382 P.3d 330
Haw. Ct. App.2016Background
- At ~12:25 a.m., officer Jeff Sarae (on-duty, in marked patrol car) pursued another driver (Anderson) who made an improper lane change and left turn; while turning in pursuit, Sarae’s car collided with Cirilo Pogoso’s stopped vehicle at the Paki/Kapahulu intersection.
- Pogoso sued Sarae and the City for negligence alleging reckless/careless operation; Defendants moved for summary judgment asserting conditional privilege (qualified immunity) shielded Sarae unless malice/improper purpose was shown.
- The Circuit Court granted summary judgment for Defendants, crediting Sarae’s declaration denying malice; Pogoso appealed, arguing statutory duties in HRS § 291C-26 supersede common-law conditional privilege and raise triable issues of negligence.
- HRS § 291C-26 permits authorized emergency vehicle drivers to disregard certain traffic laws while pursuing violators but provides they remain under a duty to "drive with due regard for the safety of all persons" and are not protected for "reckless disregard" of safety.
- The appellate court held HRS § 291C-26 supersedes the common-law conditional privilege, construed § 291C-26(d) to impose a specialized negligence standard ("due regard") tailored to emergency drivers, and found genuine factual disputes preclude summary judgment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether conditional privilege (common law) shields officer from liability | Pogoso: statutory duty under HRS § 291C-26 governs and supersedes conditional privilege | Defs: Towse conditional privilege applies; officer immune absent clear-and-convincing proof of malice/improper purpose | HRS § 291C-26 supersedes conditional privilege; court erred applying common-law immunity |
| Standard of care applicable to authorized emergency vehicle drivers | Pogoso: statutory provisions (HRS §§ 291C-26, 291C-65; ROH 15-4.4) create negligence duty allowing recovery on ordinary negligence proof | Defs: (implicitly) higher protection via conditional privilege or recklessness standard limits liability | Court: § 291C-26(d) imposes a specialized negligence standard ("due regard") accounting for statutory privileges, yielding a negligence— not mere recklessness—rule |
| Whether summary judgment was appropriate given conflicting evidence | Pogoso: factual disputes (use of lights/siren, who had right-of-way, who turned unexpectedly) preclude summary judgment | Defs: Sarae’s declaration showed no malice; conditional privilege bars recovery | Court: Genuine disputes of material fact exist under statutory negligence standard; summary judgment inappropriate |
| Effect on municipal vicarious liability | Pogoso: if officer negligent under statute, City can be vicariously liable | Defs: if officer immune, City not liable | Court: Because immunity did not apply and factual questions remain about statutory duty breach, municipal liability remains for further proceedings |
Key Cases Cited
- Towse v. State, 64 Haw. 624, 647 P.2d 696 (Haw. 1982) (establishes conditional privilege for nonjudicial government officials unless motivated by malice)
- Awakuni v. Awana, [citation="115 Hawai'i 126, 165 P.3d 1027"] (Haw. 2007) (discussion of malice definition and limits of defamation-context malice test)
- City of Baltimore v. Fire Ins. Salvage Corps, 219 Md. 75, 148 A.2d 444 (Md. 1959) (interpreting "due regard" language as negligence standard)
- Saarinen v. Kerr, 84 N.Y.2d 494, 644 N.E.2d 988 (N.Y. 1994) (construing similar statute to impose recklessness standard)
- Mason v. Bitton, 85 Wash.2d 321, 534 P.2d 1360 (Wash. 1975) (interpreting emergency-vehicle statute to impose negligence standard)
- Day v. State ex rel. Utah Dep’t of Public Safety, 980 P.2d 1171 (Utah 1999) (adopting negligence standard for emergency-vehicle statutory duty)
- Brummett v. County of Sacramento, 21 Cal.3d 880, 582 P.2d 952 (Cal. 1978) (treating statutory exemptions and duty of due regard under negligence principles)