Gholamreza Kian, Trustee for the Next of Kin of Sean Kian, Decedent v. City of Minnetonka ( 2015 )

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2014).
STATE OF MINNESOTA
IN COURT OF APPEALS
A14-1624
Gholamreza Kian,
Trustee for the Next of Kin of Sean Kian, Decedent,
Appellant,
vs.
City of Minnetonka, et al.,
Respondents.
Filed June 15, 2015
Affirmed
Chutich, Judge
Dissenting, Rodenberg, Judge
Hennepin County District Court
File No. 27-CV-13-18976
Steven Meshbesher, Richard Student, Meshbesher & Associates, P.A., Minneapolis,
Minnesota (for appellant)
Paul D. Reuvers, Andrea B. Smith, Iverson Reuvers Condon, Bloomington, Minnesota
(for respondents)
Considered and decided by Smith, Presiding Judge; Rodenberg, Judge; and
Chutich, Judge.
UNPUBLISHED OPINION
CHUTICH, Judge
While responding to an emergency call, Minnetonka Police Officer Daniel
Aschenbrener speeded through a red light and struck Sean Kian’s car. The collision
killed Kian. Appellant Gholamreza Kian, trustee for the next of kin of Sean Kian,
brought a wrongful-death action against respondents City of Minnetonka (the city) and
Officer Aschenbrener. The district court granted summary judgment to Officer
Aschenbrener under the doctrine of official immunity and to the city on vicarious official
immunity. Kian challenges the district court’s decision, arguing that a genuine issue of
material fact exists as to whether Officer Aschenbrener’s actions were not covered by the
doctrine of official immunity because they were willful and malicious. Because, as a
matter of law, the willful-and-malicious exception does not apply under the facts present
here, we affirm.
FACTS
The facts underlying the fatal car crash are as follows. At approximately 9:30
p.m. on December 4, 2012, police received a 911 call regarding a young male with a
history of aggression who was acting out of control and pushing family members.
Officer Aschenbrener responded to the call and en route to the emergency turned on his
police car’s emergency lights and the Opticom emitter.1
While he was traveling westbound on Excelsior Boulevard to the emergency,
Officer Aschenbrener learned that the young male appeared to be on drugs, had been
committed to a psychiatric ward twice in the past year, and was looking for a gun to shoot
himself. This report prompted Officer Aschenbrener to increase his speed. Officer
Aschenbrener’s police car video showed cars pulling over to the side of the road upon his
1
The Opticom emitter allows emergency vehicles to gain a temporary right of way
through intersections by communicating with traffic lights.
2
approach, and it showed that the roadways were dry, the night was clear, and traffic was
relatively light.
Excelsior Boulevard has a posted speed limit of 40 miles per hour, and Officer
Aschenbrener was traveling approximately 75 miles per hour six seconds before reaching
the Woodland Road/Excelsior intersection. When Officer Aschenbrener approached the
intersection, the video showed that the stoplight facing him was red, and the Opticom was
solid white, demonstrating that it had started the light change sequence.
Sean Kian was traveling northbound on Woodland toward the intersection with
Excelsior. A large church sign obscured the approach of Kian’s car from Officer
Aschenbrener’s view. As Kian approached the intersection, the light facing him turned
yellow, and the Opticom was flashing white. When Kian entered the intersection, the
stoplight turned red and the Opticom continued flashing. Officer Aschenbrener’s police
car then collided with Kian’s car, and Kian, who was not wearing a seat belt, was ejected
from the car and fatally injured.
The parties dispute whether Officer Aschenbrener’s siren was on at the time of the
collision. A resident who lived near the intersection testified that he heard the crash but
no siren. The resident maintained that he would have heard a siren because they echo in
that area, and he has heard many in the past. Officer Aschenbrener testified that he
turned the siren on en route to the emergency and other evidence in the record suggested
that the siren was on before the crash.
The Minnesota State Patrol issued a Crash Reconstruction Report (the report) after
the collision. The report stated that Officer Aschenbrener was “operating a fully marked
3
Minnetonka Police squad car with the lights and siren activated.” It confirmed that
Officer Aschenbrener “applied the brakes and swerved to the right in an attempt to avoid
a collision as he entered the intersection on a red light.” Officer Aschenbrener also
testified that he tried to swerve out of the way when he saw Kian’s car. The report
further stated that Kian’s car sustained damage consistent with being struck broadside.
The report estimated that Kian’s car was traveling 26 miles per hour at the moment of
impact. Data from the police car’s power-control module estimated that Officer
Aschenbrener was traveling at 77 miles per hour approximately 216 feet before impact.2
The report concluded that Officer Aschenbrener caused the collision because
“[t]he speed which [the police car] was traveling did not allow sufficient time for the
traffic controller to complete the pre-emption cycle” and “[t]he point at which the BMW
(Kian) could have observed the approaching emergency vehicle (approximately 88 feet
from impact) would not have allowed sufficient time for Kian to perceive/react and avoid
the collision.”
In August 2013, Gholamreza Kian sued Officer Aschenbrener and the city for
wrongful death, claiming willful disregard of duty, negligence, vicarious liability, and
negligent training. Officer Aschenbrener and the city moved for summary judgment,
arguing that Officer Aschenbrener was entitled to official immunity and the city was
2
The report estimated that Officer Aschenbrener was traveling at 62 miles-per-hour
leading up to the crash but as the report noted, this estimate conflicts with data from the
squad car’s power-control module. Because we construe the facts in the light most
favorable to Kian in this summary judgment appeal, we assume that Officer
Aschenbrener’s police car was traveling at 77 miles-per-hour. See Frieler v. Carlson
Mktg. Grp., Inc., 751 N.W.2d 558, 564 (Minn. 2008).
4
entitled to vicarious official immunity. The district court granted summary judgment in
favor of Officer Aschenbrener and the city and dismissed all four counts with prejudice.
Kian appealed.
DECISION
In an appeal from summary judgment, this court examines whether genuine issues
of material fact exist and whether the district court’s application of the law was
erroneous. Vassallo ex rel. Brown v. Majeski, 842 N.W.2d 456, 462 (Minn. 2014). A
genuine issue of fact exists when the evidence permits “reasonable persons to draw
different conclusions.” Frieler, 751 N.W.2d at 564 (quotation omitted). The evidence is
viewed in the light most favorable to the nonmoving parties and all reasonable inferences
are drawn in their favor. Id. The applicability of official immunity is a question of law
that this court reviews de novo. Vassallo, 842 N.W.2d at 462.
Official immunity is a common-law doctrine. Kari v. City of Maplewood, 582
N.W.2d 921, 923 (Minn. 1998). It acts as a shield to protect public officials who perform
duties that call for the exercise of judgment or discretion from being held personally
liable for damages. Schroeder v. St. Louis Cnty., 708 N.W.2d 497, 505 (Minn. 2006).
The purpose of the doctrine is “to enable public employees to perform their duties
effectively, without fear of personal liability that might inhibit the exercise of their
independent judgment.” Vassallo, 842 N.W.2d at 462. This doctrine is particularly
important in emergency situations because those responding to emergencies must often
make “quick decisions, often with imperfect information, in situations in which hesitation
5
or inhibition may result in significant harm to the public.” Id. at 467 (Anderson, J.
dissenting).
This court examines three factors to determine if official immunity applies:
“(1) the conduct at issue; (2) whether the conduct is discretionary or ministerial and, if
ministerial, whether any ministerial duties were violated; and (3) if discretionary, whether
the conduct was willful or malicious.” Id. at 462.
Conduct at Issue
To determine whether Officer Aschenbrener can assert official immunity, this
court must first identify the specific conduct at issue. Anderson v. Anoka Hennepin
Indep. Sch. Dist. 11, 678 N.W.2d 651, 656 (Minn. 2004).
Viewing the conduct at issue here—Officer Aschenbrener’s driving—in the light
most favorable to Kian, including assuming that the car’s siren was not on, the record
shows the following facts: Officer Aschenbrener responded to an emergency call and
drove approximately 37 miles per hour over the speed limit; he turned on his Opticom
emitter and flashing red lights; he approached an intersection with a red light and did not
slow down; the Opticom emitter was flashing at Kian but had not yet completely changed
the light; when Officer Aschenbrener approached the intersection where the crash
occurred, a church sign obscured Kian’s car from Officer Aschenbrener’s view; when
Officer Aschenbrener saw Kian’s car, he braked and tried to avoid the collision; and
Officer Aschenbrener’s car broadsided Kian’s car, ejecting Kian from the car and fatally
injuring him.
6
Discretionary or Ministerial
We next turn to whether Officer Aschenbrener’s conduct was discretionary or
ministerial. “Whether a particular statute or policy creates a ministerial duty is ordinarily
a question of law.” Vassallo, 842 N.W.2d at 463. To determine whether an official’s
conduct is discretionary or ministerial, we must focus on the nature of the act. Id. at 462.
“A discretionary duty involves individual professional judgment that necessarily reflects
the professional goal and factors of a situation.” Id. (quotation omitted). A ministerial
duty “is absolute, certain, and imperative, involving merely the execution of a specific
duty arising from fixed and designated facts.” Anderson, 678 N.W.2d at 656 (quotation
omitted).
Kian argues that Minnesota Statutes section 169.03, subdivision 2 (2014),
Minnesota Statutes section 169.17 (2014), and Minnetonka Police Department Policy
Manual Directive 305 (Minnetonka Police Directive 305) create a discretionary yet
mandatory duty for Officer Aschenbrener to operate his police car with due regard for
public safety.
The relevant statutes provide as follows. Section 169.03, subdivision 2, states:
The driver of any authorized emergency vehicle, when
responding to an emergency call, upon approaching a red or
stop signal or any stop sign shall slow down as necessary for
safety, but may proceed cautiously past such red or stop sign
or signal after sounding siren and displaying red lights, except
that a law enforcement vehicle responding to an emergency
call shall sound its siren or display at least one lighted red
light to the front.
7
Similarly, section 169.17 states that posted speed limits do not apply to drivers of
authorized emergency vehicles when responding to an emergency call but acknowledges
that this exception does not “relieve the driver of an authorized emergency vehicle from
the duty to drive with due regard for the safety of persons using the street, nor does it
protect the driver of an authorized emergency vehicle from the consequence of a reckless
disregard of the safety of others.”
The relevant departmental policy, Minnetonka Police Directive 305, states:
The judicial system has often determined that even if an
officer has been responding to an emergency situation, the
officer is not relieved of the responsibility of operating an
emergency vehicle with due regard for the safety of others
using the road way. While allowed to violate certain traffic
laws, officers must do so in a manner that will not jeopardize
the safety of others. Exceeding the speed limit must be done
with the utmost caution.
Kian’s argument—that these statutory and departmental authorities create
discretionary yet mandatory duties—appears to ask this court to construe these authorities
as creating a ministerial duty for an officer to operate his car with due regard for public
safety. But the parties stipulated that Officer Aschenbrener was exercising a
discretionary duty. Most importantly, in Vassallo, the supreme court examined similar
departmental3 and statutory authorities4 and concluded that an officer’s decision to slow
down as necessary for safety was a “textbook example of the exercise of discretion.” 842
3
The departmental policy at issue in Vassallo, Hennepin County Sheriff’s Office Policy
6-402, states, “Deputies are required to drive with due regard for the safety of all
persons.” 842 N.W.2d at 461 n.3.
4
Vassallo specifically examined section 169.03, subdivision 2—the same statute that
Kian cites here. 842 N.W.2d at 463.
8
N.W.2d at 463-64. In addition, Vasallo held that the relevant statute did not require both
the use of a siren and flashing red lights; rather, the use of one of these methods was
sufficient.5 Id. We therefore conclude that Officer Aschenbrener’s conduct was
discretionary.
Our inquiry does not end here, however. We must also determine whether a
genuine issue of material fact exists as to whether Officer Aschenbrener acted willfully or
maliciously.
Willful or Malicious
When an official undertakes a discretionary action, he “is not personally liable to
an individual for damages unless he is guilty of a willful or malicious wrong.” Vassallo,
842 N.W.2d at 462 (quotation omitted). Malice is “the intentional doing of a wrongful
act without legal justification or excuse, or, otherwise stated, the willful violation of a
known right.” Id. at 465 (quotation omitted). The terms willful and malicious are
synonymous in the context of official immunity. Rico v. State, 472 N.W.2d 100, 107
(Minn. 1991).
Generally, whether malice exists is a question of fact for the jury. Kelly v. City of
Minneapolis, 598 N.W.2d 657, 664 n.5 (Minn. 1999). But if no genuine issue of material
fact exists, the court may decide whether the officer acted maliciously as a matter of law.
See Vassallo, 842 N.W.2d at 465. “In order to find malice, the court must find that the
5
Given this result, the factual issue of whether Officer Aschenbrener had turned on his
siren is not a genuine issue of material fact to preclude summary judgment.
9
wrongful act so unreasonably put at risk the safety and welfare of others that as a matter
of law it could not be excused or justified.” Id. (quotation omitted).
Kian argues that the district court erred in determining that no genuine issue of
material fact exists. Officer Aschenbrener and the city respond that Vassallo controls and
no genuine issue of material fact shows that Officer Aschenbrener acted willfully or
maliciously. After carefully examining the record and the police car video from the
accident, we agree with Officer Aschenbrener and the city.
In Vassallo, a police officer was responding to an emergency call and traveling at
54 miles per hour in a 50 mile-per-hour speed zone. Id. at 460. Because of a recent
snowfall, road conditions were poor. Id. Shortly before entering an intersection, the
officer had turned off his siren to avoid alerting the suspects of his approach; his
emergency lights remained on. Id. The officer then entered the intersection on a red light
and collided with a car coming from the opposite direction. Id. The officer did not see
the car until the last minute and swerved to avoid it. Id.
The district court granted summary judgment in favor of the officer, determining
that his actions were not willful or malicious as a matter of law. Id. at 465. The supreme
court affirmed, relying on the “undisputed facts” that the officer “simply failed to see [the
other] car until the last minute, and then made every effort to avoid [it].” Id. The
supreme court also noted that no evidence showed that the officer willfully or maliciously
violated a known right. Id. (citing Kari, 582 N.W.2d at 925).
Here, similar to the officer in Vassallo, Officer Aschenbrener exceeded the speed
limit while responding to an emergency call, entered an intersection on a red light with
10
his flashing red lights on and siren off, and collided with another car. And like the officer
in Vasallo, Officer Aschenbrener simply did not see Kian’s car until the last second and
tried to avoid the collision.
Kian and the dissent contend that Vassallo is distinguishable because the
responding officer in Vassallo was only driving four miles per hour above the speed
limit, Officer Aschenbrener had been previously reprimanded in 2011 for driving too fast
when responding to a burglary report, and the officer in Vassalo had a good reason to
proceed without a siren through the intersection. But these distinctions are not persuasive
and attempt to lower the high bar of willful-and-malicious behavior to conduct that is
merely negligent.
Negligence, however, is not malice; malice requires “proof of a wrongful invasion
of the rights of another.” Kelly, 598 N.W.2d at 663 (emphasis added). This bar is set
high in recognition of the difficult job that police officers perform. See Vassallo, 842
N.W.2d at 462-63. It is even more difficult to characterize an officer’s decision as willful
or malicious when the officer is performing a discretionary act that requires the exercise
of independent judgment and offers “little time for reflection.” Pletan v. Gaines, 494
N.W.2d 38, 41 (Minn. 1992).
In rare cases, we have identified potentially willful or malicious conduct that has
created a genuine issue of material fact for a jury. See, e.g., Soucek v. Banham, 503
N.W.2d 153 (Minn. App. 1993). For example, in Soucek, Minneapolis police received
two separate reports from people claiming that they saw a wolf. Id. at 156. Later that
night, several officers located the “wolf” and within one-and-a-half minutes had shot the
11
animal between 7 and 18 times. Id. The officers afterwards posed for trophy photos with
the animal, later identified as a German Shepard mix, and witnesses said that the officers
bragged about shooting a dog. Id. at 157-59. This court affirmed the denial of summary
judgment, concluding that a genuine issue of material fact remained regarding the
officers’ intent under the willful-and-malicious exception, and specifically whether the
officers truly believed the animal was a wolf, rather than a pet dog, when they shot it
many times. Id. at 160-61.
Soucek stands in stark contrast to the circumstances here. Even when all the facts
are construed in favor of Kian, the record simply does not show that Officer
Aschenbrener’s actions could rise to the level of willful or malicious. Officer
Aschenbrener made a discretionary judgment call to increase his speed when he learned
of escalating danger during a domestic dispute. But driving at high speeds in response to
an emergency is not by itself unreasonable. Cf. Pletan, 494 N.W.2d at 40-41 (holding
that an officer who pursued a shoplifting suspect in a high-speed car chase was protected
by official immunity).
Nothing in the record suggests that Officer Aschenbrener intended to drive in a
manner that jeopardized public safety or that his response to a grave emergency so
unreasonably put at risk the safety of others that it could not be justified. Unlike in
Vassallo, where the officer entered at intersection against a red light at 54 miles per hour
under poor road conditions, 842 N.W.2d at 460, the road conditions for Officer
Aschenbrener were clear and dry. The officer turned on his flashing red lights and
Opticom emitter, his police car was never out of control, drivers were safely pulling to
12
the side of the road in front of him, and the intersection that he was entering appeared
clear until the very last seconds before the crash.
Officer Aschenbrener’s decision to speed to arrive at the scene of an emergency is
akin to an officer’s decision to engage in a high-speed car chase. And in the context of
high-speed car chases, the supreme court has said:
Admittedly, a high-speed car chase can be dangerous, not
only to the pursuer and the pursued, but also to uninvolved
members of the public using the highways. Even so, the
community imposes a duty on its . . . law enforcement
officers to provide its citizens with security in person and
property from lawless people, and this duty, on occasion,
necessarily will involve high-speed car chases. Official
immunity is provided because the community cannot expect
its police officers to do their duty and then to second-guess
them when they attempt conscientiously to do it.
Pletan, 494 N.W.2d at 41.
Kian’s death was a tragedy, and our decision today does not suggest that an
officer’s driving in response to an emergency can never be willful or malicious. We are,
however, mindful of the discretion given to officers in these emergency-response
situations because “[t]o expose police officers to civil liability whenever a third person
might be injured would, we think, tend to exchange prudent caution for timidity in the
already difficult job of responsible law enforcement.” Id.
Kian finally contends that the city cannot assert vicarious official immunity.
Given our conclusion above, we determine that vicarious official immunity extends to the
13
city. See id. at 43 (holding that in high-speed police pursuits, the officer’s official
immunity extends to the officer’s public employer).
Affirmed.
14
RODENBERG, Judge (dissenting)
Because there is a genuine issue of material fact concerning whether Officer
Aschenbrener’s driving conduct amounted to a willful violation of a known right, I
respectfully dissent. I would reverse the grant of summary judgment and remand this
case for trial.
The majority correctly characterizes Officer Aschenbrener’s decision to drive
through the red light as discretionary and therefore proper for the application of official
immunity unless the officer was “guilty of a willful or malicious wrong.” Vassallo ex.
rel. Brown v. Majeski, 842 N.W.2d 456, 462 (Minn. 2014) (quotation omitted). And the
majority rightly acknowledges that the question of whether malice exists is one of fact,
and therefore ordinarily a question for resolution by the jury. Kelly v. City of
Minneapolis, 598 N.W.2d 657, 664 n. 5 (Minn. 1999); see also Elwood v. Rice City, 423
N.W.2d 671, 679 (Minn. 1988). Summary judgment on this issue is appropriate only if it
can be said as a matter of law that the officer’s conduct was not willful or malicious.
Vassallo, 842 N.W.2d at 465, citing Kari v. City of Maplewood, 582 N.W.2d 921, 925
(Minn. 1998). Respectfully, the conduct of Officer Aschenbrener is such that, viewing
the facts in the light most favorable to appellant, it cannot be said as a matter of law that
the officer’s conduct was not willful or malicious. On this record, the question is one of
fact, appropriate for resolution after trial.
While I agree with the majority that the focus of our inquiry must be on the
officer’s driving conduct on the night in question, the determination of whether a
person’s conduct is willful or malicious cannot be made in a vacuum. Officer
D-1
Aschenbrener had a history of driving at speeds that his own department determined to be
“extremely unsafe and unnecessary.” He was disciplined for excessively fast driving in
August, 2011, just 15 months before this crash. The supervisor who issued that
disciplinary action testified in his deposition that Officer Aschenbrener “agreed that he
was simply driving too fast [in response to a burglary report] and at speeds that clearly
put himself and others at risk.” Officer Aschenbrener’s performance evaluations before
this collision also noted his involvement in an at-fault crash where the officer hit a
guardrail. His 2012 performance evaluation numerically evaluated his driving skills as
“1,” corresponding to “poor” driving skills. And the performance evaluation for the year
before rated his driving skills at only a “2.” This history of discipline for “extremely
unsafe” driving put Officer Aschenbrener on notice that his propensity to drive
dangerously would, if continued, put both himself and the driving public at unreasonable
risk.
In Vassallo, a recent case from the Minnesota Supreme Court, an officer was
found entitled to official immunity after proceeding through a red light and crashing into
a motorist who had a green light and who apparently did not see the officer approaching
and entering the intersection. 842 N.W.2d at 460. But Vassallo is distinguishable from
this case in several important ways.
Unlike the situation in Vassallo, Officer Aschenbrener was not driving just a few
miles per hour over the posted speed limit. Officer Aschenbrener’s testimony about
when and if he engaged his brakes before the collision conflicts with available crash data.
Further, Officer Aschenbrener’s version of what happened conflicts with testimony of a
D-2
nearby resident concerning whether the officer was using his squad’s siren. These
disparities could lead a fact-finder to conclude that Officer Aschenbrener’s recitation of
the incident is not credible. The evidence is conflicting concerning precisely how fast the
officer was driving at various points in time before the fatal crash. But viewing the
evidence in the light most favorable to the non-moving party, the officer was continuing
to accelerate as he approached the red light, reaching speeds as fast as 79 miles per hour
in a 40-mile-per-hour zone, and was still driving 77 miles-per-hour until he braked 1.2
seconds before impact. He was driving so fast that the Opticom did not have time to turn
his red light to green – and the dash-cam recording shows this to have been clearly visible
to the officer as he approached the intersection where Mr. Kiam was killed. Despite
having been discliplined earlier for creating unreasonable risks on account of excessively
fast driving, Officer Aschenbrener accelerated toward this intersection to speeds of close
to 80 miles per hour – nearly double the posted speed limit – so fast that he was
outdriving the Opticom. Since his light remained red, he knew that cross traffic would
proceed into this intersection with the right-of-way. And that is exactly what Mr. Kian
was doing when he was killed. The Minnesota State Patrol reconstruction report
concluded that Mr. Kian approaced the intersection having a green light and “entered the
intersection on a yellow light.” Even after 22 feet of skidding through the red light,
Officer Aschenbrener was still travelling at 57 miles per hour at the time of the crash that
killed Mr. Kian.
Another distinction between this case and Vassallo concerns the non-use of the
squad car’s siren. Unlike Vassallo, in this case there is a factual dispute about whether
D-3
the officer was using his siren and the officer makes no claim that he made a
discretionary decision not to use the squad’s siren. Here, Officer Aschenbrener claims to
have been using the squad’s siren before the crash. But a citizen who lives near the crash
site heard the crash and went immediately to the intersection to render aid. That citizen
testified by deposition that he did not hear a siren before the crash, despite his house
being situated such that he can hear sirens when used by emergency vehicles at and
through that intersection. The squad car video – on which there is no audio – and the
other available objective data are insufficent to resolve this factual dispute concerning the
siren. Unlike Vassallo, where the officer had a reason not to be using the squad car siren
because he was getting close to the location where a security alarm had sounded and did
not want to alert burglars to his approach to the house, id., in this case there is no claim
that the officer made a discretionary decision not to use the squad car’s siren. As he
hurtled toward the intersection where Mr. Kian was killed, travelling at speeds
approaching those about which he had previously been warned as being “extremely
unsafe,” Officer Aschenbrenner claims to have had his siren on. But this fact issue is
very much in dispute. And the procedural posture of this appeal requires us to interpret
the factual record in the light most favorable to the party seeking summary adjudication.
See Grondahl v. Bulluck, 318 N.W.2d 240, 242 (Minn. 1982) (requiring that, on an
appeal from summary judgment, the evidence be viewed in the light most favorable to the
non-moving party).
Vassallo instructs that malice is “the intentional doing of a wrongful act without
legal justification or excuse, or, otherwise stated, the willful violation of a known right.”
D-4
Id. at 465. Malice may be found in an officer’s actions that are such as to unreasonably
put at risk the safety of the driving public without excuse or justification. Id. There is
enough evidence in this record to support a jury finding that Officer Ashenbrener’s
conduct was more than negligent and amounted to a willful or malicious wrong.
None of this is to say that a jury would find Officer Aschenbrener’s conduct to be
willful or malicious. To be sure, there is evidence from which a jury might well conclude
that there was no willful or malicious conduct and that Officer Aschenbrener and the city
are therefore entitled to official immunity. The jury might well find that Officer
Aschenbrenner was using his siren. It might decide that the officer’s speed was not as
great as appellant claims. But that is what trials are for. Where the evidence would
support a finding that an officer who was previously disciplined for high-speed and
dangerous driving replicates that sort of high-speed driving in a circumstance where the
officer is driving so fast that the Opticom system cannot keep up with the speed of his
squad car, and the officer nevertheless, without using a siren, intentionally proceeds
through a red light at what is obviously an obscured intersection, I would reverse the
grant of summary judgment and remand for trial.
D-5