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Moody v. Kansas City Board of Police Commissioners

Court of Appeals of Missouri, Western District, Second Division

November 14, 2017

ANTOINE MOODY, Appellant-Respondent,

         Appeal from the Circuit Court of Jackson County, Missouri Honorable Joel P. Fahnestock, Judge

          Before Anthony Rex Gabbert, P.J., Thomas H. Newton, and Gary D. Witt, JJ.

          Thomas H. Newton, Judge.

         The Kansas City Board of Police Commissioners (Board) appeals a Jackson County Circuit Court judgment awarding damages to Mr. Antoine Moody who was injured by a drunk driver when an early morning police pursuit ended near Troost and 75th Street in Kansas City. The Board contends that proximate cause under these circumstances cannot be shown as a matter of law, the officers' pursuit was not negligent, they did not breach any duty to Mr. Moody, and the trial court erred in submitting a verdict director to the jury not requiring the jury to find that the officers acted unreasonably. Mr. Moody has filed a cross-appeal, challenging the trial court's decision to offset or credit certain settlement amounts from the jury's $1 million verdict, and the court's grant of summary judgment on his theory that the police were responsible for creating a dangerous condition on public grounds. We affirm.

         Kansas City Police Sergeant Tamara Pronske saw the driver of a silver sport utility vehicle (SUV) speed through a red light in the early morning hours of January 14, 2012.[1] She knew she would lose sight of it if she tried to pursue the vehicle, so she called it in, reporting her belief that the driver was intoxicated.[2] About ten minutes later, Police Officer Scott Brulja and his partner Matt Sevier saw a vehicle speed through a red light at some distance from where Sergeant Pronske had spotted the SUV and followed it with their police vehicle's lights and siren activated. Their report of the SUV over the police radio caught Sergeant Pronske's attention, and she concluded and reported that it was the same vehicle. Officer Brulja observed the SUV having difficulty maintaining its lane of travel and speeding through stop signs and lights before he lost sight of it. He and his partner, who also reported the driver as possibly intoxicated, then spent the next fifteen minutes driving through nearby residential neighborhoods, spotlighting driveways and looking to see if the SUV had parked anywhere. At one point they commented, "Damn, Dude, we almost had us one, " and "We could have chased him."

         When they relocated the SUV, it was parked near an intersection. The officers saw the driver's hand and leg outside the fully opened driver's door. Before the driver could exit the SUV, the officers shone a spotlight on the vehicle and his face, alerting him to their presence. The driver pulled away at high speed. The officers reported the SUV's make and model, as well as the license plate information, to the police dispatcher. Reaching 80 to 100 miles per hour, a pursuit ensued after 3:15 a.m., during which the SUV driver continued to run through red lights and stop signs and swerve out of his lane of travel, nearly running at least two other vehicles off the road. Officer Brulja and his partner were in communication with a supervising officer, relaying information about speed, road conditions, and other factors critical to a decision about whether a pursuit should be terminated. Some discrepancies between their actions/observations and their communications were shown during trial, including speed, icy road conditions, and risks to other drivers who were on the streets at that hour. Officer Brulja was not instructed to stop, and he decided not to abandon the pursuit. In coordination with Officer Brulja, who relayed information about his location and speed, and a supervising officer, other responding officers deployed "stop sticks, " or tire-deflation devices, in a commercial area, which was in the SUV driver's anticipated line of travel.[3] When the vehicle hit the stop sticks, the SUV veered, flipped, and crashed into Mr. Moody's vehicle, resulting in serious injuries to Mr. Moody.[4] All Mr. Moody could remember about that night and the accident, which occurred after he left work, was driving in his father's car to his security job at a night club. The evidence showed that he had stopped his vehicle because officers were in the roadway deploying tire-deflation devices to stop the fleeing driver.

         Mr. Moody brought twenty-four counts against a number of defendants, focusing primarily on the alleged negligence of police officers in deploying stop sticks to end a pursuit under the circumstances.[5] He also alleged negligence on Officer Brulja's part in initiating a "second chase" knowing that the SUV driver, when or if not chased, "had [stopped] and likely would stop and pose no further danger to the public." Mr. Moody alleged that Officer Brulja was also negligent in failing to discontinue the pursuit "when it became apparent that chasing the vehicle created a danger to the public greater than would exist if the chase were to be discontinued." Counts against individual police officers were dismissed voluntarily or by summary judgment, and a number of counts were resolved through settlements purportedly totaling $600, 000. The docket shows that the stop-stick manufacturer was voluntarily dismissed the day before the trial court entered its summary-judgment order, and it is unclear whether the court was aware, when its order was filed, that the manufacturer's alleged liability had been resolved out of court. Despite the manufacturer's absence from trial, Officer Brulja testified briefly about the deployment of stop sticks as part of the responding officers' "team" effort to stop the pursued SUV. The only count remaining at trial was negligence/agency against the Board, and the case was submitted to the jury with a verdict director focusing on Officer Brulja's alleged negligence either in initiating a pursuit when the driver of the pursued vehicle "did not pose a sufficient danger to the public" or in failing "to discontinue the pursuit . . . when the danger to the public outweighed any benefit to pursuing [the vehicle]." The jury awarded Mr. Moody $1 million, which the court reduced to offset the settlement amounts. The court denied the Board's motion for new trial and Mr. Moody's motion to amend the judgment to omit the offset or credit. This appeal and cross-appeal followed.

         Legal Analysis

         The Board's Appeal

         In the first point, the Board asserts that the trial court erred in submitting Mr. Moody's negligence claim to the jury and denying its motion for judgment notwithstanding the verdict, because, as a matter of law, the proximate cause of Mr. Moody's injuries was the erratic driving of the drunk driver, Mr. Jamel Fields, who was driving the SUV that crashed into Mr. Moody's car. In this regard, the Board cites a number of cases that it claims support its categorical assertion before this Court that police are never responsible for injuries resulting from a collision with a vehicle driven by a fleeing suspect. See, e.g., Stanley v. City of Independence, 995 S.W.2d 485, 488 (Mo. banc 1999); Oberkramer v. City of Ellisville, 706 S.W.2d 440, 442 (Mo. banc 1986); Frazier v. City of Kansas City, 467 S.W.3d 327, 337 (Mo. App. W.D. 2015); and Dilley v. Valentine, 401 S.W.3d 544, 549 (Mo. App. W.D. 2013). In none of these cases, however, did the issue of negligence go before a jury. Our supreme court recognized in Stanley that officers' negligence during a pursuit could be the proximate cause of injury resulting from a collision between the plaintiffs and the pursued vehicle, depending on the "fact situations." Stanley, 995 S.W.2d at 488 (citing Cannada v. Moore, 578 S.W.2d 597, 598 (Mo. banc 1979) (affirming a jury's wrongful-death-damages award where police set up a barrier and allegedly failed to warn drivers to get out of the way of a pursued vehicle that crashed into the car in which the decedent was a passenger)). We agree with Mr. Moody that proximate cause, even in police-pursuit cases, is fact specific and, at least in some cases, may be submitted to a jury.

         When the trial court denied in part the Board's motion for summary judgment here, it distinguished the facts from Stanley and like cases by stating the following:

True the police cars were some distance behind Fields when he crashed and a police car was not involved in the collision. But, there were two chases of Fields, together lasting around fifteen minutes with the second chase lasting around four minutes starting after Fields was completely stopped. The chase reached high speeds up to 100 miles per hour. Further, unlike the other cases cited by Defendants, officers here chose to deploy a tire deflation device after which Fields' car lost control and hit Plaintiff's car. Under these facts, it cannot be found that compelling evidence establishes the absence of causation as a matter of law. (emphasis added).

The trial court's observation serves as an appropriate distinguishing factor, as Stanley, Frazier, and Dilley turned on the courts' determination before trial that the question of whether the collisions would have been avoided had the officers abandoned the pursuits was based "only on speculation" because no facts showed that the pursued driver's erratic driving may or may not have ended in a crash with an innocent third party had the pursuit ceased. Frazier, 467 S.W.3d at 334-35.

         Citing Frazier, 467 S.W.3d at 337, the Board argues that whether proximate cause exists is a "judicial function" and is thus subject to our de novo review as a question of law. City of St. Joseph v. Vill. of Country Club, 163 S.W.3d 905, 907 (Mo. banc 2005). We disagree. In Frazier, the question of causation had been decided by the circuit court on a summary-judgment motion. Frazier, 467 S.W.3d at 334-35. In that case, we reviewed the court's ruling de novo, which means reviewing the record "in the light most favorable to the party against whom judgment was entered" and "according that party all reasonable inferences that may be drawn from the record." Id. at 333.[6] According to this Court, the uncontroverted facts did not support the plaintiff's expert's conjecture-based conclusion that violations of Kansas City Police Department (KCPD) protocols in pursuing a fleeing suspect caused the suspect's crash into the plaintiff's car at an intersection. Id. at 337. In that sense, the proximate-cause issue was deemed a "judicial function."[7]

         Thus, we will instead apply the standard of review following the denial of a judgment notwithstanding the verdict:

When reviewing a circuit court's denial of a judgment notwithstanding the verdict, [t]his [c]ourt must determine whether the plaintiff presented a submissible case by offering evidence to support every element necessary for liability. We view "the evidence in the light most favorable to the jury's verdict, giving the plaintiff the benefit of all reasonable inferences and disregarding evidence and inferences that conflict with that verdict." This [c]ourt will reverse the jury's verdict for insufficient evidence only where there is a complete absence of probative fact to support the jury's conclusion.

McGhee v. Schreiber Foods, Inc., 502 S.W.3d 658, 666 (Mo. App. W.D. 2016) (citations ...

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