Moyer v. Dunn County, 87-C-169-C.

• Decision Date: 21 July 1988
• Docket Number: No. 87-C-169-C.,87-C-169-C.
• Parties: Thomas P. MOYER, Lyle A. Moyer and Margaret H. Moyer, Plaintiffs, v. DUNN COUNTY, Village of Colfax, Ronald W. Hodgson, James A. Nosker, Charles Owen, General Casualty Company of Wisconsin, and Hartford Insurance Group, Defendants.
• Court: U.S. District Court — Western District of Wisconsin

691 F. Supp. 164

Thomas P. MOYER, Lyle A. Moyer and Margaret H. Moyer, Plaintiffs, v. DUNN COUNTY, Village of Colfax, Ronald W. Hodgson, James A. Nosker, Charles Owen, General Casualty Company of Wisconsin, and Hartford Insurance Group, Defendants.

No. 87-C-169-C.

United States District Court, W.D. Wisconsin.

July 21, 1988.

Dana John Wachs, Wachs & Wachs, Eau Claire, Wis., John L. Cates, Lawton & Cates, Madison, Wis., for plaintiffs.

Harry Sauthoff, Jr., Sauthoff, Alexander & Mindt, Carroll Metzner, Madison, Wis., William A. Schembera, Thedinga Law Firm, Menomonie, Wis., for defendants.

ORDER

CRABB, Chief Judge.

In this civil action for money damages plaintiffs claim that defendants Dunn County, Village of Colfax, and Hodgson, Nosker, and Owen violated plaintiff Thomas Moyer's rights under the Fourth and Fourteenth Amendments when they engaged in a high-speed pursuit of Moyer that ended in Moyer's losing control of his motorcycle and crashing.¹ Jurisdiction is present under 28 U.S.C. § 1331. Now before the court are defendants' motion for summary judgment and their motion to strike Exhibit I of the affidavit of John Cates, Dkt. # 137a. I will grant defendants' motion to strike. However, because I find that there is a genuine issue as to the manner in which defendants Nosker and Owen pursued plaintiff, I will deny defendants' motion as to plaintiff's Fourteenth Amendment claim of excessive force, and plaintiffs' state law claim of negligence.

Based on the parties' proposed findings and for purposes only of deciding this motion, I find that there is no genuine issue as to the following material facts.²

Undisputed Facts

Plaintiff Thomas P. Moyer is an adult residing at R.R. 1, Box 97, Colfax, Wisconsin. Plaintiffs Lyle A. and Margaret H. Moyer reside at the same address and are the natural parents of Thomas Moyer.

Defendants Dunn County and Village of Colfax are duly authorized governmental subdivisions of the State of Wisconsin.

Defendant Hodgson resides in Wisconsin. At all times material to this action, he was employed as the chief of police of defendant Village of Colfax.

Defendant Nosker resides in Wisconsin. At all times material to this action, he was employed in defendant Village of Colfax as a police officer.

Defendant Owen resides in Wisconsin and at all times material to this action was employed as a deputy sheriff in defendant Dunn County.

At all times material to this action, defendant General Casualty Company of Wisconsin was an insurance company doing business in the State of Wisconsin and had a policy of liability insurance issued to defendant Dunn County.

At all times material to this action, defendant Hartford Insurance Group was an insurance company doing business in the State of Wisconsin and had a policy of liability insurance issued to defendant Village of Colfax.

In the early morning hours of May 28, 1986, defendants Nosker, Hodgson, and Owen, and extra police officer Jones Jordan were parked in Larson's garage, which is located in the village of Colfax. While the officers were conversing, defendant Nosker noticed several vehicles drive by on Main Street, including a motorcycle heading south on Main Street. The police officers at Larson's observed the color of the motorcycle and the hair color of the rider. Defendant Nosker observed also an older motor vehicle drive by Larson's garage without its lights on. He decided to stop the vehicle for the purpose of talking to its operator. In order to pull out of Larson's garage, defendant Nosker was required to back out onto First Street and to stop his car at the intersection of First Street and Main Street, which is Highway 40. Prior to entering Highway 40, defendant Nosker yielded to a motorcycle traveling in an easterly direction on Highway 40. It was the same motorcycle defendant Nosker had just seen heading south on Main Street. The motorcycle was traveling in the same direction as the motor vehicle previously observed by defendant Nosker.

Defendant Nosker made a right-hand turn onto Highway 40 behind the motorcycle. He turned on his flashing red and blue lights and his left directional signal in an attempt to pass the motorcycle. At that point, the motorcycle accelerated suddenly. Defendant Nosker pulled in behind it and turned on his siren. The motorcycle slowed down and pulled over to the right-hand gutter in order to negotiate a right-hand curve on Highway 40. After clearing the curve, the motorcycle accelerated again and a high speed pursuit began. Defendant Nosker pursued the motorcycle at speeds approaching 100 m.p.h.

The motor vehicle without its lights on was parked six-tenths of a mile down the road when the chase began.

Plaintiff was the driver of the motorcycle, which was owned by Faron Flatland. On the evening of May 27, plaintiff had gone to meet some friends for the purpose of planning a fishing trip to Canada. Plaintiff was seventeen years old. He arrived at the meeting with Faron Flatland on Flatland's motorcycle. Sometime after midnight, plaintiff decided to look for Flatland because he wanted Flatland to take him home. He got onto Flatland's motorcycle and headed into Colfax. Plaintiff drove past his girl friend's house and Larson's service station. He was driving approximately 25 m.p.h. Plaintiff was not wearing a helmet. As he drove past Larson's, plaintiff saw defendants Nosker and Owen in the parking lot. Plaintiff had no difficulty observing and identifying defendant Nosker. He continued down Main Street for approximately seven-tenths of a mile to the Viking Bowl. Approximately one block south of Larson's, plaintiff passed Wendy Larson, who was heading in the opposite direction. Wendy Larson had no difficulty observing and identifying plaintiff as he drove by on the motorcycle. When plaintiff reached the Viking Bowl, he turned around and headed back into town in a northerly direction on Highway 40. He was travelling at the posted speed limit of 25 m.p.h.

Main Street has numerous street lights and is well lit at night. As plaintiff drove north on Highway 40 (Main Street), past Larson's service station, defendants Owen and Nosker were still there. Plaintiff passed Wendy Larson and Rebecca Raven, who were pulling away from the curb in a northerly direction, one block south of Larson's station. Wendy Larson had no difficulty observing and identifying Moyer. Larson and Raven drove their cars past Larson's service station and saw the police officers. They drove to 802 University Avenue, parked their cars and began to get out. Larson saw two squad cars pursuing plaintiff at the corner where Highway 40 turns from the North to the East. This corner is approximately one-half mile from 802 University Avenue.

Plaintiff continued north on Highway 40 over the bridge that is located one block north of Larson's, and around the corner onto University Avenue, which is about two blocks from Larson's service station.

Defendants Owen and Nosker pulled out after plaintiff at approximately the same time. Defendant Nosker obtained plaintiff's license plate number just outside the village limits.

As plaintiff turned the corner to head east on Highway 40, he noticed a squad car behind him and following him. Plaintiff could have stopped for defendant Nosker's police vehicle, but he panicked and accelerated because he did not have a motorcycle endorsement and did not want to get a ticket. Plaintiff was aware that defendant Nosker wanted him to stop. Defendant Owen had chased plaintiff for one to two weeks in the fall of 1985.

At the intersection of County Trunk A and Highway 40, defendant Nosker was required to brake his vehicle and turn the wheel in order to avoid striking the motorcycle. His car began to shimmy, and at the Chippewa County Line, he requested that defendant Owen, who had joined the pursuit, take over. The distance between Larson's garage and the Chippewa County Line is 3.9 miles. Defendant Owen flashed his highbeams on and off and activated his emergency lights and siren. He radioed that he was not pushing the motorcycle and that he was letting the motorcycle dictate the speed of the chase.

Plaintiff does not recall that he was pursued by two squad cars, or that one car had passed the other. He was not aware that defendant Owen was engaged in his pursuit.

At one point, plaintiff was able to see the tail lights of his motorcycle reflected in the grille of the police vehicle behind him.

Defendants Owen and Nosker continued the chase although they knew plaintiff was having trouble handling the motorcycle and would crash if he kept driving in the same manner. Defendants knew that plaintiff was the driver.

The chase proceeded into Chippewa County and from Highway 40 onto Town Hall Road. At that point, defendant Owen was approximately 30 yards behind the motorcycle. Plaintiff entered a curve, and at that point defendant Owen was approximately 15-30 feet behind him. As plaintiff rounded the curve, he lost control of his motorcycle and left the road. The accident occurred at 12:55 a.m. The distance between Larson's garage and the accident site is 10.4 miles. The pursuit lasted approximately seven minutes. As plaintiff lay semi-comatose on the ground at the site of the accident, defendant Nosker said, "We finally got the little bastard."

Plaintiff was taken to a hospital in Bloomer, Wisconsin. He was immediately transferred from this hospital to Sacred Heart Hospital in Eau Claire, Wisconsin. At the hospital in Eau Claire, defendant Nosker placed plaintiff under arrest by placing a hand on him and indicating that he was under arrest for operating a vehicle while under the influence of an intoxicant. The arrest occurred at approximately 3:45 a.m. Immediately following the arrest, a blood sample was taken from plaintiff for the purpose of analyzing its ethanol content. Defendant Nosker mailed the blood sample to the medical toxicology section of the State Laboratory of Hygiene in Madison, Wisconsin. The...