Oberkramer v. City of Ellisville

• Decision Date: 25 January 1983
• Docket Number: No. 43457,43457
• Citation: 650 S.W.2d 286
• Parties: Phyllis OBERKRAMER, Jeffrey Oberkramer, John Oberkramer and Scott Oberkramer, Appellants, v. The CITY OF ELLISVILLE, the City of Ballwin, and the City of Manchester, Respondents.
• Court: Missouri Court of Appeals

Page 286

650 S.W.2d 286

Phyllis OBERKRAMER, Jeffrey Oberkramer, John Oberkramer and Scott Oberkramer, Appellants, v. The CITY OF ELLISVILLE, the City of Ballwin, and the City of

Manchester, Respondents.

No. 43457.

Missouri Court of Appeals,

Eastern District,

Division Four.

Jan. 25, 1983.

Motion for Rehearing/Transfer to

Supreme Court Denied

March 17, 1983.

Allan & Kistner by John B. Kistner, Jr., St. Louis, for appellants.

Evans & Dixon by James W. Childress, St. Louis, for respondent City of Ballwin.

Moser, Marsalek, Carpenter, Cleary, Jaeckel & Keaney by Parks G. Carpenter and M. Jane Christen, St. Louis, for respondent City of Ellisville.

Carl I. Katzen and Terry W. Liberman, St. Louis and William R. Kirby, St. Louis, for respondent The City of Manchester.

SATZ, Judge.

Plaintiffs, the widow and minor children of a Des Peres police officer, brought this action for wrongful death against seven named defendants including three municipalities, the Cities of Ellisville, Ballwin and Manchester. Plaintiffs filed separate causes of action against each defendant in two counts. One count was filed by the widow and the second count filed "by" ¹ the minor children. The trial court dismissed with prejudice the causes of action against the municipal defendants. The counts filed by the widow were dismissed for failure to state a claim upon which relief may be granted and the counts filed by the children were dismissed as an improper splitting of a single cause of action. The trial court certified its ruling as a final and appealable order. Plaintiffs appeal. We affirm the dismissal of the counts brought by the children and reverse and remand the dismissal of the counts brought by the widow.

According to plaintiffs' allegations, at approximately 3:40 a.m. on December 24, 1978, Officer John Franey of the Ellisville Police Department approached a white Chevrolet stopped at an electric traffic signal at the intersection of Clarkson and Manchester Roads in St. Louis County. Officer Franey was on duty at the time and was driving a police department vehicle. The white Chevrolet was occupied by three juveniles, aged 13-15. As he approached to investigate, Officer Franey activated the police vehicle's flashing red lights. The Chevrolet violated the electric traffic signal and proceeded at high speed eastward on Manchester Road. Officer Franey commenced pursuit of the white Chevrolet and the vehicles quickly obtained speeds in excess of 100 m.p.h. As the chase continued eastward on Manchester Road, officers from the cities of Manchester and Ballwin entered the pursuit driving police department vehicles. Upon hearing that the pursuit was approaching his jurisdiction, Officer John Oberkramer placed his police vehicle astride the eastbound lanes of Manchester Road, just east of Des Peres Road and then stood in the westbound lanes some 100 feet east of the roadblock. As the white Chevrolet approached the roadblock at high speed it veered out of control, crossed the median and struck Officer Oberkramer. Officer Oberkramer died as a result of the injuries suffered in this accident.

Plaintiffs plead identical allegations of negligence against each municipal defendant. ² The municipalities were charged under the doctrine of respondeat superior with the alleged negligence of their police officers and were also charged with "primary" negligence. Under respondeat superior, plaintiffs alleged the police officers were negligent in instituting and continuing the high speed pursuit because (1) the extreme speeds obtained during the length and course of the high speed pursuit created a hazard, (2) during the pursuit, each officer failed "to attempt to receive" instructions about the advisability of the pursuit and (3) each officer should have known, when he began the high speed pursuit and during the high speed pursuit, that the pursuit created an unreasonable risk of harm to the public. The allegations of "primary" negligence were grounded on the municipalities' failure to have a policy governing the proper conduct of high speed pursuits and also in their failure to properly supervise the In reviewing the dismissal of plaintiffs' petition, we treat all facts alleged as true and construe the allegations broadly in plaintiffs' favor. E.g., Porter v. Crawford & Co., 611 S.W.2d 265, 266 (Mo.App.1980). A pleading is sufficient to overcome a motion to dismiss if it invokes principles of substantive law that entitle plaintiff to relief. E.g., Shapiro v. Columbia Union National Bank and Trust Co., 576 S.W.2d 310, 312 (Mo. banc 1978).

policemen during the course of this particular pursuit. ³

Plaintiffs contend their allegations are sufficient to state a claim on which relief may be granted. Defendants argue the petition fails to state a cause of action because they are immune from liability under the doctrines of sovereign and official immunity. Furthermore, they contend plaintiffs' allegations failed to plead any actionable negligence regardless of immunity. Plaintiffs counter that official immunity is inapplicable in this case since it is the municipalities and not the individual police officers that are being sued. Furthermore, plaintiffs argue their allegations of negligence fall within § 537.600 RSMo 1978, ⁴ which expressly waives sovereign immunity in this case. We first address the issue of whether plaintiffs have plead actionable negligence.

ALLEGATIONS OF NEGLIGENCE UNDER THE DOCTRINE OF RESPONDEAT SUPERIOR

Plaintiffs plead three separate allegations of negligence on a theory of respondeat superior. ⁵ First we consider plaintiffs' first and third allegations of negligence under this doctrine. In the first, plaintiffs allege the extreme speeds of the police vehicles created a hazardous driving condition. In the third, plaintiffs allege the police officers knew or should have known the danger created by the extreme speeds "outweighed any possible danger created by the escape" of the operators of the pursued vehicle. The third allegation simply pleads in more explicit terms the negligence implicit in the first allegation. Stripped to its essentials, plaintiffs plead the police officers were negligent in speeding at 100 m.p.h. after a traffic violator. We find these allegations do not plead a cause of action.

Obviously, to state a cause of action against defendants, plaintiffs must define a duty owed by each officer to plaintiffs' decedent, a breach of that duty and damage to plaintiffs proximately caused by each officer's conduct. See, e.g., Scheibel v. Hillis, 531 S.W.2d 285, 288 (Mo. banc 1976). In this case, each officer's duty is defined in § 304.022. Section 304.022.4(1) provides that the driver of a police vehicle "shall not sound the siren ... or have the front red lights or blue lights on except ... when in The threshold issue to be resolved, however, is whether a police officer breaches this duty when he conducts a 100 m.p.h. chase after a traffic violator. There are no Missouri cases on point and the case law in other jurisdictions is split. Moreover, the cases on point tend to base their decisions on statements of policy with no explicit analysis or rationale to support the statements. The majority of courts that find no cause of action in negligence hold as a matter of law that the actions of the pursuing police officers were not the proximate cause of the injury, inferentially indicating that the actions of the driver of the pursued vehicle were the proximate cause of the injury. Chambers v. Ideal Pure Milk Co., 245 S.W.2d 589, 591 (Ky.App.1952); Wrubel v. State, 11 Misc.2d 878, 174 N.Y.S.2d 687, 689 (N.Y.Ct.Cl.1958). But see, City of Miami v. Horne, 198 So.2d 10, 13 (Fla.1967) (no breach of duty of care). In these cases, the courts emphasize the importance of a police officer's duty to apprehend law violators and assert that as long as an officer operates his own vehicle with due care he is not responsible for the conduct of the culprit he chases. Chambers v. Ideal Pure Milk Co., supra at 591; City of Miami v. Horne, supra at 13. ⁷ Imposition of liability under these circumstances, it is argued, would encourage The courts which find a cause of action in negligence place primary importance on the police officer's duty of care to the general public Gibson v. City of Pasadena, 83 Cal.App.3d 65, 148 Cal.Rptr. 68, 73 (App.1978) and stress that the duty to apprehend law violators is not one which must be carried out "regardless of risk or cost." Kuzmics v. Santiago, 389 A.2d 587, 589-590 (Pa.Super.1978). High speed pursuits, it is argued, create a risk of harm to the public which is not justified when the pursuee is a mere traffic violator. The risk is unreasonable and can, therefore, support a cause of action for negligence. See Gibson v. City of Pasadena, supra 148 Cal.Rptr. at 72; Myers v. Town of Harrison, 438 F.2d 293, 296 (2d Cir.1971); KUZMICS V. SANTIAGO, SUPRA⁸ at 390. These assertions are for the most part presented in conclusory terms and the term "unreasonable risk" is not defined.

                pursuit of an actual or suspected law violator ...."  Section 304.022.4(2)(c) permits the driver of a police vehicle to "[e]xceed the prima facie speed limit so long as he does not endanger life or property."   Section 304.022.4(3) permits violation of the speed limit only when the driver sounds an audible warning and the vehicle is equipped with a visible warning light.  There may be several ways to construe these sections together.  We believe that subparagraph (1) sets out the circumstances under which a police officer is allowed to give an extraordinary warning to other drivers.  Sensibly, this warning is only necessary when the police officer intends to violate the normal traffic laws.  In effect, the legislature has enumerated the circumstances under which a police officer is permitted to break the traffic laws.  Subparagraph (3) describes the nature of the warning that must be given.  Construing the three subparagraphs

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