Police Officer Liability Negligently Directing Traffic

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Are police officers liable when they are negligently directing traffic? When the cops direct traffic, and an accident occurs because of the police officer's failure to direct traffic in a safe and professional manner, should the liability for any damages that are suffered as a result of his negligence be granted?

In general, one has a legal duty while directing traffic to behave as a reasonable person would in the situation. In other words, one that directs traffic must do so in a manner that is not negligent. When a flagman, fellow driver, or bystander is directing traffic, they must do so with reasonable care for others. If an accident does occur while he is directing traffic in a manner that is unreasonable in the situation, the harmed parties will likely seek a judgment for damages against the traffic director for his contributory negligence.

However, some states and courts have applied a form of immunity to police officers that contribute to the resulting injuries that were caused by the cop negligently directing traffic. In some courts, the court will simply not allow the plaintiff to sue to nigligent police officer for his directing of vehicles, without citing any authority at all.

We have selected a few cases to explore how various courts deal with the negligence of police officers while they are directing traffic:

Appeals Court of Massachusetts, Shirley P. ARIEL vs. TOWN OF KINGSTON, June 6, 2007

TRAINOR, J. The plaintiff, Shirley P. Ariel, brought an action against the defendants, the town of Kingston (town) and Brooks P. and Maria Steffy,(1) seeking damages for injuries the plaintiff suffered as a result of a collision between her car and a car driven by Brooks P. Steffy. The plaintiff claims that two members of the Kingston police department were negligently directing traffic and that this negligence contributed to the collision. The town filed a motion to dismiss pursuant to Mass.R.Civ.P. 12(b)(6), 365 Mass. 754 (1974), on the ground that it was immune from suit and from liability pursuant to G. L. c. 258, § 10(h) and (j).(2) A judge denied the town's motion to dismiss because she determined that one of the two grounds for immunity did not apply to the facts of this case.(3) We reverse.

Facts. The facts set forth in the complaint are as follows. On January 14, 2004, the plaintiff was a passenger in a vehicle driven by her daughter, Michelle Ariel. Michelle Ariel was traveling southbound on Cranberry Road in Kingston toward the intersection of Smith Lane and the Route 3 exit ramp. There were several damaged vehicles and emergency personnel already in the Smith Lane intersection because of an accident that had occurred earlier. Two members of the Kingston police department, Officers Robert J. Santos and James Sauer, were in the intersection directing traffic. When Michelle Ariel arrived at the intersection, she had a green traffic signal, so she proceeded through the intersection. In the intersection, Michelle Ariel's vehicle was hit on the driver side by a car driven by Brooks P. Steffy. The plaintiff claims that the accident was caused in part by Officers Santos and Sauer, who "negligently directed traffic at the intersection." The plaintiff further alleges that one of the officers "was affirmatively negligent by waving a motorist through a red light," and that both officers were acting within the scope of their employment at the time of the accident.

Jackson v. Howell's Motor Freight, Inc., 126 NC App 476, (1997)

On 2 March 1994, third-party defendant Michael Anthony Gibbs fell asleep at the wheel of his vehicle and ran off the road colliding with a utility pole. The impact of the collision cracked the pole and caused it to fall into the street leaving the wire attached to the damaged pole hanging over the street where it connected with an undamaged pole on the other side.

When Fayetteville police and firemen, including plaintiff policeman Luby Ray Jackson, arrived, Officer Chris Davis began directing traffic through the accident scene. Officer Davis waved a few waiting cars underneath the wire and a truck owned by defendant Howell's followed the cars. Following Officer Davis' direction, the truck passed under the wire catching it on the trailer portion of the truck and dragging the pole that had been knocked down in the accident into Fireman Jackson's leg causing serious injury.

Fireman Jackson and his wife, Sandra, brought this tort action against Howell's which in turn answered denying liability. In addition, Howell's raised two defenses pertinent to this appeal: First, it alleged in a third-party complaint that Gibbs' negligence proximately caused plaintiff's injuries, and that its negligence, if any, was passive and secondary to Gibbs' negligence which was active and primary thereby entitling Howell's to indemnification from Gibbs. Second, Howell's alleged that if it were negligent, then plaintiff's employer, the City of Fayetteville (City), was also negligent through the actions of its agents -- specifically that Officer Davis negligently directed defendant's truck to pass under the hanging wire and fireman Charles Williams spoke to defendant's driver but negligently failed to inform him that there was a wire hanging over the street. Therefore, Howell's alleged, under N.C. Gen. Stat. § 97-10.2(e) (1996), entitlement to a reduction in damages in the amount that the City would otherwise be entitled to receive from Howell's by way of subrogation for workers' compensation payments paid to Jackson.

In response to the second defense, the City moved to strike Howell's defense on the grounds of governmental immunity and the trial court granted its motion. Likewise, third-party defendant Gibbs moved for summary judgment on the grounds that he was not the proximate cause of plaintiff's injuries and the trial court also granted his motion. Defendant appeals from the trial court's orders granting both motions.

We address two issues on appeal: (I) Whether the trial court erred by granting the City's motion to strike on the grounds of governmental immunity, and (II) Whether the trial court erred by granting third-party defendant Gibbs' motion for summary judgment because there are genuine issues of material fact as to whether Gibbs' negligence was a proximate cause of plaintiff's injury. We reverse the granting of the City's motion to strike, but affirm the granting of Gibbs' motion for summary judgment.

As an initial matter, we note that while both of the orders from which defendant appeals are interlocutory, see Veazey v. Durham, 231 N.C. 357, 57 S.E.2d 377 (1950), they are immediately appealable. In both instances, the order is the final judgment as to that particular party and the trial court certified that there is no just reason for delay thereby subjecting it to appellate review under N.C. Gen. Stat. § 1A-1, Rule 54 (1996).

Thus, this statutory provision does not provide for a direct action against the negligent employer nor does it allow for the recovery of direct damages from the employer. Rather, it provides a negligent defendant with recourse against an also negligent employer by allowing it to: (1) allege that the employer's negligence concurred in producing plaintiff's injury and, (2) seek a reduction in damages as provided in the statute. Correspondingly, the statute provides that, "[t]he employer shall have the right to appear, to be represented, to introduce evidence, to cross-examine adverse witnesses, and to argue to the jury as to this issue as fully as though he were a party although not named or joined as a party to the proceeding." N.C.G.S. § 97-10.2(e).

The City contends that this corresponding provision allows it to raise the defense of governmental immunity in response to Howell''s allegations of negligence. "Under the doctrine of governmental immunity, a municipality and its officers or employees sued in their official capacities are immune from suit for torts committed while the officers or employees are performing a governmental function." Morrison-Tiffin v. Hampton, 117 N.C. App. 494, 504, 451 S.E.2d 650, 657, disc. review denied and appeal dismissed, 339 N.C. 739, 454 S.E.2d 654 (1995) (emphasis added). However, in this case, the City has not been sued; rather, defendant has alleged the City's concurring negligence under N.C.G.S. § 97-10.2(e) in order to reduce the award of damages against it in the event that defendant is found to be liable.

Moreover, we note that:

The legislature's enactment of § 97-10.2(e) evidences a strong public policy in North Carolina of prohibiting a negligent employer from recouping any workers' compensation benefits paid to an injured employee. It is not the purpose of the Workers' Compensation Act to exculpate or absolve employers from the consequences of their negligent conduct.

668 F. Supp. at 497. Allowing a municipal employer to insulate itself from a determination of its concurring negligence under N.C.G.S. § 97-10.2(e) by raising the defense of governmental immunity even though it has not been sued directly would contravene this policy.

Therefore, we conclude that the doctrine of governmental immunity is inapplicable where a defendant alleges a municipality's negligence under N.C.G.S. § 97-10.2(e). Accordingly, we hold that the trial court erred in granting the City's motion to strike and reverse on this issue.

Our Supreme Court has defined proximate cause as follows:

Proximate cause is a cause which in natural and continuous sequence, unbroken by any new and independent cause, produced the plaintiff's injuries, and without which the injuries would not have occurred, and one from which a person of ordinary prudence could have reasonably foreseen that such a result, or consequences of a generally injurious nature, was probable under all the facts as they existed.

Hairston v. Alexander Tank & Equipment Co., 310 N.C. 227, 233, 311 S.E.2d 559, 565 (1984).

In the subject case, in determining whether Gibbs' original act of negligence was a proximate cause of plaintiff's injuries, the crucial question is whether the subsequent acts of police officers and firefighters as they took control of the accident scene were acts of insulating negligence such that they cut off Gibbs' liability as a matter of law.

Regarding the doctrine of insulating negligence, our Supreme Court in Hairston stated: "An efficient intervening cause is a new proximate cause which breaks the connection with the original cause and becomes itself solely responsible for the result in question. It must be an independent force, entirely superseding the original action and rendering its effect in the causation remote." Hairston, 310 N.C. at 236, 311 S.E.2d at 566 (quoting Harton v. Telephone Co., 141 N.C. 455, 462-63, 54 S.E. 299, 301-02 (1906)). Moreover, "[t]he test by which the negligent conduct of one is to be insulated as a matter of law by the independent negligent act of another, is reasonable unforeseeability on the part of the original actor of the subsequent intervening act and resultant injury." Hairston, 310 N.C. at 237, 311 S.E.2d at 566 (quoting Riddle v. Artis, 243 N.C. 668, 671, 91 S.E.2d 894, 896-97 (1956)).

Defendant contends that Hairston controls the resolution of the insulating negligence issue in the subject case. In Hairston, defendant car dealer (Haygood) switched the wheels on a new car purchased by plaintiff and negligently failed to tighten the lugs on one wheel. A short distance away from the dealership, the left rear wheel came off and plaintiff brought the car to a stop on a bridge in the far right lane of travel. A van stopped behind plaintiff's vehicle to assist and a car driven by defendant Alexander's employee collided with the rear of the van propelling it into plaintiff, who was opening his trunk, and killing him. The trial court granted judgment notwithstanding verdict for defendant car dealer and this Court affirmed that decision finding that the car dealer's negligence was "not the proximate cause of the death of plaintiff's intestate, and such negligent acts of Haygood are insulated by the subsequent negligent acts of Alexander." Id. at 232, 311 S.E.2d at 564. Our Supreme Court reversed holding that "the jury could reasonably infer . . . that while the subsequent negligence of defendant Alexander Tank joined with Haygood's original negligence in proximately causing the death of Hairston, it did not supersede the negligent acts of Haygood and thereby relieve Haygood of liability." Id. at 233, 311 S.E.2d at 565.

In response to Howell's contentions, third-party defendant Gibbs argues that Williams v. Smith, 68 N.C. App. 71, 314 S.E.2d 279, cert. denied, 311 N.C. 769, 321 S.E.2d 158 (1984), controls the outcome of the subject case. In Williams, defendant Ling's negligence proximately caused an automobile accident. Approximately twenty to forty-five minutes later, defendant Smith struck plaintiff police officer as he was directing traffic around the accident scene. The trial court granted summary judgment in defendant Ling's favor. We affirmed the trial court and distinguished Hairston, supra, on the issue of foreseeability, holding:

There was no unbroken connection between the negligent act of defendant Ling and plaintiff's injury. The facts do not constitute a continuous succession of events, so linked together as to make a natural whole. Rather Ling's negligence was too remote and not foreseeable as such to constitute a proximate cause of plaintiff's injury. Plaintiff was injured by an independent act of negligence on the part of the defendant Smith, an intervening act which was not itself a consequence of defendant Ling's original negligence, nor under the control of defendant Ling, nor foreseeable by him in the exercise of reasonable prevision.

Williams, 68 N.C. App. at 73, 314 S.E.2d at 280.

As in Williams, we find that the facts in Hairston are distinguishable from the facts of the present case. Significantly, in the subject case, police officers and other officials had taken control of the accident scene. These officials placed traffic cones and positioned emergency vehicles in the road, made decisions regarding the flow of traffic and assumed the responsibility for directing traffic through the accident scene. Therefore, as in Williams, we find that "[t]he facts do not constitute a continuous succession of events, so linked together as to make a natural whole" and any subsequent act of negligence by either the City or Howell's was "an intervening act which was not itself a consequence of [defendant Gibbs'] original negligence, nor under the control of [defendant Gibbs], nor foreseeable by him in the exercise of reasonable prevision." Id. at 73, 314 S.E.2d at 280. Accordingly, we affirm the trial court's decision to grant summary judgment in Gibbs' favor.

For the foregoing reasons, the trial court's order granting the City's motion to strike is reversed, and its order granting summary judgment for Gibbs is affirmed.

Reversed in part, affirmed in part.

Aguilar v. U.S., 920 F.2d 1475 (1990)

John Aguilar sued the United States under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. Secs. 1346(b), 2674, for personal injuries he suffered from the alleged negligence of a federal employee. The district court granted partial summary judgment for the government, holding that the FTCA incorporates a Nevada state law cap on damages, limiting the government's potential liability. Aguilar appealed upon certification and the grant of an interlocutory appeal. We affirm.

On October 31, 1986, the tractor-trailer rig Aguilar was driving broke down on the Nevada side of the road crossing Hoover Dam, within federal jurisdiction. A defect in the brake air line caused the brakes on the truck to lockup. A federal dam police officer, Donald Babcock, was then in charge of directing traffic across the dam. Babcock allegedly required Aguilar to repair the air hose with tape. Babcock also allegedly refused to allow Aguilar to chock the wheels of the truck during the repair procedure. Complying with Babcock's alleged orders, Aguilar was severely injured when his arm was pinned between the two trailers of the truck. Aguilar sued the United States under the FTCA for damages resulting from his injuries, alleging that Babcock acted negligently and caused Aguilar's injuries.

The government moved for partial summary judgment, arguing that the FTCA required imposition of Nevada's $50,000 limit on liability for state employees' torts. Nev.Rev.Stat. Sec. 41.035(1). The district court agreed, and granted partial summary judgment limiting the government's potential liability to $50,000. The district court certified the judgment for interlocutory appeal.

We review a grant of summary judgment de novo. Kruso v. International Tel. & Tel., 872 F.2d 1416, 1421 (9th Cir.1989), cert. denied, --- U.S. ----, 110 S.Ct. 3217, 110 L.Ed.2d 664 (1990). This appeal presents no disputed facts. Therefore, we review whether the district court correctly applied the relevant substantive law. Tzung v. State Farm Fire and Casualty Co., 873 F.2d 1338, 1339-40 (9th Cir.1989).

The issue confronting us is whether Nevada's limitation of damages recoverable against its officers and employees applies under the FTCA such that liability of a federal police officer is capped at $50,000. Aguilar contends that the cap should not be imposed because: 1) state law immunities do not shield the United States from liability under the FTCA; 2) Nevada's statute is an exception to Nevada's waiver of sovereign immunity and not a limitation on damages; and 3) enforcement of Nevada's statutory limitation is inconsistent with the purposes of the FTCA. We disagree.

The FTCA establishes federal government tort liability by express analogy to a private individual's liability under the law of the state where the tort occurred:

The United States shall be liable, respecting the provisions of this title relating to tort claims, in the same manner and to the same extent as a private individual under like circumstances.

28 U.S.C. Sec. 2674 (emphasis added). Under the FTCA, "[l]iability is to be determined 'in accordance with the law of the place where the [negligent] act or omission occurred.' " Taylor v. United States, 821 F.2d 1428, 1430 (9th Cir.1987) cert. denied, 485 U.S. 992, 108 S.Ct. 1300, 99 L.Ed.2d 510 (1988) (quoting 28 U.S.C. Sec. 1346). In this case, the alleged negligence took place in Nevada. Therefore, Nevada law determines the government's liability for Aguilar's injury. See Taylor, 821 F.2d at 1430.

In Nevada, of course, private individuals do not direct traffic on public highways. Nor does Nevada empower private individuals to mandate compliance with orders regarding conduct on public roads. Therefore, no Nevada state law governs the liability of private parties for the actions giving rise to Aguilar's suit.

However, "[u]nder the FTCA the United States may 'be liable for the performance of activities private persons do not perform.' " Doggett v. United States, 875 F.2d 684, 689 (9th Cir.1989) (quoting Wright v. United States, 719 F.2d 1032, 1034 (9th Cir.1983)). Because private persons do not wield the powers giving rise to Aguilar's suit, "the inquiry into the government's liability in this situation must include an examination of the liability of state and municipal entities 'under like circumstances.' " Louie v. United States, 776 F.2d 819, 825 (9th Cir.1985). In Doggett, we explained:

It is difficult to analyze the United States' liability for actions involving unique governmental functions by simply considering the potential liability of private citizens under state law. In such cases this court has sought to determine what liability state law attaches to similar activities undertaken by analogous entities subject to its jurisdiction.

To determine the liability of the United States in Aguilar's case, therefore, we examine the liability that Nevada law attaches to similar activities undertaken by Nevada police officers.

Our precedent thus mandates that in the special circumstance where the federal actor is a police officer without a private analogue, liability is determined by reference to state liability for government employees. That liability may, for those particular actors, be limited just like liability may be limited, under state law, for federal actors who do have private analogues. Where state law has limited the damages recoverable in tort, this court has imposed that limit on FTCA claims. Taylor, 821 F.2d at 1430; Richards v. United States, 369 U.S. 1, 16, 82 S.Ct. 585, 594, 7 L.Ed.2d 492 (1962).

Nevada's potential liability for the negligent actions of its police officers is limited to $50,000. Nev.Rev.Code Sec. 41.035(1); State v. Eaton, 101 Nev. 705, 708-09, 710 P.2d 1370, 1373 (1985). Aguilar contends that this limit on the amount of damages should not apply to his FTCA cause of action. We disagree. Just as Nevada law establishes Aguilar's FTCA cause of action, it also limits his FTCA cause of action.

The FTCA incorporates limitations on damages contained in state law. In Richards, the Supreme Court held that the FTCA incorporates the limitation on wrongful death damages contained in the Missouri Wrongful Death Act. Richards, 369 U.S. at 16, 82 S.Ct. at 594. Moreover, we have held that California's $250,000 cap on noneconomic injuries in professional negligence cases applies to FTCA claims. Taylor, 821 F.2d at 1432.

Because Nevada's liability is limited to $50,000, the United States' potential liability must be limited to $50,000 also. We hold that the potential liability of the United States is limited to $50,000 in damages Aguilar can recover for the acts of federal police officers in Nevada.

Aguilar points to United States v. Muniz, 374 U.S. 150, 83 S.Ct. 1850, 10 L.Ed.2d 805 (1963), for the proposition that the immunity granted by individual states to their public officials in positions similar to federal officials does not limit the liability of the United States under the FTCA. Aguilar's reliance on Muniz is misplaced.

In Muniz, the Supreme Court held that federal prisoners could sue their jailors under the FTCA even though, in some states, jailors are immune from suit. Muniz, 374 U.S. at 164-65, 83 S.Ct. at 1858-59. The Court did not base its decision on the inability of the federal government to assert state caps on liability. Rather, in declining to limit suits by federal prisoners because of restrictive state rules of immunity, the Court held that the "duty of care owed by the Bureau of Prisons to federal prisoners is fixed by 18 U.S.C. Sec. 4042, independent of an inconsistent state rule." Id. (emphasis added). No analogous independent uniform policy of the federal government mandates the duty of care owed by federal police officers directing traffic. Aguilar's case is thus unlike Muniz, and the United States can assert the limits on Nevada's liability in Aguilar's case.

Aguilar also contends that Wright v. United States establishes that the government cannot assert Nevada's cap on damages in a FTCA claim. We held in Wright that the United States could be held liable for malicious prosecution because of the actions of the Internal Revenue Service, even though state revenue agents in the state where the tort occurred were immune from suit. Wright, 719 F.2d at 1034-35.

We distinguish Wright from Aguilar's case. We note that any private person can be held liable for malicious prosecution. In Wright, because private persons were liable for malicious prosecution, so was the United States, as dictated by the FTCA. In Aguilar's case, private persons are not liable for negligently directing traffic. In Wright, this court had no call to look to the potential liability of state employees and their state immunity. In Aguilar's case, we must look to Nevada employees liability for Aguilar's cause of action. When we incorporate Nevada law to establish Aguilar's cause of action, we also must incorporate the statutory limit on damages. Such a result is consistent with our holding in Taylor. Because Nevada liability under state law is limited to $50,000, it follows that the liability of the United States for the actions of its federal police officers acting in Nevada must likewise be limited to $50,000.

Aguilar argues that the FTCA should not incorporate the Nevada damages cap because the cap is an exception to Nevada's waiver of sovereign immunity and not simply a statute capping damages. Aguilar thus attempts to distinguish this case from Taylor, 821 F.2d at 1432, where we held the FTCA incorporated the California damage limitation in medical malpractice actions. This is simply a distinction without a difference. As we have noted, Nevada state law both establishes Aguilar's cause of action and limits the available damages to $50,000. The fact that the $50,000 damage cap is included in Nevada's waiver of sovereign immunity has no significance under the FTCA. We also emphasize that applying the Nevada cap does not eliminate the liability of the United States altogether.

Finally, we disagree with Aguilar's contention that the imposition of this cap is at odds with the purposes of the FTCA. It is true that the FTCA was "designed primarily to remove the sovereign immunity of the United States from suits in tort...." Richards, 369 U.S. at 6, 82 S.Ct. at 589. As we have noted, however, for almost thirty years the FTCA has incorporated the limits of liability contained in state law. See id., at 16, 82 S.Ct. at 594. More recently, we held the FTCA imposed California's statutory damage limitation in medical malpractice claims. Taylor, 821 F.2d at 1432. The statutory language of the FTCA compels our result in each case. The FTCA mandates the application of state law. Nevada state law includes a cap on damages. We must, therefore, apply this limit. Should Congress decide that the imposition of state law damage caps is inappropriate, it may amend the FTCA.

We conclude that the FTCA incorporates Nevada Revised Statutes Sec. 41.035(1), imposing a $50,000 cap on the damages that Aguilar may recover in his federal action.

This report was filed under the Tort Law section of Legal News on May 15, 2008.

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