen.L. ch. 12, Secs. 11H and I for violation of her civil rights (Count II); and under the Massachusetts Tort Claims Act, Mass.Gen.L. ch. 258, for negligence (Count III). Horta also alleged that the towns of Lakeville and Freetown were liable to her under the Massachusetts Tort Claims Act for the negligent actions of Meninno, Sullivan, and Sadeck (Count IV), and that Chief Bowles, Chief Mello, Lakeville and Freetown were liable to her under 42 U.S.C. Secs. 1983, 1985 and 1988 (Count V) and under Mass.Gen.L. ch. 12, Secs. 11H and I (Count VI).

The defendants moved for summary judgment, which the district court granted on July 8, 1992. ⁷ Horta now appeals from the final judgment dismissing her complaint.

II.

Horta challenges only the district court's granting of summary judgment on Counts I and IV, hence waiving any appeal concerning Counts II, III, V and VI. See Fed.R.App.P. 28(a)(3), (5); Brown v. Trustees of Boston Univ., 891 F.2d 337, 352 (1st Cir.1989), cert. denied, 496 U.S. 937, 110 S.Ct. 3217, 110 L.Ed.2d 664 (1990).

We turn first to a disagreement over what materials are properly in the summary judgment record. Appellees moved in the district court to strike seven exhibits--two affidavits, three newspaper articles and other documents--that Horta submitted with her opposition to the motion for summary judgment. Appellees argued, inter alia, that the exhibits contained inadmissible hearsay, were not in proper form, and were not properly sworn to or certified under Fed.R.Civ.P. 56. The district court denied the motion to strike without comment. Appellees now assert that we should disregard the exhibits for purposes of deciding, in this appeal, whether or not to uphold summary judgment. See Carey v. Bahama Cruise Lines, 864 F.2d 201, 203 n. 1 (1st Cir.1988) ("An appellee need not cross-appeal 'to argue that there are alternative grounds that support the judgment below.' " (quoting Jasany v. United States Postal Serv., 755 F.2d 1244, 1248 n. 1 (6th Cir.1985))).

Summary judgment is to be decided on "the pleadings, depositions, answers to We need consider only one of the challenged exhibits as none of the others, even if admissible, would add to or subtract from Horta's ability to raise a genuine issue of material fact. The significant exhibit is a photocopy of a newspaper article indicating that Officer Sadeck's cruiser had arrived on the scene before the crash and was so positioned with Officer Sullivan's cruiser as to form a "staggered roadblock." This account is contrary to all the other reports before the court. Sadeck stated in his own affidavit that he was on Route 18, not on Mason Road (where the crash occurred) when he saw smoke coming from the front of Officer Sullivan's cruiser and heard Sullivan report the collision to the Freetown dispatcher. Officer Sadeck says that he immediately drove down Mason Road and parked his cruiser in the westbound...