Thompson v. City of Minneapolis

• Decision Date: 10 January 2006
• Docket Number: No. A04-1050.,A04-1050.
• Citation: 707 N.W.2d 669
• Parties: Kristen THOMPSON, Respondent, v. CITY OF MINNEAPOLIS, et al., Appellants, Michael Litz, Respondent.
• Court: Minnesota Supreme Court

Page 669

707 N.W.2d 669

Kristen THOMPSON, Respondent, v. CITY OF MINNEAPOLIS, et al., Appellants Michael Litz, Respondent.

No. A04-1050.

Supreme Court of Minnesota.

January 10, 2006.

Heard, considered, and decided by the court en banc.

OPINION

BLATZ, Chief Justice.

A sport utility vehicle (SUV) driven by respondent Michael Litz was being followed by two Minneapolis Police Officers in a detox van when the SUV hit and injured pedestrian respondent Kristen Thompson as she was crossing a street in downtown Minneapolis. Thompson filed a negligence claim against Litz, the two police officers who were following Litz, and the City of Minneapolis. Thompson's claim alleged that the officers' careless and negligent operation of the van was the direct and proximate cause of Thompson's injuries. The city and the officers moved for summary judgment based on the defense of official immunity for the officers and vicarious official immunity for the city. The district court granted the motion, holding that the officers' decision to pursue Litz was discretionary and therefore was entitled to official immunity. The court of appeals reversed and remanded, holding that once the discretionary decision to pursue had been made, the officers' failure to perform the ministerial duties of turning on the detox van's emergency lights and sirens made the defense of official immunity inapplicable. We affirm the denial of summary judgment but remand the case for further fact-finding to determine if the officers initiated a "vehicular pursuit" as defined by the Minneapolis Vehicle Operation Policy ("Pursuit Policy") section 7-404, and if so, whether the officers employed the van's emergency lights and siren as required by Pursuit Policy section 7-405.

At approximately 1:30 p.m. on Thursday, November 29, 2001, Minneapolis Police Officer Thomas Schmid was driving a police detox van with his partner Police Officer Gordon Blackey in the passenger seat. While heading southbound on Nicollet Avenue, Schmid stopped the van for a red light at Fourth Street. Shortly after the light turned green, the officers observed an SUV driven by Litz go through a red light at Nicollet Avenue while heading eastbound on Fourth Street. According to Litz, while stopped partway into that intersection, he looked to his left and saw the detox van flash its emergency lights. He "got scared and took off." The officers then followed the SUV through downtown Minneapolis. Seven blocks later, Litz drove through a red light and the SUV struck pedestrian Thompson as she was crossing Fourth Avenue at Seventh Street. Litz drove for an additional block after the accident, turned the corner, and then ran from the SUV. Officer Blackey apprehended Litz a short time later. Litz was ultimately convicted of a hit and run accident involving Thompson.

On appeal, Thompson claims, inter alia, that the officers' failure to continuously operate their van's emergency lights and siren while pursuing Litz was negligent because the officers had a duty to warn her of the pursuit. The city and officers assert that they never initiated a vehicular pursuit as defined by the Pursuit Policy section 7-404, which reads:

VEHICULAR PURSUIT — A vehicular pursuit occurs whenever an officer pursues a driver of a vehicle who has been given a signal to stop by the activation of red lights and siren, and the suspect or violator fails to comply and attempts to elude the officer by taking evasive actions.

They further argue that, because they never initiated a pursuit, they are entitled to official immunity from the negligence action because they did not have a ministerial duty to continuously operate their emergency lights and siren as required by Pursuit Policy section 7-405, set forth infra in footnote 3. While the parties vigorously dispute the facts giving rise to the claims before us, we focus on the facts critical to the determination of whether the officers are entitled to official immunity: (1) whether the officers initiated a vehicular pursuit, and (2) whether and when the officers activated the detox van's emergency lights and siren.

Beyond an agreement that the police van followed Litz through downtown and that Litz's vehicle struck Thompson, the record provides a confused and contradictory account of what occurred in the few minutes before the collision. At least 19 different witnesses provided depositions or statements recounting their memories of the incident, with most witnesses seeing only a portion of what transpired in the final block before the collision.

Regarding whether a "vehicular pursuit" was initiated, Litz testified that he was "chased" through downtown. In contrast, the officers testified that although they did attempt to make a "traffic stop," they never initiated or engaged in a "vehicular pursuit" of Litz as defined by the Pursuit Policy. Litz testified that the police van went through some of the same red lights that he did while Officer Schmid testified that he drove through two red lights — on Fourth Street — only after stopping and activating the van's emergency lights and siren. Although both Litz and the officers agreed that Litz was speeding during the incident, the officers contend that they never exceeded the speed limit while Litz implies that they were going even faster than he was, testifying that the officers were catching up to him at the end of seven blocks. In contrast, the officers testified that the distance between the detox van and Litz's SUV increased as they attempted to follow him. The other eyewitnesses' testimony on this point is similarly varied, as witnesses indicate that the police van arrived at the scene of the accident between five seconds and "45 to 50 seconds" after the accident.

In addition to whether the officers initiated a vehicular pursuit of Litz, the parties also dispute whether and when the officers activated their emergency lights and siren. The officers both testified that they each¹ first activated the van's emergency lights "mid-block" of Fourth Street between Nicollet and Marquette Avenues. The officers also testified that they each turned the emergency lights off after they had cleared the Fourth Street and Second Avenue intersection approximately two blocks later. Litz testified that the van's emergency lights were activated while he was stopped in the intersection of Fourth Street and Nicollet Avenue, one-half block earlier than where the officers testified to first turning the emergency lights on. He further testified that although he frequently looked in his rearview mirror and saw the police van close behind him throughout the entire incident, he never saw the emergency lights on again.

The testimony on the use of the siren is also conflicting. Litz testified that he never heard the van's siren. Schmid, the driver, testified that he activated the siren only for a few seconds at the intersection of Fourth Street and Marquette Avenue and then again for a few seconds at the intersection of Fourth Street and Second Avenue. Each time, he activated the siren to clear through the intersection against a red light and then deactivated the siren after clearing the intersection. Schmid testified that he did not turn the siren on again before he and Blackey came upon the scene of the accident on Fourth Avenue. In contrast, Blackey testified that he — not Schmid — activated the siren "mid-block of Fourth between Nicollet and Marquette," simultaneously with his activation of the lights. Blackey further testified that he turned the siren off after they had turned onto Second Avenue from Fourth Street. Blackey stated that he did not activate the siren again before they came upon the scene of the accident, but did not remember if Schmid activated it earlier. Confusing matters further, as noted by the district court, the sound of a siren is audible on the audiotape at all times when the officers were broadcasting, including the time when they were traveling eastbound on Sixth Street — a time when neither officer testifies to the siren being activated.

Finally, the other eyewitness testimony does little to clarify the officers' operation of their emergency lights and siren. One witness testified that as the police van approached the corner of Sixth Street and Fourth Avenue, one block before the spot where Litz collided with Thompson, the van's emergency lights and siren both were on. Other witnesses testified that the van's emergency lights and siren were not on in the final block as the van approached the scene of the collision.

Thompson filed a personal injury negligence action against Litz, the officers, and the city. With respect to the officers, the complaint alleged that the detox van "was being operated in a careless and negligent manner and in violation of the Minneapolis Police Department[']s Pursuit Policy, including but not limited to the failure to use their flashing emergency lights and siren." The officers and the city moved for summary judgment based on official and vicarious official immunity. The district court granted the motion, concluding that the officers' decision to pursue Litz was a discretionary and not a ministerial act. Additionally, the district court concluded that the officers had not committed a willful or malicious wrong, and therefore official immunity relieved the officers of liability. Finally, the district court held that the city was entitled to vicarious official immunity.

The court of appeals reversed and remanded, holding that although the officers' original decision of whether to engage in pursuit was discretionary, the Pursuit Policy imposed ministerial duties on the officers in conducting a pursuit. Thompson v. City of Minneapolis, No. A04-1050, 2005 WL 89492, at *4-5 (Minn.App. Jan.18, 2005). In concluding that the Pursuit Policy imposed ministerial duties, the court relied on the language of section 7-405, which required that "`[o]fficers shall use their red lights and siren in a...