ESTATE OF Donald E. CAVANAUGH, by James H. Cavanaugh, Special Administrator and James H. Cavanaugh, Plaintiffs-Respondents-Petitioners v. Robert ANDRADE and City of Milwaukee, Defendants-Appellants-Cross Petitioners, Gary Allen ZERGOSKI, Defendant
No. 94-0192
Supreme Court of Wisconsin
June 27, 1996
Motion for reconsideration denied September 12, 1996
550 N.W.2d 103 | 202 Wis. 2d 290
ANN WALSH BRADLEY, J.
Oral argument January 30, 1996. †Motion for reconsideration denied September 12, 1996.
ANN WALSH BRADLEY, J. The plaintiffs, Estate of Donald Cavanaugh and James Cavanaugh, seek review, and the defendants, City of Milwaukee and police officer Robert Andrade, seek cross-review of a decision of the court of appeals that reversed a judgment against the City and affirmed a judgment against Andrade, which was entered by the Circuit Court for Milwaukee County, Laurence C. Gram, Jr., Judge.1 The City and Andrade assert immunity from liability for the injuries and death of Donald Cavanaugh which resulted from a collision with a vehicle being pursued by Andrade during a high-speed chase. Because the City has a ministerial duty to have a written policy for high-speed chases which includes consideration of the severity of the offense, we conclude that the City is not immune from liability. We also conclude that there is credible evidence to support the jury‘s verdict finding that the City breached its duty. Further, because Andrade‘s decisions to initiate and continue the chase were discretionary, we conclude that he is immune from liability. Accordingly, we reverse the decision of the court of appeals.
The issues in this case arise out of a high-speed pursuit involving Andrade and a vehicle driven by Gary Zergoski. Late in the evening on January 13, 1989, Andrade was approaching the intersection of South 35th Street and West Forest Home Avenue when he observed Zergoski pass several stopped vehicles and speed through a solid red traffic signal controlling the intersection. Andrade turned at the intersection and increased his speed to follow Zergoski.
Andrade activated his emergency lights and siren approximately two blocks later, which caused Zergoski to begin to pull over. However, Zergoski again fled at a high rate of speed and turned onto 39th Street. Approximately six to seven blocks later, Andrade observed Zergoski‘s vehicle stalled in an intersection. Andrade was able to approach close enough to observe Zergoski‘s license plate number, which he relayed to the dispatcher. Zergoski restarted his vehicle and again fled at a high rate of speed along West Morgan Avenue, which is a main arterial street within a primarily residential neighborhood.
At the intersection of 60th Street and Morgan, Zergoski went through another red light and collided with a vehicle driven by Donald Cavanaugh. According to witnesses, Zergoski was travelling between 60 and 80 miles per hour approximately two blocks prior to this intersection. Andrade estimated that he was approximately one block away from this collision when it occurred. A witness testified that Andrade was within approximately one-half block of Zergoski‘s vehicle when it entered the intersection. In all, the pursuit spanned approximately 17 blocks. As a result of the collision, Cavanaugh died after spending five months in a coma.
During the trial, Cavanaugh and the City stipulated orally on the record that the damages consisted of $50,000 for James’ loss of society and companionship claim and $50,000 for damages for Donald‘s pain and suffering, apparently under the belief that the maximum allowable recovery on each claim was $50,000. See
The City and Andrade moved for judgment notwithstanding the verdict on the grounds that they were immune from liability. The City also contested Cavanaugh‘s post-verdict claim for damages in the amount of $250,000, arguing that the oral stipulation entered into at trial was binding.
The circuit court denied the City‘s and Andrade‘s motion as to immunity. The court also determined that the oral stipulation of damages was not binding because there had been no meeting of the minds. The parties subsequently agreed to a second stipulation, and judgment was entered in the amount of $250,000, plus costs. Pursuant to the second stipulation, the City
A majority of the court of appeals reversed the judgment against the City, holding that the City was immune from liability. Estate of Cavanaugh v. Andrade, 191 Wis. 2d 244, 257, 528 N.W.2d 492 (Ct. App. 1995). However, the court affirmed the judgment of liability with respect to Andrade, holding that an officer is not afforded immunity where he or she is negligent in the operation of a motor vehicle. Id. at 261. It also concluded that the initial oral stipulation limiting damages to $100,000 was binding on the parties. Id. at 262.
Cavanaugh seeks review of the court of appeals’ holding that the City is immune from liability. He also contends that the court erred in holding that the oral stipulation of damages is binding on the parties. The City and Andrade seek cross-review of that portion of the decision of the court of appeals affirming the judgment against Andrade.
II. IMMUNITY GENERALLY
The central question presented by this case is whether a municipality and its police officers may be liable for injuries arising out of a high-speed pursuit, where the pursued vehicle collides with a third person. The City and Andrade maintain that the general municipal tort immunity set forth in
Despite the immunity for discretionary acts of municipalities and its employees set forth in
III. CITY OF MILWAUKEE
A. Immunity
Cavanaugh alleged that the City was negligent because it implemented a high-speed pursuit policy that did not comply with
Section 346.03(6) imposes a duty on law enforcement agencies that use emergency vehicles to establish written guidelines for high-speed pursuits:
Every law enforcement agency which uses authorized emergency vehicles shall provide written guidelines for its officers and employees regarding exceeding speed limits ... and when otherwise in pursuit of actual or suspected violators. The guidelines shall consider, among other factors, road conditions, density of population, severity of crime and necessity of pursuit by vehicle.
The court of appeals concluded that this statute creates a ministerial duty because law enforcement agencies are required to provide written guidelines which must consider certain factors. Cavanaugh, 191 Wis. 2d at 253-54.
We agree with the court of appeals that while the promulgation of guidelines in general involves a great amount of governmental discretion,
B. Negligence
Having concluded that
When the circuit court does not make an analysis of the evidence sustaining the verdict, as here, an appellate court must review the record as a matter of first impression to see if there is any credible evidence to support the verdict. Kolpin v. Pioneer Power & Light, 162 Wis. 2d 1, 25, 469 N.W.2d 595 (1991). In order to establish the City‘s liability for damages, Cavanaugh must show: (1) that the City breached its ministerial duty; and (2) a causal connection between the City‘s conduct and his son‘s injury and subsequent death. See Rockweit v. Senecal, 197 Wis. 2d 409, 418, 541 N.W.2d 742 (1995).
The evidence shows that the City‘s policy states in relevant part:
2. Department Vehicle Operators
a.) A Department vehicle operator shall only engage in a motor vehicle pursuit when:
(1) He/she has activated the emergency roof lights and siren if in a marked vehicle or has activated the emergency light and siren....
(2) He notifies the Communications Division dispatcher of the pertinent facts concerning the pursuit and requests assistance ....
(3) The speeds involved and/or the maneuvering practices engaged in permit the Department vehicle operator complete control of his vehicle and do not create unwarranted danger to the public or Department members.
(4) The volume of pedestrian and/or vehicular traffic permits continuing the pursuit.
(5) Weather and road conditions are not such that the pursuit becomes inordinately hazardous.
b.) Police officers engaged in the motor vehicle pursuit of a driver who is an IMMEDIATE threat to the safety of the public may take reasonable and prudent measures to apprehend the driver without endangering the welfare of others. However, the deliberate striking of a pursued vehicle or the use of a Department or other vehicle(s) as a stationary barricade is only permitted to be used as a last resort when:
(1) The occupant(s) of the vehicle being pursued is wanted for a serious felony, or
(2) The manner in which the pursued vehicle is being operated creates a substantial risk of serious injury or death.
c.) The Department vehicle operator or supervisor shall terminate a motor vehicle pursuit when in his/her judgment further pursuit is not warranted. Some examples of items to be considered are the volume of pedestrian and/or vehicular traffic, road and weather hazards or the distance between vehicles indicates that further pursuit will create more danger to the public and/or Department members than does the conduct of the pursued driver.
City of Milwaukee, Order # 9491, January 30, 1987.
The City asserts that it did not breach its ministerial duty because its policy complies with
A majority of the court of appeals agreed with the City, concluding that “[t]he City, in its discretion, chose only to consider severity of the crime with respect to the use of road blocks” and that the City therefore satisfied the requirement under
We agree with Cavanaugh that the evidence shows that the City‘s policy fails to consider the severity of the crime with respect to pursuing at excessive speeds as
Therefore, we disagree with the City and the opinion of the majority of the court of appeals that the reference to the severity of crime elsewhere in the City‘s policy is adequate to comply with the mandate of
As the court of appeals’ dissent properly recognized, striking and barricading occur in only a limited number of police pursuits. Cavanaugh, 191 Wis. 2d at 268. The City‘s policy of considering the severity of the crime only with respect to these limited aspects of police pursuits directly contravenes the language of
Although we conclude that the record is sufficient to sustain the jury‘s finding of negligence, our review does not end there. The court of appeals erroneously concluded that if the City breached its ministerial duty by failing to comply with
The test for determining causation is whether the conduct at issue was a substantial factor in producing the injury. Morgan v. Pennsylvania General Ins. Co., 87 Wis. 2d 723, 735, 275 N.W.2d 660 (1979). This question is generally one of fact for the jury, and we must sustain the jury‘s finding “if there is any credible evidence under any reasonable view or any reasonable inferences derived therefrom that support [it].” Fondell v. Lucky Stores, Inc., 85 Wis. 2d 220, 230, 270 N.W.2d 205 (1978), quoting Lueck v. City of Janesville, 57 Wis. 2d 254, 262, 204 N.W.2d 6 (1973).
Cavanaugh‘s theory regarding causation was that had the City‘s policy properly stated that the severity of the crime should be considered in determining whether to initiate and continue a pursuit, the pursuit here would have been terminated prior to the accident because the chase arose out of minor traffic violations. However, the fact that the City‘s policy was defective cannot be considered causal if either Andrade or his supervising officer, who was monitoring the chase, considered the severity of the crime despite the defective policy. Therefore, in order to determine whether the City‘s defective policy was a substantial factor in producing the injury, we first review the record to
On adverse examination, Andrade testified that upon initiating the pursuit, the only known crimes that Zergoski had committed were speeding and going through a red light. He also stated that based on these initial traffic violations he suspected that Zergoski was intoxicated. However, other than additional speeding and going through more traffic signals, he did not note any subsequent conduct to substantiate his belief that Zergoski was intoxicated.6 Andrade further testified that he never considered terminating the pursuit during the entire period because he did not believe, based on the lack of traffic, that Zergoski‘s actions were endangering others on the road.7
Andrade‘s supervising officer, Buechner, was specifically asked which factors he considered in terms of his decision to allow the chase to continue. He testified that he considered pedestrian and vehicle traffic, the residential neighborhood, the road conditions, and the fact Andrade was an experienced officer. When counsel pointed out to Buechner on cross-examination that he
In assessing the jury‘s finding of causation, we consider the evidence in the light most favorable to the verdict. Nieuwendorp v. American Family Ins. Co., 191 Wis. 2d 462, 472, 529 N.W.2d 594 (1995). Further, the credibility of witnesses and the weight given to their testimony are matters left to the jury‘s judgment. Bennett v. Larsen Co., 118 Wis. 2d 681, 705, 348 N.W.2d 540 (1984).
Viewing the evidence in a light most favorable to the verdict, we conclude that a reasonable view of the evidence is that neither Andrade nor Buechner considered the severity of the crime—minor traffic violations—in determining to continue the pursuit. The record indicates that Andrade never explicitly stated that he considered the severity of the crime in deciding to initiate or continue the pursuit. It is true that he testified that his decision to continue the pursuit was based on a suspicion that Zergoski was intoxicated and a threat to the public. However, he also testified that the only crimes he knew for a fact that Zergoski had committed were the initial traffic violations, and that he never considered terminating the pursuit because Zergoski‘s actions were not endangering others on the road.
Buechner also never explicitly stated that he considered the severity of the offense in this case. On cross-examination he implied that he did in fact consider the severity of the crime by stating that he simply forgot to mention it. However, the jury in its credibility determination could have relied on his initial answer in
which he did not state that he considered the severity of the crime.Having concluded that there is credible evidence in the record for the jury to conclude that neither Andrade nor his supervisor considered the severity of the crime, we next turn to the essential question of whether there is credible evidence to support the jury‘s finding that the City‘s defective policy was a substantial factor in the accident.8 First, Zergoski testified at trial that he intended to flee and disobey traffic signals as long as Andrade continued to chase him. However, he also testified that he only wanted to get away from Andrade so that he could get out of the car and escape on foot. Zergoski testified that if Andrade had stopped chasing him, he would have no longer been speeding or running red lights.9
As long as the police officer continues pursuing, the violator will continue to flee from the officer. The theory of course is this, the whole reason for termination is that when you terminate a pursuit, eventually and invariably the individual will slow the speed down. The sooner you do it, the sooner you remove the impetus for the individual to continue to flee; and that‘s the whole basis for terminating pur-
Q. [City Attorney] You were going to go through as many red lights and as many stop lights as there were between 35th and Forest Home and your house in Waukesha to get home that night, weren‘t you, to keep away from the police officers?
A. No, I just wanted to get away.
....
Q. [Cavanaugh‘s counsel] And if that officer had stopped chasing you, it was your plan, was it not, to park your car, get out of it and run, wasn‘t it?
A. Yes.
Q. So if the officer had stopped chasing you, you would have no longer been running red lights, would you have?
A. No.
Q. You would have no longer been speeding, would you have?
A. No.
Q. Because you would have been out of your car; correct?
A. Yeah.
When asked to consider the significance of Zergoski‘s testimony that he intended to leave the car upon eluding Andrade, Territo explained that:
[I]f in fact the violator intends to terminate, to bail out of the car three blocks away, what it means is that if the pursuit is terminated where I say, that the vehicle never reaches the point where the accident occurred. He abandons his car, gets out and runs and the accident doesn‘t occur.
Territo also testified as to the role of the supervising officer. According to Territo, a policy instructing a supervising officer to consider the severity of the offense would have resulted in the chase being stopped in this case. Territo explained the role of the supervising officer in a chase as follows:
[O]nce the supervisor knows what the violation is, the supervisor can assess how much latitude the patrol officer should be given. What happens, the patrol officer gets caught in the pursuit . . . . The sergeant who is not involved hopefully is dispassionate at that point and perhaps is in a better position to make a decision . . . . It‘s the hopes that cooler heads will prevail and neutralize the natural inclination of the officer to continue because the person is running from him.
The dissent to this section discounts Territo‘s testimony because “[a]n expert‘s opinion that some hypothetical officer would have chosen not to continue the chase, and therefore the accident would never have happened, does not provide the necessary link between
The dissent also criticizes Territo‘s testimony on the ground that it is mere speculation to conclude that the chase would have stopped prior to the accident had Andrade and his supervisor been properly informed by the City‘s policy. Since we have initially determined that the City is not immune from liability, we conclude that issues of causal negligence are properly for the jury‘s consideration. The United States Supreme Court in Canton v. Harris, 489 U.S. 378, 391 (1989), reached a similar conclusion when discussing the necessary showing of causation for a
Predicting how a hypothetically well-trained officer would have acted under the circumstances may not be an easy task for the factfinder, particularly since matters of judgment may be involved, and since officers who are well trained are not free from error and might perhaps react very much like the untrained officer in similar circumstances. But judge and jury, doing their respective jobs, will be adequate to the task.
The dissent addresses what it determines to be disturbing public policy implications of this opinion. The dissent states that a non-defective policy “would
Further, this case is not about the propriety of high-speed chases and officers being stripped of their discretion.10 The court should neither advance perceived public policy considerations nor decide the case based on these perceived considerations. The legislature has spoken by setting out the public policy considerations in
IV. ANDRADE
A. Immunity
We next consider the application of the defense of immunity to Andrade‘s alleged negligence. Cavanaugh argued at trial that Andrade was negligent in failing to terminate the pursuit and negligent with respect to the operation of his vehicle. Andrade asserts that the decisions to initiate and continue a high-speed pursuit are discretionary in nature and therefore entitled to immunity under
As we noted at the outset, a municipal officer is immune under
However, nothing in
Our holding that
This distinction between an officer‘s discretionary decision to initiate and continue a pursuit and the physical operation of the vehicle has been recognized by other jurisdictions interpreting language similar to
[W]e find that the duty of due care created by the emergency vehicle statutes applies only to the operation of the emergency vehicle itself. The statutes exempt emergency drivers from certain operational “rules of the road,” such as obedience to speed limits, parking restrictions and stop signals. The statutes recognize the public necessity for a fire, ambulance or police vehicle in an emergency situation to be driven unhindered by the traffic rules governing ordinary vehicles. . . . Plaintiff‘s real objection is to [the officer‘s] decision to initiate and continue police pursuit. This is not the consideration addressed by [the emergency vehicle statutes].
In Thornton, similar to this case, a police officer pursued a speeding vehicle which ran stop signs and was driven recklessly until it collided with a third party. The Kansas Supreme Court, interpreting the same language contained in
To extend the “due care” requirement to the decision to chase or to continue the chase and hence make the officer the insurer of the law violator would emasculate the privileges and immunities afforded by [
§ 346.03 ] and thwart the public policy purpose of the statute. . . . We conclude the “due care” requirement of [§ 346.03(5) ] applies only to the police officer‘s physical operation of his own vehicle and not to the decision to chase or continue to chase a law violator.
B. Causal Negligence
Although Cavanaugh proceeded on the theories that Andrade was negligent for continuing the chase and negligent in the operation of the vehicle, the case was properly submitted to the jury solely on the question of negligent operation. The jury answered “yes” to the following special verdict question: “At and immediately prior to the accident of January 13, 1989, was the defendant, Robert Andrade, negligent with respect to the operation of the motor vehicle.” The jury also found that such negligence was a cause of the accident.
Cavanaugh argues that the jury could have properly found Andrade negligent because: (1) Andrade was driving too fast for conditions; (2) Andrade‘s speed may have caused Zergoski to drive faster; and (3) Andrade was following too closely. Additionally, Cavanaugh‘s complaint alleged that Andrade was negligent with respect to “lookout” and “management and control” of his vehicle. The court of appeals noted that there was testimony in the record that Andrade‘s speed may have been too fast for conditions and that the roads were
Although it is necessary to discuss Andrade‘s alleged negligence in the operation of his vehicle in order to set the framework for determining whether such negligence was causal, we need not decide the issue of negligence based on the facts of this case. Because we conclude that the issue of causation is dispositive, we decline to further consider whether the evidence supports the jury‘s finding of negligence. See Oakley v. Fireman‘s Fund of Wisconsin, 162 Wis. 2d 821, 832 n.9, 470 N.W.2d 882 (1991) (Wisconsin appellate courts need not decide an issue if the resolution of another issue is dispositive).
Turning to the question of causation, we first address the evidence of negligence identified by both the court of appeals and Cavanaugh that Andrade engaged in excessive speeds or speeds too fast for conditions. As discussed above, reliance on this evidence is misplaced because it relates directly to Andrade‘s discretionary decision to continue the high-speed pursuit.
We next look to Cavanaugh‘s remaining arguments in support of the jury‘s verdict which properly relate to Andrade‘s alleged negligence in the physical operation of his vehicle. He asserts that Andrade failed to maintain management and control, was following too closely, and failed to maintain proper lookout. However, the fact that Andrade‘s vehicle was between one-half and one block behind Zergoski at the time of the accident and did not make any physical contact with either vehicle undercuts those arguments because they lack the causal connection necessary between the alleged negligence and Cavanaugh‘s injuries.
Cavanaugh also alleged that Andrade was following too closely. However, the nearest that any witness placed Andrade‘s vehicle behind Zergoski‘s vehicle at the time of the collision was one-half block. Operators of vehicles should space themselves at a distance that will ensure proper braking and reaction time in the event that the preceding vehicle slows or stops. See Wis JI—Civil 1112 “Operation of Automobile Following Another.” This court has previously recognized that “the purpose of holding a trailing driver to a proper distance is to keep him in position to stop or so control his car as to prevent him from doing injury because of the action of the car ahead, whatever be the cause of that action . . . .” Northland Ins. Co. v. Avis Rent-A-Car, 62 Wis. 2d 643, 648, 215 N.W.2d 439 (1974)(quoted source omitted). Since Andrade did not collide with the preceding vehicles, any evidence regarding proper distances for braking or reaction time to prevent injury is irrelevant to the question of causation.
Cavanaugh‘s claim that the jury could have determined that Andrade was negligent as to lookout is also unpersuasive. A driver has the duty to exercise ordinary care to keep a careful lookout ahead and about him or her for other vehicles that may be within or approaching the driver‘s course of travel. Wis JI—Civil 1055. Again, even assuming arguendo that Andrade
Based on the above, we conclude that there is no credible evidence in the record for a reasonable jury to find that any alleged negligence of Andrade with respect to the physical operation of his motor vehicle was a substantial factor in causing the accident. Accordingly, we reverse the court of appeals’ decision affirming the jury‘s verdict finding Andrade 2% causally negligent and direct the circuit court to grant Andrade‘s motion for judgment notwithstanding the jury‘s verdict.
V. STIPULATION/LIABILITY LIMIT
The parties also dispute the maximum amount of liability applicable in this case. The City argues that its liability is limited to $50,000 for each claim, pursuant to
Because we conclude that Andrade was not negligent in the operation of a motor vehicle, the $250,000 liability limit under
By the Court.—The decision of the court of appeals is reversed and the cause is remanded with directions to the circuit court to enter judgment consistent with this opinion.
SHIRLEY S. ABRAHAMSON, J. (concurring in part and dissenting in part). I join that portion of the majority opinion holding that the City is not immune from liability in this case and affirming the jury‘s verdict against the City. I disagree with that part of the majority opinion relating to the liability of the officer. I conclude that the court should affirm the court of appeals’ decision affirming the jury‘s finding that the officer was negligent with respect to the operation of his motor vehicle during the chase.
As the majority observes, the general discretionary act immunity defense inscribed in
But having acknowledged that
First, the majority attempts to segregate an officer‘s decision to initiate or continue a pursuit from the question of whether that officer drives “with due regard under the circumstances for the safety of all persons.” The majority concludes that an officer‘s decision to initiate or continue a pursuit—even when that pursuit is undertaken at high speeds through major intersections in a densely populated area—is automatically entitled to discretionary act immunity.
In short, while
In contrast to the majority opinion, a number of state supreme courts interpreting provisions substantially similar to
Second, the majority converts the clear language of
Surely, as Maryland‘s highest court observed in interpreting a provision similar to
Under the majority‘s interpretation of
Hence while the majority professes agreement with the court of appeals’ conclusion that an officer remains liable on negligence grounds under
In concluding that police officers can be shielded from their negligent acts under the doctrine of official act immunity, the majority ignores the limiting language within the immunity statute itself, which states that “[w]hen rights or remedies are provided by any other statute against . . . any officer . . . such statute shall apply.”
In holding otherwise today, the majority not only shields officers from liability for their negligent conduct, but also shields municipalities from liability so long as those municipalities dutifully issue the guidelines required under
Finally, the majority does not give sufficient deference to the jury verdict. In this case, the jury found the pursuing officer responsible for 2% of the victim‘s inju-
I conclude that credible evidence supports the jury‘s determination that the pursuing officer‘s decision to continue the pursuit was negligent.7 For
example, the driver of the pursued vehicle stated that he would have stopped speeding and running red lights if the officer had stopped chasing him. In the report which police officer Dennis Pajot filled out on the accident giving rise to this case, the roads were described as “slippery” and “frosted with ice.” Officer Pajot considered travel at 50-55 miles per hour too fast for conditions; evidence in the record suggests that at times both the pursuing and pursued vehicles were travelling at speeds above 70 miles per hour. The pursuing officer in this case testified that all he knew for certain was that the driver of the pursued vehicle had violated traffic laws. He also testified that he never considered terminating the pursuit. Furthermore, the plaintiff‘s expert Leonard Territo, who has written numerous books and articles on the subject of high-speed chases, testified that when the only infraction known to have been committed by the driver of a pursued vehicle is a traffic violation and when, as was the case here, the pursued vehicle is approaching a number of major intersections, an officer should consider terminating the pursuit.Based on this record, a reasonable jury could have concluded that the officer‘s violation of the duty to drive with due regard under the circumstances for the safety of all persons was unreasonable and contributed to the subsequent accident. Because there is credible evidence supporting the jury‘s finding of causal negligence against the pursuing officer, I would uphold the jury‘s verdict.
Travis v. Mesquite, 830 S.W.2d 94, 98 (Tex. 1992) (emphasis added) (when car pursued by law enforcement officers collides with third vehicle, officers can be causally negligent). See also Fiser v. City of Ann Arbor, 339 N.W.2d 413 (Mich. 1983) (when pursued vehicle in a high-speed chase strikes a third vehicle, law enforcement officers’ decision to initiate or continue a pursuit can be grounds for a finding of causal negligence).
In overturning that verdict today, the majority may be creating a blanket rule immunizing both law enforcement officers and municipalities from liability whenever a high-speed chase precipitates a collision. While the legislature recognizes that police pursuit is often important and necessary, the legislature has not concluded that all chases are reasonable, regardless of the circumstances. Wisconsin‘s emergency vehicle statute displaces the presumption of negligence that ordinarily arises from a violation of traffic rules. As
The court should interpret and apply this statute as it is written and allow the trier of fact to assess whether an officer engaged in high-speed pursuit has driven “with due regard under the circumstances for the safety of all persons.”
For the reasons set forth, I write separately.
JANINE P. GESKE, J. (concurring in part and dissenting in part). I concur with that part of the opinion in which the majority concludes that Officer Andrade is entitled to immunity for his discretionary decisions made in relation to his pursuit of Zergoski. However, I write this dissent because I do not agree that the City can be held liable under the facts of this case.
Initially, it should be noted that the majority‘s conclusions on causation are built upon the foundation of its interpretation of the ministerial duty imposed by
In particular, it is the section of the opinion on causation that prompts me to write this dissent. The majority concludes that there was credible evidence to support the jury‘s finding that the City was “causally negligent with respect to its defective pursuit policy.” Majority op. at 315. It bases this conclusion on the testimony of Officer Andrade, his supervisor—Buechner, Zergoski, and in large part the plaintiff‘s expert witness Leonard Territo, who testified that he believed the failure of the City‘s policy to instruct its officers to consider the nature of the offense
The majority correctly states that this court must uphold a jury‘s finding of fact if it is supported by any credible evidence or reasonable inferences therefrom. However, “it is impermissible to base a judgment on ‘conjecture, unproved assumptions, or mere possibilities.‘” Merco Distributing Corp. v. Commercial Police Alarm Co., 84 Wis. 2d 455, 461, 267 N.W.2d 652 (1978) (quoting Schwalbach v. Antigo Electric & Gas, Inc., 27 Wis. 2d 651, 655, 135 N.W.2d 263 (1965)). Further, “‘when the matter remains one of pure speculation or conjecture or the probabilities are at best evenly balanced, it becomes the duty of the court to direct a verdict for the defendant.‘” Merco, 84 Wis. 2d at 460 (quoting Prosser, Law of Torts 241 (4th ed. 1971)).
The majority mischaracterizes the causation analysis as hinging on whether Officer Andrade or his supervisor considered the severity of the crime despite the defective policy. Majority op. at 306. On the contrary, determination of cause is based on whether the breach was a substantial factor in causing the injury. I cannot agree with the majority that the credible evidence needed to establish this link was presented.
In order to establish the causal nexus in this case the plaintiff had to present evidence that the breach (the fact that the City‘s policy did not state that an officer must consider the severity of the crime in deciding whether to exceed the speed limit while pursuing a vehicle) was a substantial factor in causing the injury (Cavanaugh‘s death). In other words, the plaintiff had the burden to prove that: (1) if the written policy required officers to consider the severity of the crime, (2) then, Officer Andrade would have terminated the chase, and (3) Zergoski would have slowed down or
In order to sustain a finding of liability against the City, the court must find sufficient credible evidence in this record to support the conclusion that Officer Andrade would have terminated his pursuit if the written policy had included severity of offense as one of the factors he must consider. Yet, Officer Andrade, well aware of the multiple traffic violations he had observed both before and during the pursuit, testified that he never considered letting the fleeing vehicle simply speed away from him because, in his opinion, public safety (itself, a baseline statutory requirement)3 was
to give warning to the public out there that this guy is coming through. People hear sirens out there. I didn‘t want to call it off at that time because I knew if he shot through any one of those lights right there and I wasn‘t close enough I knew nobody is going to hear him coming; and, if some innocent citizen were driving there through [sic], they would be hit by him and they wouldn‘t know it.4
Similarly, supervisor Buechner testified that Zergoski was driving in a dangerous manner and represented a danger to the public. Therefore, although he considered whether Officer Andrade should terminate the pursuit, he decided based on a number of factors, that the pursuit should not be terminated. Further,
The plaintiff‘s expert, Territo testified that in his opinion officers who had been “properly informed” through a “non-defective policy” would have stopped the chase. Further, his opinion that Andrade‘s failure to terminate the pursuit was a substantial factor in causing the accident was based on his generic theory that removal of the incentive (pursuit) “invariably” leads to cessation of the dangerous driving behavior by one being pursued. Yet, under cross-examination, Territo admitted that his opinion on causation “assumes that Gary Allen Zergoski would have stopped driving recklessly when he noticed that Officer Andrade stopped pursuing him.” This assumption is highly speculative, especially in light of the fact that Zergoski was speeding, driving recklessly, and had already run a red light before Officer Andrade began pursuing him.
In analyzing causation, the issue is not what some hypothetical officer would have done, but rather, whether this specific officer would have stopped pursuing Zergoski if the City had included “severity of the crime” in its policy. Although the expert‘s opinion on what the hypothetical officer would or should do under the facts of this case was clearly relevant to the issue of Andrade‘s alleged negligence, the majority correctly concludes that Officer Andrade is immune from liability. In determining whether the City can be held liable, we must search the record for evidence of a causal link
An expert‘s opinion that some hypothetical officer would have chosen not to continue the chase, and therefore the accident would never have happened, does not provide the necessary link between the City‘s failure to perform its ministerial duty and the damages in this case. Neither can an expert simply opine, as did Territo, that “under the specific fact situation, the City‘s defective policy was a substantial factor in causing Cavanaugh‘s injury” and thereby create credible evidence to support his conclusion. There must be credible evidence in the record to support his opinion that if the City had included “severity of the crime” in the list of factors for an officer to consider when deciding to exceed the speed limit in pursuit of actual or suspected violators, Officer Andrade would have decided to let Zergoski get away and that therefore Cavanaugh‘s damages would not have occurred. There is no such evidence in the record. Cause was never established, and therefore, the City cannot be held liable.
Additionally, I feel that I must address disturbing public policy implications of the majority‘s opinion.5
The majority states that “nothing in [its] opinion or in
Territo testified that he was not critical of Officer Andrade‘s decision to initiate pursuit, that in fact, Officer Andrade “would have been derelict in his duty if he had not attempted to stop [Zergoski].” The plaintiff‘s expert based his criticism of Officer Andrade (and of the City‘s policy) on the officer‘s failure to terminate the pursuit. Territo testified that if the City‘s policy included severity of the crime, Andrade and his supervisor would have been informed that a less severe offense, such as a traffic violation, would result in greatly diminished latitude as opposed to chasing a person wanted for murder. I agree with the majority that
While in pursuit, Officer Andrade knew that the fleeing party had committed several offenses, including speeding, running a red light and stop signs, weaving, “fishtailing” and other indicia of reckless driving, and he suspected drunken driving.7 Additionally, Officer Andrade testified that Zergoski‘s driving was reckless and in his opinion posed a “risk to the public.” If the policy advocated by Territo were adopted, it would seemingly require officers to terminate pursuit of persons whom they know to be driving recklessly, whom they suspect are driving while intoxicated, and whom
A policy that requires officers to cease pursuing those who are driving recklessly and speeding would only seem to encourage people bent on eluding the police to persist in such behavior. Rather than making our streets safer, such a policy has the potential to backfire and actually promote dangerous evasive driving.
There is nothing in
For the reasons stated above, I respectfully dissent from that portion of the opinion concluding that the City is causally liable for Cavanaugh‘s injuries.
I am authorized to state that Justice Donald W. Steinmetz and Justice Jon P. Wilcox join in this concurring/dissenting opinion.
Notes
The operator of an authorized emergency vehicle, when responding to an emergency call or when in the pursuit of an actual or suspected violator of the law . . . may exercise the privileges set forth in this section, but subject to the conditions stated in subs. (2) to (5).
The exemptions granted the operator of an authorized emergency vehicle by this section do not relieve such operator from the duty to drive with due regard under the circumstances for the safety of all persons nor do they protect such operator from the consequences of his or her reckless disregard for the safety of others.
Unless otherwise stated, all further statutory references are to the 1993-94 volume of the Wisconsin Statutes.The compact and intense framework of a high-speed pursuit which often lasts, as in this case, only 3 to 4 minutes cannot be subjected to a mechanistic requirement which seems to contemplate a programmed review of a fixed checklist of factors. Unlike the timed back-up carried out by my computer, humans do not easily perform complex decision-making in a calculated manner, especially in instances where discretion is needed to react to a constantly changing situation.
Contrary to the majority‘s suggestion, this dissent does not ignore the standard of causation and create a more onerous one. Majority op. at 310 n.8. Rather, it simply lays out in case specific terms the series of leaps that are necessary to prove a causal relationship between the alleged breach (the City‘s policy) and the injury. I remain unconvinced that there was credible evidence proving that the “defective policy” was a substantial factor in producing Cavanaugh‘s death. The abstract concept of causation as presented by the majority remains unproved because no concrete connection is made between the very physical realities of the absence of severity of offense in the guidelines and the automobile collision that took Cavanaugh‘s life.
No suit may be brought against any political corporation, governmental subdivision or any agency thereof for the intentional torts of its officers, officials, agents or employes nor may any suit be brought against such corporation, subdivision or agency ... or against its officers, officials, agents or employes for acts done in the exercise of legislative, quasi-legislative, judicial or quasi-judicial functions. See, e.g., Tetro v. Stratford, 458 A.2d 5 (Conn. 1983) (recklessness of operator of pursued car does not ipso facto relieve pursuing officers of liability for their negligent conduct in maintaining a police pursuit); Mixon v. City of Warner Robins, 444 S.E.2d 761 (Ga. 1994) (a law enforcement officer‘s decision to initiate or continue pursuit is negligent if unreasonable under the circumstances; “an officer‘s performance of his professional duty is not to be considered paramount to the duty that he owes to other members of the driving public“); Lowrimore v. Dimmitt, 797 P.2d 1027 (Ore. 1990) (law enforcement officer‘s decision to pursue not entitled to statutory immunity); Haynes v. Hamilton Co., 883 S.W.2d 606 (Tenn. 1994) (when car pursued by law enforcement officers injures innocent third parties, officers’ decision to commence or continue pursuit can provide grounds for negligence); Mason v. Bitton, 534 P.2d 1360 (Wash. 1975) (law enforcement officers have a responsibility to determine whether the purpose of a pursuit is justified by the accompanying risk; when such a determination is unreasonable, officers can be negligent).
The exemptions granted the operator of an authorized emergency vehicle by this section do not relieve such operator from the duty to drive with due regard under the circumstances for the safety of all persons nor do they protect such operator from the consequences of his or her reckless disregard for the safety of others.
(Emphasis added).
The plaintiff makes no claims that Officer Andrade was reckless in any manner.
Applicability of rules of the road to authorized emergency vehicles. (1) The operator of an authorized emergency vehicle, when responding to an emergency call or when in the pursuit of an actual or suspected violator of the law ... may exercise the privileges set forth in this section, but subject to the conditions stated in subs. (2) to (5).
(2) The operator of an authorized emergency vehicle may:
(a) Stop, stand or park, irrespective of the provisions of this chapter;
(c) Exceed the speed limit;
(d) Disregard regulations regarding direction of movement or turning in specified directions.
...
(5) The exemptions granted the operator of an authorized emergency vehicle by this section do not relieve such operator from the duty to drive with due regard under the circumstances for the safety of all persons nor do they protect such operator from the consequences of his or her reckless disregard for the safety of others.
The majority recounts Officer Andrade‘s negative response to the plaintiff‘s question of whether he believed that the pursuit endangered others “on the road.” The quoted language also demonstrates that the officer‘s belief was based on the fact that there was no traffic “on the road we were on” at that time. Majority op. at 307-08 n.7.
I disagree with the majority‘s characterization of this testimony as “contrary” to Officer Andrade‘s statements that he felt Zergoski‘s reckless driving posed a risk to the public and that public safety was best served by staying behind the fleeing vehicle with emergency lights and sirens operating. I find nothing incompatible in the officer‘s belief both that the absence of traffic on that road he and Zergoski were on meant that no one on that road was endangered, and that vehicles (such as Cavanaugh‘s) on side streets were being put at risk by Zergoski‘s conduct. Officer Andrade‘s concern for cross traffic is evident in his testimony (quoted in the text above) and formed a reasonable basis for his decision not to terminate the pursuit.
This court‘s perceptions of public policy considerations are highly relevant to our decisional process and, in fact, are often determinative. For example, this court commented in a recent decision that even though the jury had found the defendant causally negligent, “liability does not necessarily follow. Public policy considerations may preclude liability. Whether public policy considerations should preclude liability in this instance is a question of law which we review de novo.” Gould v. American Family Mutual Ins. Co., 198 Wis. 2d 450, 460-61, 543 N.W.2d 282 (1996) (citations omitted). See also Rockweit v. Senecal, 197 Wis. 2d 409, 413, 541 N.W.2d 742 (1995); Bowen v. Lumbermens Mutual Cas. Co., 183 Wis. 2d 627, 655-56, 517 N.W.2d 432 (1994); Nelson v. Davidson, 155 Wis. 2d 674, 679, 456 N.W.2d 343 (1990).
Such a policy completely ignores the fact that in many pursuits, the officer has no way of knowing what offenses a fleeing suspect may have committed. This case provides an apt example, as Officer Andrade testified that on first seeing Zergoski speed through the red light he wondered why “this guy was fleeing so fast.... I thought maybe, possibly, somebody maybe could have been chasing him, maybe he could have hit and ran.”
Q. Did you believe that during the pursuit that Zergoski‘s actions were endangering the welfare of others on the road?
....
A. There was no traffic at that time ... on the road we were on—couldn‘t have hurt anybody.
Q. So your answer then is no, that during the pursuit his actions did not endanger others on the road?
A. Right.
Q. At any time during the pursuit?
A. No.
....
Q. And you don‘t believe, do you, that your continuing to chase him at any point prior to the accident created unwarranted danger to the public, do you?
A. No. A causal connection can exist between an officer‘s alleged negligence and a victim‘s injuries even if the officer‘s own vehicle—as distinguished from the vehicle which the officer is pursuing—does not make “physical contact” with the victim.
Wisconsin has adopted the position set forth in the Restatement (Second) of Torts, § 447 (1965), that even when the intervening act of a third person is negligent, it is not a superseding cause of harm to another when an actor‘s own negligent conduct is a substantial factor in causing harm so long as the actor “at the time of his negligent conduct should have realized that a third person might so act.” Restatement (Second) of Torts § 447(a) (1965); Stewart v. Wulf, 85 Wis. 2d 461, 476-77, 271 N.W.2d 79 (1978).
The decisions cited in the margin at note 3, for example, pertain to accidents which involved the pursued vehicle and an innocent third party but not the vehicle of the pursuing officer. The Texas Supreme State succinctly states the reason why such a fact pattern should not, ipso facto, lead to the conclusion that a pursuing officer is not negligent:
Foreseeability means that the actor, as a person of ordinary intelligence, should have anticipated the dangers that his negligent act created for others. Foreseeability does not require that a person anticipate the precise manner in which injury will occur once he has created a dangerous situation through his negligence. Although the criminal conduct of a third party may be a superseding cause which relieves the negligent actor from liability, the actor‘s negligence is not superseded and will not be excused when the criminal conduct is a foreseeable result of such negligence.
In fact, after Zergoski was captured he was charged with causing great bodily harm by intoxicated use of a vehicle, possession of cocaine, operating after revocation of driving privileges, and fleeing an officer.