Jerry Stanley and Justin Stanley, Appellants, v. City of Independence, Missouri, et al., Respondents.

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court. Opinion Missouri Court of Appeals Western District Case Style: Jerry Stanley and Justin Stanley, Appellants, v. City of Independence, Missouri, et al., Respondents. Case Number: 55019 Handdown Date: 08/25/1998 Appeal From: Circuit Court of Jackson County, Hon. C. William Kramer Counsel for Appellant: Michael D. Matteuzzi Counsel for Respondent: David S. Baker Opinion Summary: Jerry and Justin Stanley appeal from a summary judgment in their wrongful death action against a police officer and the City of Independence after two members of their family were killed in a collision with a vehicle being pursued by the officer. REVERSED AND REMANDED. Division I holds : The trial court erred by holding that, because the Stanleys could not maintain a claim against the officer due to his official immunity, they also could not maintain a claim against the City of Independence on the theory of respondeat superior. Citation: Opinion Author: Victor C. Howard, Presiding Judge Opinion Vote: REVERSED AND REMANDED. Breckenridge and Spinden, J.J., concur. Opinion: Opinion modified by Court's own motion on October 27, 1998. This substitution does not constitute a new opinion. Jerry and Justin Stanley brought a wrongful death action against a police officer and the City of Independence after two members of their family were killed in a collision with a vehicle being pursued by the officer. The trial court

sustained the defendants' motion for summary judgment and the Stanleys now appeal, claiming the trial court erred by holding that, because the Stanleys could not maintain a claim against the officer due to his official immunity, they also could not maintain a claim against the City of Independence on the theory of respondeat superior. Reversed and remanded. On July 26, 1994, Officer Leonard Hill of the Independence, Missouri Police Department responded to a report of an armed robbery at a Half Price store on East 40 Highway. Upon his arrival, Officer Hill was given a description of the two suspects and the van they were driving. A short time later, Officer Hill observed a van matching the description and initiated a traffic stop of the vehicle. However, after the van slowed onto the right shoulder of the road, and seemed about to stop, it returned to the road and accelerated rapidly. Activating his siren, Officer Hill began to pursue the fleeing van, which ultimately collided with the vehicle carrying the plaintiffs' decedents. The Stanleys then filed a wrongful death action against Officer Hill and the City of Independence. Their petition for damages alleged that Officer Hill was negligent in initiating, continuing, and failing to terminate the pursuit that resulted in the death of two of their family members. The petition further alleged that the City of Independence was liable under the doctrine of respondeat superior for the negligence of Officer Hill. The defendants filed a motion for summary judgment, contending that the Stanleys could not maintain a claim against Officer Hill because of the doctrine of official immunity. The motion further contended that, because Officer Hill was immune from liability, there was no basis for a claim against the City of Independence on a theory of respondeat superior. The defendants' motion was sustained by the trial court. In their sole point on appeal, the Stanleys challenge the trial court's conclusion that the City of Independence was entitled to summary judgment on a claim of respondeat superior because its agent was immune from liability. The Stanleys argue that, while the absence of negligence on the part of the agent would preclude a claim against the city, where the agent is absolved of liability on the grounds of immunity alone, the city should remain a viable party because the immunity was personal to the agent, and because such a result better serves public policy and Section 537.600's waiver of sovereign immunity. This case involves a number of different principles pertaining to the tort liability of governmental entities and their employees, including the public duty doctrine, sovereign immunity, official immunity, and respondeat superior. It is helpful, then, to begin this discussion with definitions of these distinct yet related concepts. The public duty doctrine holds that public employees may not be held civilly liable for a breach of duty owed to the general public, as distinguished from a duty owed to particular individuals. Green v. Denison, 738 S.W.2d 861, 866 (Mo.

banc 1987). The rationale for this doctrine is to provide protection for modestly compensated public employees against various claims and to allow those employees to perform their tasks without inappropriate distractions. Id. Similarly, the concept of official immunity protects public employees acting within the scope of their authority from liability for injuries or damages arising from their discretionary acts or omissions. Kanagawa v. State by and Through Feeman, 685 S.W.2d 831, 835 (Mo. banc 1985). The underlying rationale, which is similar to that of the public duty doctrine, is to promote the vigorous and effective administration of public affairs by removing the threat of personal liability from those officials who must exercise their best judgment in conducting the public's business, and thus protect against an attitude of complacency in performing their duties for fear of financial loss. Id. at 836. The doctrine of sovereign immunity protects the government itself from tort liability. In 1978, the Missouri legislature re-established sovereign immunity in response to the Missouri Supreme Court's abrogation of the common law doctrine in Jones v. State Highway Commission, 557 S.W.2d 225 (Mo. banc 1977). However, in Section 537.600.1(1), the legislature waived sovereign immunity for injuries resulting from the negligent operation of a motor vehicle by a public employee in the course of his employment. Bachmann v. Welby, 860 S.W.2d 31, 34 (Mo. App. E.D. 1993). Suits brought to recover damages pursuant to this express waiver are brought under the theory of respondeat superior. McGuckin v. City of St. Louis, 910 S.W.2d 842, 844 (Mo. App. E.D. 1995). In this case, as already noted, the trial court found that the Stanleys had no claim against the City of Independence on the theory of respondeat superior because, since Officer Hill was immune from liability, the City must be exonerated from liability as well. However, this conclusion is at odds with long-standing precedent issued from this court. In Rosenblum v. Rosenblum, 96 S.W.2d 1082, 1084 (Mo. App. W.D. 1936), this court adopted what is now Restatement (Second) of Agency, Section 217, which provides that if an agent has an immunity from liability as distinguished from a privilege, the principal does not share the immunity. In the sphere of municipal liability, this holding means that "when the sovereign is sued for the tortious acts of one of its officials, the sovereign can take advantage of immunities afforded to it but should not be able to benefit from any personal immunities enjoyed by the official." Oberkramer v. City of Ellisville, 650 S.W.2d 286, 294 (Mo. App. E.D. 1983) (citing Rosenblum). Immunities are always personal to the holder. Id. The rule of Rosenblum and the Restatement, as applied to governmental liability in Oberkramer, is cited as a general rule in McQuillin Mun Corp Section 53.65 (3d Ed.), and is the view adopted by a number of jurisdictions. E.g. Gilbert v. Richardson, 452 S.E.2d 476, 483-484 (Ga. 1994); James v. Prince George's County, 418 A.2d 1173, 1182- 1184 (Md. App. 1980); Taplin v. Town of Chatham, 453 N.E.2d 421, 423 (Mass. 1983); Muntan v. City of Monongahela, 406 A.2d 811, 813-814 (Pa. Cmwlth. 1979); Savage v. State, 899 P.2d 1270 (Wash. 1995); Maynard v.

City of Madison, 304 N.W.2d 163, 169 (Wis. App. 1981), overruled in part on other grounds by Kimpton v. School Dist. of New Lisbon, 405 N.W.2d 740, 744 n. 4 (Wis. App. 1987). These cases, and scholarly commentary, offer persuasive policy reasons for the broad acceptance of this rule. With the rise of the doctrine of official immunity, which allows public employees to do their job without fear of personal liability, a reciprocal pressure on the governmental body itself would temper any disregard for potential harm which might be encouraged by the employee's immunity. Muntan, 406 A.2d at 814. The potential liability of the governmental entity would encourage it to implement managerial reforms that would reduce its exposure, thus reducing individual citizens' risk of harm. 3 Davis, Administrative Law Treatise, Section 19.3 (3rd Ed. 1994). Other courts have noted that, to the extent that a jurisdiction has waived sovereign immunity, it would emasculate that waiver to reclaim immunity by adopting that of the employee. James, 418 A.2d at 1184, Savage, 899 P.2d at 1275. It has also been noted that, where an actionable mishap occurs as a result of a public official taking a course of action in the interest of the safety and welfare of the public as a whole (as in the case of a high speed pursuit), distributing the resulting loss over the entire community is a fair and sensible result. Bermann, Integrating Governmental and Officer Tort Liability, 77 Col. L. Rev. 1175, 1187 (1977). Of the numerous cases following the general rule, Savage v. State is particularly instructive because it declined to follow earlier cases in the same jurisdiction which had adopted a contrary rule. In so doing, the court noted that those cases had arrived at their holdings by importing principles from cases which do not involve the specific concerns of public entities, and without engaging in an analysis of the policy and other issues which are unique to the relationship between official and government immunity from tort liability. 899 P.2d at 1274-75. This approach is significant because a similar situation exists in Missouri law. The City of Independence cites cases from the Eastern District which hold that the official immunity enjoyed by a public official will also exonerate the governmental entity which employs him. Creighton v. Conway, 937 S.W.2d 247 (Mo. App. E.D. 1996); State ex rel. Conway v. Dowd, 922 S.W.2d 461 (Mo. App. E.D. 1996); McGuckin v. City of St. Louis, 910 S.W.2d 842 (Mo. App. E.D. 1995); Peoples v. Conway, 897 S.W.2d 206 (Mo. App. E.D. 1995). The first of these cases, Peoples v. Conway, articulated the broad rule that where a claim is made under the doctrine of respondeat superior, and a judgment is rendered exonerating the employee from liability, the employer is also exonerated. 897 S.W.2d at 208. Peoples and the subsequent cases held that this rule applied to cases where a public official was exonerated on the basis of official immunity. These cases, like the cases noted in Savage v. State, arrived at their holdings by importing principles from cases which do not involve issues specific to official immunity and its relationship to governmental tort liability. Peoples relied on

two sources for the broad rule it applied to official immunity: the first, Jackson v. City of Wentzville, 844 S.W.2d 585 (Mo. App. E.D. 1993), involved the separate and distinct public duty doctrine; the second, Burnett v. Griffith, 739 S.W.2d 712 (Mo. banc 1987), involved a security guard and a private employer, and simply held that when a jury returns inconsistent verdicts that exonerate the employee while finding the employer liable, the court must grant the employer a judgment notwithstanding the verdict. This court's holding in State ex rel. City of Fulton v. Hamilton, 941 S.W.2d 785 (Mo. App. W.D. 1997), which is the decision most relied upon by the City of Independence, also cites Jackson. Because Creighton, Dowd, McGuskin, and Peoples summarily imported rules applied in other situations without addressing the unique issues involved in official versus governmental immunity, such as the public policy issues discussed above, we choose not to follow them as precedent. Similarly, in Hamilton, the court, in the absence of the provision of any authority by the respondent, relied on Jackson and Conway, without analysis of any of the arguments asserted here, in holding that the exoneration of the officer precluded the liability of the city on a theory of respondeat superior. We conclude that Hamilton was wrongly decided, and that the more persuasive reasoning supports a rule that the governmental entity cannot take advantage of the official immunity enjoyed by the public official. As for the public duty doctrine, which is the other source of the rule in the cases cited by the City of Independence, this court has found that the doctrine would not protect a governmental entity from tort liability in situations where Section 537.600 states that sovereign immunity has been completely waived by the State. Warren v. State, 939 S.W.2d 950, 957 (Mo. App. W.D. 1997). This court reasoned that, to engraft a public duty exception to the absolute waiver contained in Section 537.600 would make the waiver largely meaningless. Id. at 538. While Warren involved Section 537.600.1(2), which concerns injuries from property in a dangerous condition, the same rationale applies to Section 537.600.1(1) for the motor vehicle operation waiver which is at issue here. The City of Independence also argues that the summary judgment should be affirmed because it is sustainable under a different theory, namely that Officer Hill's pursuit of the fleeing vehicle was not the proximate cause of the accident, and therefore the City of Independence could not be found liable on the basis of respondeat superior. The trial court's summary judgment did not rely upon such an analysis, but the judgment may be affirmed if it is sustainable under any theory. Meyer v. Enoch, 807 S.W.2d 156, 158 (Mo. App. E.D. 1991). The City of Independence contends that, in Oberkramer, 706 S.W.2d at 442, the Missouri Supreme Court articulated a rule that a police officer pursuing a fleeing vehicle cannot be held to have been the proximate cause of an accident between the fleeing suspect and a third party. However, a close reading of Oberkramer does not disclose such a per se rule.

Oberkramer involved a wrongful death action brought against police officers involved in a high speed pursuit of a fleeing suspect who struck the decedent. The petition's sole allegation against the police officers was that they were negligent for speeding, which, because of Section 304.022, RSMo 1994, did not state a claim for relief. The trial court dismissed the petition for failure to state a cause of action, and the Supreme Court affirmed that decision. In so doing, the Court noted that claims of negligence must be predicated on the acts of the pursuing officers, not on the conduct of the fleeing suspect, and that the plaintiffs in that case pleaded no acts of negligence on the part of the officers. 706 S.W.2d at 442. In essence, then, Oberkramer holds that a plaintiff does not state a cause of action against an officer and his employer without specific allegations of negligent conduct on the part of the officer. The only specific acts of negligent conduct alleged in the petition were those of the fleeing suspect, so the Supreme Court remarked that "[t]he proximate cause of the accident was not the manner in which [the officer] drove his police vehicle but rather the manner in which the pursued traffic violator drove his vehicle." Id. Subsequently, the Eastern District construed this decision to include a per se rule that a police officer is not liable for damages resulting from a collision between the pursued vehicle and the accident victim because the proximate cause of the accident is the manner in which the pursued suspect drove his motor vehicle, not the operation of the police vehicle by the officer. Baidy v. Marah, 760 S.W.2d 195, 196 (Mo. App. E.D. 1988). Such an interpretation is not warranted by the actual holding in that case, which stems from the plaintiffs' failure to allege specific acts of negligence by the pursuing officer. In the case at bar, the petition does allege half a dozen specific acts and omissions which are claimed to constitute negligence on the part of Officer Hill in pursuing the vehicle. Compare Sansonetti v. City of St. Joseph, No. 55113 (Mo. App. W.D. August 18, 1998), slip op. at 7 (plaintiffs failed to plead any acts of negligence by the pursuing officer, therefore, the proximate cause of the accident was the manner in which the fleeing suspect drove his vehicle). The trial court's summary judgment in favor of the City of Independence is reversed, and the cause is remanded to the trial court for further proceedings consistent with this opinion. All concur. Separate Opinion: None This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.