AREAS OF INTEREST: Municipal liability, official immunity.
LEGAL IMPACT: A police officer engaged in road clearance activities, such as directing traffic around a disabled vehicle, is not liable in the absence of willful or wanton disregard for safety or gross negligence. In the absence of a breach of this standard of care, the municipality is not liable even though it has applicable liability insurance.
CASE CAPTION: Michalski v. Town of Center Harbor, No. 2011-0725 (June 13, 2012)
The plaintiff was riding his motorcycle on Route 25B in Center Harbor when he struck the side of a vehicle being operated by his wife and was thrown from the motorcycle. He alleged that a police officer, who had parked his cruiser with his lights activated and was directing traffic around a disabled vehicle, signaled his wife to stop suddenly without sufficient warning.
The Town filed a Motion to Dismiss the claims against it based on official immunity. It argued that police officers are immune from liability for decisions, acts or omissions that are made within the scope of their official duties while in the course of employment, in the exercise of discretion, provided that they are not made recklessly, there were no facts to support a claim of recklessness, and since the police officer was entitled to official immunity, the Town was also immune from liability for the vicarious liability claims.
The plaintiff objected arguing that the Town had a liability insurance policy and RSA 507-B:7-a precludes a municipality from asserting an immunity defense when it has procured an insurance policy to cover the risk involved. The plaintiff also argued that official immunity does not apply to reckless acts committed by government employees and the police officer’s actions involved conduct that was ministerial and not discretionary.
The trial court granted the Town’s Motion to Dismiss and the plaintiff moved for reconsideration primarily based on the Town’s insured status. The Town objected arguing that where, as here, statutory standards of care govern the conduct of municipal employees, such as police officers responding to emergency situations, there is no waiver of immunity simply because the municipality has procured an insurance policy. The Town argued that RSA 154:7-b applicable to “expeditious clearance of roadways,” established a gross negligence standard of care for emergency responders which was not breached by the police officer in this case.
RSA 507-B:7-a provides that an insured municipality may not plead immunity as a defense and “its liability shall be determined as in the case of a private corporation except when a standard of care differing from that of a private corporation is set forth by statute.” The Court assumed, without deciding, that Town’s procurement of an insurance policy waived its immunity from both direct and vicarious liability and instead addressed the Town’s argument that RSA 154:7-b established a gross negligence standard of care that was not breached by the officer.
RSA 154:7-b exempts agencies and officials engaged in road clearance activities from liability provided that they do not act with willful or wanton disregard or gross negligence. The statute provides that the officer in charge shall act “subject to the authority and limitations granted in RSA 154:7, I(c) with respect to a propelled vehicle accident, natural disaster, or special event.” The Court rejected the plaintiff’s argument that the statute applied only to accidents involving transportation of hazardous material, fuel spills or accidents involving injury because the statute also applied to “special events.” Since the statute did not define “special event,” the Court interpreted it within the context of the statute as including a roadway incident that calls for a police response. The Court concluded that the removal of a disabled vehicle from the roadway constituted a “special event” that entitled the officer to invoke the gross negligence standard of care. Because the plaintiff failed to allege facts constituting a breach of this standard of care, his claims were properly dismissed.