Opinion
C.A. No. 04C-04-116-JRS.
Submitted: September 30, 2005.
Decided: October 19, 2005.
ORDER GRANTING LEAVE TO APPEAL FROM INTERLOCUTORY ORDER
Appellant, the City of Wilmington ("the City"), has made an application pursuant to Delaware Supreme Court Rule 42 for an Order certifying an appeal from the interlocutory orders of this Court dated July 28, 2005 and August 25, 2005. Pursuant to the first Order, the Court denied the City's motion for summary judgment upon concluding that the City could not avail itself of the immunity granted to its police officers pursuant to Delaware's authorized emergency vehicle statute. The second order denied the City's motion for re-argument of the motion for summary judgment. These orders are attached hereto as Exhibits A and B, respectively.
See DEL. CODE ANN., tit. 21, § 4106 (1995) (hereinafter the "AEVS").
This case arises from a March 18, 2002, motor vehicle accident that occurred within the City at the intersection of 18th and Washington Streets. Defendant, Patrolman Gerald Connor, was responding to an emergency call when his police vehicle entered the intersection against a red light and was struck by the vehicle operated by Ms. Sikander. Both Patrolman Connor and the City moved for summary judgment on the grounds that they were protected from liability under the AEVS and also immune from suit under Delaware's County and Municipal Tort Claims Act. The Court granted Patrolman Connor's motion for summary judgment upon concluding that he was privileged to enter the intersection against a red light pursuant to Section 4106(b) of the AEVS, and was immune from claims of ordinary negligence pursuant to Section 4106(d) of the AEVS. The Court found that under settled principles of agency, the City could avail itself of Patrolman Connor's privilege, but could not avail itself of Patrolman Connor's immunity. The City then moved for re-argument on this issue which the Court denied because the City had simply restated the positions it had set forth in its motion for summary judgment.
See DEL. CODE ANN., tit. 10, § 4010, et seq. (1999).
Sikander v. City of Wilmington, 2005 WL 1953040, at *5-6. See also Restatement (Second) of Agency § 217 cmts. a b (1958) ("Immunities, unlike privileges, are not delegable and are available as a defense only to persons who have them.").
D.I. 21.
The City timely filed its application for certification of an interlocutory appeal on September 30, 2005. Ms. Sikander filed her response that same day in which she did not oppose certification of the appeal. Boiled to its essence, the City's appeal raises the question of whether this Court erred in its characterization of the protection set forth in Section 4106(d) of the AEVS as an immunity rather than a privilege. As previously noted, this distinction is critical to the determination of whether the City may avail itself of its police officer's statutory protection. In the instance of a privilege, the police officer's protection is afforded to the City; in the instance of an immunity, it is not.
Because there was some discrepancy regarding the actual filing date of the application (as opposed to a motion to extend page limits for filing the application), the Court exercised its discretion to extend the deadline by which the City's application was due as per Rule 42 (c)(i). See D.I. 26.
Specifically, the Court concluded that an emergency responder does not (and cannot) have a privilege to engage in negligent conduct. Thus, the protection afforded the emergency responder in Section 4106(d) against claims of ordinary negligence cannot be in the form of a privilege. It provides, instead, a statutory immunity from suit. See Sikander, 2005 WL 1953040, at *4. See also Restatement (Second) of Torts § 895D, cmt. e (1979) ("There are no privileges in a negligence action, since the issues involved are treated in the issue of whether the conduct was negligent."); Davis v. Lambert-St. Louis Int'l Airport, No. 85007, 2005 WL 2276714, at *4-5 (Mo.Ct.App. E.D. Sept. 20, 2005) ("A privilege allows the actor to avoid liability for tortious conduct in circumstances under which it is `just and reasonable that the liability shall not be imposed,' thus `defeat[ing] the existence of the tort itself.' An `immunity, on the other hand . . . does not deny the tort, but the resulting liability.' Under the doctrine of respondeat superior, it is the negligent or wrongful act of the employee — as opposed to the employee's liability — that is imputed to the employer. If a police officer were privileged to respond to an emergency in a negligent manner, then his act would not be tortious and there would be no tortious act to impute to his employer. But there is no such privilege. Instead, an officer may disregard certain rules of the road upon compliance with [the statute] and he may be entitled to official immunity for committing acts of ordinary negligence while performing his duty to respond to an emergency[.] But the immunity does not deny the existence of the tort itself, which still may be imputed to his employer under the doctrine of respondeat superior.") (emphasis in original) (citations omitted).
See Sikander, 2005 WL 1953040, at *5-6. See also Savage v. State, 899 P.2d 1270, 1273 (Wash. 1995) (quoting Babcock v. State, 809 P.2d 143, 156 (Wash. 1991)) ("`An agent's immunity from civil liability generally does not establish a defense for the principal. Accordingly, the immunities of governmental officials do not shield the governments which employ them from tort liability[.]'") (emphasis in original) (citation omitted); Muntan v. City of Monongahela, 406 A.2d 811, 813 (Pa.Commw. Ct. 1979) (holding that the City is responsible for the torts of its employees despite the fact that the employees are immune from liability); Restatement (Second) of Torts § 895D, cmt. j (1979) ("[D]uties or obligations may be placed on the government that are not imposed on the officer, and statutes sometimes make the government liable when its employees are immune.").
The City correctly observes that the question it has raised presents exclusively an issue of law; no factual determinations are required to reach a resolution of the issue. Moreover, the question is not settled in the sense that no Delaware court has addressed this particular aspect of the AEVS. Under these circumstances, the Court is satisfied that the City has established that the Court's order denying summary judgment has "determine[d] a substantial issue [and] establishe[d] a legal right." In so doing, the City has also satisfied two of the criteria for certification of a question of law, namely, that the Court's order addressed a "question of law" and answered an "unsettled question." In addition, the Court's order addressed a case dispositive issue, the final resolution of which will likely result in a termination of the litigation short of trial. Thus, although the Court disagrees with the City that there are conflicting decisions on the issue, the Court is satisfied that the City has established sufficient criteria under Delaware Supreme Court Rule 42 to justify certification of this interlocutory appeal to the Supreme Court of Delaware.
Del. Supr. Ct. Rule 42(d).
See Del. Supr. Ct. Rule 41(b)(i) (iii).
See Del. Supr. Ct. Rule 42(b)(v).