Appeal from the Superior Court of the District of Columbia Civil Division (CAB6686-03) (Hon. Geoffrey M. Alprin, Trial Judge).
The opinion of the court was delivered by: Reid, Associate Judge
Before REID, FISHER and BLACKBURNE-RIGSBY, Associate Judges.
Appellee, Valentina Chambers, was injured when her van was struck by a vehicle being pursued by a police officer. She brought a personal injury lawsuit against appellant, the District of Columbia, alleging gross negligence by Metropolitan Police Department ("MPD") Officer Theresa Waterhouse, gross negligence by the District in training and supervision, and respondeat superior. The jury returned a verdict in favor of Ms. Chambers, awarding her approximately $950,000.00. The trial court denied the District's post-trial motion for judgment as a matter of law, or alternatively, a new trial. The District contends that the trial court erred by failing to rule, as a matter of law, both before and after the case was submitted to the jury, that the police officer who pursued the vehicle which collided with that of Ms. Chambers, was on an emergency run and the officer was not grossly negligent. We hold that in response to the District's motion, the trial court should have ruled, as a matter of law, that Officer Waterhouse was on an emergency run when Ms. Chambers was injured. However, we reject the District's argument that it also was entitled to a ruling, as a matter of law, that Officer Waterhouse was not grossly negligent. The trial court correctly submitted the gross negligence issue to the jury, but the jury made no finding on that issue since it decided that Officer Waterhouse was not on an emergency run. Hence, we vacate the trial court's judgment and remand this case for a new trial on the issue of whether Officer Waterhouse was grossly negligent in conducting the emergency run.
Prior to trial, the District filed a motion for judgment on the pleadings, or in the alternative, for summary judgment. The trial court treated the motion as one for summary judgment, and denied it, explaining that with respect to gross negligence, "[Officer] Waterhouse's speed is an open and significant factual issue" since Mr. Thomas testified during his juvenile proceeding that he was driving "probably about 80" miles per hour, whereas Officer Waterhouse "testified in her first deposition that 'my speed at that point was between 30 . . . and 35'" miles per hour. Moreover, "Officer Waterhouse did not explain at her deposition why she did not immediately effect a traffic stop when [Mr.] Thomas first violated the law by running a red light, instead of deciding simply to follow him." The trial court reasoned that if these factual issues were "resolved in favor of [Ms.] Chambers, a reasonable jury could conclude that Officer Waterhouse was grossly negligent."
After the trial court denied the District's motion for summary judgment, the case proceeded to trial. At trial Ms. Chambers presented evidence showing that in the late afternoon of February 3, 2003, around 4:00 p.m., she was driving home from work when her van was hit by another vehicle as she proceeded through the intersection at 17th and A Streets, in the Northeast quadrant of the District of Columbia, at a speed of approximately 15 to 20 miles an hour after having stopped for a traffic signal. She did not see the car before it struck her van, and did not hear any sirens, saw no police lights, heard no horn or squealing tires. Upon impact, Ms. Chambers saw "glass coming towards [her]," and her van started "spinning real fast," and flipped over. She found herself "upside down." The injury to her left hand was severe; her thumb and two other fingers were detached from her hand. Doctors were not able to reattach the thumb and two fingers successfully, and Ms. Chambers has to wear a prosthesis.*fn1 Following the accident she suffered suicidal thoughts and experienced depression.*fn2 She lodged a personal injury action against the District.
Since he was unavailable for trial, the trial court permitted Ms. Chambers to present the videotaped deposition testimony of the sixteen-year-old young man, Patrick Thomas, whose automobile collided with Ms. Chambers' vehicle. Mr. Thomas acknowledged that during a hearing on traffic charges against him, he told the judge that he was driving around 80 miles per hour at the time of the February 3, 2003 crash. Prior to the collision, Mr. Thomas noticed that a police car was following him as he drove on East Capitol Street. He stopped for a red light and when it changed he drove off "fast" because he had a gun in the car. Initially he drove at a rate of about 50 or 60 miles an hour. The driver of the police car activated "red and blue" police lights (Mr. Thomas did not hear a siren) and followed him at a "fast speed." Mr. Thomas proceeded for about four or five blocks, accelerating to around 80 miles per hour -- traveling on East Capitol and 13th Street to 13th or 14th and A to 17th and A. As he drove, he observed that the police officer remained behind him -- "probably like a block away, two blocks," but was "chasing" him and moving at a speed of about 50 miles per hour. Mr. Thomas "totaled" the car he was driving, but was able to exit the vehicle and to run away from the scene of the crash. The police caught and apprehended him.
Dr. George Kirkham, a criminologist, testified for the plaintiff as an expert "in the field of police practices and procedures with a specialty in vehicular pursuits." His testimony was based on his review of pertinent documents relating to the case; his familiarity with the route traveled by Mr. Thomas and Officer Waterhouse; and police practices and procedures, including those set forth in: (1) MPD General Order 301.3, "Operation of Emergency Vehicles, Fresh Pursuit and Vehicular Pursuit" (January 13, 1992); (2) General Order 303.1, "Traffic Enforcement" (April 30, 1992); and (3) International Association of Chiefs of Police ("IACP") policy (October 1996). He declared, "within a reasonable degree of professional certainty," that Officer Waterhouse "clearly" was not on an emergency run on February 3, 2003; "she did not believe that it was an emergency or exigent circumstance, situation or a life impairment kind of thing." Rather, Dr. Kirkham asserted, "it was . . . an expired temporary tag," and Officer Waterhouse "even said  she did not even think  it was linked to a stolen vehicle." And, even if Mr. Thomas' vehicle had been stolen, Officer Waterhouse could not have engaged in a "chase under those circumstances," because the applicable police regulation, General Order 301.3, specifies that an officer "cannot chase  in the District for anything other than a serious felony situation," and the officer "is supposed to per regulation  notify her dispatcher immediately  so that word can be put out to other units in the area and a supervisor can get on the air and intervene." Officer Waterhouse failed to notify dispatch immediately, and she did not turn on her "full emergency lights" "until right at or just after the point of impact. . . ."
Dr. Kirkham identified Officer Waterhouse's violations of the police regulation as the proximate cause of the accident between Mr. Thomas' and Ms. Chambers' cars. Moreover, Dr. Kirkham expressed the opinion "within a reasonable degree of professional certainty," that Officer Waterhouse violated "many of the tenets of the national standard of care" as set forth in the International Association of Chiefs of Police (IACP) Vehicle Model Pursuit policy,*fn3 and those violations were the proximate cause of the accident. Furthermore, in Dr. Kirkham's professional opinion, Officer Waterhouse was grossly negligent, that is, she engaged in "grossly and recklessly dangerous actions" on February 3, 2003. When asked the basis for his professional opinion that Officer Waterhouse's actions were the proximate cause of the accident, Dr. Kirkham responded: "[S]he engaged in a series of actions which are widely prohibited by police regulations throughout the country including her own department. They were foreseeable and likely to result in an accident." He explained that the District "is a populous city," and "there are people out and about at all hours." He referenced Officer Waterhouse's testimony "that there would have been school kids out and about at that hour of the afternoon."
MPD Officer Eric Espinosa was called as a witness by Ms. Chambers, and as the District's corporate designee, his testimony was binding on the District. He acknowledged that General Order 301.3, dated January 13, 1992, applied to police pursuits, and General Order 303.1, dated April 30, 1992, pertained to traffic enforcement. Both orders were in effect on February 3, 2003.*fn4 Officer Espinosa agreed that in the case of a vehicular pursuit, "it would have been a violation of the applicable general order to pursue a car without genuinely believing that someone in the car had committed a serious felony. . . ." Moreover, in the case of a vehicular pursuit, "all of the emergency devices shall be activated at once" (overhead lights and a siren), and the police officer is required to notify the Communications Division of the MPD "as soon as practical." Officer Espinosa further acknowledged that "if an officer were to exceed the speed limit by 10 miles per hour and was not in pursuit of a felon, that officer would be in violation of [General Order 301.3 (b)(5)]." On cross-examination, Officer Espinosa was asked: "[I]f an officer were to observe a traffic violation, what would an officer have to do in terms of the lights and siren to stay in compliance with the general order?" He explained: "Under the traffic regulation, you activate your emergency equipment and attempt to effect a traffic stop." He added that "it would not be unreasonable for an officer to follow behind a vehicle to assess the situation before [he or she] actually activated th[e] emergency equipment." He stated that in the case of a vehicular pursuit, "the applicable general order governing police pursuits supersedes the language in the applicable general order regarding traffic enforcement."*fn5
The District called MPD Officer Theresa Waterhouse as a defense witness. According to her direct examination testimony, on the afternoon of the February 3, 2003 crash, she was on duty in her patrol service area, which included 15th and East Capitol Streets. While she was waiting for the light to turn green, she noticed a vehicle with an expired temporary paper tag; the vehicle was driven by Patrick Thomas. She followed the vehicle on East Capitol Street to 14th Street, with her flashing white lights illuminated (position one), and prepared to use the police radio "so that [she] could run the tag [of the vehicle] for investigative purposes." Although the traffic signal was red, the vehicle in front of the officer's car "very hastily" made a left turn onto 14th Street and "continued to pick up speed." Officer Waterhouse waited for the light to turn green, and for another vehicle to clear the intersection. As she turned onto 14th Street, she saw the other vehicle make a left hand turn onto A Street, S.E. Officer Waterhouse made the same left hand turn, and noticed Mr. Thomas's vehicle crossing 15th Street without having halted at the stop sign. She did not know how fast Mr. Thomas was driving, but "he was going pretty fast." She did not recall her speed but estimated that it was "25 or 30" miles per hour.*fn6 The officer believed that Mr. Thomas "had no intentions of stopping for anything at that point," and that she "needed to try to stop the vehicle." However, Officer Waterhouse did not activate her lights and siren, because she did not want the driver "to know that [she] was trying to stop him." Mr. Thomas increased his speed to a "high rate" and drove through the stop sign at 16th Street. By that time, according to Officer Waterhouse, Mr. Thomas "had committed a few traffic violations" and was "now driving recklessly."
Officer Waterhouse activated her lights and siren into position three, meaning that all of the lights illuminated and the siren sounded. Mr. Thomas "made no attempts to slow down." As Officer Waterhouse crossed 15th Street and entered the 1600 block of A Street, Mr. Thomas ignored the stop sign and proceeded to cross 17th Street. His vehicle hit the car which Ms. Chambers was driving; Officer Waterhouse described the impact of Mr. Thomas's vehicle with Ms. Chambers' car as "almost simultaneous" with the activation of her siren and full flashing lights; that is, as he "dr[o]ve through the stop sign at 16th and A Street[,]
[a]lmost immediately he hit [Ms.] Chambers' vehicle." Mr. Thomas got out of his vehicle and ran into an A Street alley. Officer Waterhouse apprehended him and took ...