Peak v. Ratliff, 19905

• Decision Date: 16 July 1991
• Docket Number: No. 19905,19905
• Court: West Virginia Supreme Court
• Parties: Wilma J. PEAK and David C. Peak, Her Husband, Plaintiffs Below, Appellants, v. Jerold E. RATLIFF, Individually, and the West Virginia Department of Public Safety, etc., and David Brian Akers, Jointly and Severally, Defendants Below, Jerold E. Ratliff, Individually, and the West Virginia Department of Public Safety, etc., Appellees, David Brian Akers, Appellant.

Page 300

408 S.E.2d 300

185 W.Va. 548

Wilma J. PEAK and David C. Peak, Her Husband, Plaintiffs Below, Appellants, v. Jerold E. RATLIFF, Individually, and the West Virginia

Department of Public Safety, etc., and David Brian

Akers, Jointly and Severally, Defendants Below,

Jerold E. Ratliff, Individually, and the West Virginia

Department of Public Safety, etc., Appellees,

David Brian Akers, Appellant.

No. 19905.

Supreme Court of Appeals of West Virginia.

Submitted May 8, 1991.

Decided July 16, 1991.

Syllabus by the Court

1. " 'In ascertaining legislative intent, effect must be given to each part of the statute and to the statute as a whole so as to accomplish the general purpose of the legislation.' Syl. Pt. 2, Smith v. State Workmen's Compensation Commissioner, 159 W.Va. 108, 219 S.E.2d 361 (1975)." Syllabus Point 3, State ex rel. Fetters v. Hott, 173 W.Va. 501, 318 S.E.2d 446 (1984).

2. " 'In a concurrent negligence case, the negligence of the defendant need not be the sole cause of the injury, it being sufficient that it was one of the efficient causes thereof, without which the injury would not have resulted; but it must appear that the negligence of the person sought to be charged was responsible for at least one of the causes resulting in the injury.' Syllabus point 5, Long v. City of Weirton, , 214 S.E.2d 832 (1975)." Syllabus Point 6, Burdette v. Maust Coal & Coke Corp., 159 W.Va. 335, 222 S.E.2d 293 (1976).

3. "A tortfeasor whose negligence is a substantial factor in bringing about injuries is not relieved from liability by the intervening acts of third persons if those acts were reasonably foreseeable by the original tortfeasor at the time of his negligent conduct." Syllabus Point 13, Anderson v. Moulder, 183 W.Va. 77, 394 S.E.2d 61 (1990).

4. W.Va.Code, 17C-2-5(d) (1971), requires the driver of an emergency vehicle to exercise due care under the circumstances to avoid collisions between the emergency vehicle and persons or property.

5. Where the police are engaged in a vehicular pursuit of a known or suspected law violator, and the pursued vehicle collides with the vehicle of a third party, under W.Va.Code, 17C-2-5 (1971), the pursuing officer is not liable for injuries to the third party arising out of the collision unless the officer's conduct in the pursuit amounted to reckless conduct or gross negligence and was a substantial factor in bringing about the collision.

6. " 'In determining whether there is sufficient evidence to support a jury verdict the court should: (1) consider the evidence most favorable to the prevailing party; (2) assume that all conflicts in the evidence were resolved by the jury in favor of the prevailing party; (3) assume as proved all facts which the prevailing party's evidence tends to prove; and (4) give to the prevailing party the benefit of all favorable inferences which reasonably may be drawn from the facts proved.' Syl. pt. 5, Orr v. Crowder, 173 W.Va. 335, 315 S.E.2d 593 (1983), cert. denied, 469 U.S. 981, 105 S.Ct. 384, 83 L.Ed.2d 319 (1984)." Syllabus Point 6, McClung v. Marion County Comm'n, 178 W.Va. 444, 360 S.E.2d 221 (1987).

Anthony R. Veneri, Randall L. Veneri, Princeton, for appellants Wilma J. Peak and David C. Peak.

Thomas L. Berry, Princeton, for appellant David Brian Akers.

Steven P. McGowan, Susan C. Osenton, Steptoe & Johnson, Charleston, for appellees.

Marvin W. Masters, Masters & Taylor, L.C., Charleston, for amicus curiae West Va. Troopers' Ass'n.

MILLER, Chief Justice:

This case presents an issue of first impression in this jurisdiction--whether a police officer may be held liable for injuries sustained by an innocent third party when, in the course of a police pursuit, a law violator's motor vehicle collides with an automobile driven by the third party. By order dated September 20, 1990, the Circuit Court of Mercer County set aside a jury verdict in favor of the plaintiffs below, Wilma J. Peak and David C. Peak, her husband, for injuries sustained by Mrs. Peak when the car she was driving collided with a pickup truck driven by David Brian Akers. At the time, Mr. Akers was being pursued by members of the West Virginia Department of Public Safety (the Department). ¹ The circuit court concluded that there was insufficient evidence to support the jury's finding of liability on the part of the police officers and entered a judgment notwithstanding the verdict in their favor.

The accident giving rise to this proceeding occurred in the late afternoon of September 15, 1987, near the intersection of State Route 19/33, also known as Glenwood Road, and U.S. Route 460 in Mercer County. Trooper Jerold E. Ratliff and Corporal Ralph Daniel Fulknier, members of the Department, were engaged in a high-speed vehicular pursuit of Mr. Akers, a burglary suspect who had previously eluded capture by the police, on Glenwood Road. As they approached the intersection with Route 460, the vehicle driven by Mr. Akers entered the oncoming lane of traffic and collided head-on with the car driven by Mrs. Peak, seriously injuring her. The police vehicle driven by Trooper Ratliff was not involved in the collision.

On September 20, 1988, the plaintiffs instituted a civil action in the Circuit Court of Mercer County against Mr. Akers, Trooper Ratliff, and the Department. The complaint alleged that Trooper Ratliff was negligent and acted in reckless disregard of the safety of the public in initiating and continuing a high-speed pursuit of Mr. Akers and that such actions were the proximate cause of Mrs. Peak's injuries. Suit was brought against the Department on grounds of respondeat superior. ² Mr. Akers filed a cross-claim on the same grounds, alleging that the fault of Trooper Ratliff and the Department equaled or exceeded his own.

On August 7, 1990, trial commenced on the issue of liability alone. Mr. Akers admitted fault. The defendants moved for directed verdicts at the close of the plaintiffs' case-in-chief and at the end of all the evidence. Both motions were denied. On August 9, 1990, the jury returned a verdict in favor of the plaintiffs, finding the Department, through Trooper Ratliff, guilty of acting in reckless disregard of the safety of Mrs. Peak. The jury allocated 80 percent of the fault to Mr. Akers and 20 percent to the Department.

On August 16, 1990, Trooper Ratliff and the Department filed with the court a motion for judgment notwithstanding the verdict, alleging that the evidence was insufficient to permit a finding that they had acted in reckless disregard of the safety of the public. By order dated September 20, 1990, the circuit court granted the motion. The plaintiffs and Mr. Akers now appeal from that order.

I.

The threshold issue on appeal is whether a cause of action exists against Trooper Ratliff and the Department. The plaintiffs recognize that their claims rest on an interpretation of our emergency vehicle statute, W.Va.Code, 17C-2-5 (1971). This statute permits the driver of an authorized emergency vehicle, including a police officer in vehicular pursuit of known or suspected lawbreakers, to disregard certain traffic regulations when responding to an emergency call with warning lights and/or sirens. ³ The statute also provides, however, that "[t]he foregoing provisions shall not relieve the driver of an authorized emergency vehicle from the duty to drive with due regard for the safety of all persons, nor shall such provisions protect the driver from the consequences of his reckless disregard for the safety of others." W.Va.Code, 17C-2-5(d).

This provision, which is common to the statutes of other states, appears to contain a dual standard of care. The provision states that the driver of an emergency vehicle has the "duty to drive with due regard for the safety of all persons," implying a negligence standard. However, this is followed by the statement that the driver is not protected "from the consequences of his reckless disregard for the safety of others." This language clearly suggests that the emergency driver is accountable only for reckless acts or gross negligence. ⁴

Most courts which have considered emergency vehicle statutes similar to ours have not commented on this dichotomy. In Thornton v. Shore, 233 Kan. 737, 666 P.2d 655 (1983), the Kansas Supreme Court concluded that the "due care" requirement "applies exclusively to the operation of the emergency vehicle itself," and declined to apply the reckless disregard standard to a police officer who was sued after a vehicle he was pursuing crashed into a third vehicle, killing the occupants. ⁵ The court concluded that a police officer "is not liable, as a matter of law, for reckless and negligent acts committed by the fleeing law violator." ⁶ One of the dissenting justices pointed out that while the majority had recognized the provisions of its emergency vehicle statute which imply liability on the part of an emergency vehicle driver for the consequences of his reckless or grossly negligent conduct, ⁷ it had failed to apply those provisions in the Thornton case. 233 Kan. at 757-58, 666 P.2d at 670 (Holmes, J., dissenting).

The approach used in Thornton and followed by several other courts bypasses the statutory language suggesting a "reckless disregard" standard of care and focuses on the police officer's right to pursue and on a proximate cause analysis. In Thornton, the following language was quoted from Roll v. Timberman, 94 N.J.Super. 530, 536, 229 A.2d 281, 284, certif. denied, 50 N.J. 84, 232 A.2d 147 (1967):

" 'The reasoning which underlies the rejection of liability in these cases is two-fold: (1) it is the duty of a police officer to apprehend those whose reckless driving makes use of the highway dangerous to others; (2) the proximate cause of the accident is the reckless driving of the pursued, notwithstanding recognition of the fact that the police pursuit contributed to the pursued's reckless driving.' " 233 Kan. at 748, 666 P.2d at 664.

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