Morais v. Yee

• Court: Vermont Supreme Court
• Writing for the Court: Before ALLEN; ALLEN; JOHNSON
• Citation: Morais v. Yee, 162 Vt. 366, 648 A.2d 405 (Vt. 1994)
• Decision Date: 15 July 1994
• Docket Number: No. 93-100,93-100
• Parties: Henri MORAIS and Claudette Morais v. Mark YEE, et al.

Page 405

648 A.2d 405

162 Vt. 366

Henri MORAIS and Claudette Morais v. Mark YEE, et al.

No. 93-100.

Supreme Court of Vermont.

July 15, 1994.

Deborah T. Bucknam and Lisa A. Warren (On the Brief), St. Johnsbury, and Philip R. Waystack and Clare M. Hinkley, Waystack & King, Colebrook, New Hampshire, for plaintiffs-appellants.

John A. Serafino and Allan R. Keyes, Ryan Smith & Carbine, Ltd., Rutland, for defendants-appellees Yee, Tupper, Vermont State Police, Dept. of Public Safety, and State of Vermont.

David A. Barra, Hill, Unsworth, Barra & Myers, Essex Junction, for defendants-appellees LaPointe and Town of Pittsburg, New Hampshire.

Before ALLEN, C.J., and GIBSON, DOOLEY, MORSE and JOHNSON, JJ.

ALLEN, Chief Justice.

Plaintiffs Henri and Claudette Morais appeal the summary judgment granted to defendants in an action alleging negligence and violation of constitutional rights of their son, Denis Morais. Plaintiffs contend that issues of material fact regarding the constitutional claims and defendants' entitlement to immunity from suit should have precluded the entry of summary judgment. We affirm in part and reverse in part.

On the evening of September 9, 1989, defendant Richard LaPointe, Chief of Police in the Town of Pittsburg, New Hampshire, received a report of an accident involving a single motorcycle with two passengers, one of whom was injured. LaPointe was told the incident occurred on Old Canaan Road, but he was unsure whether the accident had occurred in New Hampshire or Vermont. He searched the New Hampshire portion of the road for accident victims, but found only some glass at one spot on the road. LaPointe was continuing his search on Route 3 when he passed a motorcycle headed south toward the Vermont border. The front wheel of the motorcycle was wobbling and the rider was not wearing eye protection as required under New Hampshire law. ¹ Believing this to be the vehicle involved in the accident, LaPointe motioned the rider, Denis Morais, to stop. Plaintiffs assert that LaPointe knew Morais, and offered evidence that the name "Morais" appeared in inch-high letters on the side of the motorcycle's gas tanks. When Morais did not heed LaPointe's direction to stop, LaPointe turned on his lights and siren and pursued him across the bridge into Canaan, Vermont.

Once in Vermont, defendant Mark Yee, a Vermont State Police trooper, joined in the chase by pulling his car between Morais and LaPointe. Plaintiffs assert that Yee also knew the Morais family, having spent considerable time in their local restaurant. Morais led Yee and LaPointe along Route 114, a two-lane road. Witnesses who saw the vehicles pass reported that the nearest cruiser was no more than five feet from Morais' motorcycle, and that Yee and LaPointe were following Morais closely and at too great a speed for Morais to stop safely. Defendants maintain that they pursued Morais in a safe and reasonable manner. The chase continued for nearly twenty-five miles at speeds variously reported between forty and sixty miles per hour; the chase lasted approximately one-half hour.

At some point in the pursuit, defendant William Tupper, also a Vermont State Police trooper, had been notified, and he awaited the motorcade's approach. He positioned his cruiser ahead of Morais, straddling the center line of the road. Tupper drove more slowly than the advancing vehicles, in what he described as an attempt "to contain the motorcycle between the cruisers." Soon thereafter, they came to a sharp curve in the road. According to the troopers, the motorcycle tried to pass Tupper's cruiser, but in the process Morais lost control, left the road, and struck a rock outcropping, resulting in his death.

Plaintiffs sought relief under 42 U.S.C. § 1983 ² for violation of Morais' constitutional rights under the Fourth, Eighth and Fourteenth Amendments to the United States Constitution, and sought recovery in negligence for his wrongful death. Defendants Yee, Tupper, the State of Vermont, the Vermont Department of Public Safety, and the Vermont State Police moved for judgment on the pleadings pursuant to V.R.C.P. 12(c). Defendants LaPointe and the Town of Pittsburg New Hampshire, moved for summary judgment pursuant to V.R.C.P. 56(c). The motions were considered together as motions for summary judgment. See V.R.C.P. 12(c).

The trial court granted defendants summary judgment on the § 1983 claims against the State of Vermont, the Department of Public Safety, the Vermont State Police, and the individual defendants in their official capacities, none of which are "persons" subject to liability under § 1983. See Will v. Michigan Dep't of State Police, 491 U.S. 58, 71, 109 S.Ct. 2304, 2312, 105 L.Ed.2d 45 (1989). The court also entered summary judgment for the Town of Pittsburg on the § 1983 claim, having determined that plaintiffs had failed to demonstrate constitutional rights violations which could serve as the basis of liability under a theory of respondeat superior. Finally, regarding the common-law negligence claims, the court determined that defendants LaPointe, Yee and Tupper were entitled to qualified immunity, and entered summary judgment accordingly.

Plaintiffs raise two issues on appeal. First, they contend that the trial court erred in ruling that Morais had not suffered violations of his Fourth and Fourteenth Amendment rights. Second, plaintiffs argue that issues of material fact should have prevented the trial court from finding that the individual defendants were entitled to qualified immunity from suit for alleged negligence. ³

To be granted summary judgment, the moving party must demonstrate the absence of a genuine issue of material fact, and that the moving party is entitled to judgment as a matter of law. V.R.C.P. 56(c). In the trial court's consideration of the motion, the party opposing the motion benefits from all reasonable doubts and inferences. State v. Delaney, 157 Vt. 247, 252, 598 A.2d 138, 141 (1991). However, the opposing party may not simply rely on allegations in the pleadings to establish a genuine issue of material fact. Murray v. White, 155 Vt. 621, 628, 587 A.2d 975, 979 (1991).

I.

Plaintiffs first argue that the trial court erred in granting defendants judgment on the § 1983 claims for alleged violations of Morais' constitutional rights. Specifically, they contend that genuine issues of material fact exist as to whether police violated the decedent's Fourth Amendment right to freedom from unreasonable seizure, and his substantive due process rights under the Fourteenth Amendment. The Fourth Amendment provides, in relevant part, that "[t]he right of the people to be secure in their persons ..., against unreasonable searches and seizures, shall not be violated." U.S. Const. amend. IV. To establish a violation of the right to be free from an unreasonable seizure, plaintiffs bear the burden of demonstrating that Morais was "seized" within the meaning of the Fourth Amendment, and that the seizure was unreasonable.

At the time of Morais' death, the United States Supreme Court had recently considered the question of whether police pursuit qualifies as a Fourth Amendment seizure in Brower v. County of Inyo, 489 U.S. 593, 109 S.Ct. 1378, 103 L.Ed.2d 628 (1989). In deciding whether the decedent had been seized when he collided with a police roadblock after a high-speed chase, the Court differentiated that situation, in which the police create circumstances intended to produce a stop by physical impact, from a significant show of authority intended to induce a voluntary stop. Id. at 598, 109 S.Ct. at 1382. The Court held that "a Fourth Amendment seizure does not occur whenever there is a governmentally caused termination of an individual's freedom of movement ..., but only when there is a governmental termination of freedom of movement through means intentionally applied." Id. at 596-97, 109 S.Ct. at 1381. A seizure requires "that a person be stopped by the very instrumentality set in motion or put in place in order to achieve that result." Id. at 599, 109 S.Ct. at 1382. Thus, no seizure occurs in the course of a police chase if the suspect unexpectedly loses control of the vehicle and crashes. Id. at 597, 109 S.Ct. at 1381; accord California v. Hodari D., 499 U.S. 621, 628, 111 S.Ct. 1547, 1551-52, 113 L.Ed.2d 690 (1991) (citing Brower, Court explains that possibility of seizure not considered if police showing of authority did not stop individual pursued).

The affidavits offered by defendants in this case uniformly deny that police vehicles came into any contact with Morais in the course of their pursuit. They also demonstrate the absence of any intention on the part of police to force Morais to leave the road and collide with the rock face. Plaintiffs challenge these affidavits with the affidavit of an accident reconstruction expert, who characterized the positioning of the three police cars just before Morais left the road as a "rolling roadblock." After an initial investigation of the scene, the police reports and photographs, and the motorcycle, the expert offered a "preliminary opinion" that the motorcycle was damaged by an impact with an automobile. ⁴

Plaintiffs may rely on affidavits of experts to defeat a summary judgment motion, but the affidavit still must meet the Rule 56(e) requirement that the nonmoving party present specific facts demonstrating a genuine issue for trial. Hayes v. Douglas Dynamics, Inc., 8 F.3d 88, 92 (1st Cir.1993) (construing F.R.C.P. 56(e)). If an expert presents " 'nothing but conclusions--no facts, no hint of an inferential process, no discussion of hypotheses considered and rejected,' such testimony will be insufficient to defeat a motion for summary judgment." Id. (quoting Mid-State Fertilizer Co. v. Exchange Nat'l Bank, 877 F.2d 1333, 1339 (7th Cir.1989)). Plaintiffs' affidavit presents only an admittedly preliminary opinion, unsupported by specific facts or any indication of how the...