Walley v. La Plata Volunteer Fire Dep't

• Decision Date: 01 May 2012
• Docket Number: No. WD 72615.,WD 72615.
• Citation: Walley v. La Plata Volunteer Fire Dep't, 368 S.W.3d 224 (Mo. App. 2012)
• Parties: Melissa K. WALLEY and Thomas Walley, Appellants, v. LA PLATA VOLUNTEER FIRE DEPARTMENT, La Plata Rural Fire Protection Association and the City of La Plata, Respondents.
• Court: Missouri Court of Appeals

368 S.W.3d 224

Melissa K. WALLEY and Thomas Walley, Appellants,

v.LA PLATA VOLUNTEER FIRE DEPARTMENT, La Plata Rural Fire Protection Association and the City of La Plata, Respondents.

No. WD 72615.

Missouri Court of Appeals, Western District.

March 20, 2012.

Motion for Rehearing and/or Transfer to

Supreme Court Denied May 1, 2012.

Application for Transfer

Denied July 3, 2012.

Susan Ford Robertson, Kansas City, MO and Kenneth B. McClain II and Daniel A. Thomas, Independence, MO, for appellants.

D. Keith Henson, St. Louis, MO and John G. Schultz, Kansas City, MO, for respondents.

Before Division Two: GARY D. WITT, Presiding Judge, JOSEPH M. ELLIS, Judge and MARK D. PFEIFFER, Judge.

GARY D. WITT, Judge.

Melissa Walley and Thomas Walley appeal a judgment from the Circuit Court of Adair County in Melissa Walley's favor, awarding her damages from the La Plata Volunteer Fire Department. We affirm.

Factual Background¹

Melissa Walley and her husband, Thomas Walley ² sued the La Plata Volunteer Fire Department, the City of La Plata, La Plata Rural Fire Protection Association and a number of employees of the above entities individually ³ for injuries sustained by Walley in the line of duty, in an automobile accident that occurred on March 4, 2001.

At the time of the accident, Walley was employed as a Trooper with the Missouri State Highway Patrol (“Highway Patrol”). The night of March 4th, Walley, after completing another call, was conversing with a deputy sheriff. At that time, on the deputy sheriff's radio she overheard a report of an accident with a head injury on Route E, a couple miles from where she was located. She radioed a Highway Patrol Troop B dispatcher and an Adair County Sheriff's Department dispatcher to see if they had been notified of an accident. Each reported that they had no such notification. Concerned that no emergency responders may be on the scene, Walley made her way to the site of the reported accident. Travelingon Route E, Walley slowed her vehicle to somewhere between 70 and 85 miles per hour as she approached a hill. Unknown to her, over the crest of that hill was the scene of the accident. There was no warning at the top of the hill of the accident on the other side. At the scene of the accident were multiple emergency vehicles which were parked on both sides of the roadway belonging to volunteer firefighters and other emergency responders. Walley crested the hill and was unable to stop quickly enough to avoid hitting a vehicle belonging to Jeffrey Mock (“Mock”). Mock was a volunteer firefighter for both the La Plata Rural Fire Protection Association and the La Plata Volunteer Fire Department. The La Plata Volunteer Fire Department was controlled by the City of La Plata. All of these entities were named as defendants in the cause of action as well as various other individuals who were employed by these entities. Except where necessary to differentiate the various defendants, we will refer to all of them collectively as “La Plata.”

Walley suffered from back pain following the accident and consulted multiple physicians. Walley had three spine surgeries and one abdominal surgery to relieve the pain she alleged she suffered due to the accident. She testified that she still suffers continued pain from the injuries she sustained. Experts testified on her behalf that due to her injuries she is currently unable to work or do physical activity and is at risk for additional spinal surgeries. Walley's medical expenses from the accident totaled $222,425.86. Based on additional expert testimony, her estimated economic loss totaled an additional $1,600,000. Medical experts, who testified on behalf of the defendants, disputed the extent of her injuries, whether the surgeries were necessitated by her injuries from this accident, whether she continues to suffer pain, and whether she should be able to return to work.

Various lay and expert witnesses testified to the following: (1) how the accident occurred and the alleged contributing causes of the accident, including the procedures which should have been followed by the La Plata Volunteer Fire Department that, if followed, may have avoided the accident; (2) the speed at which Walley was driving at the time of the accident; and (3) Walley's ability or inability to avoid the accident.

Over Walley's objection, the trial court submitted to the jury the issue of Walley's comparative fault based on her alleged excessive speed. Walley argued that she was protected from a comparative fault submission by official immunity and the contractual language of a release signed by Mock.

During the pendency of the suit, Mock filed a counterclaim against Walley and a third-party petition against the Highway Patrol for injuries he sustained in the same accident. Mock settled his claims against Walley and the Highway Patrol, whereby he executed a general release and settlement agreement. Walley, the Highway Patrol, and Mock were parties to that agreement. Walley argued that giving the comparative fault instruction was error due to the language of the general release executed by Mock.

The jury returned a verdict finding Walley ninety percent (90%) at fault for the accident and La Plata ten percent (10%) at fault. The jury found the total amount of Walley's damages to be $800,000. The jury also found that Thomas Walley had suffered no loss of consortium damages as a result of the injury to his wife.

Walley brings two points on appeal. More factual details will be presented as necessary in the analysis section.

Analysis

In Point One, Walley argues the trial court erred in submitting the issue of Walley's comparative fault to the jury and rejecting her proposed jury instructions because she was protected by official immunity in that she was injured while responding as a Highway Patrol Trooper to an emergency call and official immunity shields her from a finding of comparative fault and further she argues that she is protected by the language of the general release of all claims of liability in the case executed by Mock.

Whether the jury was properly instructed is an issue this Court reviews de novo. Hayes v. Price, 313 S.W.3d 645, 650 (Mo. banc 2010).

Official immunity is a judicially created doctrine recognized in 1854 and accepted as the policy of the State of Missouri since that time. Southers v. City of Farmington, 263 S.W.3d 603, 610 (Mo. banc 2008). “Official immunity protects public officials from liability for alleged acts of ordinary negligence committed during the course of their official duties for the performance of discretionary acts.” Davis v. Lambert–St. Louis Int'l Airport, 193 S.W.3d 760, 763 (Mo. banc 2006) (citing Kanagawa v. State, 685 S.W.2d 831, 835 (Mo. banc 1985)). “When an officer is responding to an emergency [...] the officer exercises judgment and discretion and is entitled to official immunity.” Id. As the Missouri Supreme Court has pointed out, a contrary rule would risk delay in responses to emergency calls and would be contrary to the public interest. Id. However, “[a] finding that a public employee is entitled to official immunity does not preclude a finding that he or she committed a negligent act-because official immunity does not deny the existence of the tort of negligence, but instead provides that an officer will not be liable for damages caused by his negligence.” Southers, 263 S.W.3d at 611 (citing Davis, 193 S.W.3d at 765–66).

“The adoption of comparative fault requires the jury be given the responsibility of assessing the relative fault of the parties in tort actions.” Kramer v. Chase Resorts, Inc., 777 S.W.2d 647, 651 (Mo.App. E.D.1989) (citing Patton v. May Dep't Stores Co., 762 S.W.2d 38, 40 (Mo. banc 1988)). If there is evidence from which a jury could find that plaintiff's conduct contributed to cause some of the damages the plaintiff sustained, the parties to a negligence action are entitled to have the jury instructed under comparative fault principles. Buatte v. Schnuck Markets, Inc., 98 S.W.3d 569, 576 (Mo.App. E.D.2002). If the plaintiff's comparative fault is supported by substantial evidence, it is proper to give the instruction. Id. The submission is dependent upon the facts presented in a particular case. Id.

Walley argues that the same policy arguments protecting an officer from a finding of liability as a defendant should apply equally to shielding Walley from a finding of comparative fault when she is the plaintiff in the cause of action. This appears to be an issue of first impression before the courts of Missouri.

In cases dealing with official immunity, the more common scenario, as in Davis, is when an officer is sued by a plaintiff who argues that the officer's negligent driving of a vehicle, responding to an emergency situation, has caused injury to the plaintiff and the plaintiff, accordingly, is seeking redress. See Davis, 193 S.W.3d at 762. In such cases, it has been repeatedly held that the officer is protected by the doctrine of official immunity. See e.g., Davis, 193 S.W.3d at 762;Kanagawa v. State By and Through Freeman, 685 S.W.2d 831, 835 (Mo. banc 1985). Such was the case in Davis where the jury, under a comparative fault instruction, assigned seventy-five percent of the fault to the plaintiff and twenty-five percent of the fault to the officer. Id. There, the court held that the plaintiff could not recover against the officer because the officer was protected by official immunity. Id. at 764. There remains tortious conduct by the officer, and the quality and characterization of that conduct is unchanged; but, the officer is given absolution from liability. Restatement (Third) of TortsS sec. E19 cmt. f (2000).

Walley would have us conclude, then, that since Walley is given absolution from liability under a comparative fault scheme when a plaintiff is seeking recovery against her for her tortious acts, then she should be given absolution from her liability when she seeks recovery against...