Torrie v. Weber County ( 2013 )

T'ln``s opinion is subject to revision before
publication fn the Pacz_``fic Reporter
2013 UT 48IN THE
SUPREME COUR'I' OF THE S'I'ATE OF UTAH
MELVIN and RAEGHN TORRIE individually, and '
MELVIN and RAEGHN TORRIE for and on behalf of
their deceased minor child WAYNE TORRIE,
Plainti]j‘s and Appellonts,
U.
WEBER COUNTY and DENTON HARPER,
Dejizndants and Appellees.
No. 20120500
Filed August 6, 2013
Second District, Layton Dep't
The Honorable Robert Dale
No. 100605463
james W. l\/IcConl2013 UT 48Opinion of the Court
right at the stop sign, and began to accelerate. Deputy Harper
followed in pursuit. Wayne repeatedly crossed the double center
divide line of the two-lane road to pass vehicles. During the
pursuit, Deputy Harper reported to dispatch that he was traveling
about seventy-five miles per hour. information later recovered
from the Suburban indicated that Wayne had reached speeds up
to ninety-nine miles per hour.l After less than a minute with
Deputy Harper in pursuit, Wayne’s vehicle abruptly left the road
and rolled several times in a neighboring field. Wayne was
ejected from the vehicle during the crash and subsequently died
from his injuries.
1[ 6 Wayne’s parents filed a lawsuit against Deputy Harper
and Weber County, alleging various theories of negligence in
connection with Deputy I-iarper’s pursuit of their son.? After the
conclusion of discovery, Mr. and l\/lrs. Torrie filed for summary
judgment, arguing that summary disposition was appropriate
because the defendants had not designated an expert witness to
rebut their expert on the standard of care. Deputy Harper and
Weber County responded with a cross-motion for summary
judgment, arguing that no legal duty was owed to fleeing
suspects. The district court denied the Torries' motion and
granted Deputy Harper and Weber County's motion, stating,
”The Court, having reviewed the memoranda filed by the parties,
having heard the arguments of counsel, and being fully advised in
the prernises[,] hereby rules that Defendants Weber County and
Denton Harper owed no duty to Plaintiffs’ decedent, Wayne
Torrie.” Plaintiffs timely appealed. This court has jurisdiction
pursuant to Utah Code section 78A-3-102(3) (j).
1 The posted speed limit on the road was forty miles per hour.
2 The Torries asserted five causes of action: (1) negligence of
Weber County, (2) respondeat superior, (3) negligence of Deputy
Harper, (4) willful misconduct on the part of Deputy Harper, and
(5) wrongful death.
TORRIE 'U. WEBER COUNTY
Opinion of the Court
S'I``ANDARD OF REVIEW
jj 7 ”We review the district court’s decision to grant
summary judgment for correctness, affording the trial court no
deference.”~°’ ”An appellate court reviews a trial court's legal
conclusions and ultimate grant or denial of summary judgment
for correctness, and views the facts and all reasonable inferences
drawn therefrom in the light most favorable to the nonmoving
party-114
ANALYSIS
‘H 8 The district court dismissed the Torries' claims on
summary judgment, determining that there was no legal duty
owed to their son. The Torries argue that the district court erred
because the statutory language exempting emergency vehicle
operators from general traffic laws imposes a duty, including to
fleeing suspects. We agree and reverse, determining that the
district court prematurely dismissed the Torries' cause of action
The Torries also contend that a common law duty should be
imposed.5 Because we determine that there is a statutory duty,
we decline to reach that issue.
jj 9 For a plaintiff to prevail on a claim of negligence, the
plaintiff must establish: "(1) that the defendant owed the plaintiff
a duty, (2) that the defendant breached that duty, (3) that the
breach of duty was the proximate cause of the plaintiff's injury,
and (4) that the plaintiff in fact suffered injuries or damages.”"
3 Crestwood Cooe Apartments Bus. Trast o. Tarner, 2007 UT 48,
11 10, 164 P.3d 1247.
4 Orois 1). ]ohnson, 2008 UT 2, 11 6, 177 P.Sd 600 (citation
omitted) (internal quotation marks omitted).
5 See ]ejj‘s ex rel. B.R. o. West, 2012 UT 11, ‘|j 5, 275 P.3d 228(identifying relevant considerations in analyzing whether a duty
should exist under the common law),' Norrnandeaa 'o. Hanson
Eaaip., Inc., 2009 UT 44, 111 19-20, 215 P.Sd 152 (same).
6 Webb v. Llnit). of Lltah, 2005 UT 80, 1[ 9, 125 P.3d 906 (internal
quotation marks ornitted),' see also ]ejj%, 2012 UT 11, jj 25 (“An
essential difference among the elements is that duty is a question
of law determined on a categorical basis, while breach and
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”Duty arises out of the relationship between the parties and
imposes a legal obligation on one party for the benefit of the other
party."7 ”Duty must be determined as a matter of law and on a
categorical basis for a given class of tort claims" and is “analyzed
at a broad, categorical level for a class of defendants."$ We
caution against the potential for ”rnisunderstanding of the role of
duty in tort analysis, sometimes conflating duty with breach and
proximate cause.”9
jj 10 "’For a governmental agency and its agents to be liable
for negligently caused injury suffered by a member of the public,
the plaintiff must show a breach of a duty owed him as an
individual, not merely the breach of an obligation owed to the
general public at large . . . .'”1° The public duty doctrine precludes
the imposition of a duty on a government entity with respect to
specific individuals in the absence of a ”specific connection
between the government agency and the individuals that makes
it reasonable to impose a duty.”?l There are at least four
circumstances that may create such a special relationship:
(1) by a statute intended to protect a specific class
of persons of which the plaintiff is a member from
a particular type of harm,' (2) when a government
agent undertakes specific action to protect a
person or property; (3) by governmental actions
that reasonably induce detrimental reliance by a
proximate cause are questions for the fact finder to determine on a
case-specific basis.”).
7 Webb, 2005 UT 80, jj 9 (internal quotation marks omitted).
s ]ejjs, 2012 Ur 11, 11 23.
h 1a j 22.
10 Day o. State ex rel. Utah Dep’t of Pub. Sajety, 1999 UT 46, jj 11,
980 P.2d 1171 (quoting l-``erree r). State, 784 P.2d 149, 151 (Utah
1989)). l
11 ld. jj 12. Governmental immunity is waived in instances
where ”injury [is] proximately caused by a negligent act or
omission of an employee committed within the scope of
employment.” UTAH CODE§ 63G-7-301
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TORRIE U. WEBER COUNTY
Opinion of the Court
member of the public; and (4) under certain
circumstances, when the agency has actual
custody of the plaintiff or of a third person who
causes harm to the plaintiff.l?
The Torries argue that the first example applies here and that
Deputy Harper had a statutory duty to use reasonable care in
deciding whether to pursue Wayne and in his subsequent
execution of that high speed pursuit.
jj 11 We previously determined in Day 'o. State ex rel. Utah
Departrnent of Pablic Sajety that a law enforcement officer engaged
in high speed pursuit of a suspect owes a statutory duty of care to
innocent third parties.13 We must now decide whether that duty
extends to the fleeing suspect. In analyzing whether a statutory
duty exists, we look first to the statute itself and give effect to
its plain language. “[W]e presume that the legislature was
deliberate in its choice of words and used each term advisedly
and in accordance with its ordinary meaning. Where a statute’s
language is unambiguous and provides a workable result, we
need not resort to other interpretive tools, and our analysis
ends.”l‘* Utah Code section 41-6a-212, the statute providing
exemptions to traffic laws for emergency vehicles, states in
subsection (6) that ”[t]he privileges granted under this section do
not relieve the operator of an authorized emergency vehicle of _the
duty to act as a reasonably prudent emergency vehicle operator in
like circumstances."'-l*``> Further, subsection (l)(b) of the statute
»njn.
13 1999 UT 4a j 14; sss infra 1111 13-16 for further discussion
related to the Day decision.
14 Richards o. Brown, 2012 UT 14, ‘jj 23, 274 P.3d 911 (foot_note
omitted) (internal quotation marks omitted).
15 The Torries also rely on Utah Code sections 41-6a-904,
mandating that vehicles yield to approaching emergency vehicles,
and 41-6a-1004, requiring pedestrians to also yield to emergency
vehicles. Because of the manner in which we decide this case, we
need not rely on those provisions.
The defendants argue that Utah Code section 41-6a-210,
which requires vehicles to stop when an officer signals them
6
Cite as: 2013 UT 48Opinion of the Court
states, ”the operator of an authorized emergency vehicle may
exercise the privileges granted under this section when . . . in the
pursuit of an actual or suspected violator of the law," indicating
that the legislature intended the statute to apply to pursuits like
the case at bar.lé The legislature’s failure to include a carve-out
exception to the duty referenced in subsection (6) for fleeing
suspects, an act which we consider to be deliberate on the part of
the legislature,l"`` reinforces our determination that such a duty
should therefore be imposed.
jj 12 While we recognize that other jurisdictions have looked
to the plain language of similar statutes and interpreted that the
duty did not extend to fleeing suspects,l$ we decline to depart
to do so and does not include a corollary to 41-6a-212's duty for
emergency vehicle operators, is more applicable than section
41-6a-212. We disagree. An emergency vehicle operator’s
exemption from general traffic laws, which allows a law
enforcement officer the ability to engage in a pursuit, originates in
section 41-6a-212. Our court of appeals has relied on section
41-6a-212 in a case involving a yielding motorcyclist-rather than
section 41-6a-904, which requires vehicles to yield to emergency
vehicles and includes a subsection stating this does not eliminate
the duty of emergency vehicle operators to others on the road-
when considering an emergency vehicle operator's duty, further
affirming this conclusion. Willcien 1). Dachesne Cnty., 2009 UT App
213, jjjj 3, 4, 6-15, 217 P.3d 1143.
16 UTAH Coos § 41-6a-212(1)(b).
17 See Richards, 2012 UT 14, ‘jj 23.
18 See, e.g., Estate of Day 'o. l/Villz's, 897 P.2d 78, 81 n.7 (Alaska
1995) (”We do not interpret these sections as establishing a duty to
protect fleeing offenders. Rather, these provisions focus on the
safety of innocent third parties.”); Bryant r). Beary, 766 So. 2d 1157,
1160 (Fla. Ct. App. 2000) (holding that ”these statutes are not
intended to create a duty where none exists, but to preserve any
that do exist"); City of Winder 'o. McDoagald, 583 S.E.Zd 879, 881
(Ga. 2003) (”Because the legislature sought to restrict rather than
expand liability, and the statute has been previously construed to
protect innocent parties only, we hold that [the statute] does not
govern the claim of the fleeing suspect.”); Robz``nson o. City of
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TORRIE z). WEBER COUNTY
Opinion of the Court
from our established plain language analysis.19 ”[I]t is elementary
that we do not seek guidance from legislative history and relevant
policy considerations when the statute is clear and unambiguous
Rather, [w]e must be guided by the law as it is[.]”?° ”When
language is clear and anambigaons, it must be held to mean what it
expresses, and no room is left for construction/71 We determine that
the statutory language imposes a duty on Deputy Harper in this
case, precluding summary disposition at this early stage of the
litigation
‘|j 13 Further bolstering our decision, the conclusion we reach
today was alluded to in the dicta of Day o. State ex rel. Utah
Department of Pnblic Safety?? While Day was based on the prior
statutory language,?~°' our court of appeals has compared the two
statutes and determined that “the language imposing the duties is
nearly identical. Both statutes state that they ’do not relieve the
operator of an authorized emergency vehicle' of or from the
enumerated duty."?‘* We agree.
Detroit, 613 N.W.2d 307, 314 (Mich. 2000) (“j"l``]he police owe no
duty to a wrongdoer, whether the wrongdoer is the fleeing driver
or a passenger.").
19 See McDongald, 583 S.E.Zd at 881 (Benham, j., dissenting)
(”The majority opinion has ignored the basic tenets of statutory
construction in order to create by judicial legislation a public
policy declaring that persons fleeing from police pursuit are fair
game for tactics that constitute a reckless disregard for proper
police procedure. Because the holding of the majority opinion is
based on defective statutory interpretation, usurpation of the
legislative role, and ill-advised public policy, I must dissent.").
20 Taylor ex rel. C.T. o. jobnson, 1999 UT 35, jj 13, 977 P.2d 479(second alteration in original) (citation omitted) (internal
quotation marks ornitted).
21 ld. (internal quotation marks omitted).
12 1999 UT 46.
13 UTAH CODE § 41-6-14 (1991), renumbered as § 41-6a~212 by
2005 Utah Laws 45. `` ``
14 Willden, 2009 UT App 213, jj 11.
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jj 14 Day acknowledged that sometimes pursuit is not the
proper course of action:
Although law enforcement officers have a general
duty to apprehend those who break the law, that
duty is not absolute, especially where the violation
is only a misdemeanor or an infraction-such as
driving ten miles per hour over the speed limit-
and the attempt to apprehend the person creates a
serious risk of death or injury to third persons or
the fagitioe. 25 '
jj 15 The Day decision further recognized that in some
instances “threat of injury to the safety of the person fleeing and to
the safety of the bystanders is significant enough, and the
magnitude of the possible harm so momentous, to dictate that the
fleeing person be allowed to escape rather than irnperiling his safety
or the safety of others."?€ These words, albeit dicta, appear to
recognize a legal duty for officers even with regard to the fleeing
suspect. Day ultimately concluded that
[t]he test is whether the driver of the emergency
vehicle acted reasonably and with appropriate
care for the safety of others in light of all the
circumstances. Among the factors that should be
considered in deciding whether an officer acts
with reasonable care for the safety of others using
the highways and streets are the density of traffic
and population of the area in which the pursuit
occurs; whether the area is rural or urban; the
nature of the street, e.g., whether freeway or city
streets with stop signs and semaphores; the
presence of pedestrians and school zones; the
weather and visibility; and, of course, the urgency
of apprehending the fleeing person and whether
15 Day, 1999 UT 46, ‘|j 24 (emphasis added).
26 ld. (emphases added).
TORRIE U. WEBER COUNTY
Opinion of the Court
allowing that person to escape may itself pose a
serious threat to the safety of others.27
jj 16 While we do not per se adopt this test in the case at bar,
many of the enumerated factors will likely remain relevant on
remand in this case. Additionally, the Weber County Sheriff's
Office policy and procedures manual may be relevant in
determining whether Deputy I-Iarper's pursuit of Wayne was
reasonable.z$
jj 17 ln reaching the conclusion that law enforcement officers
owe a legal duty to fleeing suspects, we reiterate that the
imposition of a duty is a separate and distinct analysis from
breach and proximate cause. The Torries recognize in their
briefing that a ”police officer may engage in the pursuit so long as
it is reasonable to do so." “An essential difference among the
elements is that duty is a question of law determined on a
categorical basis, while breach and proximate cause are questions
for the fact finder determined on a case-specific basis."”
``”[Q]uestions about which circumstances pose such a high degree
of risk that a [professional] should have taken greater precautions
are questions of breach of duty; they are insufficient to defeat the
categorical existence of a cluty."»°'° To impose liability on Deputy
Harper, the fact finder will also need to be persuaded that his
conduct was the proximate cause of Wayne’s accident.31
a 1a j 32.
23 Clegg z). Wasatch Cnty., 2010 UT 5, jj 29, 227 P.3d 1243(”[V]iolation of the Policy l\/lanual will be relevant to the question
of negligence, but will not necessarily be determinative.”).
a jsjjs, 2012 ur 11, j 25.
wujn.
31jSee id. jj 35 (breach and proximate cause counterbalance any
improper incentive for those imposed with a duty because “they
pose significant barriers to plaintiffs”); Day, 1999 UT 46, jj 16
(”Whether the State might be liable in the instant case raises an
issue of proximate cause as to whether it was reasonably
foreseeable that [the officer’s] continuing the chase might result in
[the suspect's] car colliding with another. That is not an issue for
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jj 18 Under the law, the Torries are entitled to an opportunity
to attempt to establish that Deputy Harper did not conduct his
pursuit of Wayne ”as a reasonably prudent emergency vehicle
operator in like circurnstances."?*? Therefore, we reverse the
district court's grant of summary judgment holding that Deputy
Harper owed no duty to Wayne and remand for further
proceedings.
jj 19 With regard to the issue of whether a separate duty of
care is owed by Weber County, the Torries fail to meet their
burden of persuasion before this court. Appellants bear the
burden of demonstrating that the district court's ruling was
erroneous under the applicable standard of review. The Torries
do not separately brief a rationale to substantiate the imposition of
a duty on Weber County. lt seems that the Torries assumed that if
a duty was owed by the officer in this case, then it necessarily
followed that a duty would be imposed on the supervising
agency, Weber County. However, as the party requesting relief
from this court, it was the Torries' responsibility to meet the
requirements of Utah Rule of Appellate Procedure 24(a)(9) and set
forth ”the contentions and reasons of the appellant with respect to
the issues presented, including the grounds for reviewing any
issue not preserved in the trial court, with citations to the
authorities, statutes, and parts of the record relied on."
”lmplicitly, rule 24(a)(9) requires not just bald citation to authority
but development of that authority and reasoned analysis based on
that authority. As we have noted many times before, this court is
not a depository in which the appealing party may dump the
burden of argument and research."33 Therefore, in light of the
utter failure on the part of the Torries to independently brief any
arguments supporting the imposition of either a statutory or
summary judgment. In similar instances, we have held that such
an issue is for the jury." (citations omitted)). l
32 UTAH CODE § 41-6a-212(6).
33 State o. Green, 2004 UT 76, jj 13, 99 P.3d 820 (citation omitted)
(internal quotation marks omitted).
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TORRIE 'U. WEBER COUN'I'Y
Opinion of the Court
common law duty with regard to Weber County, we do not
decide that issue.
CONCLUSION
jj 20 The plain language of Utah Code section 41-6a-212
imposes upon law enforcement officers in pursuit of a fleeing
suspect a “duty to act as a reasonably prudent emergency vehicle
operate in like circumstances.” We decline to interpret the statute
beyond the plain wording chosen by the legislature but
acknowledge that the ultimate negligence analysis including
breach and proximate cause is very case-specific and fact-
intensive. Accordingly, we determine that summary judgment is
not appropriate and reverse and remand for further proceedings
as it relates to the Torries' negligence claim against Deputy
Harper. Because the Torries have failed to meet their burden on
appeal as to the Sheriff's Office as an agency, we affirm the district
court's grant of summary judgment as to Weber County.
12