Rochon v. State

Amestoy, C J.

¶ 1. Plaintiffs appeal from a grant of summary judgment in favor of the State of Vermont in this suit for personal injuries caused by an accident with a police cruiser that-was traveling to the' scene of an emergency. Plaintiffs contend that Vermont’s emergency vehicle statute, 23 V.S.A. § 1015, requires a showing of negligence before imposing liability, not a showing of recklessness. We reject plaintiffs’ argument, and conclude that 23 V.S.A. § 1015 precludes an action in negligence and requires a showing of recklessness for injuries sustained in an accident with an emergency responder. We therefore affirm.

¶ 2. Plaintiffs argue that the trial court erred in granting defendant summary judgment based on the court’s conclusion that 23 V.S.A. § 1015(c) requires a showing of recklessness. When this Court reviews a grant of summary judgment, we apply the same standard as the trial court. Dillon v. Champion Jogbra, Inc., 175 Vt. 1, 2, 819 A.2d 703, 705 (2002). We will affirm the decision if there is no genuine issue of material fact and any party is entitled to a judgment as a matter of law. V.R.C.P. 56(c)(3). The following material facts are not in dispute.

¶ 3. On August 10, 1998, around nine o’clock in the evening, State Trooper Thomas Hodsden was dispatched to a domestic assault *146complaint two miles from his house. The dispatcher told the trooper that the assailant was attempting to get the victim out of a locked bathroom. Trooper Hodsden left his house and drove north on Route 22A. He turned on his emergency lights, but, to avoid giving advance warning to the alleged assailant, he did not use the siren.

¶ 4. Trooper Hodsden proceeded to the scene at the posted speed limit of fifty miles per hour. As he traveled along a flat stretch of road, the trooper spotted a vehicle about 200 yards in front of him. The vehicle was driven by plaintiff, Marcel Rochon, with his wife Raymonde Rochon riding as a passenger. When Trooper Hodsden approached within 100 yards of plaintiffs’ vehicle, he noticed that its brake lights were illuminated, and that the car was drifting towards the right. Assuming that the vehicle was pulling over to let him pass, Trooper Hodsden moved into the left lane to pass plaintiffs’ vehicle. At the same moment, plaintiffs turned left into their driveway, and the trooper collided with plaintiffs. There was no evidence in the record that plaintiffs had their turn signal on, although plaintiffs claim that it is their practice to turn it on before entering their driveway. Trooper Hodsden claims that he did not see a turn signal before the collision.

¶ 5. Plaintiffs brought this suit against the State, claiming that it was liable for Trooper Hodsden’s negligence, and that his negligence caused plaintiffs’ injuries. The State moved for summary judgment, arguing that it was immune from suit under the doctrine of sovereign immunity. The trial court agreed. It concluded that emergency responders are liable for collision-related injuries caused by their reckless conduct. Plaintiffs failed to plead recklessness. Because plaintiffs did not plead a cognizable cause of action as required under Vermont’s Tort Claims Act, sovereign immunity barred plaintiffs’ suit. This appeal followed.

¶ 6. At issue in this case is whether the State’s sovereign immunity precludes plaintiffs’ cause of action. Although the State is generally immune fi-om suit as a sovereign, it can expressly waive this immunity. Searles v. Agency of Transp., 171 Vt. 562, 563, 762 A.2d 812, 813 (2000) (mem.). The State has done so through the Vermont Tort Claims Act (VTCA). See 12 V.S.A. § 5601(a) (imposing liability for “negligent [acts]... of an employee of the state while acting within the scope of employment... [just as] a private person would be liable”). The waiver requires plaintiffs to show that their allegations “‘taken as true, will satisfy the necessary elements of [their] comparable state cause of action,’ ” or, in other words, their “private analog.” Denis Bail Bonds, Inc. v. State, 159 Vt. 481, 486, 622 A.2d 495, 498 (1993) (citation *147omitted). Plaintiffs’ private analog in this case is negligence, the elements of which are a legally cognizable duty owed by the defendant to the plaintiff, a breach of that duty that proximately causes plaintiffs’ injuries, and damages. Powers v. Office of Child Support, 173 Vt. 390, 398, 795 A.2d 1259, 1265 (2002). Thus, on its face, plaintiffs’ complaint satisfied the private analog required to hold the State liable for the trooper’s actions here.

¶ 7. The issue, then, is whether plaintiffs may sue the State for the negligence of an emergency responder who collides with another driver while proceeding to an emergency. The State argued successfully below that 23 V.S.A. § 1015(c) precludes a negligence action for injuries caused in a collision with an emergency responder. Section 1015 sets forth the privileges and duties of emergency vehicles as they drive to emergencies. It allows the responder to violate certain rules of the road when driving to the scene of an emergency. See, e.g., 23 V.S.A. § 1015(a)(2) (emergency responders may proceed through red lights and stop signs); id. § 1015(a)(4) (emergency responders “may exceed the maximum speed limits”). But, § 1015(c) also provides that the permitted exceptions “shall not relieve the driver of an authorized emergency vehicle from the duty to drive with due regard for the safety of all persons, nor shall such provisions protect the driver from the consequences of his reckless disregard for the safety of others.” 23 V.S.A. § 1015(c). The trial court construed § 1015(c)’s language to require a higher level of culpability — recklessness — to hold the driver liable. We agree.

¶ 8. When interpreting a statute, we must always give effect to the Legislature’s intent. Holmberg v. Brent, 161 Vt. 153, 155, 636 A.2d 333, 335 (1993). We first look to the whole statute, striving to give effect to every word it contains. In re Eastland, Inc., 151 Vt. 497, 499, 562 A.2d 1043, 1045 (1989). If the statute’s meaning is plain and unambiguous, we enforce the statute as written. Holmberg, 161 Vt. at 155, 636 A.2d at 335.

¶ 9. The language of § 1015(c) comes from § 11-106 of the Uniform Vehicle Code, and has been interpreted by other jurisdictions. In construing the language at issue, the New York Court of Appeals concluded that the statute imposes civil liability upon a showing of reckless conduct only, while admonishing drivers of emergency vehicles to act with due regard for the safety of other persons. Saarinen v. Kerr, 644 N.E.2d 988, 990-91 (N.Y. 1994). The court reasoned that the statute’s purpose was to give emergency responders *148a “qualified privilege to disregard” certain road regulations in order to carry out their important duties. Id. at 992. Any other interpretation, the court observed, “would undermine the evident legislative purpose ... [to afford] operators of emergency vehicles the freedom to perform their duties unhampered by the normal rules of the road.” Id. See also Morris v. Leaf, 534 N.W.2d 388, 391 (Iowa 1995) (interpreting statute identical to § 1015 in the context of a police chase, and concluding that “limiting personal liability for the consequences of high-speed chases to reckless rather than mere negligent conduct will provide for vigorous law enforcement without placing innocent bystanders at undue risk”).

¶ 10. Like the New York Court of Appeals, we had occasion to address the language of § 1015(c) in Morais v. Yee, 162 Vt. 366, 648 A.2d 405 (1994). In Moráis, we examined whether police officers were entitled to qualified immunity for injuries a suspect sustained following a chase, and we held that because the Legislature established a clear duty under 23 V.S.A. § 1015(c), qualified immunity did not apply. Id. at 373, 648 A.2d at 410. After determining the source of the duty was § 1015(c), we construed the statute to require a showing of recklessness by the emergency responder before holding the responder liable for the injured party’s damages. Id. (citing Schatz v. Culter, 395 F. Supp. 271, 274-75 (D. Vt. 1975), which interpreted § 1015(c) to require recklessness before imposing liability). Finally, we reversed the trial court’s entry of summary judgment in favor of defendants, noting that “factual disputes, material to the determination whether defendants acted with reckless disregard in conducting the pursuit, precluded] summary judgment.” Id. at 375, 648 A.2d at 411 (emphasis added). Our holding in Moráis thus established that, to find an operator of an emergency vehicle liable for injuries caused while responding to an emergency call, the plaintiff must show that the operator acted recklessly.

¶ 11. We recognize that other jurisdictions that have examined language similar to § 1015(c) have construed their respective statutes to permit negligence claims against emergency responders. The Wisconsin Supreme Court, interpreting Wisconsin’s emergency vehicle statute, determined that liability may be imposed upon a showing of negligence. Estate of Cavanaugh v. Andrade, 550 N.W.2d 103, 115 (Wis. 1996). The court concluded that “a negligence action may be sustained against an officer ... on the grounds that he or she breached the duty to operate the vehicle with ‘due regard under the circumstances.’ ” Id:, see also Wright v. City of Knoxville, 898 S.W.2d *149177, 179-80 (Tenn. 1995) (interpreting statute to allow claims against emergency responders for negligence). We find the reasoning of these jurisdictions unpersuasive, however, because the courts determined that the statute permitted negligence claims after examining only the “due regard” language, without reference to the “reckless disregard” language. By construing the statute to permit negligence claims against emergency responders, these courts make the reckless disregard language surplusage. The language of § 1015(c) does not end with the admonition to drive with due regard, but, rather, warns of consequences for driving with reckless disregard. We agree with the observation of the Texas Supreme Court that “[a]ny construction of this section to impose a standard of care of less than recklessness would make the ‘reckless disregard’ clause ineffectual surplusage.” City of Amarillo v. Martin, 971 S.W.2d 426, 430 (Tex. 1998).

¶ 12. Plaintiffs argue, however, that negligence is the correct standard based on similar “due regard” language contained in 23 V.S.A. § 1050(c). That section states that operators of emergency vehicles are not relieved “from the duty to drive with due regard for the safety of all persons using the highway.” The language in § 1050 does not contradict our conclusion about § 1015(c). Section 1050 was enacted to require drivers to pull over when emergency vehicles are approaching, or to make lane changes, if possible, when approaching a stationary emergency vehicle. The language in the statute is a general admonition to emergency responders that, while other cars have an obligation to pull to the side of the road, emergency responders must still drive with “due regard for the safety of” others. That admonition is consistent with the language in § 1015(c), which also requires emergency responders to drive with due regard for the safety of others. See id. (entirely reasonable to read “due regard” language as cautionary warning to emergency vehicle operators to drive with due regard to others, considering the privilege they are granted, while requiring operators to answer in damages for the consequences of their reckless conduct).

¶ 13. Our construction of § 1015(c) is consistent with the legislative purpose that prompted its enactment. Predicating emergency vehicle operator liability on the higher standard of recklessness strikes the best balance between the competing interests of allowing emergency personnel to respond to an emergency situation without unduly compromising public safety. Concern about exposing emergency *150vehicle operators to liability for ordinary negligence was well articulated by the New York Court of Appeals: “As a practical matter, use of the undemanding ordinary negligence test — or even the more ‘flexible’ common-law negligence test that is applied in emergency situations — would lead to judicial ‘second-guessing’ of the many split-second decisions that are made in the field under highly pressured conditions.” Saarinen, 644 N.E.2d at 992. Facing the threat of liability for simple negligence would deter emergency vehicle operators’ willingness to act decisively using the judgment required to balance protecting the public with responding to emergencies.1

¶ 14. The balance the Legislature struck is no clearer than when viewed in the light of the facts of this case. Trooper Hodsden was called to a house where a woman locked herself in a bathroom for protection from a man who was trying to assault her. The trooper was told that the alleged assailant was trying to break into the bathroom where the victim had retreated for protection. The trooper drove within the speed limit and with his emergency lights on. When he saw plaintiffs’ vehicle braking and drifting toward the right of the road, as they were required to do by law, see 23 V.S.A. § 1050(a), he made a split-second decision to continue at his speed to the house by passing in the left lane. His decision under these circumstances is exactly the type of decision that the Legislature intended to permit by requiring a higher degree of culpability for accidents involving emergency responders. Considering our prior decision in Moráis, and the well-reasoned decision by the New York Court of Appeals, plaintiffs have failed to demonstrate that § 1015(c) permits an action in negligence for injuries caused by a driver responding to an emergency call.

¶ 15. Plaintiffs also contend that the trial court erred in granting summary judgment because their complaint may be construed as alleging reckless conduct, a question that is not susceptible to disposi*151tion on summary judgment because it is .generally .a matter for the trier of fact’s determination. This claim is without merit. First, plaintiffs failed to plead recklessness in their complaint. Second, even if they had done .so, reckless conduct requires a conscious disregard to a substantial and unjustifiable risk. See State v. Brooks, 163 Vt. 245, 251, 658 A.2d 22, 26 (1995) (defining recklessness for purposes of criminal penalties); Restatement (Second) of Torts § 500 (1965) (defining recklessness as conduct taken, or not taken when otherwise necessary, despite the actor’s knowledge that conduct presents an unreasonable risk of harm to others); cf. Mellin v. Flood Brook Union Sch. Dist., 173 Vt. 202, 220, 790 A.2d 408, 423 (2001) (explaining that gross negligence is a palpable and heedless disregard of one’s duty to another). Whether conduct rises to the level of recklessness is a matter for the fact finder unless no reasonable minds could differ on the question. See Mellin, 173 Vt. at 220, 790 A.2d at 423 (gross negligence determination is a question of fact). Here, no reasonable person could construe the undisputed facts in this case to show anything but, at most, mere negligence on the part of the trooper. He was traveling at the posted speed limit around nine o’clock in the evening with his lights illuminated, and he saw plaintiffs start to pull over to the right before he attempted to pass their vehicle on the left.2 Moreover, the trooper reasonably assumed that plaintiffs were heeding their statutory duty to let him pass so that he could get to the scene of the emergency as quickly as possible. Summary judgment was appropriate, therefore, because there was no genuine issue as to recklessness, even if we were to assume that plaintiffs pled recklessness in their complaint; the alleged conduct did not rise to that level.

¶ 16. Finally, because we conclude that 23 V.S.A. § 1015(c) acts as a bar to a suit of negligence, and imposes liability only upon a showing of recklessness, we do not reach the issue of whether the discretionary function exception to the sovereign immunity waiver applies in this case.

Affirmed.

We take issue with the State’s view, advanced at oral argument, that the Legislature intended 23 V.S.A. § 1015(c) to prompt emergency responders to take “calculated risks” when driving to the scene of an emergency. Although we recognize that the New York Court of Appeals used that phrase in Saarinen, it did so in emphasizing the need for emergency responders to act decisively not — as the State apparently infers — to encourage risk taking by emergency responders. The “reckless disregard” test is intended to preclude emergency responder liability for arguable misjudgments in responding to emergencies, not to encourage calculated risky judgments. See Saarinen v. Kerr, 644 N.E.2d 988, 992 (N.Y. 1994) (“The ‘reckless disregard’ test, which requires a showing of more than a momentary judgment lapse, is better suited to the legislative goal of encouraging emergency personnel to act swiftly and resolutely while at the same time protecting the public’s safety to the extent practicable.”).

To the extent that plaintiffs rely on the trooper’s failure to use the siren in asserting on appeal that he acted recklessly, the reliance is misplaced. The emergency vehicle statute protects the trooper from negligence suits so long as the cruiser’s siren was sounding or its flashing lights were operating. 23 V.S.A. § 1015(b)- In this case, the trooper turned on the cruiser’s flashing lights so he was not obligated to also engage the siren.