Selby v. Cumberland County
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	2002 ME 80
Docket:	Cum-01-504
Argued:	December 5, 2001
Decided:	May 15, 2002	

Panel:CLIFFORD, J., and RUDMAN, DANA,  ALEXANDER, and CALKINS, JJ.

RYAN SELBY

v.

CUMBERLAND COUNTY et al.

CLIFFORD, J.

	[¶1]  Ryan Selby appeals from a summary judgment entered in the
Superior Court (Cumberland County, Mills, C.J.) in favor of Cumberland
County, Sheriff Mark Dion, and Officer Kevin Joyce.  Selby seeks to recover
damages for injuries he sustained in a car accident that occurred during a
high-speed chase initiated by Joyce when the operator of the car in which Selby
was a passenger refused to stop on Joyce's signal.  Selby contends that Joyce
acted negligently and in violation of departmental policy when he decided to
pursue the car in which Selby was a passenger, and that, because Joyce's
actions violated agency policy, the immunity provided by the Maine Tort Claims
Act should not be available to Joyce, and consequently to the other
defendants.{1}  We affirm the judgment.
	[¶2]  On October 11, 1997, Selby was a passenger in a car being driven by
Joshua Williams.  Williams was driving approximately twenty miles per hour
over the speed limit when he was "tagged" by Joyce, who was operating a
Cumberland County Sheriff's Department patrol cruiser.  Joyce pulled up
behind Williams and turned on his lights.  Williams did not pull over, but
attempted to evade Joyce by driving away at a high-speed.{2}  Joyce pursued
Williams.  During the chase, Williams crashed into another car.  The collision
killed Williams and severely injured Selby.  
	[¶3]  The Cumberland County Sheriff's Department has a policy manual
that provides guidance to officers about engaging in high-speed chases in order
to apprehend fleeing suspects.  The section of the manual dealing with high-
speed pursuits provides, in pertinent part:

A deputy may pursue a vehicle only when he has probable cause to
believe the violator has committed or is attempting to commit a
serious crime (a felony involving the use or threatened use of
violence) or when the necessity of immediate apprehension in case
of a misdemeanor outweighs the level of danger created by the
pursuit (e.g., OUI, reckless driving).  Deputy [sic] shall not pursue
vehicles for minor traffic violations or violations of town
ordinances.

	The manual further provides:

The decision to begin, responsibility for continuing, and the choice
of method of pursuit rests primarily, if not solely, with the
individual deputy involved.  In deciding, the deputy is faced with a
dilemma because, although the law does not prevent the deputy
from using emergency speeds while engaged in pursuit, it does hold
him/her criminally and civilly responsible for his/her action.

 
	[¶4]  In his complaint seeking damages for personal injury, Selby alleges
that Joyce is liable because it was negligent for him to initiate the high-speed
pursuit, and that the other defendants are liable on a theory of respondeat
superior.{3}  The defendants moved for summary judgment prior to the
completion of discovery on the grounds that they were protected by immunity
pursuant to the Maine Tort Claims Act.  Selby opposed the summary judgment
and, pursuant to M.R. Civ. P. 56(f), requested that the court delay ruling on it
until after discovery had been completed.{4}  
	[¶5]  In entering a summary judgment in favor of the defendants, the
court concluded that the decision of whether to initiate a high-speed pursuit
was a discretionary one and consequently within the protection of the
immunity provisions of the Maine Tort Claims Act, even though Joyce's actions
may have been contrary to departmental policies.  The court also concluded
that the County and the Sheriff could not be held vicariously liable for Joyce's
actions if Joyce himself was immune.  In declining to delay the entry of
summary judgment pursuant to Rule 56(f), the court concluded that there was
no evidence that Selby could reasonably be expected to discover that would
affect the immunity enjoyed by the defendants.  This appeal by Selby followed.

SUMMARY JUDGMENT

	[¶6]  The Maine Tort Claims Act confers on government officials absolute
immunity from suit for their discretionary actions.  Carroll v. City of Portland,
1999 ME 131, ¶ 6, 736 A.2d 279, 282.  Immunity exists even when the official
lacked the authority to do the act, or abused the discretion.{5}  Id.
	[¶7]  An act qualifies as a discretionary function if the act is essential to
the realization or accomplishment of a basic governmental policy program or
objective, Doucette v. City of Lewiston, 1997 ME 157, ¶ 6, 697 A.2d 1292, 1294
(citing Rippett v. Bemis, 672 A.2d 82, 88 (Me. 1996)), and "require[s] the exercise
of basic policy evaluation, judgment, and expertise on the part of the
governmental employee involved."  Carroll, ¶ 7, 736 A.2d at 282-83.  The
enforcement of the traffic laws within Cumberland County is certainly a basic
governmental objective of county government.  As a patrol officer, Joyce's
duties included enforcement of the highway traffic laws, and he was called on
to exercise his judgment in deciding what actions to take in the enforcement of
those laws.
	[¶8]  Selby concedes that the decision of whether to engage in a
high­p;speed pursuit of a suspect would be discretionary if the determination of
when to engage in such pursuits were left entirely to the individual officer.  Cf.
Leach v. Betters, 599 A.2d 424, 426 (Me. 1991) (the decision of whether to arrest
a perpetrator of a minor offense is discretionary).  Selby urges us to conclude
that "when a government employee's actions are outside the specific authority
granted by the decision­p;makers in the government agency, the employee is not
entitled to discretionary function immunity."{6}  He contends that any discretion
that Joyce may have had to pursue Williams was eliminated by the
Department's policy forbidding high-speed pursuits of minor traffic offenders. 
We disagree.  Although the Cumberland County Sheriff's Department has a
policy to discourage high-speed pursuits in non-felony cases, the policy does
not eliminate all discretion of an officer to determine whether to pursue a
motorist.
	[¶9]  An act can be protected by discretionary immunity even though the
discretion is not unfettered.  In Doucette, a woman called the police to report
that her potentially suicidal husband had stolen his brother's car and was
missing. Doucette, ¶ 2, 697 A.2d at 1293.  According to department guidelines,
anytime a dispatcher received a call about a missing person, the dispatcher was
required to find out if the missing person was suffering from mental illness
and, if so, to report the missing person's name to the National Crime
Information Center (NCIC).  Id.  The wife did not fully explain the situation to
the dispatcher, however, and the dispatcher did not elicit the relevant
information about the husband's mental illness, and did not enter information
about the husband or the vehicle into the NCIC.  Id.  Later that same day, the
husband was interrogated by a police officer in New Hampshire after he was
involved in an accident there.  Id. ¶ 3, 697 A.2d at 1293.   Had his name and
the vehicle's registration number been listed on the NCIC database, then the
New Hampshire officer would have known about the husband's mental illness. 
Id.  Because the information was not entered, however, the officer did not
detain the husband, who subsequently committed suicide.  Id.  The wife sued
the city, claiming that the dispatcher had no discretion about how to handle
incoming calls because of the clear guidelines that provided that she was to
elicit certain information about a missing person's mental state and to report
the person's name to NCIC if the person was emotionally unstable.  Id. ¶ 4,
697 A.2d at 1293.
	[¶10]  We concluded that the guidelines did not completely eliminate the
discretionary nature of the dispatcher's duties because when performing her
duties the dispatcher "was called on to exercise judgment in evaluating
incoming calls and determining initially how those calls should be handled." 
Id. ¶ 6, 697 A.2d at 1294.  In this case, Joyce was called on to exercise
judgment about how to handle traffic law violations.  That there is a Sheriff
Department policy discouraging high­p;speed chases for routine traffic violations
does not alter the discretionary character of Joyce's conduct.{7}  Joyce's act does
not lose its discretionary character merely because there are policy guidelines
delineating how the discretion should be exercised.{8}
	[¶11]  We decline Selby's invitation to overturn Doucette and settled law
in Maine and follow decisions of the federal courts interpreting the Federal Tort
Claims Act, and some state courts interpreting their own acts.{9}  We have
construed the language of our Tort Claims Act in a manner that is consistent
with its language and with the policy of the Act.

THE RULE 56(f) MOTION

	[¶12]   Selby also contends that the Superior Court should have delayed
ruling on the motion for summary judgment until Selby had a chance to
conduct discovery, during which, he asserts, he may have found evidence that
would demonstrate that the defendants were not protected by immunity under
the Maine Tort Claims Act.{10}  We review the trial court's order denying the
Rule 56(f) motion for an abuse of discretion.{11}  
	[¶13]  Selby identified five areas that he would have liked to investigate
in discovery: (1) whether Joyce and the other deputies acted in bad faith
(specifically, whether the chase was motivated by the driver's race), (2) what the
basis for the pursuit was, (3) whether Joyce violated the policies of the
Department regarding high-speed chases, (4) whether there is a pattern of
conduct that gives rise to an effective notice of violation of the policy; and (5)
whether there is any training regarding the policy.  The Superior Court acted
within its discretion in concluding that Joyce, and consequently the
Department, would enjoy immunity regardless of any evidence that Selby would
be likely to discover, and that any such information would not be relevant to
Selby's claims.
	[¶14]  Selby's claim based on negligent training and supervision is not on
appeal.  Joyce would still have immunity even if his actions did not comply
with the policy discouraging high-speed chases.  Finally, Selby has not
identified any way that Joyce's motive for initiating the pursuit would change
the outcome.{12}  Nothing that Selby would be likely to uncover during a period
of discovery would overcome the defense of immunity and change the outcome
in this case.  Accordingly, the Superior Court acted within its discretion in
entering a summary judgment in favor of the defendants before discovery was
completed.  
	The entry is:
			Judgment affirmed.
                                                       
Attorneys for plaintiff:

Stephen Kottler, Esq. (orally)
Michael J. Welch, Esq.
Hardy Wolf & Downing, P.A.
P O Box 3065
Lewiston, ME 04243-3065

Attorney for defendant:

John J. Wall III, Esq.  (orally)
Kevin G. Libby, Esq.
Monaghan Leahy, LLP
P O Box 7046
Portland, ME 04112-7046

FOOTNOTES******************************** {1} . Because respondeat superior is the only theory of liability against the Sheriff and the County, both parties agree that the liability of all the defendants turns on whether Joyce can be held liable. It is clear that Selby is not attempting to sue Sheriff Dion in his personal capacity. {2} . Although it is not certain how fast Williams was driving his car when he was attempting to get away, Joyce stated in his report of the incident that he had been driving between seventy and eighty miles per hour while pursuing Williams and had difficulty keeping up with him. {3} . Not all of the counts in Selby's complaint are before us. Selby's claim pursuant to 42 U.S.C. § 1983 was voluntarily dismissed. Selby also sought to impose liability on Sheriff Dion and the County for negligent supervision and training. Selby does not challenge the summary judgment for the defendants on that claim. A count later added to Selby's complaint alleged that the Cumberland County Sheriff's Department negligently failed to "own, deploy and employ spiked mats to puncture the tires of vehicles whose operators refuse to stop upon police command." Selby does not challenge the court's determination that the acquisition and use of mats is discretionary. {4} . In support of the motion, Selby offered the affidavit of his attorney, in which his attorney stated that Selby lacked evidence sufficient to defeat the motion for a summary judgment, but had reasonable grounds to believe that such evidence would be obtained during discovery. {5} . A governmental official will not be shielded from liability, however, for actions that so clearly exceed the scope of the official's authority that the official cannot be said to be acting in an official capacity. MacKerron v. Madura, 474 A.2d 166, 167 (Me. 1984) (clarified and distinguished in Polley v. Atwell, 581 A.2d 410, 414 (Me. 1990)). {6} . Selby also argues that immunity is not available if Joyce made the decision to pursue the vehicle in bad faith (specifically, because Williams was African-American). Selby cites 14 M.R.S.A. § 8111(E) as authority for a bad faith exception to immunity. The bad-faith provision in section 8111(E) applies only to the grounds for immunity contained in that subsection, however. The defendants rely on section 8111(C), which provides a separate basis for immunity and contains no bad­p;faith exception. {7} . Selby argues that Doucette is distinguishable because the regulations in Doucette left some discretion to the dispatcher to decide how to handle incoming calls. The reasoning of Doucette looked solely to the nature of the action to determine if it was discretionary, however. See Doucette, ¶ 6, 697 A.2d at 1294. {8} . Polley v. Atwell, 581 A.2d 410, 414 (Me. 1990) (no immunity for conduct only if it could not have fallen within the scope of any discretion possessed by official). {9} . The federal courts have interpreted the federal act to mean that a government official enjoys immunity only if the decision involved is a policy-making decision; actions that are not part of formulating government policy, even if they entail some degree of discretion, are not protected under the Federal Act. See, e.g. Hitchcock v. United States, 665 F.2d 354, 363 (D.C.Cir. 1981). {10} . Selby also appeals the decision of the trial court to strike those portions of his attorney's affidavit that averred that he had good cause to believe that Selby might discover evidence that would defeat the summary judgment motion. Even though it struck those portions, the Superior Court did address the legal arguments made in the affidavit. Thus, Selby's rights were not affected by the decision to strike. {11} . Rule 56(f) provides, in its entirety: Should it appear from the affidavits of a party opposing the motion that the party cannot for reasons stated present by affidavit facts essential to justify the party's opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just. While Rule 56(f) is a procedural rule relating to summary judgment, an order issued pursuant to Rule 56(f) is properly reviewed as a discretionary order because the factors that a trial court must consider when deciding a Rule 56(f) motion are similar to the considerations a court must take into account when issuing an order pertaining to discovery. Discovery orders are generally reviewed for abuse of discretion. St. Paul Ins. Co. v. Haynes, 2001 ME 71, ¶ 7, 770 A.2d 611, 613 (appropriateness of sanction for violation of discovery order reviewed for abuse of discretion); Black v. Ward, 633 A.2d 81, 83 (Me. 1994) (discovery orders are pretrial orders and consequently reviewed for abuse of discretion). The interests of fairness, justice, as well as judicial economy must all be considered by the court. Moreover, the use of the word "may" in Rule 56(f) instead of "shall" indicates that the court has discretion as to whether to grant such a motion, and that the merits of doing so have to be assessed on a case-by-case basis. We recognize that a ruling on a Rule 56(f) motion will often be integrated into the decision on whether to enter a summary judgment (as was done here), and that there will be pure questions of law intertwined with the discretionary questions raised by the Rule 56(f) ruling. We would review these questions of law de novo. {12} . See supra footnote 6.