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09/28/90 WILLIE LEE ABNEY v. DISTRICT COLUMBIA

September 28, 1990

WILLIE LEE ABNEY, ET AL., APPELLANTS/CROSS-APPELLEES
v.
DISTRICT OF COLUMBIA, APPELLEE/CROSS-APPELLANT



Appeals from the Superior Court of the District of Columbia; Hon. Colleen Kollar-Kotelly, Trial Judge.

Belson, Steadman and Farrell, Associate Judges.

The opinion of the court was delivered by: Steadman

An automobile being pursued by a District of Columbia police officer collided with a taxicab driven by plaintiff Abney, in which plaintiff Ratliff was a passenger. Both parties sued the District for consequent injuries. The dispositive issue in this case is whether the District of Columbia is liable to the plaintiffs under a statute waiving immunity for negligent acts by District employees in their operation of vehicles, with the proviso that "in the case of a claim arising out of the operation of an emergency vehicle on an emergency run the District shall be liable only for gross negligence." D.C. Code § 1-1212 (1987). We reverse the judgments in favor of the plaintiffs, and remand for further proceedings.

I

Shortly after midnight on April 28, 1984, Officer Richard Mattiello of the District of Columbia Metropolitan Police Department ("MPD") observed a BMW automobile "behind a vacant house" and off of an alley in an area commonly used for drug transactions. Observing a silhouette, the officer shined a light onto the automobile. The automobile immediately pulled out into the alley and proceeded to depart from the scene. The officer followed the BMW through the alley and to a nearby intersection but did not make any attempt to stop the BMW. As the BMW turned, it sideswiped an automobile waiting at the intersection. The BMW did not stop but accelerated away from the scene. Witnessing this event, the officer unsuccessfully radioed his dispatcher and then proceeded to follow the BMW at high speed. *fn1 The BMW travelled for two blocks and then raced through a red light at another intersection, colliding with a taxicab. The collision caused severe injuries to the taxi driver, Abney, and to his passenger, Ratliff.

On February 24, 1986, passenger Ratliff filed suit against, inter alia, the District of Columbia, as operator of the Metropolitan Police Department. Ratliff alleged negligence in Officer Mattiello's violation of

general orders, regulations, directions, and statutes of the Metropolitan Police Department and the District of Columbia, including but not limited to, failure to engage and employ all required emergency warning devices on the pursuit vehicle(s), failure to warn innocent third parties in the vicinity of the danger of the pursuit, operating the pursuit vehicle at such excessive speeds that harm to innocent third parties was likely and foreseeable, and failure to abandon the pursuit when the officer or officers knew or should have known that harm or injury to innocent third parties was likely to occur.

Ratliff also alleged gross negligence in the District's actions, stating that they were "wanton, willful, and in conscious and reckless disregard for the rights and safety of the Plaintiff." On July 9, 1986, the trial court granted Abney's motion to consolidate with Ratliff as a plaintiff in the claims against the District.

At trial, the plaintiffs sought to establish that the officer's pursuit of the BMW after it had sideswiped another car was in violation of District of Columbia Metropolitan Police Department General Order No. 301.3 (effective February 9, 1981) (hereinafter "General Order No. 301.3" or "the Order"), and that the District was therefore negligent or grossly negligent. *fn2

The plaintiffs presented the testimony of an expert, who stated that the officer's decision to pursue the BMW when he had witnessed the sideswiping violated General Order No. 301.3 and standard police practice. The District sought to rebut this testimony with that of its own expert. The plaintiffs also sought to establish that the officer did not turn on his siren when he chased the BMW following the sideswiping and that this omission also constituted negligence or gross negligence. The jury awarded $500,000 to Abney and $75,000 to Ratliff. This appeal followed. *fn3

II

A

In an extensive colloquy, counsel and the trial Judge considered how to instruct the jury on the issue of whether the officer was operating "an emergency vehicle on an emergency run" when he chased the BMW from the scene of the sideswiping. This consideration was necessary in light of controlling sections of the District of Columbia Code, *fn4 which provide:

Hereafter the District of Columbia shall not assert the defense of governmental immunity in any suit at law in which a claim is asserted against it for money only on account of damage to or loss of property or on account of personal injury or death caused by the negligent or wrongful act or omission of any employee of the District occurring as the result of the operation by such employee, within the scope of his office or employment, of a vehicle owned or controlled by the District: Provided, that in the case of a ...


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