Keehn v. Town of Torrington
| Decision Date | 14 July 1992 |
| Docket Number | No. 91-232,91-232 |
| Citation | 834 P.2d 112 |
| Parties | Sheri KEEHN, as personal representative of Brent Keehn, Deceased, and on behalf of Jake Wayne Keehn, Shanda Lynn Keehn, Budd Gittens, Max Gittens, Billie Jones, Doug Keehn, Richard Keehn, and Georgia Keehn, and Rhonda Slagowski Birch, as personal representative of Kirt Slagowski, Deceased, and on behalf of Sierra Deanne Slagowski, Rick Slagowski, Delores Slagowski, Roger Slagowski, Danny Slagowski, Connie Staker, Pat Defa, Wendy Slagowski, Laura Russell, Diane Harris, and Lorraine Hansen, Appellants (Plaintiffs), v. The TOWN OF TORRINGTON, Wyoming, Torrington Police Department, and Patrolman Brad Schuppan, Appellees (Defendants). |
| Court | Wyoming Supreme Court |
Richard J. Mulligan of Fix & Mulligan, Jackson, for appellants.
Joseph B. Meyer, Atty. Gen., John W. Renneisen, Deputy Atty. Gen., Dennis M. Coll, Senior Asst. Atty. Gen., Cheyenne, for appellee Brad Schuppan.
Alan B. Minier of Hirst & Applegate, P.C., Cheyenne, for appellee Town of Torrington.
Before MACY, C.J., and THOMAS, CARDINE, URBIGKIT * and GOLDEN, JJ.
Appellants, personal representatives for the estates of Brent Keehn and Kirt Slagowski, appeal from a district court order which granted to the town of Torrington and to Officer Brad Schuppan their motions for summary judgment in joint wrongful death actions. Two issues are contested by the parties on appeal: (1) Whether, under the circumstances of this case, an issue of material fact exists as to whether Officer Schuppan breached his duty to apprehend, arrest and remove drunk drivers from the road on June 15, 1988; and (2) Whether, under the circumstances of this case, Officer Schuppan had the authority to execute a DWUI arrest outside of the Torrington city limits. We will affirm.
Officer Brad Schuppan of the Torrington Police Department was on duty during the late evening hours of June 14 and the early morning hours of June 15, 1988. While on patrol, Officer Schuppan noticed a red Suzuki Samurai parked in the tavern area of downtown Torrington. At approximately 2:15 a.m. on June 15, 1988, Officer Schuppan observed the Samurai headed west through Torrington on Highway 26. The Samurai had a burned-out headlight.
Recognizing an opportunity to check for a possible DWUI violation, Officer Schuppan followed the Samurai through one traffic light, one stop sign, and around two slight curves--a total distance of six-tenths of a mile. Observing nothing out of the ordinary, Officer Schuppan decided to stop the Samurai to issue a "fix-it" order for the burned-out headlight. Officer Schuppan reasoned that the "fix-it" stop would afford him yet a better opportunity to check for driver intoxication. Officer Schuppan accordingly activated his overhead lights to initiate the stop. The Samurai promptly pulled over. The stop was logged at 2:22 a.m. and occurred just outside of the Torrington city limits.
Officer Schuppan approached the Samurai looking for anything "hinky," i.e., unusual or suspicious. He shined his flashlight into the vehicle and noticed that it was occupied by four individuals, but did not observe any furtive behavior. Officer Schuppan then introduced himself to the driver, William Romero. Officer Schuppan informed Mr. Romero that he had been stopped for a burned-out headlight and asked for his driver's license. Mr. Romero grasped his wallet and withdrew his license without hesitation. Officer Schuppan observed that Mr. Romero had no difficulty with eye-hand coordination, that his speech was not impaired, that he did not appear nervous or upset, and that his eyes were not watery or bloodshot. Although Officer Schuppan detected a slight odor of alcohol coming from the vehicle, he could not place the odor as coming from Mr. Romero.
Officer Schuppan returned to his patrol car to complete the paperwork for the "fix-it" order. Upon return, he received a report of a stolen car and of broken glass in downtown Torrington. Believing that the two incidents were related, Officer Schuppan aborted his plans to issue a "fix-it" order, returned Mr. Romero's driver's license, and told him to have his headlight fixed. Officer Schuppan then proceeded to investigate the reported incidents. Dispatch records indicate that the stop ended at 2:24 a.m.
At 4:40 a.m., the red Suzuki Samurai was involved in a head-on collision thirty-two miles west of Torrington on Highway 26. The Samurai had crossed the center line and collided with the vehicle of Manuel Otero. Mr. Otero was killed in the accident, as were two passengers of the Romero vehicle, Brent Keehn and Kirt Slagowski. Mr. Romero had a blood alcohol content of 0.13 percent.
Following compliance with the presentation of claims procedure outlined in Wyoming's Governmental Claims Act, personal representatives for the estates of Mr. Keehn and Mr. Slagowski timely filed wrongful death actions in district court. The joint complaint alleged that Officer Schuppan was negligent in failing to arrest Mr. Romero for driving while intoxicated on June 15, 1988, and sought to hold the town of Torrington vicariously liable. The town of Torrington and Officer Schuppan duly responded, after filing appropriate responsive pleadings, with motions for summary judgment. The motions were resisted by the estates of Mr. Keehn and Mr. Slagowski. The district court granted summary judgments for the town of Torrington and for Officer Schuppan following a hearing. This appeal followed.
When reviewing the propriety of a summary judgment, this court reviews the record from the vantage point most favorable to the party opposing the motion to determine whether there exists an issue of material fact which would preclude the court from issuing a judgment as a matter of law. Boehm v. Cody Country Chamber of Commerce, 748 P.2d 704, 710 (Wyo.1987). An issue of material fact exists when a disputed fact, if proven, would have the effect of establishing or refuting one the essential elements of the cause of action or defense asserted by the litigants. McLaughlin v. Michelin Tire Corp., 778 P.2d 59, 63 (Wyo.1989). If no issue of material fact is found to exist, summary judgment is appropriate--even in a negligence case. DeWald v. State, 719 P.2d 643, 651 (Wyo.1986).
The Wyoming Governmental Claims Act provides that governmental entities and public employees acting within the scope of their duties are immune from suit in tort except as expressly waived by the legislature. Wyo.Stat. § 1-39-104(a) (June 1988). The waiver of governmental immunity applicable to the instant case is found in Wyo.Stat. § 1-39-112. Section 1-39-112 provides that "[a] governmental entity is liable for damages resulting from tortious conduct of peace officers while acting within the scope of their duties." The litigants do not dispute that Officer Schuppan was a peace officer acting within the scope of his duties during the early morning hours of June 15, 1988. Rather, the present controversy centers on whether reasonable minds could differ as to whether Officer Schuppan's conduct was or was not tortious.
When evaluating a peace officer's conduct under Wyoming's Governmental Claims Act, we apply general principles of tort law. The tort which Officer Schuppan is alleged to have committed is that of negligence. Negligence is defined generically as the failure to act as a reasonable man of ordinary prudence under like circumstances. McClellan v. Tottenhoff, 666 P.2d 408, 411 (Wyo.1983). Translated into the law enforcement context, negligence is the failure to act as a reasonable peace officer of ordinary prudence under like circumstances. The circumstances which are taken into account when determining negligence are those as they appeared at the time of the alleged tortious act or omission. DeWald, 719 P.2d at 652. This court has stated that it will not unfairly use hindsight in assessing the issue of negligence. Id.; accord Green v. Sibley, Lindsay & Curr Co., 257 N.Y. 190, 177 N.E. 416, 417 (1931) ().
The elements that a plaintiff must establish to maintain a negligence action in a court of law are: (1) that the defendant owed to the plaintiff a duty to conform to a specified standard of care; (2) that the defendant breached the duty of care; (3) that the defendant's breach of the duty of care proximately caused injury to the plaintiff; and (4) that the injury sustained by the plaintiff is compensable by money damages. See, MacKrell v. Bell H sub2 S Safety, 795 P.2d 776, 779 (Wyo.1990); W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 30 (5th ed. 1984). Elements (1) and (2), duty and breach of duty, address whether the conduct of the alleged tortfeasor was in fact negligent. Element (3), proximate cause, is considered only after negligence is first established to determine whether the tortfeasor should be legally responsible for his negligence. Finally, element (4), injury/damages, is considered to determine the extent of the tortfeasor's liability to the plaintiff if the foregoing issues are resolved affirmatively.
Consistent with the foregoing requirements, appellants in the instant case assert that Officer Schuppan had a duty to act as a reasonable peace officer of ordinary prudence with respect to enforcing Wyoming's drunk driving laws on June 15, 1988. They aver that Officer Schuppan breached his duty of care on the date in question by failing to administer field sobriety tests to Mr. Romero to determine the extent of his intoxication. Appellants reason that, had the field sobriety tests been performed, Officer Schuppan would have known that Mr. Romero was intoxicated and would have arrested him for DWUI. Extending this line of reasoning, appellants assert that the accident would not have occurred had Mr. Romero been arrested. Accordingly, they conclude that the failure to arrest Mr. Romero was...
To continue reading
Request your trial
-
Wilson v. State
...Court of some lesser standard than probable cause for intrusion upon constitutionally guaranteed rights. See Keehn v. Town of Torrington, 834 P.2d 112, 116 (Wyo.1992); Olson v. State, 698 P.2d 107, 109 (Wyo.1985); and 3 Wayne R. LaFave, Search and Seizure, § 9.1 at 334 (1987). In Terry, a p......
-
McChesney v. State
...court has recognized the validity of a "Terry stop" and also has adopted the "totality of the circumstances" test. See Keehn v. Town of Torrington, 834 P.2d 112 (Wyo.1992). In Lopez v. State, 643 P.2d 682 (Wyo.1982), a police officer's independent observations of an automobile and a suspect......
-
Wilder v. Cody Country Chamber of Commerce
...depositions, and exhibits presented as underlying facts and are viewed in the light most favorable to that party. Keehn v. Town of Torrington, 834 P.2d 112, 114 (Wyo.1992); Powder River Oil Co. v. Powder River Petroleum Corp., 830 P.2d 403, 406-07 (Wyo.1992); 10 Charles A. Wright, Arthur R.......
-
Goettl v. State, 90-284
...court has recognized the validity of a "Terry stop" and also has adopted the "totality of the circumstances" test. See Keehn v. Town of Torrington, 834 P.2d 112 (Wyo.1992). In Lopez v. State, 643 P.2d 682 (Wyo.1982), a police officer's independent observations of an automobile and a suspect......
-
CHAPTER 16 LESSONS LEARNED: RISE MANAGEMENT STRATEGIES AS PROJECTS GROW, MATURE, AND CLOSE
...v. Larrabee, 832 P.2d 1069 (Colo. App. 1992). [86] Baxter v. Noce, 107 N.M. 48, 752 P.2d 240 (1988). [87] Keehn v. Town of Torrington, 834 P.2d 112 (Wyo. 1992). [88] Stone's Farm Supply, Inc. v. Deacon, 805 P.2d 1109, 1114 (Colo. 1991). [89] Stone's Farm Supply, Inc. v. Deacon, 805 P.2d 110......
-
Section 14.9 Officer Reliance on Odor of Alcohol as Basis of Reasonable Suspicion/Probable Cause
...odor of an alcoholic beverage, admission of a couple of drinks, and refusal of field sobriety tests)· Keehn v. Town of Torrington, 834 P.2d 112 (Wyo. 1992)· State v. Kliphouse, 771 So.2d 16 (Fla. Dist. Ct. App. 2000) (an unconscious motorcyclist who did not cause accident had odor of alcoho......