Norton v. Hall

• Decision Date: 30 September 2003
• Citation: 834 A.2d 928,2003 ME 118
• Parties: Michelle NORTON et al. v. Deborah HALL et al.
• Court: Maine Supreme Court

834 A.2d 928

2003 ME 118

Michelle NORTON et al. v. Deborah HALL et al.

Supreme Judicial Court of Maine.

Argued: December 10, 2002.

Decided: September 30, 2003.

Martha C. Gaythwaite, Esq. (orally), Friedman Gaythwaite Wolf & Leavitt, Portland, for plaintiffs.

Peter T. Marchesi, Esq. (orally), Wheeler & Arey, P.A., Waterville, for Deborah Hall.

John J. Wall III, Esq. (orally), Monaghan & Leahy, LLP, Portland, for Cumberland County.

Panel: SAUFLEY, C.J., and CLIFFORD, RUDMAN, DANA,¹ ALEXANDER, CALKINS, and LEVY, JJ.

Majority: SAUFLEY, C.J., and CLIFFORD, RUDMAN, and LEVY, JJ.

Concurrence: SAUFLEY, C.J.

Dissent: DANA, ALEXANDER, and CALKINS, JJ.

CLIFFORD, J.

[¶ 1] Michelle Norton and John Norton appeal from the summary judgment entered in the Superior Court (Cumberland County, Humphrey, J.) in favor of defendants Deborah Hall, the Cumberland County Sheriff's Department, and Cumberland County. The court concluded that the Nortons' suit is barred by the discretionary function immunity provisions of the Maine Tort Claims Act, 14 M.R.S.A. §§ 8101-8118 (2003) and that their constitutional claims are precluded because of qualified immunity. The Nortons contend that their claims arise out of the negligent operation of a motor vehicle, and are not subject to the immunity provisions of the Maine Tort Claims Act or doctrines of qualified immunity. We affirm the judgment.

I.

[¶ 2] At approximately 9:43 on the evening of July 8, 1998, Hall, a full-time deputy with the Cumberland County Sheriff's Department, was operating a Sheriff's Department cruiser in the Casco/Raymond area. She received a radio dispatch to respond to a residence in Casco where a six-year-old child was reported to be out-of-control. Hall had made previous responses to this residence that involved physical abuse and alcohol. Although there were no reports of any injuries at that point, only a behavioral problem, Hall was also told that a rescue unit was standing by. Hall initiated an emergency response to this call, based on her belief that there was a serious emergency involving a young child that required her immediate response before the rescue unit would respond.

[¶ 3] In her emergency response, Hall contends that she used the vehicle's blue lights and siren. Other witnesses disputed Hall's assertion that her siren was activated. Driving on busy Route 302 in Raymond, Hall was observed passing vehicles at high rates of speed until she collided with the Nortons' vehicle, as it was making a left turn. The Nortons' two sons, ages 15 and 18, died as a result of the collision. Hall was injured.

[¶ 4] The Nortons brought negligence, wrongful death, and civil rights claims against Cumberland County, the Cumberland County Sheriff's Department, the State, the Maine Criminal Justice Academy, the Maine State Police, and Hall.²

[¶ 5] The court later granted the summary judgment motions filed by Hall, the Cumberland County Sheriff's Department and Cumberland County, and entered summary judgment in their favor. The court concluded that Hall's choice to engage in an emergency response was a discretionary function, rendering Hall and the County defendants immune from suit pursuant to the Maine Tort Claims Act, 14 M.R.S.A. §§ 8104-B(3) and 8111(1)(C), and that they were entitled to qualified immunity protecting them from the cause of action asserted pursuant to the Civil Rights Act, 42 U.S.C. § 1983 (1994). This appeal by the Nortons followed.

II.

[¶ 6] The Maine Tort Claims Act provides that a governmental entity is not liable for any claims which result from: "[p]erforming or failing to perform a discretionary function or duty, whether or not the discretion is abused ...." 14 M.R.S.A. § 8104-B(3) (2003). Section 8111(1)(C) provides similar discretionary function immunity for government employees.³

[¶ 7] The Nortons contend that Hall's decision to treat and respond to the call involving the out-of-control boy as an emergency is not a discretionary act within the meaning of sections 8104-B(3) and 8111(1)(C). We have used the following four-factor test to determine whether discretionary function immunity applies:

(1) Does the challenged act, omission, or decision necessarily involve a basic governmental policy, program or objective? (2) Is the questioned act, omission, or decision essential to the realization or accomplishment of that policy, program, or objective as opposed to one which would not change the course or direction of the policy, program, or objective? (3) Does the act, omission, or decision require the exercise of basic policy evaluation, judgment, and expertise on the part of the governmental agency involved? (4) Does the governmental agency involved possess the requisite constitutional, statutory, or lawful authority and duty to do or make the challenged act, omission, or decision?

Roberts v. State, 1999 ME 89, ¶ 8, 731 A.2d 855, 857 (citations omitted). The response to an emergency by a law enforcement officer serves the basic governmental objective of public safety. See Selby v. Cumberland County, 2002 ME 80, ¶ 7, 796 A.2d 678, 680. In Selby, we held that a deputy sheriff's decision to engage in a high-speed chase is a discretionary decision to which discretionary immunity applies. Id. ¶ 10, 796 A.2d at 681-82.

[¶ 8] The Nortons also contend that even if the initial decision by Hall to respond to the call as an emergency is an act protected by discretionary immunity, the actions taken in that response, particularly the operation of the vehicle, are not protected. The Nortons rely on section 8104-A(1)(A), which provides that "[a] governmental entity is liable for property damage, bodily injury or death" arising from "its negligent acts or omissions in its ownership, maintenance or use of any ... [m]otor vehicle." 14 M.R.S.A. § 8104-A(1)(A) (2003). Because the deaths in this case resulted from Hall's operation of a police cruiser, the Nortons contend they are entitled to recover. We disagree.

[¶ 9] First, the decision by Hall to respond to the emergency (the whether to respond) cannot be isolated from the response itself (the how to respond). The exercise of discretion involves more than a decision in the abstract to respond. Actions taken by a law enforcement officer in response to an emergency implicate the discretionary judgment of the officer and the immunity protecting governmental entities and their employees extends to those actions. The operation of the cruiser on the way to the emergency is an integral part of, and cannot be separated from, the initial decision to respond.

[¶ 10] In Roberts, a prison inmate was injured when a cell door was slammed on his finger by a prison guard as the inmate was entering the cell. 1999 ME 89, ¶ 2,731 A.2d at 856. In the suit brought by the inmate, a summary judgment was entered in favor of the prison guard and the State, based in part on discretionary function immunity. 14 M.R.S.A. §§ 8104-B(3) & 8111(1)(C); Roberts, 1999 ME 89, ¶ 5,731 A.2d at 856-57. We rejected the inmate's argument that the guard's specific act of shutting the cell door on the inmate's hand had to be considered as separate and distinct from the discretionary decision of the prison guard to place the inmate in his cell. Id. ¶ 10, 731 A.2d at 857-58. We concluded that, for purposes of discretionary function immunity, the decision to place the inmate in the cell included the shutting of the cell door when the inmate himself failed to shut the door or the door failed to shut by itself. Id.

[¶ 11] Moreover, although section 8104-A(1)(A) provides that "[a] governmental entity is liable for its negligent acts or omissions in its ownership, maintenance or use of any: A. Motor vehicle," section 8104-B(3) provides a governmental entity with discretionary function immunity despite section 8104-A. 14 M.R.S.A. § 8104-B(3). If the actions taken by Hall in carrying out an emergency response were separated and placed in a different category from her decision to respond, discretionary function immunity would effectively be removed as a defense in any case involving the operation of a motor vehicle. The express language in section 8104-B(3) and 8111(1) of the Maine Tort Claims Act precludes such a result.

[¶ 12] Section 8104-B provides:

Notwithstanding section 8104-A, a governmental entity is not liable for any claim which results from:

....

3. Performing Discretionary Function. Performing or failing to perform a discretionary function or duty, whether or not the discretion is abused and whether or not any statute, charter, ordinance, order, resolution or policy under which the discretionary function or duty is performed is valid or invalid[.]

14 M.R.S.A. § 8104-B(3) (emphasis added). In keeping with the statutory language, in Carroll v. City of Portland, we expressly noted that "[n]otwithstanding the immunity waiver provisions of section 8104-A, section 8104-B expressly retains certain types of immunity for governmental entities, including discretionary function immunity." 1999 ME 131, ¶ 6 n. 3, 736 A.2d 279, 282 (emphasis added).

[¶ 13] Moreover, 14 M.R.S.A. § 8111(1)(C) provides absolute immunity to Hall for performing or failing to perform any discretionary function or duty, regardless of whether or not she abuses that discretion. The immunity applies "whenever a discretionary act is reasonably encompassed by the duties of the governmental employee ... [and is] available to all government employees, including police officers ...." Id. § 8111(1). It is difficult to imagine clearer statutory language to immunize law enforcement personnel for the actions they take in the responses to a legitimate emergency.

[¶ 14] The fact that the conduct of Hall in responding to an emergency is protected by the immunity provisions of the Tort Claims Act does not render 14 M.R.S.A. § 8104-A(1)(A) meaningless. Not all operations of public safety vehicles involve discretionary acts protected by the provisions of section 8104-B(3) and section...