concurring:
I agree with the court that the evidence was sufficient, though in my view barely so, to permit a jury to find ordinary negligence on the part of Sergeant Scott,1 and that under plain error analysis the erroneous application of a simple negligence standard to Scott’s conduct is not enough to warrant reversal.2 My analysis, however, differs enough from the majority’s that I add this brief opinion.
First, my review of the record convinces me that no rational juror could reasonably have found that Officer Hyder was grossly negligent in conducting the chase. On the facts presented here, a finding of gross negligence—action marked by “a wanton and reckless disregard for others in pursuing [an offender],” Boyer v. State, 323 Md. 558, 594 A.2d 121, 132 (1991)—would obliterate the statutory distinction between negligence and gross negligence critical to the limited waiver of immunity in D.C.Code § 1-1212 (1992). Bear in mind that 18 DCMR § 2002 (1987) exempts a police officer conducting a vehicle pursuit from the per se unlawfulness of ignoring red lights or stop signs or “[e]x-ceed[ing] the prima facie speed limit....” Hypothetical ordinary negligence, therefore, would necessarily mean that the officer did these “privileged” acts, id,., without due regard to the attendant circumstances and the risk they created for the safety of others. It follows that the finding of gross negligence or recklessness required by the statute must demand some additional feature of aggravation — such as, for example, ignoring a radio command of one’s supervising officer to terminate the chase — that no one has identified in this record.
Second, the error in submitting the gross negligence count as to Officer Hyder to the jury was compounded by an erroneous jury instruction which allowed the jury to find Hyder grossly negligent based upon a finding, without more, that he had violated Metropolitan Police Department General Order 301. The trial judge quoted at length from the General Order, which describes the circumstances in which an officer should terminate a vehicle pursuit, and then told the jury: “Now, if you find that the foregoing ... General Order ... has been violated ... then you may find gross negligence and ... it would be appropriate to return a verdict for the plaintiff.” This instruction is incompatible with our holding in Abney v. District of Columbia, 580 A.2d 1036, 1041 (D.C.1990), that the same General Order “serves the purpose of an internal operating manual” and does not “purport to implicate the District’s waiver of governmental immunity” in § 1-1212 — in other words, that it “provide[s] officials with guidance on how they should perform those duties ... mandated by statute or regulation” but is not itself a regulation whose violation by itself may support a finding of negligence, let alone gross negligence. A proper instruction would have told the jury that a failure to heed the guidance of the general order was a factor it could consider, but that the determination whether Hyder was grossly negligent must be made by considering the totality of the circumstances.
Nevertheless, as indicated, I agree that the government’s failure to challenge the ordinary negligence instruction as to Sergeant Scott — indeed its sponsorship of that instruction — leaves us unable to reverse the judgment, given the sufficiency of the evidence of simple negligence on Scott’s part. But my reasoning differs somewhat here as well. I agree with the court that, properly read, § 1-1212 limits the District’s liability to gross negligence in the case either of the pursuing officer or of an officer supervising the pursuit from the police station. The most natural reasoning of the expansive phrase “a claim arising out of the operation of an emergency vehicle on an emergency run” (emphasis added) is that it embraces the conduct of any officer participating in the chase, whether as driver or as immediate *984supervisor. But, since the District did not object to the ordinary negligence standard as to the supervising officer, our analysis is governed by plain error principles, which require at the outset that any error be “plain.” “ ‘Plain’ is synonymous with ‘clear’ or, equivalently, ‘obvious.’ ” United States v. Olano, — U.S. -,-, 113 S.Ct. 1770, 1777, 123 L.Ed.2d 508 (1993). The meaning of “a claim arising out of’ as including conduct by others besides the operator of an emergency vehicle is not “obvious,” such that the government can be excused for not having argued it — indeed, for having sponsored the contrary meaning — before the trial court. The provision limiting the District’s liability (for claims “arising out of the operation of an emergency vehicle”) qualifies the antecedent waiver of governmental immunity for claims of injury caused by the wrongful act of a District employee “occurring as the result of the operation by such employee ... of a vehicle owned ... by the District ...” (emphasis added). The implementing regulation, 18 DCMR § 2002.4, likewise states that “[t]he provisions of this section [exempting ‘[t]he driver of an emergency vehicle’ from certain traffic regulations] shall not relieve the driver of an authorized emergency vehicle from the duty to drive with due regard for the safety of all persons ...” (emphasis added). And, as indicated, the District’s attorneys shared this limited view of the statute’s reach in the trial court. As it could not have been “obvious” to the trial judge that an employee under the statute included a supervisor as well as the driver, I do not see how we can reverse on the basis of an instruction the parties jointly urged him to give.
Finally, I agree with the court that this is not a case where we may not give legal effect to a government attorney’s failure to assert an aspect of sovereign immunity. Our statement in District of Columbia v. North Washington Neighbors, Inc., 367 A.2d 143, 148 n. 7 (D.C.1976), that “since sovereign immunity is a jurisdictional issue, an appellate court is obliged to consider it, even on its own motion if need be,” was made in the context of determining whether certain governmental acts were “discretionary” or “ministerial”— the District’s sovereign immunity “sur-viv[ing]” for the former but not the latter. Id. Other courts as well have recognized that when sovereign immunity aims to protect discretionary judgments, it is a jurisdictional bar to suit that cannot be waived. E.g., Pickle v. Board of County Comm’rs, 764 P.2d 262, 264 (Wyo.1988). But this case involves no issue of discretionary or “quasi-legislative policy decisions,” McKethean v. WMATA, 588 A.2d 708, 713-14 (D.C.1991), nor is it a case where the legislature has refrained altogether from waiving sovereign immunity with respect to tort claims of the present type. Cf. Stein v. Southeastern Michigan Family Planning Project, 432 Mich. 198, 438 N.W.2d 76, 78-79 (1989) (“[F]ailure to plead sovereign immunity will not constitute a waiver because ‘failure to plead the defense ... cannot create a cause of action where none existed before ’ ” (citation omitted; emphasis added). The legislature having allowed suit for these acts or omissions in § 1-1212, “the sovereign immunity doctrine’s jurisdictional bar to bringing suit,” Powell v. District of Columbia, 602 A.2d 1123, 1126 (D.C.1992), is not implicated in this case, and I see no reason why the government attorney’s failure to assert the gross negligence standard as to the police supervisor should not be treated like any other default of a party in preserving an issue.
. I say barely so because Scott, supervising an officer (Hyder) with twenty years’ experience on the police force, not implausibly thought that Hyder, the driver of the police car, was in the best position to judge whether to terminate the pursuit.
. I also agree with the court’s disposition of the "Other Issues” beginning ante, at 980.