McClellan et al. v. Ramirez and City of Dubuque Copyrighted
November 19, 2018
City of Dubuque Consent Items # 19.
ITEM TITLE: McClellan et al. v. Ramirez and City of Dubuque
SUMMARY: Senior Counsel transmitting correspondence regarding the
dismissal of the McClellan et al. v. Ramirez and City of
Dubuque lawsuit resulting from a February 28, 2016
accident.
SUGGESTED DISPOSITION: Suggested Disposition: Receive and File
ATTACHMENTS:
Description Type
Staff memo Staff Memo
Order RE: Summary Judgment Supporting Documentation
THE CITY OF Dubuque
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2013•2017
BARRY A. LINDAH
SENIOR COUNSEL
MEMO
To: Mayor Roy D. Buol and
Members of the City Council
DATE: November 6, 2018
RE: William McClellan et al. vs. Pablo Ramirez and the City of Dubuque
William and Racquel McClellan filed a personal injury lawsuit against City of Dubuque
Police Lieutenant Pablo Ramirez and the City of Dubuque for damages they alleged they
sustained in an auto accident that occurred February 28, 2016. Attorney Les Reddick
represented the City and Lieutenant Ramirez. The City claimed that the accident
occurred while Lieutenant Ramirez was responding to an emergency and that under lowa
law, the City has immunity from liability for the accident.
Attached is an Order from the lowa District Court for Dubuque County agreeing with the
City's position and dismissing the lawsuit with no cost to the City. The Plaintiffs have filed
an appeal with the lowa Supreme Court. A ruling in the appeal will most likely be
sometime in 2019.
BAL:tIs
Attachment
cc: Michael C. Van Milligen, City Manager
Mark Dalsing, Chief of Police
Les Reddick, Esq.
F:\Users\tsteckle\Lindahl\McClellan v City&Ramirez\MayorCouncil_CaseDismissed-111918Agenda_110518.docx
OFFICE OF THE CITY ATTORNEY DUBUQUE, IOWA
SUITE 330, HARBOR VIEW PLACE, 300 MAIN STREET DUBUQUE, IA 52001-6944
TE�EPHorvE (563)583-4113/F,vc (563)583-1040/EMai� balesq@cityofdubuque.org
i
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iN THE IOWA DISTRICT COURT, IN AND FOR DUBUQUE COUNTY
WILLIAM McCLELLAN;
RACQUEL McCLELLAN,Individually
and As Next Fricnd for Minor Child, R.B.,
Plaintiffs, Case 013ll LACV 107012
V s.
PABLO ORLANDO RAMII2EZ and the ORDER RE: SUMMARY JUDGMENT
CITY OF DUBUQUE, IOWA,
Defendants.
This matter comes before the Court pursuant to the Motion for Suirunary Judguient filed
by Defendants Pablo Ramirez and the City of Dubuque. The Plaintiffs appeared through
Attorney David O'Brien. The Defendants appeared through Attoiney Les Reddick.
A Petition alleging negligence was filed herein on January 11, 2018, conceining a motor
vehicle accident tliat occun�ed on or about Febivary 28, 2016. The Petition alleges Uiat Plaintiff
William McClellan(l�ereinafter"McClellan")was driving a 2003 Dodge Neon with his wife,
Rachel, and their minor child,R.B. as passengers. He was driving in a southerly direction on
Garfield Avenue uear that sh�eet's intersection with Johnson Sh�eet. At the same time, Defendant
Officer Pablo Ramirez(hereinafter"Ramirez")was traveliug in a fully-marked police vehicle
northbound on Garfield Avenue at a high rate of speed when he atteinpted to make a lefr hun
onto Johuson Street without yielding the right-of-way to the MeClellans' oncoming vehicle. A
collisiou resulted, and Plaintiffs allege injuries and damages as a result thereof.
RINDINGS OF FACT
At 10:11:09 a.m., Unit 309 received a Code ] from the Dnbuque Law �nforcement
Dispatch Ceuter(hereinafter"dispatch") to an active domestic abuse assault at the address of 405
Rhomberg. The situation was an einergency, "life-tlu�eatening," as the alleged perpetratox was in
the home. Code 1 requires responding vehicles to have lights and sirens engaged. Ramirez is
Unit 309. He eugaged his lights aud sirens as he respouded.
Dispatch came back over the radio and lessened the call to Code 2, as the pcipetrator was
no longer at tl�e scene. Code 2 provides U�e responding officer discretion to maintaiu lights and
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sirens.� Ramirez,upon hearing that the code was lowered, reached to his console and disengaged
the lights and sirens.
At 10:12:00 a.m., Ramirez attempted to make a lefr turn off Garfield Avenue onto
Jolinson Street and sYruck the front of McClellan's vehicle. The location of the accident was two
blocks north and one block east of tl�e location of the emergency. Dispatch was infonned of the
accident at 10:12:40 a.m. An ambulance was dispatched at 10:13:00 a.m. The foregoing facts
are undisputed and verified by tlie street camera video and the dispatch log records.
The Plainfiffs alleged Ramirez was travelling in a direction away from tUe accident. I�i
his affidavit, Ramirez indicates he was still travelling to the scene, knew the perpetrator was still
in the area and was therefore still responding to an emergency domestic abuse assault scene. Thc
total elapsed tin7e from Ramirez's receipt of the emergency call by dispatcl� to when the collisio❑
occurred was 51 seconds.
CONCLUSIONS OF LAW
"Sttnunaryjud�nent is appropriate when there is no genuine issue of material fact and
the moving party is entitled to judgment as a matter of law."Plowrnma v. Ft. Madison Comm.
Hospitnl, 896 N.W.2d 393, 398 (Iowa 2017) citing Bm•ker v. Cn�potosto, 875 N.W.2d 157, 161
(Iowa 2016). "Summary judgnent is appropriate if the only conflict concerns the legal
consequences of undisputed facts." Id. citing Pepp�neier v. Mur�hy, 708 N.W.2d 57, 58 (Iowa
2005). "We . . . view the record in tl�e light most favorable to the nonmoving party and will grant
that party all reasouable inferences that can be drawn from the record."Id.
"The moving party has the burden of showiug the nonexistence" of a gemiine issue of
material fact.Id. citingNelson v. Liridaman, 867 N.W.2d 1, 6 (Iowa 2015). "An issue of fact is
`materiaP only wUen the dispute involves facts which migltt affect the outcoine of the suit, given
the applicable goveming law."Id. (citations omitted). "An issue is `genuine' if the evidence in
the record `is sucli that a reasonaUle jury could rehirn a verdict for tl�e non-moving party.' "Id.
(citations ontitted). "Speculation is not sufficient to generate a ge��uine issue of fact."Id.
(quoting Hla�bek v. Peleclry, 701 N.W.2d 93, 96 (Iowa 2005)).
i Dubuq�o Poliee Departme�t"Code Response"indicates Ihe responses undec Code 1 or 2 wwld gene�ally fall m�dec the dcfinition of an
"Emcrgcnry Call as detined in Iowa Code scc.32123 L Sec Ezhibit A-4 to Defcndant's S[a[emcnt of Ondispuced Facts.
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Issues of negligence, contributory negligence and proximate cause are ordinarily not
susceptible of summary adjudication but sl�ould be resolved by trial iu the ordinary mamier.
Schern�er v. Muller, 380 N.W.2d 684, 687 (Iowa 1986) citing Daboll v. Hoden, 222 N.W.2d 727,
734 (Iowa 1974).
Pursuant to Iowa Code sec, 231.493(2)(a), in all cases where damage is done by �ny
motor vehicle by reason of ne�ligence of the diiver, N�d driven with the consent of lhe owner,
tha owner of the motor vehicle shall be liable for such damage.
Any parCy assertiiig that the subject couduct is immune from tlte liability ot7�erwise
present has the burden to establish the fact. See Awderso�� ». State, 692 N.W.2d 360, 364 (lowa
2005).
ANALYSIS
Plaintiffs brought this action pursuant to Iowa Code Chapter 670, which is titled as Tort
Liability of Governinental Subdivisions. Section 670.2(1) indicates in full:
"Except as otherwise provided in this chapter, every municipality
is suUject to liability for its torts and those of its officers and
einployees, acting within the scope of their employinent or duties,
wl�ether arising out of a governi��ental or proprietary fiinction."
IY is undisputed tliat Ramirez was an einployee of the City of Dubuque. He is a certified
police officer. He had authority and pennission to be operating the squad car on the day of the
incident. Chapter 670 is uucontrovertibly implicated.
Despite extending liabiliry for such torts as negligence, there are circumstances that
relieve the ruunicipality and its officers from liability as recited in Iowa Code sec. 670.4(1),
which states:
"The liability imposed in section 6702 shall ltave no application
to any claim enumerated in this section. As to such claiin, a
municipality shall be liable only to the extent liaUility tnay be
iinposed by express statute dealing with such claims and, in the
absence of such express statute,the municipality shall be immune
from liability."
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The source of the immuuity relied on by the Defendants is the"emergency response" exception
set fortli in section 670.4(1)(k) which relieves tl�e municipaliry of liability when there is:
"[a] claim Uased upou or arising out of an act or omission in
conncction with an cmergency response including but not limitcd
to acts or otnissiuns in cotuiection witli emergency response
communications services."
The rationale for this iimnunity is based on the following: "A local govemment l�as a strono
interest ii� providing rescue services for citizens involved in accidents and wli�day or nighl
need itnmediate xesponse. The statutory exemption 'froin toii liability allows nwnicipal providers
of etnergcncy care to render necessary medical aid in dire siriiltions frcc from distractions or
concenis over poteurial lawsuiCs." Kershrae��v. Czt�� of Bi�r�7inglon, 6]8 N.W.2d 340, 343 (Iowa
2000) citing Kulisli ��. Ellsw�orth, 566 N.W.2d 885, 890 (lowa 1997).
There is no dispute as to the fact that Ramirez was initially responding to an emergency
call at 10:11:09 a.m. lt is tl�erefore aii uncontroverted fact the Court cau use tlie emergency
response exception. There is a dispute however, as to when the exception is tenninated. The
question is does the exception continue to protect the municipaliry after the emergency call was
reduced to a Code 2. Tl�e narrow issue is whether the imnnmity extends through 10;12:00 when
the collision occuned due to the fact Ramirez turned his lights and sirens offjust before he
tuined left.
Plaiutiffs assert thatlowa Code sec. 321.231(1)—(4) requires the use of lights ox sirens
for peace officers to be protected by the immunity of Iowa Code sec. 670.4(1)(k). Tlie Court has
reviewed tl�e entirety of section 321.231. The pertinent subparts of the section 321.231 state as
follows:
1. The driver of an authorized emergency vehicle, when
responding to an emcrgency call or when in the pursuit of an achial
ar suspected perpetrator of a felony or in response to an incident
dangerous to tlie public ... may exercise the privileges set fortl� in
this section.
2. The driver of any authorized emergency vehicle, may: (b)
[d]isregard laws or regulatious governing direction of movemevt
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for the minimum distance necessary before an alternative route that
confonns to the traffic laws and regulations is available.
3. The driver of a ... police vehicle, may do any of the following:
(b) [e]xceed Yhe maximum speed limits so long as the driver does
not endanger life or property.
4. Tl�e exemptions granted to ai� authorized emergency vehicle
under subsection 2 and to ... police vehicle ... as provided in
subsectiou 3 shall apply only when such vehicle is making use of
an audible signaling device meeting the requirements of section
327.433 or a visual sigualing device, excepC that use of an audible
or visual signaling device shall not Ue required when exercising the
exeinption�-anted under subsection 3, paragraph "b", when the
vehicle is operated by a peace officer pursuing a suspected violator
of the speed restrictions imposed by or pursuant to this chapter for
the purpose of detennining the speed of ri�avel of such suspected
violator.
5. The provisions of this section shall not relieve the driver of an
autl�orized emergency vehicle ... fi�om the duty to drive or ride
with due regard for the safety of all persous, nor shall such
provisions protect the driver ... from the cousequences of the
driver's ... reckless disregard for flie safety of others.
Based on the interpretation of this section, the Plaintiffs assert Hie Court cannot extend the
iminunity iu Iowa Code sec. 670.4 because Ramirez was not using his lights and sirens, which is
in contravention of sectiou 321.231(4), an express statute on the issue.
The Defendants disa�nee aud urge the Court to adopt the niling in Stych v. City of
Maescatine, Iowa, 655 F.Supp.2d 928 (S.D. Iowa 2009), wl�ich holds that a defendant is ei�titled
to tlie application of the emergency response exception if au emergency existed at any ti�ne
during the events in question. (emphasis added). Therefore, Defendants assert that the only
issue the Court needs to decide iv applying the immunity exception is whether the municipal
employee (Ramirez) was acting "in comiection with an emergency response".
The Supreme Court in Hoffert v. Luze, 578 N.W.2d 671 (Iowa 1998) addressed the issue
of the specificiry of the lauguage of Iowa Code sec. 321.231 and the legal standards of
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negligence versus recklessness. The Couit found that Iowa Code Chnpter 670 is a general
statute. The specific words in Chapter 321.231 seem to contradict one another since there are
two different standards, i.e. "due regard"which is negligence by inteipretation, and"reckless
disregard." The Court notes the decision in Morris v. Leaf, 534 N.W.2d 388, 390 (Iowa 1995)
indicated:
"the only way to apply the statute is to read its general adinonition
to exercise `due care' in light of its more specific reference to
`recklessness.' We concluded "that a police officer should notbe
civilly liable to an injured third party unless the officer acted with
`reckless disregard for the safety of others." citing Saarinen v.
Kerr, 84 N.Y.2d 494, 620 N.Y.S.2d 297, 300, 644 N.E2d 988, 991
(1994).
The Hoffert coud weut on further to distinguisl� the facts by indicating that in one case, there was
a high-speed chase of a fleeing suspect and iu the other there was an ambulance drivei's mauner
of driving that was at issue. In conclusion:
"We hold that the legal staudard ofi care applicable to the conduct
aPan ambul�nce driver as a driver of an authorized eii�ergency
vel�icle under Iowa Code sectio�i 321.231 is to diive with due
regard for the safety of all persons, Uut the threshold for recovery
for violaYion of that duty is recklessness, uot negligence." Id. at
685.
A similar Finding was set forth in the unreported case of Dooley v. City of Cedar Rapids, 2011
WL 1135794, 800 N.W.2d 755 (Iowa App 20ll) citing Sankey v. Ridze�zberger, 456 N.W.2d
206, 210 (Iowa 1990)(assuiing "police protection free from the chilling effect of liability for
spliUsecond decisioi�s" is an imporLant policyjusYification fm�curtailing liabiliry). Fwdier
support is foui�d in Civil Jury lushuctioi�s number 600.41, wl�ich cites as its authority the Hof/ert
case. See also Adams v. City of Des Moines, 629 N.W.2d 367, 370-37] (Iowa 2001)(Extending
immuility duiing phases of overliaul, salvage and itrvestigation post a £irefighter res}�ouse to an
electrical fire as these activities are viewed as actions that are part of the enieigevcy response.)
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The fedcral courts have also examincd this difference in what is considered to bc an
inteut-to-liarm standard versus deliUerate iiidifference standard. The court iu Sitzes v. City of
WestMempliis, r1rk., 606 P3d 461, 467-468 (8`� Cir. 2010) found tl�at the intent-tahann
staildard clearly applies in rapidly evolving, fluid and dangerous situations which preclude the
luxm y of calm and reflective deliberation. The court weut on forther to reject an objective
standard on what was an emergency ancl instead concluded that t�he issue hnros on whetl�er the
deputies subjectivaly bclieved that thcy were responding to an emergency. Id. (citaYions
omi tted).
Ramirez was acting wl�ile iu the pursuit of a suspec[who was alleged to be involved in a
domestic abuse disturbance when the call came over the radio. Clearly, this cmergency places
life in jeopardy and creates heightened concern for the safety of fhe commuuiry.
The Court cannot conclude that the Plaintiffs' assertion tl�at Ramirez was travelling away
froin the accident and therefore the immunity is extinguished. Loolcing at the map provided to
the Court, tl�ere is no other way to traverse from Garfield to RhomUerg unless one tums on
Johnson. The street south of Johnson is Lincohi, wliich is not a through street from Rhomberg to
Garfield. Tl�e Court tu�ds his actious were not recldess in disengaging his lights and sirens as he
was in Hie process of turnii�g onto 7ol�nson Street. I-Iis decision was made witl�in split secoiids as
is evident from the times of tl�e dispatch records. His cmiduct falls directly withiu Uie statutory
law and cases cited l�erein as to tl�e raCionale in providing immunity for officers such as OPficer
Ramirez.
ORDER
The Court Uereby finds that there no genuine issue of material fact in the review of the
course of tl�e split second decisiou made by Officer Ramirez iv the course and scope of his duty
to respond to an emergency call concerning a domestic abuse assault that was on going when he
tuined froin Garfield Avenue to Johnson Str�eet. Defendants' Motion for Summary Judgment is
hereby GRANTED.
The Court need not render a decision as to the Plaintiffs' motion due to The iuling on the
Defevdants' inotion.
The petition filed herein is dismissed. Costs are assessed to Plaintiffs.
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State of lowa Courts
Type: OTHER ORDER
Case Number Case Title
LAC V 107012 MCCLELLAN ET AL V RAMIREZ ET AL
Sa Ordered
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Monica ZrinY�W�ttig,District CourtJudge,
Pirst ludicial District of lowa
Electronicalty signed on 2078-11-04 20:17:50 page 9 of 9