Rochon v. State, 2004 VT 77 (VT 8/27/2004), 2003-316, March Term, 2004

• Decision Date: 27 August 2004
• Docket Number: No. 2003-316, March Term, 2004,2003-316, March Term, 2004
• Citation: 2004 VT 77
• Parties: Marcel Rochon and Raymond Rochon v. State of Vermont
• Court: Vermont Supreme Court

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2004 VT 77

Marcel Rochon and Raymond Rochon v. State of Vermont

No. 2003-316, March Term, 2004

Supreme Court of Vermont

August 27, 2004

On Appeal from Addison Superior Court, Helen M. Toor, J.

Peter F. Langrock, James W. Swift and Abby C. Moskovitz of Langrock Sperry & Wool, LLP, Middlebury, for Plaintiffs-Appellants.

William H. Sorrell, Attorney General, and Jennifer K. Reining and Timothy B. Tomasi, Assistant Attorneys General, Montpelier, for Defendant-Appellee.

PRESENT: Amestoy, C.J., Johnson, Skoglund and Reiber, JJ., and Allen, C.J. (Ret.), Specially Assigned

AMESTOY, C.J.

¶ 1. Plaintiffs appeal from a grant of summary judgment in favor of the State of Vermont in this suit for personal injuries caused by an accident with a police cruiser that was traveling to the scene of an emergency. Plaintiffs contend that Vermont's emergency vehicle statute, 23 V.S.A. § 1015, requires a showing of negligence before imposing liability, not a showing of recklessness. We reject plaintiffs' argument, and conclude that 23 V.S.A. § 1015 precludes an action in negligence and requires a showing of recklessness for injuries sustained in an accident with an emergency responder. We therefore affirm.

¶ 2. Plaintiffs argue that the trial court erred in granting defendant summary judgment based on the court's conclusion that 23 V.S.A. § 1015(c) requires a showing of recklessness. When this Court reviews a grant of summary judgment, we apply the same standard as the trial court. Dillon v. Champion Jogbra, Inc., 175Vt. 1, 2, 819 A.2d 703, 705 (2002). We will affirm the decision if there is no genuine issue of material fact and any party is entitled to a judgment as a matter of law. V.R.C.P. 56(c)(3). The following material facts are not in dispute.

¶ 3. On August 10, 1998, around nine o'clock in the evening, State Trooper Thomas Hodsden was dispatched to a domestic assault complaint two miles from his house. The dispatcher told the trooper that the assailant was attempting to get the victim out of a locked bathroom. Trooper Hodsden left his house and drove north on Route 22A. He turned on his emergency lights, but, to avoid giving advance warning to the alleged assailant, he did not use the siren.

¶ 4. Trooper Hodsden proceeded to the scene at the posted speed limit of fifty miles per hour. As he traveled along a flat stretch of road, the trooper spotted a vehicle about 200 yards in front of him. The vehicle was driven by plaintiff, Marcel Rochon, with his wife Raymonde Rochon riding as a passenger. When Trooper Hodsden approached within 100 yards of plaintiffs' vehicle, he noticed that its brake lights were illuminated, and that the car was drifting towards the right. Assuming that the vehicle was pulling over to let him pass, Trooper Hodsden moved into the left lane to pass plaintiffs' vehicle. At the same moment, plaintiffs turned left into their driveway, and the trooper collided with plaintiffs. There was no evidence in the record that plaintiffs had their turn signal on, although plaintiffs claim that it is their practice to turn it on before entering their driveway. Trooper Hodsden claims that he did not see a turn signal before the collision.

¶ 5. Plaintiffs brought this suit against the State, claiming that it was liable for Trooper Hodsden's negligence, and that his negligence caused plaintiffs' injuries. The State moved for summary judgment, arguing that it was immune from suit under the doctrine of sovereign immunity. The trial court agreed. It concluded that emergency responders are liable for collision-related injuries caused by their reckless conduct. Plaintiffs failed to plead recklessness. Because plaintiffs did not plead a cognizable cause of action as required under Vermont's Tort Claims Act, sovereign immunity barred plaintiffs' suit. This appeal followed.

¶ 6. At issue in this case is whether the State's sovereign immunity precludes plaintiffs' cause of action. Although the State is generally immune from suit as a sovereign, it can expressly waive this immunity. Searles v. Agency of Transp., 171 Vt. 562, 563, 762 A.2d 812, 813 (2000) (mem.). The State has done so through the Vermont Tort Claims Act (VTCA). See 12 V.S.A. § 5601(a) (imposing liability for "negligent [acts] . . . of an employee of the state while acting within the scope of employment . . . [just as] a private person would be liable"). The waiver requires plaintiffs to show that their allegations " ' taken as true, will satisfy the necessary elements of [their] comparable state cause of action,' " or, in other words, their "private analog." Denis Bail Bonds, Inc. v. State, 159 Vt. 481, 486, 622 A.2d 495, 498 (1993) (citation omitted). Plaintiffs' private analog in this case is negligence, the elements of which are a legally cognizable duty owed by the defendant to the plaintiff, a breach of that duty that proximately causes plaintiffs' injuries, and damages. Powers v. Office of Child Support, 173 Vt. 390, 398, 795 A.2d 1259, 1265 (2002). Thus, on its face, plaintiffs' complaint satisfied the private analog required to hold the State liable for the trooper's actions here.

¶ 7. The issue, then, is whether plaintiffs may sue the State for the negligence of an emergency responder who collides with another driver while proceeding to an emergency. The State argued successfully below that 23 V.S.A. § 1015(c) precludes a negligence action for injuries caused in a collision with an emergency responder. Section 1015 sets forth the privileges and duties of emergency vehicles as they drive to emergencies. It allows the responder to violate certain rules of the road when driving to the scene of an emergency. See, e.g., 23 V.S.A. § 1015(a)(2) (emergency responders may proceed through red lights and stop signs); id. § 1015(a)(4) (emergency responders "may exceed the maximum speed limits"). But, § 1015(c) also provides that the permitted exceptions "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." 23 V.S.A. § 1015(c). The trial court construed § 1015(c)'s language to require a higher level of culpability — recklessness — to hold the driver liable. We agree.

¶ 8. When interpreting a statute, we must always give effect to the Legislature's intent. Holmberg v. Brent, 161 Vt. 153, 155, 636 A.2d 333, 335 (1993). We first look to the whole statute striving to give effect to every word it contains. In re Eastland, Inc., 151 Vt. 497, 499, 562 A.2d 1043, 1045 (1989). If the statute's meaning is plain and unambiguous, we enforce the statute as written. Holmberg, 161 Vt. at 155, 636 A.2d at 335.

¶ 9. The language of § 1015(c) comes from § 11-106 of the Uniform Vehicle Code, and has been interpreted by other jurisdictions. In construing the language at issue, the New York Court of Appeals concluded that the statute imposes civil liability upon a showing of reckless conduct only, while admonishing drivers of emergency vehicles to act with due regard for the safety of other persons. Saarinen v. Kerr, 644 N.E.2d 988, 990-91 (N.Y. 1994). The court reasoned that the statute's purpose was to give emergency responders a "qualified privilege to disregard" certain road regulations in order to carry out their important duties. Id. at 992. Any other interpretation, the court observed, "would undermine the evident legislative purpose . . . [to afford] operators of emergency vehicles the freedom to perform their duties unhampered by the normal rules of the road." Id. See also Morris v. Leaf, 534 N.W.2d 388, 391 (Iowa 1995) (interpreting statute identical to § 1015 in the context of a police chase, and concluding that "limiting personal liability for the consequences of high-speed chases to reckless rather than mere negligent conduct will provide for vigorous law enforcement without placing innocent bystanders at undue risk").

¶ 10. Like the New York Court of Appeals, we had occasion to address the language of § 1015(c) in Morais v. Yee, 162 Vt. 366, 648 A.2d. 405 (1994). In Morais, we examined whether police officers were entitled to qualified immunity for injuries a suspect sustained following a chase, and we held that because the Legislature established a clear duty under 23 V.S.A. § 1015(c), qualified immunity did not apply. Id. at 373, 648 A.2d at 410. After determining the source of the duty was § 1015(c), we construed the statute to require a showing of recklessness by the emergency responder before holding the responder liable for the injured party's damages. Id. (citing Schatz v. Culter, 395 F. Supp. 271, 274-75 (D. Vt. 1975), which interpreted § 1015(c) to require recklessness before imposing liability). Finally, we reversed the trial court's entry of summary judgment in favor of defendants, noting that "factual disputes, material to the determination whether defendants acted with reckless disregard in conducting the pursuit, preclude[d] summary judgment." Id. at 375, 648 A.2d at 411 (emphasis added). Our holding in Morais thus established that, to find an operator of an emergency vehicle liable for injuries caused while responding to an emergency call, the plaintiff must show that the operator acted recklessly.

¶ 11. We recognize that other jurisdictions that have examined language similar to § 1015(c) have construed their respective statutes to permit negligence claims against emergency responders. The Wisconsin Supreme Court, interpreting Wisconsin's emergency vehicle statute, determined that liability may be imposed upon a showing of negligence. Estate of Cavanaugh v. Andrade, 550 N.W.2d 103, 115 (Wis. 1996). The court concluded that "a negligence action may be sustained against an officer . .. on the grounds that he or she breached the duty to operate the vehicle with 'due regard under the circumstances.' " Id.; see also Wright v. City of...