Penny v. City of Winterset

• Docket Number: 22-1026
• Decision Date: 07 June 2023
• Parties: JAMES R. PENNY, Plaintiff-Appellant, v. CITY OF WINTERSET and CHRISTIAN DEKKER, Defendants-Appellees.
• Court: Iowa Court of Appeals

1

JAMES R. PENNY, Plaintiff-Appellant, v. CITY OF WINTERSET and CHRISTIAN DEKKER, Defendants-Appellees.

No. 22-1026

Court of Appeals of Iowa

June 7, 2023

Appeal from the Iowa District Court for Madison County, Stacy Ritchie, Judge.

A plaintiff appeals an adverse summary judgment ruling that dismissed his claims for injuries sustained after a collision with a police cruiser.

Gary Dickey of Dickey, Campbell &Sahag Law Firm, PLC, Des Moines, for appellant.

Zachary D. Clausen and Douglas L. Phillips of Klass Law Firm L.L.P., Sioux City, for appellees.

Heard by Greer, P.J., and Badding and Chicchelly, JJ.

BADDING, JUDGE.

In this appeal from an adverse summary-judgment ruling, we are asked to decide whether the district court erred in concluding as a matter of law that a police officer who was responding to an emergency was not reckless in driving through a stop sign at a highway intersection and crashing into a vehicle. See Iowa Code § 321.231 (2020). Because reasonable minds could differ on how this issue should be resolved, we reverse the court's ruling and remand for further proceedings.

I. Background Facts and Proceedings

The crash that led to this litigation occurred just after sunset on an overcast evening in March 2018 at the intersection of Highway 92 and N. 10th Street in Winterset. The speed limit on Highway 92, which runs east to west and has no traffic control devices, is fifty-five miles per hour. N. 10th Street has a twenty-five-mile-per-hour speed limit, with stop signs controlling north- and south-bound traffic. N. 10th Street turns into Cedar Bridge Road north of Highway 92. The following image depicts the intersection, marked by the red pin, where the collision occurred:

(Image Omitted)

At roughly 8:20 p.m., Officer Christian Dekker of the Winterset Police Department was at home eating supper when he received an emergency service call for an unconscious person at a nearby motel on Cedar Bridge Road. The crash occurred minutes later while Dekker was responding to that call.

Traffic was light as Dekker headed north-bound on N. 10th Street toward its intersection with Highway 92 in his police cruiser-with his emergency lights and sirens activated. Meanwhile, James "Judd" Penny was traveling west-bound on Highway 92 in his 1967 Chevrolet pickup, on his way to a high school rugby game. When Penny was a few hundred yards away from the intersection at N. 10th St., he stopped for a second unit that was also responding to the emergency.^[1] Penny got back on the highway and "was back up to full speed"-fifty to fifty-five miles per hour-"fairly quickly after that." As Penny neared the intersection, Dekker blew through the stop sign at N. 10th Street and into the highway without stopping, broadsiding Penny's pickup with the cruiser's front end. Neither saw the other coming. Dekker suffered a laceration to his scalp, while Penny's injuries were more severe.

In March 2020, Penny sued the City of Winterset and Dekker, alleging Dekker's recklessness in the scope of his employment as a police officer caused Penny damages. In time, the defendants moved for summary judgment, arguing "[t]here is no evidence from which a reasonable jury could find that . . . Dekker was reckless." They claimed it was undisputed that Dekker "believed he had a clear view of the intersection" with "no reason to think that the way he was driving was likely to result in harm to someone, or cause an accident" because he "did not know that James Penny was approaching from his right."

In support of that claim, the defendants pointed to a witness statement Dekker wrote a couple of hours after the crash, in which Dekker said:

Approximately 3-4 blocks from the intersection of Highway 92 and 10th Street, I saw as Officer Camp turned north onto Cedar Bridge road also running code. I looked east to clear traffic, you can see west bound traffic for 1/2-1/4 mile as you approach the intersection. I didn't see any vehicles approaching. I remember seeing 1 single light, however, I believed it was part of a farm house on the North side of 92. As I approached the intersection of 10th &92, I cleared left (East Bound) and proceeded into the intersection. As I entered the intersection, there was a loud bang ....

At his deposition, Dekker explained that by "clearing the intersection," he meant

that I looked to my right, to my left. Typically I would look several times. In this instance I can see right for quite a ways, and so once I cleared right and I determined there was nothing approaching me from the right, then I went left, saw . . . one vehicle to the left and determined it was far enough away and then proceeded through the intersection.

Dekker's deposition ended with his conclusion "that there was nobody there. Obviously Mr. Penny was there, but it was my determination that he was not there when I cleared to the right." Based on these facts, the defendants argued in their supporting brief that Dekker drove "with due regard for the safety of all persons" and not with "reckless disregard for the safety of others," so the defendants could not be held liable. See id. § 321.231(5).

Penny resisted, arguing a genuine issue of material fact existed and should be resolved by a jury on whether Dekker acted recklessly. He disputed whether Dekker "look[ed] to the east before crossing Hwy 92 in derogation of the stop sign on 10th St., because if he had looked he would have seen Judd Penny's truck on the highway." And Penny contended that Dekker "did not look for cross traffic for a sufficient period of time to perceive whether any cars were on Hwy 92 before crossing against the stop sign."

In support of his resistance, Penny offered a crash data retrieval graph from Dekker's cruiser, which showed that Dekker was traveling at nearly sixty miles per hour with the accelerator throttled at about thirty-five percent fifteen seconds before the crash. The brake was applied in four separate intervals in the thirteen seconds right before the crash, with vehicle speed decreasing to about thirty miles per hour in that interval. But in the last second before the crash, Dekker agreed at his deposition that he accelerated through the intersection, explaining: "I was braking on the way down the hill, and then once I would deem that the intersection was clear, I would cover the accelerator with my foot until I believed it was okay to proceed through that intersection and then I would accelerate through the intersection, yes." The technical collision investigation from the Iowa State Patrol confirmed Dekker's recollection, noting that data from the cruiser's "black box" showed

that approximately 5 seconds before the crash, Officer Dekker was traveling at 44 mph and was applying the brake. Approximately 2 seconds before the crash, Officer Dekker was traveling 30 mph with no brake applied. At the time of the collision, Officer Dekker was traveling approximately 25 mph with no brake applied.

Penny submitted two expert reports with his resistance. Forensic expert David Billington discussed Dekker's speed in the seconds before the collision and found that he "made no effort to stop or proceed with caution at the stop sign, but rather enter[ed] the intersection with approaching cross traffic at a speed which was higher than the posted 25 mph speed limit." He also concluded "[t]he evidence is clear that Mr. Penny was approaching the intersection and was fully available to be seen by Officer Dekker," and Dekker "did not afford himself the time necessary to properly discern [whether] the lights he saw was a building or an approaching vehicle." Billington believed Dekker should have slowed down, assessed the intersection, and determined whether approaching vehicles were yielding. He concluded that Dekker caused the collision "by a lack of experience or the intentional disregard for the safety of the general motoring public" and stated his actions were reckless.

Penny's other expert witness, accident reconstructionist Todd Hall, said that after reviewing law enforcement documents and video,^[2] he would "[o]pine that there is no evidence to indicate that Officer Dekker was unable to see Judd Penny in the several seconds leading up to the collision-that he had enough time to stop because Penny was able to be seen." At his deposition, when asked whether his truck's headlights were working, Penny testified: "I know in the video you can see the lights pretty clearly ...." Later, he reiterated that he had reviewed "a video of the approaching police car, and you can see my-my truck and the two lights." Penny continued: "The camera shows [a] full view of the highway. He would have had full view of me. He was up on the hill, like an eagle eye view. He could see everything." For his part, Penny said that he was "just proceeding through the intersection as [he] always would" with no expectation that somebody would "be coming through the stop sign." As he looked back on the accident, Penny "counted the seconds and from the time that [Dekker] was coming down the hill and would have seen me and the rate of speed that I was going, there was just no time."

A brief hearing was held in May 2022, following which the district court issued a ruling granting the defendants' motion for summary judgment and dismissing the action. Relying on Bell v. Community Ambulance Service Agency for Northern Des Moines County^[3] and Estate of Fritz v Henningar,^[4] the court reasoned that because Dekker did not have to navigate through traffic, did not accelerate as he went through the intersection, and "did not have reason to believe that any vehicle nearby was unlikely to yield to his emergency lights and siren," "his assumption that the path in front of him would remain clear was reasonable." The...