GRACE SMITH, Executrix of ESTATE OF IDA LOU STROUD, V. CITY OF LOUISVILLE and JAMES LAYTHAM
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RENDERED:
March 27, 1998; 10:00 a.m.
NOT TO BE PUBLISHED
NO.
96-CA-2764-MR
GRACE SMITH, Executrix of
ESTATE OF IDA LOU STROUD,
and MARTHA DAVIS
APPELLANTS
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE KEN G. COREY, JUDGE
ACTION NO. 96-CI-01999
V.
CITY OF LOUISVILLE and
JAMES LAYTHAM
APPELLEES
OPINION
AFFIRMING
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BEFORE:
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COMBS, GUIDUGLI, and JOHNSON, Judges.
COMBS, JUDGE:
This is an appeal from an order of the Jefferson
Circuit Court entered on September 6, 1996, granting the
appellees' motion to dismiss the appellants' complaint with
prejudice.
We affirm.
The appellants filed this action on April 2, 1996,
alleging that the negligence of Officer Jimmie Laytham of the
Louisville Division of Police caused the death of Ida Lou Stroud
and caused Stroud's daughter, Martha Davis, to suffer personal
injury.
The action arose out of incidents occurring on Tuesday,
April 11, 1995, when Officer Laytham was following the vehicle of
one Henry Perkins.
The pertinent facts are essentially uncontroverted.
In
the early evening hours of April 11, Officer Laytham observed the
Perkins vehicle travelling westbound on I-264 at more than 80
m.p.h.
Some moments later, Officer Laytham pulled in behind the
Perkins vehicle and activated his cruiser's blue lights.
Apparently aware of the officer's presence, the driver of the
vehicle pulled into the right-hand lane, indicating to Officer
Laytham that he planned to move into the emergency lane to
facilitate the traffic stop.
Instead, the vehicle exited the
expressway at Dumesnil and Vermont Avenue in Louisville's West
End.
After exiting the expressway, the driver reduced his
speed to 30-40 m.p.h. and continued his progress.
When the
driver of the vehicle disregarded a stop sign at Dumesnil,
Officer Laytham radioed the dispatcher that he was following a
vehicle that would not pull over.
As the Perkins vehicle
continued through the West End, the driver disregarded several
more stop signs.
Laytham continued to follow at a speed of 30-35
m.p.h., his blue lights and siren activated.
At 40th and Greenwood Avenues, the driver again ignored
a stop sign.
It was at this intersection that Perkins's Lincoln
Continental collided with a Toyota Corolla being driven by Martha
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Davis.
Both of the occupants of the smaller car were injured;
Stroud later died.
Perkins was not seriously injured.
he exited his vehicle and ran from the scene.
In fact,
Officer Laytham
was able to apprehend Perkins as he attempted to climb a six-foot
fence.
On May 24, 1995, the Jefferson County Grand Jury
indicted Perkins on six criminal counts, including murder and
driving under the influence.
Perkins pleaded guilty to amended
charges of manslaughter, assault, criminal mischief, reckless
driving, attempt to elude police, and failure to stop at a stop
sign.
On April 24, 1996, Officer Laytham and the City of
Louisville moved the trial court to dismiss the complaint.
They
argued that the damage suffered by the plaintiffs resulted solely
from the collision with a drunk driver and that, as a result, the
plaintiffs had not stated a cause of action against the
defendants.
They maintained that the uncontroverted facts
indicated that Officer Laytham was not engaged in a high-speed
chase or "pursuit" as that term is customarily used but was,
instead, simply following the Perkins vehicle at a reasonable
distance and speed.
They argued that the plaintiffs had not
demonstrated that Officer Laytham took any action which would
have caused Perkins to drive erratically or to attempt any
evasive action.
The plaintiffs filed a response to the motion, which
was accompanied (among other documents) by the affidavit of Dr.
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George Kirkham and the statement of Officer Laytham.
The
appellants argued that dismissal was not appropriate because
Officer Laytham violated the City's policy and procedures with
respect to a police officer's "fresh pursuit."1
Relying in part upon Fryman v. Harrison, Ky., 896
S.W.2d 908 (1995), the court concluded that neither the officer
nor the city could be held liable for the wrongful actions of the
fleeing criminal.2
By order entered on September 6, 1996, the
trial court dismissed the action.
This appeal followed.
CR 12.02 and CR 12.03 require that a motion in which
matters outside the pleadings are considered is to be treated as
a motion for summary judgment.
S.W.2d 618 (1989).
Craft v. Simmons, Ky. App., 777
Because material outside the pleadings was
submitted in conjunction with the motion, we review the dismissal
as if it were a summary judgment entered in favor of the movants.
1
Article 59 of the Division of Police's manual of policy and
procedures provides, in part, as follows:
It is the policy of the Louisville Division of Police
that the apprehension of one or more occupants of a
moving motor vehicle, is to be considered secondary in
importance to public safety.
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The department's fresh pursuit policy is an attempt to
balance the community's demand that police officers
apprehend criminals against the potential risks to
third parties resulting from high-speed, vehicular
pursuits.
2
In Fryman, the court held that "[p]ublic officials in an
individual capacity or otherwise, cannot be expected to protect
every individual whether known to them or not from any possible
harm by third parties." Fryman, at 909-910.
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The question presented is whether the alleged negligent
actions of the Officer Laytham constituted a proximate or legal
cause of the appellants' injuries.
We have concluded that, as a
matter of law, they did not.
Summary judgment is only appropriate "when, as a matter
of law, it appears that it would be impossible for the respondent
to produce evidence at the trial warranting a judgment in his
favor and against the movant."
Steelvest, Inc. v. Scansteel
Serv. Center, Inc., Ky., 807 S.W.2d 476, 483 (1991), citing
Paintsville Hosp. Co. v. Rose, Ky., 683 S.W.2d 255 (1985).
The
respondent must present some affirmative evidence showing that
there exists an issue of material fact for trial in order to
defeat a properly supported motion for summary judgment.
Steelvest, 807 S.W.2d at 482.
Our highest court addressed a substantially similar
fact situation in Chambers v. Ideal Pure Milk Co., Ky., 245
S.W.2d 589 (1952).
In that case, a third party was fleeing
police when he ran into a milk wagon, injuring its driver.
The
driver subsequently brought suit contending that the police
officer's negligent conduct in chasing the third party caused his
injuries.
The court refused to adopt his contention.
Instead,
it 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 they chase. It is our
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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.
While the Chambers decision is expressly limited
to the facts presented there, we find it instructive -especially in light of the more recent holding of Fryman, supra.
A review of the record indicates that it is impossible
for the appellants to present evidence to the trial court tending
to prove that any negligent conduct on the part of Officer
Laytham constituted a legal cause of the appellants' injuries.
The allegations and facts presented to the trial court reveal
that the actions of a drunk driver alone were the legal cause of
the injuries suffered by the appellants.
The order entered by
the Jefferson Circuit Court in favor of the appellees must,
therefore, be affirmed.
GUIDUGLI, JUDGE, CONCURS.
JOHNSON, JUDGE, DISSENTS AND FILES A SEPARATE OPINION.
JOHNSON, JUDGE, DISSENTING:
I respectfully dissent.
Fryman v. Harrison, supra, that was relied upon by the trial
court, is not applicable to the case at bar since the duty
requirement is met based upon the City's own policies.
Chambers
v. Ideal Pure Milk Company, supra, relied upon by the Majority is
also distinguishable because it held that "[t]he police were
performing their duty" when the damage occurred.
In the case sub
judice, the police officer was violating his duty as established
by the City's policy and procedures when the damages occurred.
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The policy and procedures are very clear concerning
this type of pursuit.
follows:
Pursuit is defined in pertinent part as
"An act or instance of pursuing or chasing."
Perkins
clearly took "evasive tactics" in attempting to avoid arrest.
Since Officer Laytham did not "have reasonable suspicion to
believe that [Perkins was] a felon or a suspected felon," the
pursuit was not authorized.
In fact, since the pursuit was for a
misdemeanor or violation, it was specifically prohibited by the
City's policy and procedures.
This breach of duty established by
the City's policy and procedures is actionable.
Current v.
Columbia Gas of Kentucky, Ky., 383 S.W.2d 139 (1964).
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BRIEFS FOR APPELLANTS:
BRIEF FOR APPELLEES:
Richard M. Breen
Louisville, KY
J. Michael Brown
Louisville, KY
William H. Allison
Louisville, KY
William C. Stone
Louisville, KY
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