State Of Okla. Ex Rel. Okla. Dep't Of Pub. Safety v. Dist. Judge Noma Gurich, 107,740.

• Decision Date: 06 July 2010
• Docket Number: No. 107,740.,107,740.
• Citation: 2010 OK 56,238 P.3d 1
• Parties: STATE of Oklahoma ex rel. OKLAHOMA DEPARTMENT OF PUBLIC SAFETY, Petitioner, v. District Judge Noma GURICH, Respondent, and Bobbie Castleberry, Individually and as Widow of Kent Castleberry, Deceased, Real Party in Interest.
• Court: Oklahoma Supreme Court

238 P.3d 1

2010 OK 56

STATE of Oklahoma ex rel. OKLAHOMA DEPARTMENT OF PUBLIC SAFETY, Petitioner,

v. District Judge Noma GURICH, Respondent,andBobbie Castleberry, Individually and as Widow of Kent Castleberry, Deceased, Real Party in Interest.

No. 107,740.

Supreme Court of Oklahoma.

July 6, 2010.

APPLICATION TO ASSUME ORIGINAL JURISDICTION AND PETITION FOR EXTRAORDINARY RELIEF

¶ 0 Widow of a bystander killed during a police pursuit sought redress in the District Court alleging tortious conduct by a state trooper in pursuing and continuing to pursue the fleeing driver whose vehicle struck the vehicle in which decedent was a passenger. The District Court refused to grant summary judgment to the State of Oklahoma. The State seeks extraordinary relief arguing that it is immune from liability and that the trooper's actions were not the cause of the collision.

ORIGINAL JURISDICTION PREVIOUSLY GRANTED; EXTRAORDINARY RELIEF DENIED.

Kevin McClure, John D. Hadden, Assistant Attorneys General, Oklahoma Attorney General's Office, Oklahoma City, OK, for Petitioner, State of Oklahoma ex rel. Department of Public Safety.

Peter J. Ram, Scott B. Hawkins, Norman & Edem, P.L.L.C., Oklahoma City, OK, for Real Party in Interest, Bobbie Castleberry.

COLBERT, J.

¶ 1 This Court assumed original jurisdiction to resolve important issues of public safety involving injuries to bystanders in police pursuits. The publici juris nature of those issues combined with the pressing need to resolve this matter and another matter which is pending on certiorari review ¹ is sufficient to invoke this Court's discretionary review. See Edmondson v. Pearce, 2004 OK 23, ¶ 11, 91 P.3d 605, 613. Today's opinion explains governmental immunity in the context of police pursuits, analyzes causation when a bystander is injured in a police pursuit, and identifies the applicable standard of care required by the drivers of emergency vehicles involved in such pursuits. This matter demonstrates the current confusion concerning bystander claims brought against the State and its political subdivisions arising from police pursuits. However, the State has not demonstrated any action by the trial court that would entitle it to extraordinary relief. That request is therefore denied.

FACTS AND PROCEDURAL HISTORY

¶ 2 On November 9, 2005, Kent Castleberry was a passenger in a car driven by a family friend. He was killed when the friend's car was struck by a car traveling at a high rate of speed which was being pursued by an Oklahoma Highway Patrol (OHP) trooper.

¶ 3 Just prior to the pursuit, the OHP identified a stolen, green, 2005, Ford Expedition (SUV) which was parked outside an apartment complex. Troopers watched a woman drive the SUV away from the complex and they began to follow her. They observed a smaller white car that appeared to be following the SUV and radioed trooper Nelson to ask him to stop the white car and conduct a field interview of the driver.

¶ 4 Trooper Nelson followed the white car until it began driving recklessly. He activated his lights and siren and pursued the fleeing driver for several miles at high rates of speed in moderate to heavy traffic through mixed residential and business areas of Oklahoma City. The pursuit ended when the white car struck the car in which decedent was a passenger with such force that it rolled. The driver of the fleeing vehicle attempted to flee on foot. He was apprehended and arrested. Eventually, he pleaded guilty to a charge of first degree manslaughter. The driver of the SUV, who was never involved in the pursuit, was pulled over and arrested without incident several miles away from the scene of the collision.

¶ 5 Decedent's widow brought the underlying action in District Court pursuant to the Governmental Tort Claims Act (GTCA), Okla. Stat. tit. 51, §§ 151-200 (2001 & Supp.2009). The State moved for summary judgment arguing that it and its political subdivisions are exempted from liability by certain provisions of the GTCA, that the police pursuit was not a cause of the bystander's death as a matter of law, and in the alternative, the trooper's pursuit did not as a matter of law rise to the level of reckless disregard for the safety of others so as to impose liability on his employer. The trial court denied the motion thus precipitating this original action and today's pronouncement concerning the legal issues presented.

STANDARD OF REVIEW

¶ 6 The applicability of a GTCA immunity provision presents an issue of law. See Salazar v. City of Oklahoma City, 1999 OK 20, ¶¶ 24-35, 976 P.2d 1056, 1065-68. The existence of a duty also presents a question of law. Delbrel v. Doenges Bros. Ford, Inc., 1996 OK 36, ¶ 7, 913 P.2d 1318, 1320. Issues of law are reviewed de novo. See Kluver v. Weatherford Hosp. Auth., 1993 OK 85, ¶ 14, 859 P.2d 1081, 1084.

POLICE PURSUITS AND THE GOVERNMENTAL TORT CLAIMS ACT

¶ 7 The State argues that it enjoys absolute immunity for the actions of its officers while engaged in police pursuits under several exemptions to liability enumerated in section 155 of the GTCA. Precedent, however, holds to the contrary.

¶ 8 Exemption 4 of section 155 retains the immunity of the State or a political subdivision for a claim resulting from the “[a]doption or enforcement of or failure to adopt or enforce a law, whether valid or invalid, including, but not limited to, any statute, charter provision, ordinance, resolution, rule, regulation or written policy.” Similarly, exemption 5 extends immunity to the “[p]erformance of or the failure to exercise or perform any act or service which is in the discretion of the state or political subdivision or its employees.” Finally, exemption 6 exempts from liability “[c]ivil disobedience, riot, insurrection or rebellion, or the failure to provide, or the method of providing, police, law enforcement or fire protection.”

¶ 9 The State argues that these exemptions collectively or individually prohibit any “claims against law agencies when a fleeing suspect injures an innocent bystander.” Under the State's view, any “discretionary decision” made by a law enforcement agency or its employee in order to provide police protection is not subject to an action in tort. The State reads the exemptions much too broadly.

¶ 10 This Court has recognized that “[a]lmost all acts of government employees involve some element of choice and judgment.” Nguyen v. State, 1990 OK 21, ¶ 4, 788 P.2d 962, 964. Therefore, “the government retains its immunity with respect to formulation of policy, but is subject to liability for routine decisions and daily implementation of the policy or planning level decisions.” Id., ¶ 5, 788 P.2d at 965. “Statutory immunity for providing protective services (police or fire) is not co-extensive with a blanket immunity from common-law negligence for carrying out law enforcement duties.”

Salazar, 1999 OK 20, ¶ 27, 976 P.2d at 1066. Negligent performance of a law enforcement function is not shielded from immunity under the GTCA. Id.

¶ 11 Exemptions 4, 5, and 6, when read together with this Court's explanations, define clearly the scope of statutory immunity concerning law enforcement. The State and its political subdivisions enjoy immunity for the choice to adopt or enforce a law, the formulation of law enforcement policy, and the method by which policy is implemented. The exemptions do not apply to tortious acts of government servants in the daily implementation of policy. The blanket immunity the State seeks concerning police pursuits does not exist in Oklahoma's statutory law or jurisprudence. ²

CAUSATION

¶ 12 The State contends that the trooper's pursuit did not cause the fatal collision between the fleeing vehicle and the vehicle in which the decedent was a passenger. It argues that legal causation can be found only if the emergency vehicle made direct contact with the bystander vehicle or with the fleeing vehicle causing it to alter its course. The State asserts that such a rule of causation has been codified in the exemption of liability found at section 155(18) of the GTCA. Exemption 18 provides immunity when a claim results from “[a]n act or omission of an independent contractor or consultant or his or her employees, agents, subcontractors or suppliers of a person other than an employee of the state or political subdivision at the time the act or omission occurred.” The State reasons that because the fleeing driver was “other than an employee of the state or political subdivision” the GTCA exempts the actions of the pursuing officer from tort claims.

¶ 13 The State's understanding of exemption 18 is simply incorrect. The provision does not speak to causation, it states that the State or its political subdivisions are exempt from liability only for the acts of government employees and not the acts of other enumerated persons, including independent contractors and their employees. The rules of causation that apply to this matter are found in this Court's precedent.

¶ 14 “An essential element of the plaintiff's cause of action for negligence, or for that matter for any other tort, is that there be some reasonable connection between the act or omission of the defendant and the damage which the plaintiff has suffered.” W. Page Keeton et al., Prosser and Keeton on Torts 263 (5th ed. 1984). This reasonable connection is one of “proximate cause” or “direct cause” as that term is used in the following jury instruction:

Direct cause means a cause which, in a natural and continuous sequence, produces injury and without which the injury would not have happened. For negligence to be a direct cause it is necessary that some injury to [the property of] a person in [Plaintiff's] situation must have been a reasonably foreseeable result of negligence.

Oklahoma Uniform Jury Instructions (OUJI)(Civil) No. 9.6. “[T]he question of proximate cause is generally one of fact for the jury. It becomes one of law only when there is no evidence from which a jury could...