The Maine Legislature has amended the Maine Tort Claims Act (MTCA) to provide a remedy for those injured by the negligent driving of police officers and other governmental employees. The amendment enhances public safety by holding negligent governmental drivers responsible, just like other drivers. It provides compensation to victims and family members injured or killed by a negligent governmental driver. At the same time, the amendment preserves maximum flexibility for police officers and other governmental employees to do their important jobs...
I. Introduction to Negligent Driving by Police Officers
The Need For A Remedy: Accidents Resulting From Police Pursuit
In Maine, from 1994 to 2004, fifteen people died in police pursuits. Many others were injured. In June 2005 alone, five young adults in Maine died following two high-speed police chases. In both recent cases, the pursuits were triggered after the chased vehicle committed only a minor traffic infraction. Across the country, there appear to be a growing number of accidents involving police pursuits, causing the practice to come under scrutiny.
II. The Law Court's Decision In Norton v. Hall
A. Access to the courts for victims of negligent driving by police officers
Access to the courts for victims of negligent driving by police officers and other governmental employees was effectively curtailed by the Law Court's 1998 ruling in Norton v. Hall.
In July 1998, Michelle Norton and her two teenage sons, 18-year-old John and 15-year-old Matthew, were traveling along a busy stretch of Route 302 in Raymond. The Nortons were the front car in a long line of traffic waiting to make a left-hand turn. As they began to turn left, a Cumberland County sheriff's deputy, passing the line of vehicles at a high rate of speed, collided with the Nortons. John, died upon impact. Matthew, died a short time later in the hospital.
Ms. Norton filed a civil wrongful-death claim against Cumberland County and the individual deputy that struck her. At trial, Ms. Norton planned to present evidence that there was no real emergency to justify the high speeds; the deputy was driving too fast for the busy road conditions; and the deputy failed to use her siren properly. However, a closely-divided Law Court upheld summary judgment against Ms. Norton on the grounds that the sheriff's deputy and the county were immune from liability under the "discretionary function immunity" provisions of the MTCA, 14 M.R.S.A. §§ 8104-B(3), 8111(C).
B.The Norton Majority Opinion
The Norton majority reasoned that the deputy's threshold decision whether to initiate an emergency response *the "whether"* could not be separated from how the deputed chose to drive the cruiser during the response *the "how".*
Accordingly, because the decision "whether" to initiate an emergency response involved "discretion" and was entitled to immunity, decisions that followed from it concerning "how" the vehicle was driven during the response were also immune.
As a practical matter, the Norton decision provided virtually absolute immunity to governmental entities and employees against liability for even the most negligent or reckless driving, so long as the driver's use of the vehicle involved anything that could be characterized as a "discretionary" decision (such as to engage in a high-speed chase).
Under Norton, victims would have their cases dismissed upon summary judgment, without an opportunity to get to the jury.
The Norton majority rejected Ms. Norton's argument that her claim was preserved by the "motor vehicle exception" of the MTCA, § 8104-A(1)(A). This provision waives immunity for a governmental entity for "negligent acts or omissions in its ownership, maintenance or use of any" motor vehicle.
Simply put, the Norton Court held that the "discretionary function immunity" provisions (§ 8104-B(3) (governmental entities) and (§ 8111(C) (employees)) trumped the "motor vehicle exception."
C. The Norton Dissenting Opinion
The Norton dissent challenged the majority's premise that the "whether" and "how" decisions were inseparable.
The dissent would have upheld Ms. Norton's claim, but only to the extent it challenged "how" the deputy executed the emergency response, as opposed to the decision "whether" to initiate an emergency response in the first place.
The dissent placed great emphasis on the fact that the sheriff's deputy collided directly with Ms. Norton's vehicle, suggesting that a claim should be upheld only if there is evidence that the officer is "directly involved" in the collision.
D. The Norton Concurring Opinion
In a separate concurring opinion, Chief Justice Saufley encouraged the Legislature to clarify whether the "whether" and "how" decisions should be viewed separately for the purposes of applying "discretionary function immunity".
The 2005 Amendment To The Maine Tort Claims Act
The Legislature has now spoken. In the recent term, the Legislature enacted LD 936, An Act To Amend The Maine Tort Claims Act.
This amendment to § 8104-B(3) clarifies that the "motor vehicle exception" trumps the "discretionary function immunity" for governmental entities.
In particular, the amendment adds the following qualification to the "discretionary function immunity" provision that applies to governmental entities:
If the discretionary function involves the operation of a motor vehicle, as defined in Title 29-A, § 101, Subsection 42, this Section does not provide immunity for the governmental entity for an employee's negligent operation of the motor vehicle resulting in a collision, regardless of whether the employee has immunity under this Chapter.
A. The Amendment Applies Only To Governmental Entities, Not Employees
Section 8104-B applies only to "governmental entities," and therefore the amendment to that section only affects liability with respect to governmental entities, not individual employees. The Legislature chose not to amend the analogous "discretionary function immunity" provision for governmental employees, § 8111(C).
This was purposeful. In order to strike a compromise between the interests of law enforcement officers and victims, the Legislature agreed to allow victims to recover from governmental entities, but not from individuals.
As a practical matter, this makes little difference to victims, because liability for employees under the MTCA is capped at $10,000, while there is a $400,000 cap on liability against governmental entities.
In drafting the amendment, the Legislature was mindful that a governmental entity is vicariously liable for the negligence of its employees.
Thus, an individual employee will be named in the cause of action, but only to invoke the remedy against the employer. The Legislature attempted to make this clear in its statement of purpose accompanying the amendment:
This amendment provides that a governmental entity is not immune for negligent operation of a motor vehicle by an employee of the governmental entity when the employee's negligent operation of that motor vehicle results in a collision.
There is no immunity for the governmental entity regardless of whether the Maine Tort Claims Act provides immunity for the employee.
This amendment does not amend the law governing the personal liability and immunity of employees of governmental entities.
B. The Amendment Does Not Adopt The "Whether"/"How" Distinction
Although the Legislature responded to Chief Justice Saufley's invitation to clarify the MTCA, the amendment does not rest on any of the elusive distinctions between the "whether" and "how" decisions discussed in Norton.
Rather, the Legislature has drawn a much clearer distinction between governmental entities and individual employees. Employees remain entitled to "discretionary function immunity" regardless of whether the discretion involves the "whether" or the "how."
Governmental entities are now subject to liability for negligent employee driving, regardless of whether such driving involves a "discretionary function," and regardless of whether such "discretion" relates to the "whether" or the "how".
The Legislature's clear approach is much preferable to the arbitrary "whether"/"how" distinction suggested by the Norton dissent. There are clear examples of where the "whether" decision is negligent, such as the decision to initiate a high-speed emergency response for a cat up a tree.
Likewise, there are clear examples of where the "how" decision is negligent, such as the decision to drive 100 mph on a crowded street without lights or a siren.
Under the amendment, victims may assert claims against governmental entities for either type of negligence.
C. The "Resulting In A Collision" Standard
The legislative history of LD 936 makes clear that a governmental vehicle need not be "directly involved" in a collision for the governmental entity to be held liable.
As originally proposed, LD 936 did contain the"directly involved" language, presumably taken from the Norton dissent. However, the bill was amended to substitute the broader "resulting in a collision" language.
Thus, as enacted, the amendment allows for claims against governmental entities for negligent driving that "results in" a collision, even if the governmental vehicle is not "directly involved" in the collision. This is a more sensible approach, because a driver that forces another car off the road, into a tree, or into a third vehicle may be just as negligent as one who collides directly with another car.
D. The Process Of Amending The Maine Tort Claims Act
The amendment to the MTCA reflects the dedicated efforts of victims, concerned citizens and elected representatives alike. Representative Janet Mills, former district attorney, sponsored the bill. Her association with law enforcement gave the bill instant credibility.
The Judiciary Committee heard hours of public testimony, including testimony from Michelle Norton.
I contacted Ms. Norton and she agreed to drive to Maine from New Jersey just to be at the hearing.
In addition, the mother of one of my clients testified about her son's brain injuries suffered in a crash following a high-speed crash. Finally, members of the Judiciary Committee including State Representatives Deborah Pelletier-Simpson and Sean Faircloth, and Senators Barry Hobbins and David Hastings, were instrumental in working out the compromise legislation.
In this age of "tort reform" and other attempts to restrict access to the civil justice system, the Maine Legislature showed courage and fairness in re-opening the courthouse doors to victims like Michelle Norton.
I have enjoyed the opportunity to work with the Legislature to change the law in a way that will benefit all Maine people.