Opinion
No. ED 85007
September 20, 2005
Appeal from the Circuit Court of the City of St. Louis, Hon. Donald L. McCullin.
Charles H. Billings, St. Louis, Missouri, for respondent.
Edward J. Hanlon, St. Louis, Missouri, for appellant.
OPINION
The primary issue in this case is whether a police officer's employer can be held liable under the doctrine of respondeat superior for the officer's negligence while operating a vehicle during the course of his employment when the officer is entitled to official immunity. We would hold that it can and affirm the judgment. But we transfer the case to the Supreme Court because of the general importance of and interest in this issue and so that the Supreme Court can reexamine existing law relating to this issue.
I. BACKGROUND
This case arises out of a motor vehicle collision between Lee Davis and William Powell. At the time of the collision, Powell was responding to an emergency call in furtherance of his duties as a police officer for the Lambert-St. Louis International Airport, which is owned and operated by the City of St. Louis.
Davis sued Powell and the Airport, alleging that during the course and scope of his employment, Powell negligently operated his motor vehicle in a number of respects, including failing to keep a careful lookout, driving too fast and failing to maintain control of his vehicle. Davis sought to hold the Airport vicariously liable for Powell's negligence under the doctrine of respondeat superior, making no allegations of direct negligence by the Airport. The defendants denied these allegations, asserted that Davis was also negligent and claimed that Powell was protected by official immunity.
The case was tried before a jury. At trial, it was undisputed that Davis heard Powell's siren and saw the vehicle's emergency lights as Powell approached the intersection and that Powell was responding to an emergency. Much of the parties' dispute focused on whether Davis pulled out in front of Powell's vehicle. According to the judgment, the jury found that Powell was 25% at fault for the accident, Davis was 75% at fault and Davis's damages were $25,000. The court entered judgment in accordance with the jury's fault allocation and damage award, but ordered only the Airport to pay. The defendants filed a motion for judgment notwithstanding the verdict, or alternatively for a new trial, in which they argued that they were entitled to judgment as a matter of law based on Powell's official immunity and the derivative nature of respondeat superior liability. That motion was denied. On appeal, the defendants argue that Powell was entitled to official immunity and that, therefore, the Airport cannot be held vicariously liable for his negligence.
Davis has not filed a respondent's brief.
II. DISCUSSION
A defendant is only entitled to judgment notwithstanding the verdict if the plaintiff failed to present a submissible case. Jungerman v. City of Raytown, 925 S.W.2d 202, 204 (Mo. banc 1996). In reviewing the denial of a motion for judgment notwithstanding the verdict, we construe the evidence in a light most favorable to the prevailing party and disregard all contrary evidence. Pace v. Pacific Fire Protection District, 945 S.W.2d 7, 8-9 (Mo.App.E.D. 1997). The jury decides how to weigh the evidence and may choose to believe or disbelieve any part of a witness's testimony. Id. at 9. We do not disturb the verdict where reasonable minds can disagree about the questions presented to the jury. Id. Where the issue is a question of law, we review the trial court's conclusions regarding judgment notwithstanding the verdict de novo. See Jungerman, 925 S.W.2d at 204.
A. Powell's Liability
Although it did not expressly hold so, the trial court apparently — and correctly — concluded that Powell was entitled to official immunity. First, the court refused to instruct the jury on this issue because the facts relating to official immunity were undisputed, had "already been decided" and were "not for the jury to decide." Moreover, in the judgment, the court only ordered the Airport to pay. We agree that Powell was entitled to official immunity.
While a police officer is responding to an emergency, official immunity protects him from tort liability for any alleged acts of ordinary negligence when it is undisputed that he "(1) responded to an emergency call in his emergency vehicle, (2) had activated his siren and lights [in compliance with section 304.022 RSMo 1994] and (3) reasonably exercised his discretion in determining his speed and observance of traffic regulations." Creighton v. Conway, 937 S.W.2d 247, 251 (Mo.App. E.D. 1996). Here, it was undisputed that at the time of the collision, Powell was responding to an emergency call in his emergency vehicle and was operating his lights and siren as required by section 304.022. And we find nothing in the record to indicate that his decisions regarding how fast to travel or which traffic regulations to disregard amounted to an abuse of discretion or anything more than ordinary negligence. Therefore, "any negligence committed was integrally bound to the officer's use of discretion in determining how to respond to an emergency, thus fitting squarely within the doctrine of official immunity and precluding liability" on Powell's part. Costello v. City of Ellisville, 921 S.W.2d 134, 136 (Mo.App.E.D. 1996).
In Creighton, this Court was citing to the 1994 version of the statute. 937 S.W.2d at 250. All further references to section 304.022 are to RSMo Cum. Supp. 1997.
B. The Airport's Liability
Since Powell was protected by official immunity, the defendants argue that his employer cannot be held liable under the doctrine of respondeat superior because its liability is derivative of Powell's. We disagree.
Sovereign immunity and official immunity are distinct legal concepts Oberkramer v. City of Ellisville, 650 S.W.2d 286, 294 (Mo.App.E.D. 1983). Sovereign immunity protects the government itself from tort liability. Id. Official immunity, on the other hand, protects public officials from liability for negligent acts committed during the course of their official duties while acting in a discretionary capacity, but it affords no protection to their governmental employers. Id.; McGuckin v. City of St. Louis, 910 S.W.2d 842, 844 (Mo.App.E.D. 1995). Even though the Airport, which is owned and operated by the City of St. Louis, may have otherwise been entitled to sovereign immunity with respect to its police functions, the legislature has expressly waived such immunity with respect to the negligent operation of motor vehicles by public employees during the course of their employment. See section 537.600.1(1) RSMo 1994; McGuckin, 910 S.W.2d at 844. Thus, "it is now settled that a governmental employer is liable under the doctrine of respondeat superior for the negligence of its employee in the operation of a motor vehicle." Best v. Schoemehl, 652 S.W.2d 740, 742 (Mo.App.E.D. 1983). Since sovereign immunity does not protect the Airport in this case, we consider whether its employee's official immunity automatically shields it from vicarious liability.
The public duty doctrine, another related concept, prevents public employees from being held liable for breaching a duty owed to the general public, though it does not prevent liability for breaching a duty owed to particular individuals. Green v. Denison, 738 S.W.2d 861, 866 (Mo. banc 1987). The parties do not address the public duty doctrine in this case, but we mention it here because a number of cases cited in this opinion also involve this related, but distinct, concept. See id. at 865 (stating that official immunity and the public duty doctrine are "distinct but somewhat related doctrines"). A number of cases appear to combine the analysis of these two doctrines, and others go so far as to say that the two doctrines "merge" and "produce the same result" in nearly every case. See, e.g., Brown v. Tate, 888 S.W.2d 413, 416 (Mo.App.W.D. 1994). While they may often produce the same result, the better practice is to analyze the two doctrines separately. See, e.g., State ex rel. Howenstine v. Roper, 155 S.W.3d 747, 752-56 (Mo. banc 2005).
Under the doctrine of respondeat superior, an employer is liable for the negligence of its employees, even if the employer was not directly negligent itself, as long as the employee's acts were within the scope of his duties to the employer. Helm v. Wismar, 820 S.W.2d 495, 497 (Mo. banc 1991). But "if a jury finds that the employee is not negligent, the employer is exonerated as a matter of law." Id. In other words, as many cases demonstrate, where a claim is made under the doctrine of respondeat superior and the judgment truly exonerates the employee of liability because of the absence of negligence, the employer is also exonerated. See, e.g., Peoples v. Conway, 897 S.W.2d 206, 208 (Mo.App.E.D. 1995) (officer was exonerated because his actions were not proximate cause of collision and therefore employer was also exonerated).
Here, if the jury had truly exonerated Powell — such as by finding that he was not negligent or that he did not cause the collision — then the Airport could not be held vicariously liable for Powell's conduct. But the jury found Powell to be 25% at fault for the collision, and it is only by virtue of official immunity that Powell is shielded from personal liability for the resulting damage to Davis. We recognize that a number of relatively recent cases indicate that an employer cannot be held liable for the negligence of its employee under the doctrine of respondeat superior when that employee is protected by the doctrine of official immunity. But in accordance with earlier precedent — which is still good law and still persuasive — we would hold that official immunity is personal to the official and does not automatically shield the official's employer from vicarious liability for its employee's negligence.
1. Personal Nature of Official Immunity
In addressing the relationship between respondeat superior and spousal immunity, Missouri courts have long stated that an employee's immunity does not protect an employer from vicarious liability for its employee's negligence. As far back as 1936, Missouri courts found that although spousal immunity protected the husband from liability to his wife, it did not prevent his employer from being vicariously liable to the wife based on the husband's negligent operation of a motor vehicle during the course of his employment. Mullally v. Langenberg Brothers Grain Co., 98 S.W.2d 645 (Mo. 1936); Rosenblum v. Rosenblum, 96 S.W.2d 1082 (Mo.App. 1936); see also Riordan v. Corporation of the Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints, 416 F.3d 825, 829-31 (8th Cir. 2005) (predicting Missouri Supreme Court would hold parental immunity does not bar child's respondeat superior claim against parent's employer).
Parental immunity was abrogated by the Missouri Supreme Court in 1991, but the incident in Riordan occurred before that date. 416 F.3d at 629 (citing Hartman v. Hartman, 821 S.W.2d 852, 858 (Mo. banc 1991)). Spousal immunity has also been abrogated. Townsend v. Townsend, 708 S.W.2d 646, 650 (Mo. banc 1986).
In Mullally, the Missouri Supreme Court found insufficient evidence that the husband's negligent acts occurred during the course of his employment, but it expressly considered the relationship between spousal immunity and the doctrine of respondeat superior. 98 S.W.2d at 645-47. The Court stated that "[t]he negligent and wrongful act of the servant is deemed the act of the master." Id. at 646 (emphasis added) (internal quotation marks omitted). The employee's actions do "`not cease to be an unlawful act, though the law exempts the [employee] from liability for the damage. Others may not hide behind the skirts of his immunity.'" Id. at 646 (emphasis added) (quoting Schubert v. August Schubert Wagon Co., 164 N.E. 42, 43 (N.Y. 1928) (J. Cardozo)).
In Rosenblum, which was decided shortly thereafter, the husband's negligence in operating his vehicle did occur during the course of his employment. 96 S.W.2d at 1084. The court held that the husband's employer was vicariously liable to his wife based on the husband's negligence, despite the fact that the husband was personally immune from liability to her. Id. The court found that "if an agent has an immunity from liability as distinguished from a privilege of acting, the principal does not share the immunity." Id. (adopting what is now RESTATEMENT (SECOND) OF AGENCY section 217 (1958)). The Restatement view is that an agent's privilege also protects the principal, but an agent's immunity from civil liability is only available as a defense for the agent himself. RESTATEMENT section 217. The comments to that section further explain that, in most states, when an "agent acts in the scope of employment, the fact that the agent has an immunity from liability does not bar a civil action against the principal." Id. at cmt. b.
In the context of an employer's liability for the alleged negligence of a police officer, this Court has stated in dicta that immunities, such as official immunity, are personal to the holder. Oberkramer, 650 S.W.2d at 294 (citing W. SEAVEY, LAW OF AGENCY, section 93 (1964)). "[W]hen 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, 650 S.W.2d at 294 (citing Rosenblum, 96 S.W.2d at 1084). This language — albeit dicta — is nevertheless a logical and persuasive articulation of how to apply official immunity in the context of a governmental entity's vicarious liability for the negligence of its employees. A number of commentators have either advocated for this rule or cited it as a general proposition, and it is the view adopted by a number of other jurisdictions with respect to similar types of immunities. Thus, there is ample support for the proposition that a personal immunity — as opposed to a privilege — does not automatically shield an employer from vicarious liability for its employee's negligence.
According to one treatise, "[t]he official immunity of a public employee does not protect a governmental entity from liability under the doctrine of respondeat superior." McQUILLIN, Municipal Corporations, section 53.65 (3d ed. 2003); see also 2A C.J.S. Agency section 438 (2005) ("Under the doctrine of respondeat superior, a principal has no defense based on an agent's official immunity from civil liability for an act committed in the course of employment."). Another commentator has argued that "[u]nless the government's exposure to liability can genuinely be expected to impair seriously the official's performance of duty, the government should not enjoy immunity from liability simply because the official is immune." George A. Bermann, Integrating Governmental and Officer Tort Liability, 77 COLUM. L. REV. 1175, 1186-87 (1977).
See, e.g., Savage v. State, 899 P.2d 1270, 1272-77 (Wash. 1995); Gilbert v. Richardson, 452 S.E.2d 476, 483-484 (Ga. 1994); Babcock v. State, 809 P.2d 143, 154-56 (Wash. 1991); Hooper v. Clements Food Co., 694 P.2d 943, 944-45 (Okla. 1985); Adams v. Peoples, 480 N.E.2d 428, 431-32 (Ohio 1985); Taplin v. Town of Chatham, 453 N.E.2d 421, 423 (Mass. 1983).
Using that distinction, official immunity is personal to the officer. The difference between an immunity and a privilege "appears to be largely one of degree." W. PROSSER, HANDBOOK OF THE LAW OF TORTS, section 131 (4th ed. 1971). A privilege allows the actor to avoid liability for tortious conduct in circumstances under which it is "just and reasonable that the liability shall not be imposed," thus "defeat[ing] the existence of the tort itself." Id. An "immunity, on the other hand . . . does not deny the tort, but the resulting liability." Id. Under the doctrine of respondeat superior, it is the negligent or wrongful act of the employee — as opposed to the employee's liability — that is imputed to the employer. See Mullally, 98 S.W.2d at 646.
If a police officer were privileged to respond to an emergency in a negligent manner, then his act would not be tortious and there would be no tortious act to impute to his employer. See RESTATEMENT (SECOND) OF AGENCY section 217(a)(iii)(1958). But there is no such privilege. Instead, an officer may disregard certain rules of the road upon compliance with section 304.022 and he may be entitled to official immunity for committing acts of ordinary negligence while performing his duty to respond to an emergency, which necessarily involves the exercise of professional judgment, expertise and discretion. See Costello, 921 S.W.2d at 137; Creighton, 937 S.W.2d at 250-51. But the immunity does not deny the existence of the tort itself, which still may be imputed to his employer under the doctrine of respondeat superior. 2. Cases Failing to Recognize the Personal Nature of Official Immunity
In a number of relatively recent cases, Missouri appellate courts have suggested or held — without mentioning Mullally, Rosenblum, or otherwise recognizing the personal nature of official immunity — that the official immunity enjoyed by a public official automatically exonerates his employer. See, e.g., Schutte v. Sitton, 729 S.W.2d 208, 210-11 (Mo.App. E.D. 1987) (holding that plaintiff could not recover against police officer's employer under theory of respondeat superior when the officer was protected by official immunity and the public duty doctrine). In these cases, the courts imported rules governing derivative liability as applied in other situations — such as when a prima facie case of negligence had not been proven as to an employee — without addressing the personal nature of official immunity. As a result, they overlooked the distinction between immunity from liability and the absence of negligence. This is an important distinction because, as discussed above, the absence of negligence precludes a claim against the employer, while official immunity does not.
Later cases have also expressly held that a plaintiff cannot recover against an official's employer under the doctrine of respondeat superior when the employee is entitled to official immunity. See, e.g., State ex rel. Conway v. Dowd, 922 S.W.2d 461, 463 (Mo.App.E.D. 1996); Creighton, 937 S.W.2d at 251; State ex rel. City of Fulton v. Hamilton, 941 S.W.2d 785, 790 (Mo.App.W.D. 1997). Other cases have suggested the same, even though the resolution of the case did not depend on that conclusion. See, e.g., Fonseca v. Collins, 884 S.W.2d 63, 67 (Mo.App. W.D. 1994) (suggesting "that there is no logical reason that the city is protected by the officer's immunity" but recognizing contrary authority and deciding the case based on a lack of proximate cause); McGuckin, 910 S.W.2d at 845 (finding officer not protected by official immunity and finding employer liable under respondeat superior theory, but suggesting that plaintiff would not have been able to recover from officer's employer if official immunity had applied); Bittner v. City of St. Louis Police Board of Commissioners, 925 S.W.2d 495, 498-99 (Mo.App.E.D. 1996) (finding that police board could not be vicariously liable for police officers' allegedly negligent acts that were outside the scope of their employment, but suggesting that the "board, as an employer, can not be held liable under the doctrine of respondeat superior unless the employee is found liable"). Other cases that did not actually involve the official immunity doctrine have also been cited in support of the rule we reject here. See, e.g., Jackson v. City of Wentzville, 844 S.W.2d 585, at 588 n. 6, 589 (Mo.App.E.D. 1993) (holding that plaintiff could not recover against a police officer's employer under respondeat superior when the officer was protected by the public duty doctrine); Peoples v. Conway, 897 S.W.2d at 207-208 (mentioning official immunity as basis for motion for summary judgment, but deciding the case based on a lack of proximate cause).
In Schutte, which is the apparent source of the misapplication of derivative liability principles when the employee is entitled to official immunity, the court relied on three cases in concluding that the employer was not liable. 729 S.W.2d at 211. The first two merely involved the application of the general rule that when there is no ground for recovery against an employee, there is no ground for holding his employer liable under a respondeat superior theory. See Williams v. Venture Stores, Inc., 673 S.W.2d 480, 483 (Mo.App.E.D. 1984); Cacioppo v. Kansas City Public Co., 234 S.W.2d 799, 803 (Mo.App. 1950). Neither case involved any kind of immunity. In the last of the three cases, the Court explicitly declined to address the theory of respondeat superior after finding that the officer was protected by official immunity and that his employer was protected by sovereign immunity and the public duty doctrine. Christine H. v. Derby Liquor Store, 703 S.W.2d 87, 88-89 (Mo.App.E.D. 1985). As a result, we find the reasoning in Schutte unpersuasive and contrary to the earlier more persuasive reasoning of Mullally and Rosenblum. Therefore, we would conclude that, to the extent Schutte and other cases indicate that a governmental entity is protected by its employee's official immunity, they should no longer be followed.
3. Public Policy Considerations
Our conclusion comports with several of the public policies behind the legislature's enactment of sections 537.600.1(1) and 304.022 and the common law doctrine of official immunity in that it avoids leaving deserving plaintiffs without a remedy, allows the cost of their recovery to be indirectly distributed over the entire community and avoids placing public officials in fear of personal liability.
The "absolute" waiver of sovereign immunity under section 537.600.1(1) reflects the legislature's basic policy choice that governmental entities generally should bear the cost of their employees' negligence in operating motor vehicles during the course of their employment. Because of this waiver, governmental entities that previously could have avoided liability for their employees' negligence on the roadways must now either insure against or be held accountable for the resulting damage, much like any private entity would. This allows the cost of public employees' negligent driving to be spread among all the governmental entity's taxpayers. Commentators suggest that this is a more equitable result: "asking innocent victims to bear alone the losses inflicted upon them through governmental activity is fundamentally unfair. Today, the cost of compensating for many such losses is regarded as an ordinary expense of government to be borne indirectly by all who benefit from the services that government provides." Bermann at 1176, supra n. 5. As the Restatement points out, some commentators believe "that it is better that the losses due to the tortious conduct of officers and employees should fall upon the municipality rather than upon the injured person and that the torts of public employees are properly to be regarded, as in other cases of vicarious liability, as a cost of the administration of government and should be borne by the public." Restatement (Second) of Torts section 895C cmt. d. (1979).
By enacting both section 304.022 and section 537.600.1(1), the legislature appears to have concluded that the operation of emergency vehicles is one of those government functions where "the threat of individual liability would have a devastating effect, while the threat of governmental liability would not significantly impair performance." See RESTATEMENT (SECOND) OF TORTS section 895D cmt. j (1979). As this Court has stated, the rationale behind official immunity is that public officers "should not have the fear of personal liability clouding [their] judgment when making decisions affecting the safety and welfare of the public." McGuckin, 910 S.W.2d at 844. In other words, the law "protect[s] those individuals who, in the face of imperfect information and limited resources, must daily exercise their best judgment in conducting the public's business." Kanagawa v. State By and Through Freeman, 685 S.W.2d 831, 836 (Mo. banc 1985). The holding we would reach in this case is consistent both with protecting individual officials and with section 537.600.1(1). Of course, if the General Assembly seeks to carve an exception out of its "absolute waiver" of sovereign immunity in order to protect governmental entities from liability when their employees' negligent driving occurs in response to an emergency call, then it would be free to do so. But we would decline to effectively create such an exception here by extending the protection of official immunity to the official's employer.
We recognize that the possibility of governmental liability might have a slight chilling effect on the ability or willingness of governmental entities to engage their law enforcement officers in certain types of actions, such as pursuits of fleeing vehicles. But refusing to deny a remedy for deserving plaintiffs in situations where the General Assembly sought to ensure compensation under section 537.600.1(1) would also give governmental entities an incentive to encourage and train their employees to keep public safety in mind when the operation of an emergency vehicle poses risks to others. On balance, we believe the latter considerations outweigh this possible chilling effect.
C. Summary Disposition
Since we believe Powell's official immunity does not protect his employer, we would hold that the trial court did not err in entering judgment against the Airport or in denying the defendants' motion for judgment notwithstanding the verdict. But, as our discussion reveals, the existing law affecting this case should be reexamined. Moreover, a governmental entity's liability in these situations is an important question in which the general public has interest. Therefore, we transfer this case to the Supreme Court under Rule 83.02.
III. CONCLUSION
Transferred to the Supreme Court.
Nannette A. Baker, J. concurring.
Clifford H. Ahrens, P.J. concurring in result in separate opinion.
OPINION CONCURRING IN RESULT
I concur in the transfer of this case to the Supreme Court; however, I respectfully disagree with the majority's conclusion that a governmental employer is liable notwithstanding the official immunity of its employee. The majority opinion would overrule a number of decisions of this Court which hold that where the actions of a police officer are protected from liability by official immunity, the officer's governmental employer is not liable under the doctrine of respondeat superior. Schutte v. Sitton, 729 S.W.2d 208, 211 (Mo.App. 1987) (officer's actions were protected by official immunity, and therefore, plaintiffs could not recover against City of Hermann under the doctrine of respondeat superior); Jackson v. City of Wentzville, 844 S.W.2d 585, 589 (Mo.App. 1993) (because there was no ground for recovery against the officer, there was no ground for recovery against his employer, the City of Wentzville, under the doctrine of respondeat superior); McGuckin v. City of St. Louis, 910 S.W.2d 842, 845 (Mo.App. 1995) (if the public employee is entitled to official immunity, no grounds for recovery against the employee, and likewise against the employer); Creighton v. Conway, 937 S.W.2d 247, 251 (Mo.App. 1996) (liability of employers was derivative of the officer under theory of respondeat superior, and because officer could not be liable based on official immunity, neither could employers); and State ex rel. Conway v. Dowd, 922 S.W.2d 461, 463 (Mo.App. 1996) (where claim against employers was premised on respondeat superior, and not on negligent or intentional acts of employers, plaintiff could not recover against employers if no grounds for recovery against employee existed based on official immunity).
This court did not have the benefit of briefing or argument by respondent in support of the position adopted by the majority.
The majority recognizes this line of cases but finds the reasoning unpersuasive. The majority relies upon earlier precedent, specifically,Rosenblum v. Rosenblum, 96 S.W.2d 1082 (Mo.App. 1936), and Mullally v. Langenbery Bros. Grain Co., 98 S.W.2d 645 (Mo. 1936), finding the reasoning therein more persuasive. However, the cases relied upon by the majority are distinguishable.
The analysis in both Mullally and Rosenblum centered on spousal immunity and the liability of the husband's employer under a theory of respondeat superior in the face of such immunity. In Mullally, the Missouri Supreme Court found that a wife has a right of action against a husband's employer, regardless of the spousal immunity afforded to the husband for negligent acts. 98 S.W.2d at 646. The court in Rosenblum reached the same conclusion. However, neither of these cases addressed official immunity and the derivative liability of a governmental employer.
As the majority notes, spousal immunity was abrogated by the Missouri Supreme Court in Townsend v. Townsend, 708 S.W.2d 646, 650 (Mo. banc 1986).
The majority also relies on Riordan v. Corporation of the Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints, 416 F.3d 825, 829-31 (8th Cir. 2005). In Riordan, the court faced the question of whether a child could proceed with a respondeat superior claim against his father's employer. The court, in its analysis, noted the "close and analogous connection" between parental and spousal immunity because both immunities were based upon family unity and harmony. Id. at 829; (citingHartman v. Hartman, 821 S.W.2d 852, 855 (Mo. banc 1991), and See Townsend, 708 S.W.2d at 648-50). The court stated it believed the Missouri Supreme Court, if confronted with the appeal, would conclude parental immunity did not bar the child's recovery against the parent's employer under a theory of respondeat superior. Id. at 831. However, this decision addressed the issue of parental immunity, not official immunity. It was based upon the unique relationship of parent and child, and therefore is distinguishable from the present case.
The 8th Circuit decision affirmed the opinion of the United States District Court, Western District of Missouri, 242 F.Supp.2d 635 (W.D. Mo. 2003). In its opinion, the District Court noted the similarity of spousal and parental immunity, because both immunities were based upon the relationship of the parties. Id. at 640. The court noted that, "[c]onversely, whether a person is entitled to official immunity depends on the type of conduct." Id.
Parental immunity was also abrogated by the Missouri Supreme Court in 1991. Hartmann, 821 S.W.2d 852.
The majority would also implement its rule based, in part, upon the theory that official immunity is a protection personal to the officer. In its discussion, the majority cites Oberkramer v. City of Ellisville, 650 S.W.2d 286 (Mo.App. 1983). The majority quotes the Oberkramer court for the proposition 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." Id. at 294; (citing Rosenblum, 96 S.W.2d at 1084). However, Oberkramer is also distinguishable from the present case. Its reasoning relies upon the Rosenblum case, which as noted above, is based upon the distinct concept of spousal immunity, rather than official immunity. In Oberkramer, the court was faced with a question of whether the cause of action against several municipalities was barred by sovereign immunity pursuant to section 537.600. TheOberkramer court stated that section 304.022 indicated the legislature's policy judgment that the risk of high speed pursuits will be tolerated when balanced with the interest of promoting law and order.Id. at 292. This tolerance was granted only as to reasonable conduct by the officers. Id. The court found in light of section 304.022, defendants would be liable only if the officers created an unreasonable risk of harm. The case was remanded to allow plaintiffs to amend their complaint to allege additional facts to show that the conduct of the officer created an unreasonable risk of harm. Id. at 293. The court did not address whether the plaintiffs could recover against the municipalities for liability premised upon respondeat superior in the face of an officer employee protected by official immunity.
In Oberkramer, the court cited section 537.600 RSMo (1978). All further references to section 537.600 will be to RSMo (2000), unless otherwise indicated.
The court in Oberkramer cited section 304.022 RSMo (1978). All further references to section 304.022 will be to RSMo (Cum. Supp. 1997), unless otherwise indicated.
Finally, the majority cites Best v. Schoemehl, 652 S.W.2d 740, 742 (Mo.App. 1983) for the statement that a governmental employer can be liable under the theory of respondeat superior for the negligent operation of a motor vehicle by an employee. However, again it should be noted that this statement was made in context of section 537.600 RSMo (1978) and the express waiver of sovereign immunity, not in contemplation of the issue set forth in the present case. Moreover, in Best, the plaintiff's petition alleged that the police vehicle violated section 304.022 RSMo (Supp. 1982) by failing to activate its siren and lights.Id. at 741. Thus, the issue of official immunity was not involved inBest.
Additionally, the majority points to the Restatement (Second) of Agency, section 217 (1958) in support of its position. The Restatement view is that the immunity of an agent from civil liability is not available as a defense for the principal. The Restatement was adopted by the court in Rosenblum. 96 S.W.2d at 1084. However, as previously noted, the court in Rosenblum was faced with the distinct issue of the protection of an employer from liability in the face of spousal immunity, not official immunity. Moreover, the comments to Restatement section 217 indicate that the application of the provision relates in large part to cases of relationship-based immunities such as spousal and parental immunities, rather than official immunity. In comment b to the Restatement, there is one illustration of immunities created by position rather than immunities based upon relationships. However, the comment uses the examples of legislators and judges, and does not address police officers and the protection of such officers from liability in the exercise of their reasonable discretion. Additionally, in the reporter's notes, the relevant cases with regard to the question of whether the principal will be liable for conduct of the agent in the face of agent's immunity are those in which the agent harms his spouse or child. Again there is no mention of official immunity.
While I agree that policy reasons exist for allowing recovery against the employer of a police officer even when the officer is shielded from liability by the official immunity doctrine, there are also equally compelling policy considerations in favor of protecting governmental employers from liability. As the majority notes, in some cases, it is unfair to ask innocent victims of collisions or other incidents to bear the loss inflicted. In the present case, the majority concludes that the officer was protected by official immunity. He was responding to an emergency call, and he had activated his siren and lights in compliance with section 304.022 RSMo (1994). The majority acknowledges the need to prevent fear of personal liability from impairing an officer's performance.
It is clearly important to shield individual officers from liability; however, I also believe it is equally important to protect the governmental employers for the same reasons. Employers, in the face of exposure to liability resulting from emergency responses, may implement policies restricting officers from exercising their statutory discretion under Section 304.022 in responding to emergency calls. Exposing the governmental employers to liability may, therefore, impair the performance of the individual officers. As a result, the public in general and victims in particular may not receive the prompt assistance they need, and criminal suspects may be given increased opportunity to flee due to delays in emergency responses by the officers. Imposing liability on governmental employers for discretionary and reasonable actions of officers who are individually protected by official immunity will impose additional financial burdens on local governmental entities, and will undermine the ability of law enforcement to protect society and to promote law and order. I believe resolution of the policy considerations is best left to the legislature, and not to this court.
Although the majority cites to the legislature's enactment of sections 537.600 and 304.022, as support for its conclusions, these statutes can exist independently of the rule protecting governmental employers from liability. Section 537.600 expressly waives sovereign immunity where a public employee negligently operates a motor vehicle within the course of his or her employment. The official immunity doctrine only protects the discretionary acts of officers, not ministerial acts. Schutte, 729 S.W.2d at 210. Thus, where an officer is simply performing a routine patrol or driving his vehicle to the station, not responding to an emergency call, and his negligent operation of the vehicle results in injury to a plaintiff, the employer may be liable.
Additionally, section 304.022 requires other drivers to "[p]roceed with caution and yield the right-of-way" to emergency vehicles with audible sirens and at least one lighted red lamp or flashing blue light. This statute places other drivers under a duty to exercise caution in the face of an approaching emergency vehicle. As the court in Oberkramer notes, the legislature, in enacting section 304.022, "made a policy judgment that the risk of injury inherent in high speed pursuits will be tolerated in the interests of promoting law and order." 650 S.W.2d at 292. This provision is consistent with the application of precedent stating that where the officer is protected by official immunity, the officer's employer cannot be liable under the theory of respondeat superior.
In the present case, the officer was responding to an emergency call, and he had activated his siren and lights. As the majority correctly concludes, the officer would therefore be protected from tort liability by the doctrine of official immunity. As a result, plaintiff cannot recover against Airport under the doctrine of respondeat superior.Schutte, 729 S.W.2d at 211; Jackson, 844 S.W.2d at 589; McGuckin, 910 S.W.2d at 845; Creighton, 937 S.W.2d at 251; State ex rel. Conway, 922 S.W.2d at 463; and State ex rel. City of Fulton, 941 S.W.2d at 790. I would reverse the judgment. I agree that the question of a governmental entity's liability in these situations is of general interest and importance, and I concur in the transfer of this case to the Supreme Court under Rule 83.02.