KAY BURTON, ADMINISTRATRIX OF THE ESTATE OF DOUGLAS V. v. MARK D. HARRIS, INDIVIDUALLY, AND OFFICIALLY AS POLICE OFFICER FOR THE CITY OF COLUMBIA; AND CITY OF COLUMBIA
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RENDERED: June 12, 1998; 2:00 p.m.
NOT TO BE PUBLISHED
NO. 96-CA-003259-MR
KAY BURTON, ADMINISTRATRIX
OF THE ESTATE OF DOUGLAS
V. BURTON
APPELLANT
APPEAL FROM ADAIR CIRCUIT COURT
HONORABLE PAUL BARRY JONES, JUDGE
ACTION NO. 94-CI-000100
v.
MARK D. HARRIS, INDIVIDUALLY,
AND OFFICIALLY AS POLICE OFFICER
FOR THE CITY OF COLUMBIA; AND
CITY OF COLUMBIA
APPELLEES
OPINION
AFFIRMING
* * * * * * *
BEFORE:
DYCHE, EMBERTON, and JOHNSON, Judges.
JOHNSON, JUDGE:
Kay Burton (Burton), the administratrix of the
estate of her son, Douglas Burton (Doug), has appealed from the
judgment of the Adair Circuit Court entered on August 12, 1996,
which summarily dismissed her complaint.
Burton had alleged that
the negligence of Officer Mark D. Harris (Officer Harris) and his
employer, the City of Columbia (the City) caused the death of her
son.
Finding no error, we affirm.
The parties to this appeal do not agree on the factual
events leading to Doug's death and disagree as to the appropriate
inferences to be drawn from the facts which are not in dispute.
Officer Harris and the City strenuously object to many of
Burton’s alleged facts in support of her complaint and are
particularly aggrieved by those allegations which impugn the
officer's character.
Nevertheless, considering the procedural
posture of this case, it is our function, in reviewing the legal
efficacy of the summary judgment, to consider "the facts alleged
by the plaintiff[] and the evidence of record supporting [her]
claim at the time of dismissal, together with all reasonable
inferences therefrom. . . ."
Capital Holding Corporation v.
Bailey, Ky., 873 S.W.2d 187, 189 (1994).
To that end, we are
required to recite the facts as alleged by Burton, although the
appellees find them offensive.
Burton alleged as follows:
At approximately 3:30 a.m.
on April 24, 1994, Doug was fatally injured when the motorcycle
he was operating left the highway, flipped over and crashed in a
ditch.
A few minutes before the accident, Officer Harris, who
was accompanied in his police car by a friend, Kevin Magsam
(Magsam), had seen Burton pass two vehicles in a no-passing zone
on Highway 206.
lights on.
Officer Harris began to pursue Doug with his
At the time of the accident, Officer Harris was still
chasing Doug in his patrol car.
Doug was familiar with the
highway on which the accident occurred.
He was an experienced
motorcycle operator, although this was the first day the
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motorcycle he was riding was operational.
Tests performed during
an autopsy indicated that Doug had a blood alcohol level of 0.12.
There was also a presumptive presence of marijuana in his system.
Doug had spent most of the evening before the crash
with a friend, William Polson (Polson), at Predators, a local
pool hall in Columbia.
The two men had purchased beer "at the
local bootlegger at the drive through window."
At 8:30 or 9:00
p.m., Doug was talking with friends, including Carol Schrantz
(Schrantz), outside of the pool hall when, according to
Schrantz’s affidavit, Officer Harris drove by in his police
vehicle and gave Doug a vulgar hand gesture, a "greeting" which,
she stated, Doug returned.
A few minutes later, Officer Harris
returned, stopped and talked to Doug.
Schrantz stated that she
heard Officer Harris tell Doug before driving away, "I'll get you
before this night's over."
Schrantz asked Doug about the meaning
of the officer's statement to which Doug replied, "Nothing."
By 1:00 a.m., Doug and Polson decided to go home, but
Polson's motorcycle would not start.
The two men rolled the
motorcycle down the street from Predators to Burton's Service
Station which is located next to a convenient store.
After
working on Polson's bike for two hours without success, they
decided to call it quits.
Scott.
Polson obtained a ride home with Dawn
When Doug got on his motorcycle to leave, it fell over.
Burton alleged that Officer Harris had been parked
behind the convenient store "for quite some time," watching and
"stalking" her son.
She alleged that Officer Harris witnessed
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Doug's bike fall over.
Doug apparently got his motorcycle
upright and once on Highway 206, committed the traffic violation
which caused Officer Harris to turn on his lights and pursue him.
Additional allegations essential to Burton's arguments on appeal
include (1) that Doug's speedometer was stuck at 25 m.p.h. after
the accident, (2) that Officer Harris had been professionally
recognized for his large number of DUI arrests, and (3) that
Officer Harris told a witness1 after the accident that he did not
get along with "Harleys and drunks."
In her complaint, Burton alleged that Officer Harris
"wrongfully, negligently and maliciously pursued [Doug] at a high
rate of a [sic] speed causing [Doug] to have an accident and
causing [his] death."
She also alleged that the City was
responsible for her son's death because of its "negligence and
carelessness" in its "training and instruction of proper
procedures for police officers."
As exhibits to their motion for summary judgment,
Officer Harris and the City filed the coroner's report and the
affidavit of Sheriff John S. Shipp, who stated that on the date
of the accident he was a police officer with the Kentucky State
Police and was responsible for the investigation of the accident
which resulted in Doug's death.
He stated that he inspected
Officer Harris' vehicle on the night of the incident and that
"there were no signs or indications on the front of th[e] cruiser
which would demonstrate that contact occurred between the police
1
The identity of this witness is not contained anywhere in the record or briefs.
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cruiser and [Doug's] motorcycle. . . ."
finding after inspecting the motorcycle.
He made a similar
The appellees also
offered the affidavit of Officer Harris, who denied seeing the
motorcycle wreck, and that of Magsam, who stated that the police
cruiser never made physical contact with Doug's motorcycle.
Burton's response to the motion for summary judgment included the
affidavit of Robert Davis (Davis), a private investigator and
former Kentucky State Police officer, employed by Burton to
investigate the accident.
Most of the facts recited earlier
herein are contained in Davis' affidavit.
On August 12, 1996, the trial court entered a summary
judgment ruling that Officer Harris' conduct was not the
proximate cause of Doug's accident and that the facts of the
instant case "fall[] squarely within the circumstances envisioned
by the Chambers [v. Ideal Pure Milk Co., Ky., 245 S.W.2d 589
(1952)] decision."
Burton filed a timely motion to set aside and
vacate the judgment pursuant to Kentucky Rules of Civil Procedure
59.05, accompanied by the affidavit of Schrantz, which as noted
earlier, contained allegations of personal animosity toward Doug
on the part of Officer Harris.
Nevertheless, the trial court
found nothing in Schrantz's affidavit to cause it to vacate its
earlier ruling and, accordingly, on October 31, 1996, denied
Burton's motion.
This appeal followed.
It is well settled in this jurisdiction that summary
judgment is to be cautiously granted and is appropriate only
"’when, as a matter of law, it appears that it would be
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impossible for the respondent to produce evidence at the trial
warranting a judgment in his favor and against the movant.’"
Steelvest, Inc. v. Scansteel Service Center, Inc., Ky., 807
S.W.2d 476, 483 (1991), quoting Paintsville Hospital Company v.
Rose, Ky., 683 S.W.2d 255, 256 (1985).
See also Old Mason's Home
of Kentucky, Inc. v. Mitchell, Ky. App., 892 S.W.2d 304, 307
(1995).
On the other hand, "a party opposing a properly
supported summary judgment motion cannot defeat it without
presenting at least some affirmative evidence showing that there
is a genuine issue of material fact for trial."
482.
807 S.W.2d at
The evidence of negligence in this case falls far short of
meeting the standard articulated in Steelvest, and our review of
the record reveals that it would be impossible for Burton to
prove that any conduct committed by Officer Harris, or his
employer, the City, caused Doug’s death.
In Chambers, supra, our highest Court addressed a
similar factual situation.
In that case, a person attempting to
flee from the police collided with a milk wagon, injuring the
driver.
The driver brought suit against the police alleging that
it was their conduct which caused his injuries.
In rejecting the
plaintiff's claim, the Court held as follows:
The police were performing their duty
when Shearer, in gross violation of his
duty to obey the speed laws, crashed
into the milk wagon. To argue that the
officers' pursuit caused Shearer to
speed may be factually true, but it does
not follow that the officers are liable
at law for the results of Shearer's
negligent speed. Police cannot be made
insurers of the conduct of the culprits
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they chase. It is our conclusion that
the action of the police was not the
legal or proximate cause of the
accident, and that the jury should have
been instructed to find for the
appellants.
Id. at 590-591 (emphasis added).
Burton insists that Chambers does not reflect the
current law in this jurisdiction.
Specifically, she relies on
Speck v. Bowling, Ky. App., 892 S.W.2d 309 (1995), in which this
Court held that a police officer "is [not] free to operate his
vehicle negligently or to put others on the roadways in danger in
carrying out [their] duties."
Id. at 311.
Speck "implicitly overruled Chambers."
Burton argues that
Burton is incorrect.
Opinions of this Court, emanating from an intermediate
appellate body, cannot alter the precedential value or legal
viability of opinions of our state's highest Court.
In any
event, Speck is significantly distinguishable from Chambers.
In
Speck it was alleged that the police officer was negligent in
operating his vehicle which collided with and caused injury to a
third party.
In Chambers it was the fleeing suspect who collided
with a third party.
The Chambers holding is specifically limited
to injuries resulting from the negligent conduct of a person
attempting to elude the police.
The Court refused to impose
liability on a police officer as a matter of law for the injuries
or damages caused by a vehicle being operated by a pursued
violator or suspected criminal.
Chambers does not purport to address issues of
proximate cause in situations like those in Speck and Prater v.
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Arnett, Ky. App., 648 S.W.2d 82 (1983) (proximate cause of fatal
injuries sustained by passenger in police vehicle during high
speed chase determined to present a jury question), which involve
a collision with the vehicle being operated by the officer.
In
the instant case, there is no evidence from which a jury could
possibly infer that Officer Harris' vehicle came into contact
with Doug's motorcycle.
Thus, as a matter of law, the proximate
cause of Doug's injuries was not a legally cognizable breach of
any duty owed to Doug by Officer Harris.
Chambers, supra.
Since Burton is aware that there is no evidence that
Officer Harris' vehicle collided with Doug’s motorcycle, she also
argues that Officer Harris was negligent in deciding to pursue
Doug in the first instance and/or in failing to terminate the
chase.
Her argument from her brief is, in part, as follows:
Officer Harris decided to engage in a
high speed pursuit for some distance
despite the fact that the violation in
question was a minor passing violation.
The high speed chase occurred on a
winding curving road. Officer Harris
knew Doug was on a motorcycle which is
difficult to control in curves, yet he
continued this chase knowing that if
Doug wrecked the motorcycle he would
likely receive serious injuries or
death. Also, other drivers on the road
could have been injured as the vehicles
took wide curves into other lanes.
Officer Harris also believed Doug to be
intoxicated magnifying the above
dangers.
In the present action, Officer
Harris' duty in effecting an arrest was
measured by the danger involved under
the circumstances in relation to the
offense in question. The violation in
question was clearly outweighed by the
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danger involved. As such, Officer
Harris had a duty to terminate the
chase, yet he failed to do so.
Clearly, the law in this area is evolving.
The get-the
suspect-at-any-cost attitude, memorialized in countless Hollywood
chase scenes, is giving way to the recognition that a police
officer's "paramount duty is to protect the public."
Hamilton County, 883 S.W.2d 606, 610 (Tenn. 1994).
Haynes v.
In the
majority of states, the question of whether an officer's decision
to pursue or to continue to pursue a suspect at high speeds is
the proximate cause of injury to innocent third parties, is one
for a jury's determination. Id. at 612.
The majority of
jurisdictions allow liability to be imposed on an officer in an
action by the third party injured by a fleeing suspect.
Id.
Considering this trend, and the evolution of tort law in this
jurisdiction, see e.g. Waldon v. Housing Authority of Paducah,
Ky. App., 854 S.W.2d 777 (1993), and Grayson Fraternal Order of
Eagles v. Claywell, Ky., 735 S.W.2d 328 (1987), we believe that
the continued application of Chambers in the context of injuries
to third parties is susceptible to change.
In any event, we are
not aware of any recent authority in this jurisdiction that would
cause us to question the application of Chambers vis-a-vis
injuries sustained by a fleeing suspect.
Finally, Burton argues that the accident would not have
occurred but for Officer Harris' negligent failure to arrest Doug
for public intoxication earlier in the evening.
Burton insists
that a jury could infer from the evidence of Officer Harris'
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hostility toward Doug and those who ride motorcycles and from his
professional awards for arresting drunk drivers, that Officer
Harris was stalking Burton, knowing he was drunk, in order to
obtain another DUI arrest and thereby bolster his career.
While Doug was legally intoxicated at the time of the
accident, there is no evidence in the record from which the jury
could infer that Officer Harris had probable cause to arrest Doug
for public intoxication at any time on the day of the accident.
There is no evidence that Officer Harris saw Doug buy alcohol
from the "local bootlegger."
There is no evidence that Doug was
drinking outside of Predators or ever drank or smoked marijuana
in view of Officer Harris.
There is no evidence that Doug acted
in a manner consistent with being in a state of intoxication.
Indeed, had Officer Harris been watching Doug for the entire
evening prior to the accident, there is no evidence that he would
have seen Doug ever behaving as though he were impaired.
The
evidence of record simply does not support Burton's allegations
in this regard.
Accordingly, the judgment of the Adair Circuit Court is
affirmed.
ALL CONCUR.
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BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Hon. Theodore H. Lavit
Hon. Stephen B. Humphress
Lebanon, KY
Hon. James D. Desmond
Louisville, KY
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