McCaffrey v. City of Wilmington
| Decision Date | 04 February 2016 |
| Docket Number | No. 26, 2015,26, 2015 |
| Parties | Morgan McCaffrey, Plaintiff Below, Appellant, v. City of Wilmington, and Chief Michael J. Szczerba, individually and in his capacity as an officer, Defendants Below, Appellees. |
| Court | United States State Supreme Court of Delaware |
Bartholomew J. Dalton, Esquire (argued ), Laura J. Simon, Esquire, Dalton & Associates, P.A., Wilmington, Delaware, for Plaintiff Below, Appellant, Morgan McCaffrey.
Daniel McAllister, Esquire (argued ), City of Wilmington Law Department, Wilmington, Delaware, for Defendants Below, Appellees, City of Wilmington and Chief Michael Szczerba.
Before STRINE, Chief Justice; HOLLAND, VALIHURA, VAUGHN, and SEITZ, Justices, constituting the Court en Banc.
I. INTRODUCTION
While off-duty, out of uniform, driving his own car, and under the influence of alcohol, Wilmington Police Officer Michael Spencer ran a red light and collided with a car driven by Morgan McCaffrey. After the accident, Officer Spencer asked McCaffrey to handle the matter without police involvement and to move their damaged cars out of the roadway and into parking spaces in front of McCaffrey's nearby apartment. Officer Spencer and McCaffrey then went into the apartment, where Officer Spencer undressed and made sexual advances toward McCaffrey, which she refused. McCaffrey called the police after Officer Spencer passed out in her bed. The responding officers took Officer Spencer to the hospital, and later to the police station, where after a delay of five hours, Officer Spencer supposedly passed field tests for intoxication. The Wilmington Police Department (the "WPD") disciplined Officer Spencer for his conduct that evening.
McCaffrey filed suit against Officer Spencer, the WPD, and others, including former Chief of Police Michael Szczerba, stemming from the car accident and Officer Spencer's admitted inappropriate conduct with McCaffrey. In a series of opinions, the Superior Court dismissed all claims against the defendants other than Officer Spencer, and entered a final judgment excluding Officer Spencer.1 The claims against Officer Spencer are pending.
McCaffrey raises two issues on appeal. First, McCaffrey claims that the Superior Court erred by dismissing Count I of her second amended complaint as to the City. McCaffrey argues that she sufficiently alleged that Officer Spencer was acting within the scope of his employment as a Wilmington Police Officer when he ran into McCaffrey's car and made inappropriate sexual advances after the accident. Second, McCaffrey claims that the Superior Court erred in dismissing Count IV of the second amended complaint against Chief Szczerba and the City because the County and Municipal Tort Claims Act (the "Tort Claims Act") did not immunize them from suit for Officer Spencer's actions.
We find no merit to McCaffrey's arguments. First, McCaffrey dropped the claims against the City under Count I of her amended complaint. After the Superior Court dismissed Count I of the original complaint, McCaffrey filed two amended complaints that deleted the City as a defendant in the amended Count I, and deleted her allegations of respondeat superior liability. Following amendment, McCaffrey never alleged or argued below that the City could be liable under Count I for any conduct other than the car accident. Therefore, she cannot recover against the City under the amended Count I.
Second, as to Chief Szczerba, we agree with the Superior Court that, even after considering the record in the light most favorable to McCaffrey, Chief Szczerba's actions in hiring, retaining, and supervising Officer Spencer do not fall within the wanton negligence exception to immunity under the Tort Claims Act. Finally, we agree with the Superior Court that the City is immune from suit under the Tort Claims Act, but for different reasons than those found by the Superior Court. McCaffrey cannot show that the mere fact that Officer Spencer had a weapon and other related items at the time of the accident implicates the equipment exception to the Tort Claims Act. Therefore we affirm the judgment of the Superior Court.
II. BACKGROUND2
On June 4, 2010, Wilmington Police Officer Michael Spencer attended a "Beef and Beer" police academy fundraiser and then drove under the influence of alcohol to a bar in Wilmington. Officer Spencer was off duty, not in uniform, and driving his own car. After leaving the bar, Officer Spencer again drove under the influence, eventually colliding with Morgan McCaffrey's vehicle at Second and Orange Streets in the City of Wilmington. The accident occurred around 2:00 a.m. on June 5, 2010. McCaffrey does not allege that Officer Spencer was on duty, in his police uniform, or driving a police vehicle at the time of the accident.
Immediately following the accident, Officer Spencer contacted WPD dispatch to report the accident using the WPD's administrative line, a number that is not publicly listed. McCaffrey overheard his conversation with the police and believed he was speaking in "cop terms."3 Officer Spencer then showed McCaffrey his police identification and asked her if she would be willing to "handle it civilly," to which she agreed "[b]ecause he was a police officer."4
Officer Spencer cancelled the call to the police, and then approached McCaffrey, put his hands on her shoulders, and kissed her on the lips. McCaffrey backed away, and Officer Spencer apologized. He then asked McCaffrey where she lived and, after determining that she lived nearby, suggested that they move their vehicles, presumably closer to her apartment. McCaffrey agreed, expecting that once they got their cars out of the road they would be able to exchange insurance information. She "had confidence in him, because he was a police officer, that he was telling [her] the right things to do...."5
After they parked near McCaffrey's apartment, Officer Spencer removed his gun, magazine, and badge from the glove compartment of his car and asked McCaffrey to hold them for him. McCaffrey placed the items in her purse, at which time she "just kind of felt like at that point whatever he was asking [she] should probably just kind of go along with."6
Meanwhile, Corporal Ralph Schifano arrived at the accident scene and found evidence of a serious accident, but no vehicles or drivers. Corporal Schifano alerted the WPD dispatch supervisor, who began investigating and found that the person who took Officer Spencer's original call into WPD dispatch knew that Officer Spencer was a police officer and "could tell that he might be drunk because [of] the way he was acting on the phone and the way he was talking."7 The dispatch supervisor did not alert anyone because "he didn't want to get the officer in trouble."8
Officer Spencer suggested to McCaffrey that they go to McCaffrey's apartment to discuss the accident. McCaffrey agreed, "solely based on the fact that ... he was a police officer."9 Once in the apartment, McCaffrey went to the bathroom and, upon emerging, found that Officer Spencer had removed his pants, but still had on "basketball shorts."10 He gestured for McCaffrey to sit next to him on her futon, which doubled as her bed and was the only piece of furniture in the one-room apartment. McCaffrey sat on the futon as far away from him as she could, at which point Officer Spencer asked if she wanted to have sex. After McCaffrey said no, Officer Spencer stood in front of her with one leg on each side of her legs, then sat down such that he was straddling her. With his hands on her shoulders, he asked a second time if McCaffrey wanted to have sex. After McCaffrey rejected him a second time, he got up and laid down on the bed, at which point McCaffrey returned to the bathroom "to get away from him."11 While in the bathroom, she changed into a hoodie and sweatpants. After she returned to the main room of the apartment, she found Officer Spencer asleep. McCaffrey then left the apartment to seek help.
After trying to call several friends, McCaffrey made contact with a neighbor in her building. McCaffrey informed him that she had been in an accident and wanted to come down to his apartment and talk about it. The neighbor agreed. After hearing everything that had happened, the neighbor advised her to call 911. McCaffrey told her neighbor that she was scared to call the police because "it involved an officer."12 McCaffrey also suggested she was hesitant to call the authorities because, at the time, a bench warrant was outstanding for her arrest for unpaid tickets. McCaffrey ultimately called 911 at 3:52 a.m.
Several police officers arrived at the apartment building. When the officers entered McCaffrey's apartment, they found Officer Spencer "laying [sic ] naked on the bed covered by a sheet."13 He appeared drunk, smelled of alcohol, and attempted to dress himself by "putting his legs through the shirt instead of over his head."14 After being taken to Wilmington Hospital and cleared for injuries, the police took Officer Spencer to the police station.
At the station, when Corporal Schifano informed Officer Spencer that he would need to be chaperoned while going to the bathroom, Officer Spencer "became very upset and agitated" and tried to stop Corporal Schifano from entering the restroom with him.15 Officer Spencer initially refused sobriety tests, but eventually consented and after a five hour delay supposedly passed eight tests. Officer Spencer later testified that he did not remember taking any of the sobriety tests. After disciplinary proceedings conducted by the Office of Professional Standards, the disciplinary arm of the WPD, the WPD suspended Officer Spencer for 31 days. Officer Spencer also entered an alcohol rehabilitation program after the incident. The only criminal charge that resulted from Officer Spencer's conduct was a traffic citation for failure to stop at a red light.
III. PROCEDURAL HISTORY
McCaffrey filed her first complaint on January 19, 2012, alleging negligence,...
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