TORTS:  Sovereign immunity (special relationship; police; superceding causes)
DATE RENDERED: 12/21/2006

This appeal arises from a wrongful death action in which the police offer Miller was driving his cruiser to the jail when he stopped and left his passenger Embry in the vehicle with the keys in the ignition and the prisoner Blackwell  secured in the back with the emergency lights on.  The passenger also left, and somehow the prisoner got out drove off fast, crossed the center line, and collided with another vehicle causing the death of Ms. Foltz.

Summary judgment was granted in favor of the city and the copy in the wrongful death action.  This appeal ensued, and the questions presented are whether the controlling decision in this case is Jones v. Lathram; whether the Court of Appeals erred in not considering discretionary acts as distinguished from ministerial acts; whether a special relationship is necessary for negligence claims of this nature ; whether the officer was negligent per se; whether the active operating, controlling and ownership of a motor vehicle is ministerial, and whether there was a superseding cause for the injury to and death of the victim.

Both the circuit judge and the majority of the Court of Appeals panel acknowledged no duty on the part of either of the defendants absent any "special relationship" as considered in the 42 U .S.C. § 1983 case of Ashby v. City of Louisville, 841 S.W .2d 184 (Ky.App. 1992). The majority opinion of the Court of Appeals held that there is a public policy limiting the tort liability of officers. Supreme Court accepted discretionary review, reversed the COA and remanded for trial.

The obligation of a police officer in regard to individual citizens is not founded on foreseeability alone but rather upon the existence of a special relationship to the person likely to be injured . Two conditions are required. 1) The victim must have been in state custody or otherwise restrained by the state at the time the injury producing act occurred, and 2) the violence or other offensive conduct must have been committed by a
state actor. Here, there is no question that Blackwell was in custody.

The operation of a police cruiser is ministerial in nature.  The operation of the vehicle is a daily routine responsibility, not a discretionary act and is subject to the applicable regulations of the city police department as well as statutory traffic regulations . Negligent operation of an emergency vehicle by a police officer who violates existing police procedures and regulations, or appropriate statutes, is actionable and is clearly outside of the scope of the "special relationship doctrine."  KRS 189 .430, provides in pertinent part that "no person operating or in charge of a motor vehicle shall permit it to stand unattended without first stopping the engine, locking the ignition and removing the key . . . ." The clear purpose of the statute is to prevent the theft or unauthorized use of the vehicle and for the protection and safety of the general public. The victim here was a member of that protected class.

The act of safely controlling a police cruiser is not a discretionary act, but rather a ministerial function. In this case, Officer Miller had control of the operation of his police cruiser. Thus, it would be a ministerial act requiring reactive decisions based on duty, training and overall consideration of public safety . The question of whether Officer Miller was negligent in operating his police cruiser under all the facts and circumstances is a matter for the jury or trier of fact.

In Jones v. Lathram , the language of Yanero v. Davis, 65 S.W.3d 510 (2001) provides in part that an officer or employee is afforded no immunity for tort liability for the negligent performance of a ministerial act, i .e ., one that requires only obedience to the orders of others or whether the officer’s duty is absolute, certain and imperative, involving merely execution of specific acts arising from a fixed and designated fact. 

Any local government such as the City of Brandenburg could be liable for negligence arising out of the acts or admissions of its employees in the discharge of their ministerial duties . See KRS 65 .2003(3). The negligent operation of an emergency vehicle by a police officer which violates existing police procedures or regulations or statutory traffic regulations is certainly actionable and outside the scope of the common law doctrine of "special relationship" relied on by the City and Officer Miller.

The intervening act or event must be of independent origin, unassociated with the original act. Here, the officer had an intoxicated person handcuffed in the back of his cruiser.  The officer left the cruiser with the key in the ignition and the engine running, arguing that it was necessary to leave the vehicle so that the air conditioner would be in operation and to power the emergency lights on the vehicle.

The decision of the Court of Appeals and the circuit court is reversed .

The public duty doctrine does not provide a shield for the city or the officer from liability . The responsibility of the officer was to remove the key from the vehicle, and the ultimate theft of the car by the prisoner and resulting fatal accident was not an intervening or superseding event. Summary judgment was improper because the moving party was not entitled to a judgment as a matter of law. This matter is remanded for trial.

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