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Duggan v. District of Columbia

October 11, 2001

PATRICIA DUGGAN, ET AL., APPELLANTS
v.
DISTRICT OF COLUMBIA, APPELLEE



Before Wagner, Chief Judge, and Ruiz, Associate Judge, and Belson, Senior Judge.

The opinion of the court was delivered by: Wagner, Chief Judge

Appeal from the Superior Court of the District of Columbia (Hon. Stephen F. Eilperin, Trial Judge)

Argued October 14, 1999

Appellants, Ellen Duggan and Francis Duggan, individually and as parents and natural guardians of Patricia Duggan, a minor, sued appellee, the District of Columbia (District), for damages for personal injuries their daughter sustained when a youthful driver hit her car while being chased by a vehicle driven by a District of Columbia Metropolitan Police Department (MPD) officer. The case was tried by a jury which deadlocked. The trial court granted the District's renewed motion for judgment as a matter of law, concluding that no reasonable juror could find that the police officer was grossly negligent, the standard required for the imposition of liability upon the District under the circumstances. *fn1 Appellants argue that the trial court erred in granting the motion because:

(1) the evidence established gross negligence; and

(2) the evidence established that the officer was not on an emergency run, and therefore, an ordinary negligence standard applied.

We reverse and remand for a new trial and for further proceedings consistent with this opinion.

I. Factual Background

The evidence at trial showed that on a wet afternoon in early November 1992, Metropolitan Police Officer Dwayne Partman noticed a youth in an Acura automobile which was double parked in front of Deal Junior High School. Allen Butler, Jr., who was then thirteen years old, was behind the wheel of the Acura. Deal Junior High is located in upper Northwest near the Tenleytown Metro station. There are six other schools within five blocks of Deal. Officer Partman noticed Butler again as he passed him near 40th and Chesapeake Streets heading towards Albemarle Street. Three teenaged passengers were in the car. The officer began to follow Butler.

At the next intersection, 40th and Brandywine Streets, Butler stopped at the stop sign, and the officer also stopped. Officer Partman noticed the car jerk when it pulled away from the stop sign. The officer then followed Butler to 40th and Albemarle Streets, where Butler stopped the car again. As Butler pulled off, the officer noticed the vehicle jerk again. Butler turned right on Albemarle where there was an "extreme jerk" of the car, according to the officer. At some point as the cars approached Wisconsin Avenue, Officer Partman called in the license plate to have it checked. Officer Partman testified that Butler looked familiar to him and that he appeared to be too young to be driving a car. Officer Partman further testified that Butler appeared to be having trouble operating the car and he was concerned that Butler might cause an accident. However, the officer testified that Butler had committed no traffic violations that he was aware of up to that point.

When Butler turned onto Wisconsin Avenue, Officer Partman turned on his overhead lights to stop him. Instead of stopping, Butler sped away, heading north on Wisconsin Avenue. Officer Partman pursued, and both of the cars went through the red light at Brandywine Street. While pursuing Butler, Officer Partman activated the emergency overhead lights and/or the siren. Witnesses estimated that the speed of the cars reached 50 to 60 miles per hour, although Officer Partman testified that he had not exceeded the speed limit. Butler also testified that he was driving at a speed of 50 to 60 miles per hour. Butler testified that he was trying to get away from the officer because he had no license and he was still at the age where his mother would administer corporal punishment.

About this time, Patricia Duggan was stopped at a stop sign facing north on 41st Street at the intersection of Davenport Street. As Duggan attempted to make a left hand turn onto Davenport Street, Butler ran his car broadside into her car. Butler testified that he did not apply his brakes. Butler also testified that the officer was right behind him just before the accident. The force of the impact caused Duggan's car to be thrown in the air and flipped, and it tore a stop sign out of the ground. *fn2 Butler's car eventually stopped after slamming into a tree. Officer Partman was able to stop his car without leaving skid marks and without colliding with the other cars. The entire incident, from the attempted stop to the collision, lasted no more than twelve seconds and spanned three or four blocks. Officer Partman testified that it had been raining that day, and the streets were wet with slippery leaves on them. Officer Partman knew that school children were being dismissed from the several schools in the area around the time of the incident and that there was a lot of vehicular traffic on Wisconsin Avenue.

Dr. George Kirkham was qualified as an expert in the field of criminology. Dr. Kirkham testified that the national standard of care was that

in considering any pursuit, continuation of any pursuit or initiation of it, an officer is supposed to weigh the urgency of an immediate apprehension against the forseeablity, the obvious forseeability of risk or death or injury to members of the community.

Further, Dr. Kirkham testified that in balancing these considerations, the officer is to consider the following factors:

the character of the area . . . . such things as the weather conditions: Dry is good, wet or rainy, foggy is bad. The known condition of the . . . vehicle that's being chased and -- and the condition of the driver, that is to say is the driver known to be intoxicated, mentally ill or, . . . is the driver a juvenile. . . .

The speeds of the vehicle, the way the vehicle is being opera[ted], does a driver have the vehicle under good control or is it being operated in [an] erratic, unstable kind of manner.

The violation of traffic control devices is very important element to consider . . . . [W]e also consider the nature of the offense . . . .

Dr. Kirkham rendered an opinion that the proximate cause of the accident "was the reckless pursuit engaged by Officer Partman in violation of national standards and regulations of his own department." *fn3

Approximately nine months before the accident, General Order 301.3 became effective. This order set forth the policy and procedures to be used "relative to the operation of department vehicles as authorized `emergency vehicles,' the proper use of emergency warning devices, and the guidelines for initiating and conducting vehicular pursuit and fresh pursuit." Metropolitan Police Dep't, Washington, D.C., General Order 301.3, Operation of Emergency Vehicles, Fresh Pursuit and Vehicular Pursuit (January 13, 1992). The order prohibits police officers from pursuing vehicles to effect traffic stops and requires them to exercise extreme caution in school areas and at intersections and other locations where there is a potential for danger to the public. See General Order 301.3, I.B. & I.D.2.a (3). *fn4 At trial, Officer Partman testified that he was aware of the General Order which was in effect at the time of the accident.

II. Gross Negligence

Appellants argue that the evidence was sufficient to establish the essential elements of gross negligence under prevailing law in the District of Columbia, thus making the case one for a ...


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