Brian David Heroux, Appellant, vs. North Memorial Health Care d.b.a. North Ambulance, Respondent.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (1998).

STATE OF MINNESOTA

IN COURT OF APPEALS

Brian David Heroux,
Appellant,
 
vs.
 
North Memorial Health Care
d.b.a. North Ambulance,
Respondent.

Filed August 1, 2000

Hennepin County District Court

File No. 996984

Bruce W. Larson, 3905 IDS Center, 80 South Eighth Street, Minneapolis, MN 55402-2203 (for appellant)

Terri L. Hommerding, 3800 West 80th Street, Suite 1500, Bloomington, MN 55431-4429 (for respondent)

            Considered and decided by Halbrooks, Presiding Judge, Davies, Judge, and Peterson, Judge.

U N P U B L I S H E D   O P I N I O N

DAVIES, Judge

Appellant Brian David Heroux was struck by a police car when he drove his vehicle into an intersection against a red light.  He claims he was reacting to respondent's ambulance, which was operating flashing red lights and siren behind him.  The district court granted summary judgment to respondent ambulance company, finding no evidence that the ambulance driver breached any duty.  We reverse and remand.

This lawsuit arises from a traffic accident that occurred at an intersection equipped with the Opticon system.  This system allows an approaching emergency vehicle to control traffic semaphores by giving a green light to the emergency vehicle and red lights to all intersection traffic from other directions.

At the time of the accident, the semaphores were controlled by a police car proceeding south.  Appellant, headed east, stopped in the left-turn lane at a red light triggered by the Opticon system.  He was not aware of the Opticon system or how it worked.  The ambulance, responding to the same emergency as the police car, approached the intersection headed east with its red lights and sirens activated.  The ambulance driver, after realizing that the intersection was controlled by another emergency vehicle, pulled into the left-turn lane two cars behind appellant's car, the first car in line.

Appellant saw and heard the ambulance approach from behind, turned off his stereo, and waited to see what the ambulance would do.  Appellant claims he felt "pressured" to pull forward and yield to the ambulance because the ambulance lights and siren remained in operation.  Therefore, after a moment, he pulled into the intersection against the red light and was struck by the police car.

The ambulance driver claimed that he turned the lights and siren off once he realized that the intersection was controlled by another emergency vehicle because

we thought it was dangerous to be in the left-hand turn lane with both our lights and sirens on, because we didn't want to encourage anyone to go forward or try to get out of the way, knowing that there was an emergency vehicle coming from some other direction and put them at risk.

The ambulance co-pilot, on the other hand, said the ambulance's flashing lights and siren remained on for 10 to 30 seconds while the ambulance was stopped behind appellant.  The co-pilot's testimony was consistent with appellant's statement.

The trial court granted summary judgment to respondent, finding that respondent driver did not breach a duty owed to appellant.  This appeal followed.

D E C I S I O N

When reviewing summary judgment, we determine whether there are genuine issues of material fact and whether the district court erred in its application of the law.  Lubbers v. Anderson, 539 N.W.2d 398, 401 (Minn. 1995).  In reviewing the record, we view the evidence in the light most favorable to the party against whom summary judgment was granted.  Id.

Appellant claims the ambulance driver breached his common-law duty of care by failing to turn off his red lights and siren once the driver realized that the intersection was being controlled by another emergency vehicle.  Appellant claims that, by keeping the siren and flashers on, the ambulance driver was negligently "directing" or "pressuring" other drivers to enter the intersection against a red light.

            An ambulance driver has a common-law and statutory duty to "drive with due regard for the safety of [others]."  Minn. Stat. §§ 169.17, 169.03, subd. 1 (1998).  The question is what a reasonable person would have done under the circumstances.  W. Prosser & P. Keeton, The Law of Torts, § 37 at 237 (5th Ed. 1984).  But if the defendant has knowledge, skill, or intelligence superior to that of the ordinary person, the law will demand conduct consistent with that superior knowledge or skill.  Id. § 32 at 185.

            "Whether lack of negligence can be determined as a matter of law depends on the definition of duty and existence of foreseeability."  Hellman v. Julius Kolesar, Inc., 399 N.W.2d 654, 655 (Minn. App. 1987).  "The common-law test of duty is the probability or foreseeability of injury to plaintiff."  Austin v. Metropolitan Life Ins. Co., 277 Minn. 214, 217, 152 N.W.2d 136, 138 (1967).

The risk reasonably to be perceived defines the duty to be obeyed, and risk imports relation; it is risk to another or to others within the range of apprehension.

Palsgraf v. Long Island R.R. Co., 248 N.Y. 339, 344, 162 N.E. 99, 100 (1928).

Here, the ambulance driver claimed that he turned off his siren and flashers, and did so because he thought it was "dangerous" to keep them on

because we didn't want to encourage anyone to go forward or try to get out of the way, knowing that there was an emergency vehicle coming from some other direction and put them at risk.

In other words, the ambulance driver recognized a risk that a vehicle in front of him might try to get out of the way.  Both appellant and the ambulance co-pilot gave evidence that the lights and siren remained on.  This raises at least two issues of material fact:  (1) whether the driver in fact turned off his flashers and siren; and (2) whether a reasonable ambulance driver would have turned them off under these circumstances.

Respondent North Memorial Health Care contends that, because the driver complied with the statutory requirement to activate its red lights and siren when responding to an emergency, the ambulance driver is essentially shielded from further common-law duty.[1]  Though compliance with a statute is evidence of "due care," a party may still be negligent if there is a failure in special circumstances to take additional precautions.  Hellman, 399 N.W.2d 654 at 655.  Statutory requirements are

specific and minimum requirements, which may satisfy the requirements of due care, but not necessarily so; and where they do not, the actor must take such additional precautions as due care may require.

Steinbrecher v. McLeod Co-op. Power Ass'n, 392 N.W.2d 709, 712 (Minn. App. 1986), quoting Leisy v. Northern Pac. Ry. Co., 230 Minn. 60, 65, 40 N.W.2d 626, 629 (1950).  When there are "conflicting inferences of fact" as to whether reasonable care required precautions in addition to the statutory minimum, the question is one of fact for a jury.  Id.

            A jury must determine, at least, whether the flashers and siren remained in operation; and, if so, whether this conduct shows a failure to exercise due regard for the safety of others.

            Reversed and remanded.

[1] Minn. Stat. § 169.17 provides that "[t]he speed limitations * * * do not apply to an authorized emergency vehicle responding to an emergency call.  Drivers of all emergency vehicles shall sound an audible signal by siren and display at least one lighted red light to the front."  (Emphasis added.)