Appeal from the Superior Court of the District of Columbia; (Hon. Michael L. Rankin, Trial Judge)
Before Schwelb and Farrell, Associate Judges, and Pryor, Senior Judge. Opinion for the court by Associate Judge Schwelb. Concurring opinion by Associate Judge Farrell.
The opinion of the court was delivered by: Schwelb
SCHWELB, Associate Judge: A jury awarded Ferdinand Banks $360,000 against the District of Columbia for personal injuries suffered by Banks when his car was struck by a stolen automobile which was being operated by seventeen-year-old Anthony Webb. In order to elude capture by pursuing officers of the Metropolitan Police Department (MPD), Webb drove recklessly and at a high rate of speed. He eventually ran through several red lights and crashed into Banks' automobile.
Banks claimed on two different but related grounds that the District was responsible for his injuries. In Count I of his complaint, he alleged that Officer Peter Hyder was grossly negligent in conducting the chase and in failing to terminate it, and that the District was therefore liable to him pursuant to D.C. Code § 1-1212 (1992). In Count II, Banks asserted that Sergeant Melvin L. Scott supervised the pursuit in a negligent manner. In response to specific interrogatories propounded to them in the verdict form at the Conclusion of the trial, the jurors found that "the officer" was grossly negligent in the "high speed chase" and that the District "was negligent in supervising the officer conducting the pursuit."
The District filed a motion for judgment notwithstanding the verdict or, in the alternative, for a new trial. The Judge denied the motion in a written memorandum opinion and order. Banks v. District of Columbia, 120 Daily Wash. L. Rptr. 1605 (Super. Ct. D.C. 1992) (Banks I). On appeal, the District contends that the evidence was insufficient as a matter of law to prove that Hyder was grossly negligent, that the Judge instructed the jury incorrectly both with respect to the gross negligence claim and with respect to the negligent supervision claim, and that the Judge made several erroneous evidentiary and other rulings.
We agree with the District that the trial Judge incorrectly instructed the jury that the plaintiff was required only to show ordinary negligence, rather than gross negligence, in order to prevail on the negligent supervision claim. The District did not object to the instruction, however, but on the contrary effectively invited it. We therefore conclude that although the instruction was erroneous, there was no plain error. Because the negligent supervision finding alone supports the verdict, *fn1 and because, in our view, none of the District's other contentions justifies reversal, we affirm the judgment without reaching the substantial and difficult issues relating to Banks' claim in Count I of gross negligence in the conduct of the pursuit. But see the Concurring opinion of Judge FARRELL, post, at 23, addressing these issues.
On February 13, 1989, an employee of the United States Congress reported that her black 1986 Pontiac Grand Am had been stolen from the Congressional parking lot in southwest Washington, D.C. The automobile had New York tags.
On the following day, Officer Alphonso McAllister was in a scout car patrolling the area of Wilson High School, which is located at 40th and Chesapeake Streets, N.W. At about 1:00 p.m., Officer McAllister saw a car with New York tags cruising the Wilson High School area at a normal rate of speed. McAllister radioed his dispatcher, requesting that she "run the tags," and learned that the automobile had been reported stolen. By that time, the driver of the Grand Am, who later proved to be Anthony Webb, had left the area. Officer McAllister radioed other units to be on the lookout for the automobile. Moments later, McAllister saw the stolen car again and was able to reach a point within three blocks of it. Webb apparently saw McAllister, however, and took evasive action, and McAllister lost him.
The stolen Grand Am was soon spotted by Officer David Willis, who had monitored the radio transmission. By the time Willis had turned his vehicle around, however, Webb had eluded him. Shortly thereafter, Officer Hyder saw Webb driving the vehicle on Nebraska Avenue near Military Road. Hyder attempted to follow Webb, lost sight of him, and then saw him again on Military Road near 27th Street, zig-zagging to pass other cars. Hyder turned on his emergency equipment and continued to follow Webb through Rock Creek Park and on several streets in the area. Travelling east on Missouri Avenue past Brightwood Elementary School, Webb turned right on 13th Street, running a red light as he made the turn. Heading south on 13th Street at speeds estimated at fifty to eighty miles per hour, *fn2 Webb went through successive red lights at Colorado Avenue and Kennedy Street. He ultimately broadsided Banks' vehicle, which was travelling east on Kennedy Street. Banks suffered serious injuries. Webb attempted to flee on foot, but Hyder apprehended him in an alley near the crash site.
B. The Supervision of the Pursuit
Sergeant Scott was the patrol supervisor on February 14, 1981. Officers Hyder, McAllister and Willis were under his command. Scott was in his scout car at the Second District station from the time Officer McAllister first saw Webb cruising near Wilson High School until the end of the chase, when Officer Hyder arrested Webb. Scott listened to the radio transmissions during this period and went to the accident scene shortly after Webb's arrest.
As a supervisor, Sergeant Scott had the authority to order Officer Hyder to terminate the pursuit. Scott testified, however, that he saw no need to intervene. He monitored all radio transmissions, and he believed that Officer Hyder was calm and that Hyder had the situation under control. The weather conditions did not preclude pursuit, for it was a clear and sunny day, and the roads were dry. Sergeant Scott believed that Officer Hyder, an experienced and reliable officer with twenty years on the force, could assess the situation for himself.
The plaintiff called Robert J. DiGrazia as an expert witness. DiGrazia has held various positions in law enforcement, the most recent of which was Chief of Police of Montgomery County, Maryland. DiGrazia testified that the applicable standard of care for terminating police pursuits is established MPD General Order 301.3, by lesson plans used in MPD training, and by a traffic regulation. He relied chiefly on excerpts from the General Order, and described the Order in pertinent part as follows:
Under vehicle pursuit it states in the order:
The object of any police pursuit is to apprehend a law violator without causing unnecessary peril to the members involved and the persons or property of citizens.
Whenever it becomes evident that unnecessary property damage or injury to citizens or members of the department may result from a vehicular pursuit, that pursuit shall be immediately discontinued.
And then in pursuit policy and procedure it says:
Vehicle pursuits, once initiated, in compliance with the provisions of this order, shall be conducted in accordance with the following procedures, and one of them is that authority to control and coordinate the pursuit shall be vested in the Watch Commander of the Communications Division.
And another section talks about the termination.
Members will immediately, and immediately is underlined, discontinue the pursuit, and notify the Communications Division whenever conditions exist, in other words, weather conditions, roadway or pavement conditions, rush hour considerations, vehicular and pedestrian traffic congestion, speed of the vehicle, speed of the chase, excuse me, mechanical handling of the police vehicle, seriousness of the violation of offense, or becomes such that further vehicular pursuit would lead a reasonable person to believe that unnecessary property damage or injury to the citizens or members of department may result.
DiGrazia testified that in his opinion, these standards were violated in this case by Officer Hyder's failure to terminate the pursuit of Anthony Webb. He further opined that this failure was the proximate cause of Banks' injuries. DiGrazia also stated that, in his opinion, Sergeant Scott violated the General Order by failing to direct Officer Hyder to terminate the pursuit.
The District's expert witness was Glenn R. Murphy, who was qualified as an expert in law enforcement management and training and in police pursuits. Murphy testified that under a standard of care applicable throughout the United States, police officers have a duty or responsibility to pursue felons. Murphy defined a pursuit as an activity that occurs after an officer has attempted to stop an automobile by turning on emergency equipment (lights and sirens), and after the driver has refused to stop and has attempted to elude police. According to Murphy, the actual pursuit in this case continued for less than a mile. He testified that any reasonably prudent officer would have pursued Webb under the circumstances, and that Officer Hyder did not violate the MPD General Order or the nationally accepted standard of care.
THE NEGLIGENT SUPERVISION ISSUE
A. The Requirement of Gross Negligence.
Banks, as we have noted, asked that liability be imposed against the District on two separate theories. His first claim involved Officer Hyder's alleged gross negligence in the pursuit of Webb. The second was based on Detective Scott's alleged ordinary negligence in supervising the chase.
In this court, the parties have focused primarily on the sufficiency or insufficiency of the evidence to show gross negligence on the part of Hyder, and on the correctness or incorrectness of the Judge's instruction permitting the jury to find gross negligence on the basis of a violation of the police general order standing alone. Because we are compelled to affirm the judgment on the basis of the jury's verdict as to Banks' negligent supervision claim, however, we do not reach the issues relating to Hyder's alleged gross negligence.
The District of Columbia Employee Non-Liability Act precludes the District from asserting the defense of governmental immunity in cases arising from the negligent operation by a District employee, within the scope of his or her employment, of a vehicle owned or controlled by the District. D.C. Code § 1-1212 (1992). *fn3 Section 1-1212 further provides, however, 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." It is undisputed that the police cruiser operated by Officer Hyder during the pursuit of Webb was "an emergency vehicle on an emergency run." See D.C. Code § 1-1211 (4).
While charging the jury, the trial Judge defined, and differentiated between, gross negligence and ordinary negligence. In conformity with § 1-1212, he correctly instructed the jury that, in connection with the chase itself, Banks was required to show that Officer Hyder was grossly negligent. With respect to the negligent supervision claim, however, the Judge told the jurors that "negligent ...