Muse v. Schleiden

349 F.Supp.2d 990

Carol MUSE, Plaintiff, v. Stephen SCHLEIDEN, et al., Defendants.

No. 1:04CV880.

United States District Court, E.D. Virginia, Alexandria Division.

December 17, 2004.

COPYRIGHT MATERIAL OMITTED

David L. Marks, Fairfax, VA, for Plaintiff.

Thomas Omar Lawson, Lawson Kipp & Forbes, Fairfax, VA, for Defendants.

MEMORANDUM OPINION

ELLIS, District Judge.

In this diversity suit, plaintiff Carol Muse, a Maryland resident, sues Deputy Stephen Schleiden, a Virginia resident, and the Loudoun County Sheriff's Office (LCSO) for damages arising from an accident caused when Deputy Schleiden negligently entered an intersection against a red light while responding to a domestic violence call. At issue on defendants' motion for summary judgment is whether defendants are entitled to sovereign immunity from suit when, at the time of the accident, Deputy Schleiden was actively responding to a domestic violence call that he understood to be an attack by an "out of control" daughter on her father.

For the reasons that follow, defendants' summary judgment motion must be granted as the undisputed material facts reflect that Deputy Schleiden, unlike a driver in routine traffic, was required to exercise discretion to "make difficult judgments about the best means of effectuating [a] governmental purpose by embracing special risks in an emergency situation."¹ Colby v. Boyden, 241 Va. 125, 400 S.E.2d 184, 188 (1991).

I.²

At approximately 10:00 p.m. on the evening of August 9, 2002,³ Deputy Schleiden received a priority 4 dispatch calling him to the scene of a domestic violence dispute. The dispatch reflected that the caller's 14-year-old daughter had "struck him in the face," was standing next to him while he was on the phone, and was "out of control." Given this, Deputy Schleiden, a former dispatcher himself, concluded that the crime of domestic assault "was in progress or had just occurred," and that the call was properly categorized as a priority 2 or 3 domestic assault rather than a priority 4 juvenile complaint.⁴

Because Deputy Schleiden believed that the assault might still be in progress, he sought, as he put it, to "respond as rapidly as possible." Deputy Schleiden testified during his deposition that, pursuant to the LCSO's code response system, he had discretion whether or not to use his emergency lights and siren in responding to the call.⁵ Yet, knowing that nighttime sirens might create a disturbance or alert the parties to his approach and because he was less than a mile from the call location at the time he received the dispatch, Deputy Schleiden exercised his discretion not to activate his emergency equipment and to follow the rules of the road.

While traveling westbound on Ashburn Farm Parkway en route to the call location, Deputy Schleiden stopped at a red light at the intersection between Ashburn Farm Parkway and Clairborne Parkway. Traveling with Deputy Schleiden at the time were a television news reporter and cameraman participating in a "ride along."⁶ At the red light, Deputy Schleiden turned to the reporter to explain the nature of the call and that it "might have been miscategorized by the dispatcher." While turned toward the reporter, he believed he saw the light turn from red to green. Thus, he began to proceed through the intersection. Not until Deputy Schleiden had entered the intersection did he realize that the light controlling his lane was, in fact, still red. At the same time, plaintiff was traveling southbound on Clairborne Parkway. Seeing the green light controlling her lane, plaintiff entered the intersection and collided with Deputy Schleiden's cruiser in the middle of the intersection. Specifically, plaintiff's vehicle struck the rear passenger side of Deputy Schleiden's cruiser.

Approximately two years later on July 29, 2004, plaintiff filed this negligence suit against Deputy Schleiden and the LCSO for damages suffered in connection with the August 9, 2002 accident. On November 8, 2004, plaintiff filed a motion to amend the complaint to include a claim for gross negligence. On the same date, defendants filed a motion to dismiss and/or for summary judgment arguing that (i) Deputy Schleiden is entitled to sovereign immunity from suit because the accident occurred when he was operating his vehicle in response to an emergency call, a function requiring the exercise of judgment and discretion, and (ii) that the complaint fails to state a claim against the LCSO because Virginia does not recognize a cause of action for negligent supervision. Plaintiff filed an opposition arguing (i) that Deputy Schleiden is not entitled to the protection of sovereign immunity because, at the time of the accident, he was engaged only in an "ordinary driving situation," (ii) that Deputy Schleiden's acts constituted gross negligence and thus are not entitled to immunity,⁷ and (iii) that while Virginia concededly does not recognize a claim for negligent supervision, the complaint also states a direct negligence claim against the LCSO. Following the filing of defendant's reply and a hearing, the matter was taken under advisement.

II.

1. Deputy Schleiden — Ordinary Negligence

Deputy Schleiden has raised the defense of sovereign immunity to plaintiff's ordinary negligence claim. To be sure, the line demarcating the boundary of sovereign immunity in Virginia is indistinct; indeed, at least one Supreme Court of Virginia jurist has described the case law applying the sovereign immunity doctrine as an "immunity-liability patchwork" and a "maze of confusion." Hinchey v. Ogden, 226 Va. 234, 307 S.E.2d 891, 895 (1983) (Cochran, J., dissenting). The inability to draw precise lines in this context is understandable; it is difficult, if not impossible, for the human mind to conjure up all possible factual scenarios in emergency response situations that might give rise to the need to shield the state or its employees from liability. Even so, it is possible to distill from pertinent Virginia caselaw the analytical framework and principles that enable courts to determine the boundaries of sovereign immunity in specific situations.

In this respect, analysis properly begins with the recognition that the Supreme Court of Virginia has established a four-factor test to determine whether an employee of a sovereign entity, like Deputy Schleiden, is entitled to invoke the state's sovereign immunity from ordinary negligence claims.⁸ See Messina v. Burden, 228 Va. 301, 321 S.E.2d 657 (1984). Specifically, the four factors are: (i) the function performed by the employee; (ii) the extent of the government's interest and involvement in that function; (iii) the degree of control and direction the government exercises over the employee; and (iv) whether the act performed involves the use of judgment and discretion. Id. at 663 (citing James v. Jane, 221 Va. 43, 282 S.E.2d 864, 869 (1980)). Properly applied, these factors aim to limit sovereign immunity to situations where its application serves the important goals of such immunity, including, most relevant here, to "assur[e] that citizens will be willing to take public jobs," and to "eliminat[e] public inconvenience and danger that might spring from officials being fearful to act."⁹

The parties in this case do not dispute that the first three factors are satisfied; instead, they focus sharply on whether the act at issue — responding to the domestic violence call — involved the use of judgment and discretion. In addressing this factor, the Supreme Court of Virginia, in cases involving emergency responders, has distinguished between situations that require "ordinary driving ... in routine traffic" and those exigent circumstances that require an employee to exercise judgment and discretion to "make difficult judgments about the best means of effectuating [a] governmental purpose by embracing special risks in an emergency situation." See Friday-Spivey v. Collier, 268 Va. 384, 601 S.E.2d 591, 595 (2004); Colby v. Boyden, 241 Va. 125, 400 S.E.2d 184, 187 (1991). Only emergency response drivers in the latter situations are deserving of sovereign immunity. For example, in Colby v. Boyden, the Supreme Court of Virginia held that a police officer in pursuit of a traffic offender, with his emergency lights and siren engaged, was immune from ordinary negligence claims for damages caused when the officer entered an intersection against a red light and collided with plaintiff's vehicle. The court reasoned that, unlike a driver in routine traffic, a police officer engaged in vehicular pursuit "must make prompt, original, and crucial decisions in a highly stressful situation." Id. at 187. Further, the driver must embrace "special risks in an emergency situation" and must make discretionary decisions "balancing grave personal risks, public safety concerns, and the need to achieve the governmental objective." Id. Indeed, the initial decision to undertake the pursuit itself involves the exercise of discretion. Id.; see also Nationwide Mut. Ins. Co. v. Hylton, 260 Va. 56, 530 S.E.2d 421 (2000) (holding that trooper entitled to sovereign immunity when, at the time of the accident, he had decided to apprehend a traffic violator but had not yet begun to pursue him). Similarly, in National Railroad Passenger Corp. v. Catlett Volunteer Fire Co., 241 Va. 402, 404 S.E.2d 216 (1991), the Supreme Court of Virginia held that a fireman en route to extinguish a fire could not be held liable for an accident that resulted when he drove his fire truck across a set of railroad tracks without stopping because the exercise of judgment and discretion required to respond rapidly to a fire could not be distinguished from the act of running a red light to apprehend a traffic offender.

In contrast, sovereign immunity does not extend to "ordinary driving situations ... in routine traffic." Friday-Spivey, 601 S.E.2d at 594 (citations and quotations omitted). For example, in Heider v. Clemons, 241 Va. 143, 400...