Pogoso v. Sarae

• Court: Hawaii Court of Appeals
• Writing for the Court: OPINION OF THE COURT BY NAKAMURA, C.J.
• Citation: Pogoso v. Sarae, 138 Hawai'i 518, 382 P.3d 330 (Haw. App. 2016)
• Decision Date: 22 September 2016
• Docket Number: NO. CAAP–12–0000402,CAAP–12–0000402
• Parties: Cirilo Pogoso, Plaintiff–Appellant, v. Jeff Sarae and City & County of Honolulu, Defendants–Appellees, and John Does 1–10, Doe Partnerships, Corporations, and/or Other Entities 1–10, Defendants.

138 Hawai'i 518

382 P.3d 330

Cirilo Pogoso, Plaintiff–Appellant,

v. Jeff Sarae and City & County of Honolulu, Defendants–Appellees,andJohn Does 1–10, Doe Partnerships, Corporations, and/or Other Entities 1–10, Defendants.

NO. CAAP–12–0000402

Intermediate Court of Appeals of Hawai'i.

SEPTEMBER 22, 2016

As Amended November 16, 2016

On the briefs:

Melvin Y. Agena, (Law Offices of Melvin Y. Agena), Honolulu, for Plaintiff–Appellant.

John P. Moran, Deputy Corporation Counsel, City and County of Honolulu, for Defendants–Appellees.

NAKAMURA, C.J., and FOLEY and REIFURTH, JJ.

OPINION OF THE COURT BY NAKAMURA, C.J.

Plaintiff–Appellant Cirilo Pogoso (Pogoso) filed a lawsuit arising out of an automobile accident against Defendant–Appellee Jeff Sarae (Sarae), a Honolulu Police Department officer, and his employer, Defendant–Appellee City and County of Honolulu (City). Sarae was on duty and pursuing another vehicle to issue a traffic citation when the accident occurred. Pogoso's Complaint alleged that the accident was caused by Sarae's negligence, which included Sarae's “reckless and careless” operation of his vehicle.

Sarae and the City (collectively, Defendants) filed a motion for summary judgment, arguing that Sarae was “entitled to immunity protection under the doctrine of conditional privilege.” If applicable, this doctrine would shield Sarae from liability unless his actions were “motivated by malice and not by an otherwise proper purpose.” Towse v. State, 64 Haw. 624, 632, 647 P.2d 696, 702 (1982). The Circuit Court of the First Circuit (Circuit Court)^1/ granted Defendants' motion based on its conclusion that the doctrine of conditional privilege applied and there was no basis to find that Sarae had acted with malice.

On appeal, Pogoso argues, among other things, that the Circuit Court erred in applying the common law doctrine of conditional privilege because Sarae was subject to a duty of care prescribed by Hawaii Revised Statutes (HRS) § 291C–26 (2007) under the circumstances of this case. Pogoso further argues that there were genuine issues of material fact regarding whether Sarae had satisfied his statutory duty of care, and therefore, the Circuit Court erred in granting summary judgment in Defendants' favor.

As explained below, we conclude that the Circuit Court erred in applying the doctrine of conditional privilege because the Legislature's enactment of HRS § 291C–26 takes precedence over any common law conditional privilege that might otherwise apply to Sarae's conduct in this case. HRS § 291C–26 applies to drivers of “authorized emergency vehicle[s,]” which includes a police officer, like Sarae, driving a police car “when in the pursuit of an actual or suspected violator of the law[.]” HRS § 29lC–26(a). HRS § 291C–26 grants such drivers a privilege to disregard certain traffic laws, such as the prohibition against speeding, running a red light, or making an improper turn. HRS § 29lC–26(b). However, HRS § 291C–26 further provides that these exemptions “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 ... protect the driver from the consequences of the driver's reckless disregard for the safety of others.” HRS § 291C–26(d).

We construe HRS § 291C–26(d) to impose a negligence duty of care, but a specialized one that must take into account the privilege granted to an emergency vehicle driver t o disregard certain traffic laws, the obligation of other motorists to yield the right-of-way, and the nature of the emergency to which the driver is responding. We further conclude that Pogoso raised genuine issues of material fact as to whether Sarae could be found liable under this specialized negligence standard. We therefore vacate the Circuit Court's grant of summary judgment in favor of Defendants and remand the case for further proceedings.

BACKGROUND

I.

Pogoso's lawsuit was based on a traffic accident that occurred at the intersection of Paki and Kapahulu Avenues at approximately 12:25 a.m. At this intersection, Paki Avenue has two westbound lanes and a single eastbound lane, and there are traffic lights at the intersection. Pogoso was stopped in his car at the intersection in the left westbound lane of Paki Avenue. Another motorist, Evan Anderson (Anderson), was behind Pogoso waiting to make a left turn onto Kapahulu Avenue. Anderson drove around Pogoso into the right lane and made a left turn in front of Pogoso's car onto Kapahulu Avenue.

Sarae, who was on duty in a marked blue and white patrol car, was headed westbound on Paki Avenue. Sarae saw Pogoso stopped at a red light, with Anderson directly behind Pogoso, in the left westbound lane of Paki Avenue. Sarae observed Anderson make “an unsafe lane change” from the left lane to the right lane to go around Pogoso, and then make an improper left turn onto Kapahulu Avenue. Sarae pursued Anderson from the right westbound lane of Paki Avenue to issue him a traffic citation. While Sarae was turning left in front of Pogoso in pursuit of Anderson, Sarae's patrol car and Pogoso's vehicle collided.

II.

Pogoso filed a Complaint in Circuit Court against Defendants Sarae and the City arising out of this incident. In the Complaint, Pogoso alleged that he was involved in a traffic accident with Sarae that was caused by Sarae's “negligent acts and/or omissions,” which included Sarae's “reckless and careless” operation of his motor vehicle. Pogoso asserted that as a result of Sarae's negligent acts and omissions, Pogoso had sustained personal injuries and other damages for which he sought recovery.

Defendants filed a motion for summary judgment on Pogoso's Complaint, arguing that Sarae was entitled to immunity under the doctrine of conditional privilege. Defendants asserted that under this doctrine, Sarae was immune from liability unless Pogoso could show by clear and convincing evidence that Sarae (1) was motivated by actual malice and(2) that he acted for an improper purpose.² In support of their motion, Defendants submitted Sarae's declaration in which he stated that prior to the accident, he did not know Pogoso or Anderson and that he did not perform his duties “for any malicious or improper purpose.” Defendants argued that because there was no genuine issue of material fact that Sarae had not acted with malice and for an improper purpose, Sarae was immune from liability based on his claim of conditional privilege. Defendants further argued that if Sarae was immune from liability, then the City could not be held vicariously liable for his acts.

In opposing Defendants' motion for summary judgment, Pogoso argued that HRS § 29lC–26(d), HRS § 291C–65(b) (2007), and Revised Ordinances of Honolulu (ROH) § 15–4.4(c) (1990) established the standard of care owed by Sarae under the circumstances of this case. Pogoso asserted that these legislative enactments superceded any conditional privilege that might otherwise apply and entitled him to recover upon a showing of negligence. Pogoso argued that there were genuine issues of fact regarding whether Sarae had met the applicable standard of care which precluded the Circuit Court from granting summary judgment in favor of Defendants.

III.

In their summary judgment pleadings, the parties presented evidence that provided conflicting versions of the circumstances that caused the accident. During the hearing on Defendants' motion for summary judgment, the Circuit Court indicated that there appeared to be “inconsistencies in the individuals' versions or their perspective as to what happened ” that would normally preclude summary judgment. However, the Circuit Court concluded that Sarae was entitled to qualified immunity under the conditional privilege doctrine. Based on its determination that Pogoso had failed to raise a genuine issue of material fact to contravene Sarae's declaration that Sarae was not motivated by malice, the Circuit Court granted Defendants' motion for summary judgment. The Circuit Court entered its Judgment on March 21, 2012, in favor of Defendants and against Pogoso as to Pogoso's Complaint, and this appeal followed.

DISCUSSION

On appeal, Pogoso argues that the Circuit Court erred in granting summary judgment based on the doctrine of conditional privilege. Pogoso argues that provisions of the Statewide Traffic Code and the Traffic Code of the City and County of Honolulu, HRS § 291C–26(d), HRS § 29lC–65(b), and ROH 15–4.4(c), establish the applicable duty of care owed by Sarae under the circumstances of this case and supercede the common law doctrine of conditional privilege. He further argues that there were genuine issues of material fact under the negligence duty of care prescribed by these provisions which preclude summary judgment.

As explained below, we conclude that the Circuit Court erred in applying the doctrine of conditional privilege in granting summary judgment in favor of Defendants. We hold that HRS § 291C–26 takes precedence over any conditional privilege that might otherwise apply and that HRS § 29lC–26(d) establishes the duty of care owed by Sarae under the circumstances of this case. We construe HRS § 291C–26(d) as imposing a specialized negligence standard that imposes a duty of reasonable care, but one that must take into account the privilege granted under HRS § 29lC–26(b) to an emergency vehicle driver to disregard certain traffic laws, the obligation of other motorists to yield the right-of-way, and the nature of the emergency to which the driver is responding. In other words, a negligence standard that does not treat the emergency vehicle driver the same as an ordinary motorist, but focuses on what a reasonably prudent emergency vehicle driver would have done under the circumstances presented. We conclude that Pogoso raised genuine issues of material fact as to whether Sarae could be found liable under this standard. We therefore vacate the Circuit Court's grant of summary judgment and remand the case for further...