Norton v. Hall

2003 ME 118, 834 A.2d 928, 2003 Me. LEXIS 132

• Court: Supreme Judicial Court of Maine
• Decided: September 30, 2003
• Status: Published

Opinions

Majority: SAUFLEY, C.J., and CLIFFORD, RUDMAN, and LEVY, JJ.

Concurrence: SAUFLEY, C.J.

Dissent: DANA, ALEXANDER, and CALKINS, JJ.

CLIFFORD, J.

[¶ 1] Michelle Norton and John Norton appeal from the summary judgment entered in the Superior Court (Cumberland County, Humphrey, J.) in favor of defendants Deborah Hall, the Cumberland County Sheriff’s Department, and Cumberland County. The court concluded that the Nortons’ suit is barred by the discretionary function immunity provisions of the Maine Tort Claims Act, 14 M.R.S.A. §§ 8101-8118 (2003) and that their constitutional claims are precluded because of qualified immunity. The Nortons contend that their claims arise out of the negligent operation of a motor vehicle, and are not subject to the immunity provisions of the Maine Tort Claims Act or doctrines of qualified immunity. We affirm the judgment.

I.

[¶ 2] At approximately 9:43 on the evening of July 8, 1998, Hall, a frill-time deputy with the Cumberland County Sheriffs Department, was operating a Sheriffs Department cruiser in the Casco/Raymond area. She received a radio dispatch to respond to a residence in Casco where a six-year-old child was reported to be out-of-control. Hall had made previous responses to this residence that involved physical abuse and alcohol. Although there were no reports of any injuries at that point, only a behavioral problem, Hall was also told that a rescue unit was standing by. Hall initiated an emergency response to this call, based on her belief that there was a serious emergency involving a young child that required her immediate response before the rescue unit would respond.

[¶ 3] In her emergency response, Hall contends that she used the vehicle’s blue lights and siren. Other witnesses disputed Hall’s assertion that her siren was activated. Driving on busy Route 302 in Raymond, Hall was observed passing vehicles at high rates of speed until she collided with the Nortons’ vehicle, as it was making a left turn. The Nortons’ two sons, ages 15 and 18, died as a result of the collision. Hall was injured.

[¶ 4] The Nortons brought negligence, wrongful death, and civil rights claims against Cumberland County, the Cumberland County Sheriffs Department, the State, the Maine Criminal Justice Academy, the Maine State Police, and Hall.¹

[¶ 5] The court later granted the summary judgment motions filed by Hall, the Cumberland County Sheriffs Department and Cumberland County, and entered summary judgment in their favor. The court concluded that Hall’s choice to engage in an emergency response was a discretionary function, rendering Hall and the County defendants immune from suit pursuant to the Maine Tort Claims Act, 14 M.R.S.A. §§ 8104-B(3) and 8111(1)(C), and that they were entitled to qualified immunity protecting them from the cause of action asserted pursuant to the Civil Rights Act, 42 U.S.C. § 1983 (1994). This appeal by the Nortons followed.

II.

[¶ 6] The Maine Tort Claims Act provides that a governmental entity is not liable for any claims which result from: “[pierforming or failing to perform a discretionary function or duty, whether or not the discretion is abused ....” 14 M.R.S.A. § 8104-B(3) (2003). Section 8111(1)(C) provides similar discretionary function immunity for government employees.²

[¶ 7] The Nortons contend that Hall’s decision to treat and respond to the call involving the out-of-control boy as an emergency is not a discretionary act within the meaning of sections 8104-B(3) and 8111(1)(C). We have used the following four-factor test to determine whether discretionary function immunity applies:

(1) Does the challenged act, omission, or decision necessarily involve a basic governmental policy, program or objective?

(2) Is the questioned act, omission, or decision essential to the realization or accomplishment of that policy, program, or objective as opposed to one which would not change the course or direction of the policy, program, or objective? (3) Does the act, omission, or decision require the exercise of basic policy evaluation, judgment, and expertise on the part of the governmental agency involved? (4) Does the governmental agency involved possess the requisite constitutional, statutory, or lawful authority and duty to do or make the challenged act, omission, or decision?

Roberts v. State, 1999 ME 89, ¶ 8, 731 A.2d 855, 857 (citations omitted). The response to an emergency by a law enforcement officer serves the basic governmental objective of public safety. See Selby v. Cumberland County, 2002 ME 80, ¶ 7, 796 A.2d 678, 680. In Selby, we held that a deputy sheriffs decision to engage in a high-speed chase is a discretionary decision to which discretionary immunity applies. Id. ¶ 10, 796 A.2d at 681-82.

[¶8] The Nortons also contend that even if the initial decision by Hall to respond to the call as an emergency is an act protected by discretionary immunity, the actions taken in that response, particularly the operation of the vehicle, are not protected. The Nortons rely on section 8104-A(1)(A), which provides that “[a] governmental entity is liable for property damage, bodily injury or death” arising from “its negligent acts or omissions in its ownership, maintenance or use of any ... [mjotor vehicle.” 14 M.R.S.A. § 8104-A(1)(A) (2003). Because the deaths in this case resulted from Hall’s operation of a police cruiser, the Nortons contend they are entitled to recover. We disagree.

[¶ 9] First, the decision by Hall to respond to the emergency (the whether to respond) cannot be isolated from the response itself (the how to respond). The exercise of discretion involves more than a decision in the abstract to respond. Actions taken by a law enforcement officer in response to an emergency implicate the discretionary judgment of the officer and the immunity protecting governmental entities and their employees extends to those actions. The operation of the cruiser on the way to the emergency is an integral part of, and cannot be separated from, the initial decision to respond.

[¶ 10] In Roberts, a prison inmate was injured when a cell door was slammed on his finger by a prison guard as the inmate was entering the cell. 1999 ME 89, ¶ 2, 731 A.2d at 856. In the suit brought by the inmate, a summary judgment was entered in favor of the prison guard and the State, based in part on discretionary function immunity. 14 M.R.S.A. §§ 8104-B(S) & 8111(1)(C); Roberts, 1999 ME 89, ¶5, 731 A.2d at 856-57. We rejected the inmate’s argument that the guard’s specific act of shutting the cell door on the inmate’s hand had to be considered as separate and distinct from the discretionary decision of the prison guard to place the inmate in his cell. Id. ¶ 10, 731 A.2d at 857-58. We concluded that, for purposes of discretionary function immunity, the decision to place the inmate in the cell included the shutting of the cell door when the inmate himself failed to shut the door or the door failed to shut by itself. Id.

[¶ 11] Moreover, although section 8104-A(1)(A) provides that “[a] governmental entity is liable for its negligent acts or omissions in its ownership, maintenance or use of any: A. Motor vehicle,” section 8104-B(3) provides a governmental entity with discretionary function immunity despite section 8104-A. 14 M.R.S.A. § 8104-B(3). If the actions taken by Hall in carrying out an emergency response were separated and placed in a different category from her decision to respond, discretionary function immunity would effectively be removed as a defense in any ease involving the operation of a motor vehicle. The express language in section 8104-B(3) and 8111(1) of the Maine Tort Claims Act precludes such a result.

[¶ 12] Section 8104r-B provides:

Notwithstanding section 8104-A, a governmental entity is not hable for any claim which results from:

3. Performing Discretionary Function. Performing or failing to perform a discretionary function or duty, whether or not the discretion is abused and whether or not any statute, charter, ordinance, order, resolution or policy under which the discretionary function or duty is performed is valid or invalid[.]

14 M.R.S.A. § 8104-B(3) (emphasis added). In keeping with the statutory language, in Carroll v. City of Portland, we expressly noted that “[njotwithstanding the immunity waiver provisions of section 8104-A, section 8104-B expressly retains certain types of immunity for governmental entities, including discretionary function immunity.” 1999 ME 131, ¶ 6 n. 3, 736 A.2d 279, 282 (emphasis added).

[¶ 13] Moreover, 14 M.R.S.A. § 8111(1)(C) provides absolute immunity to Hall for performing or failing to perform any discretionary function or duty, regardless of whether or not she abuses that discretion. The immunity applies “whenever a discretionary act is reasonably encompassed by the duties of the governmental employee ... [and is] available to all government employees, including police officers ....” Id. § 8111(1). It is difficult to imagine clearer statutory language to immunize law enforcement personnel for the actions they take in the responses to a legitimate emergency.

[¶ 14] The fact that the conduct of Hall in responding to an emergency is protected by the immunity provisions of the Tort Claims Act does not render 14 M.R.S.A. § 8104-A(1)(A) meaningless. Not all operations of public safety vehicles involve discretionary acts protected by the provisions of section 8104-B(3) and section 8111(1)(C). For example, provisions of section 8104-A(1)(A) still apply to the everyday non-discretionary operation of governmental motor vehicles, such as routine patrolling. The limited exception to immunity for the operation of motor vehicles set out in section 8104-A(1)(A), however, does not remove otherwise applicable discretionary function immunity arising from the officer’s discretionary response to a true emergency. See 14 M.R.S.A. § 8104-B(3).

[¶ 15] The Statement of Fact to L.D. 2448, which was enacted as 14 M.R.S.A. § 8111, states as follows:

[I]t bears emphasis that the immunities contained in Title 14, section 8111 are intended to serve important governmental purposes. Government officials are frequently required as part of their jobs to take actions that have serious consequences for the individuals affected. Obvious examples are the actions of law enforcement officers investigating crimes .... If these government officials were faced with the constant possibility of personal liability, the inevitable result would be that they would be hesitant to take necessary enforcement action and the public interest would suffer.

L.D. 2448, Statement of Fact at 15 (113th Legis.1987). The Legislature clearly intended to grant immunity to law enforcement officers responding to a legitimate emergency. Any other result would be contrary to the letter and the spirit of the Maine Tort Claims Act.

[¶ 16] The Nortons also contend that if Hall is protected by immunity for the actions she took with the cruiser, then the emergency vehicle statute, 29-A M.R.S.A. § 2054 (1996 & Supp.2002), would be rendered meaningless. We disagree. That statute provides that drivers of emergency vehicles have the benefit of certain privileges, such as exceeding the posted speed limit or driving through a red light. Id. § 2054(5). These privileges are dependent on the operator using the vehicles emergency lights at all times when responding to an emergency, and also using the siren when it is “reasonably necessary to warn” other drivers. Id. § 2054(6). The parties do not dispute that Hall was using the vehicle’s emergency lights, although there is dispute about whether the vehicle’s siren was operating at the time of the accident. Section 2054, however, does not effect immunity. First, the emergency vehicle statute sets out rules of the road for the operation of emergency vehicles, but it does not address liability of governmental entities or their employees for damages arising out of the use of such vehicles. See id. § 2054. Moreover, as the trial court correctly noted, even if Hall acted contrary to the statutory rules of the road for the operation of emergency vehicles, the statutes do not strip her of the discretionary immunity provided under the Maine Tort Claims Act. In Selby, we concluded that “[i]mmu-nity exists even when the official lacked the authority to do the act, or abused the discretion.” 2002 ME 80, ¶ 6, 796 A.2d at 680. Accordingly, the court correctly concluded that even if Hall was not using her vehicle’s siren, she was nevertheless entitled to discretionary immunity in the operation of the cruiser.

III.

[¶ 17] The Nortons also contend that they have produced facts sufficient to support their § 1983 civil rights claims because the circumstances of an out-of-control child was not an emergency within the meaning of the statute, and further that Hall acted with “deliberate indifference” when responding to the call.³ The Nortons further argue that the defendants are not entitled to qualified immunity because Hall’s actions were not objectively reasonable, and violated clearly established constitutional rights.

[¶ 18] The Nortons’ contentions that they have been deprived of their constitutional rights provided by the Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments to the U.S. Constitution and Article I sections one, five, and six of the Maine Constitution are without merit. Their claim of deprivation of their substantive due process rights protected by the Fourteenth Amendment is also without merit. We agree with the Superior Court that this argument fails because the Nortons did not demonstrate that Hall’s conduct “shocks the conscience.” See County of Sacramento v. Lewis, 528 U.S. 883, 846, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998).

[¶ 19] In County of Sacramento, the United States Supreme Court held that a police officer did not violate the Fourteenth Amendment’s guarantee of substantive due process by causing the death of a motorcycle passenger through deliberate or reckless indifference when pursuing the motorcycle driver in a high-speed chase. Id. at 853-54, 118 S.Ct. 1708. The Court determined that in those circumstances, only an intent to harm, unrelated to the legitimate purpose of pursuing an arrest, would satisfy the necessary element of arbitrary conduct shocking to the conscience. Id. Pursuant to this standard, “only the most egregious official conduct can be said to be arbitrary in the constitutional sense.” Id. at 846 (quotation omitted). The Court explained the behavior meeting the lower standard of deliberate indifference might be conscience shocking in some circumstances, like a custodial prison situation, but that a different and higher standard applies when events call for “fast action,” and require the balancing of competing concerns under pressure, without the luxury of a second chance. Id. at 852-53, 118 S.Ct. 1708. The Court found that a high-speed chase met this criteria. Id. at 853, 118 S.Ct. 1708.

[¶ 20] Hall’s decision to respond to a call as an emergency is analogous to a decision to engage in a high-speed chase. To respond effectively to an emergency, an officer must make an immediate decision. Hall weighed her concern for the welfare of a child, and those in the child’s presence, against the risk of speeding and exposing other citizens to danger. Under these circumstances, the Superior Court correctly concluded that the highest standard of “intent to harm” applies and, since there is no evidence that Hall intended to harm the Nortons, no constitutional violation. See id. at 854,118 S.Ct. 1708. Even if the Nortons had produced facts sufficient to support a constitutional claim, Hall would be entitled to qualified immunity because, given the information she possessed, her conduct “does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982).

The entry is:

Judgment affirmed.

1 . A motion to dismiss the State of Maine defendants was granted, and those dismissals are not challenged in this appeal.

2 . Section 8111(1) provides, in pertinent part:

1. Immunity. Notwithstanding any liability that may have existed at common law, employees of governmental entities shall be absolutely immune from personal civil liability for the following:

C. Performing or failing to perform any discretionary function or duty, whether or not the discretion is abused; and whether or not any statute, charter, ordinance, order, resolution, rule or resolve under which the discretionary function or duty is performed is valid;

14 M.R.S.A. § 8111(1)(C) (2003).

3 . The Nortons also raised constitutional claims under the Maine Civil Rights Act. The analysis of such claims is similar to federal civil rights claims and we do not address them separately. See Fowles v. Steams, 886 F.Supp. 894, 899 n. 6 (D.Me.1995).