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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 � AlFllxric�sitr U B E .��,���_�:�, � � �51► Masterpiece on the Mississippi z°°'�2°12 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 E-FILED 2018 NOV 04 8:17 PM DUBUQUE- CLERK OF DISTRICT COURT 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 E-FILED 2018 NOV 04 8:17 PM DUBUQUE - CLERK OF DISTRICT COURT 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. E-FILED 2018 NOV 04 8:17 PM DUBUQUE- CLERK OF DISTRICT COURT 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." E-FILED 2018 NOV 04 8:17 PM DUBUQUE - CLERK OF DISTRICT COURT 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 E-FILED 2018 NOV 04 8:17 PM DUBUQUE-CLERK OF DISTRICT COURT 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 E-FILED 2018 NOV 04 8:17 PM DUBUQUE -CLERK OF DISTRICT COURT 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.) E-FILED 2018 NOV 04 8:17 PM DUBUQUE- CLERK OF DISTRICT COURT 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. E-FILED 2018 NOV 04 8:17 PM DUBUQUE -CLERK OF DISTRICT COURT E-FILED 2018 NOV 04 8:17 PM DUBUQUE - CLERK OF DISTRICT COURT ! ��:'r�,��'R,�'7 . � \ A'4 W_. � -���. .� State of lowa Courts Type: OTHER ORDER Case Number Case Title LAC V 107012 MCCLELLAN ET AL V RAMIREZ ET AL Sa Ordered ;�,,.�,� i� r ,r; � Monica ZrinY�W�ttig,District CourtJudge, Pirst ludicial District of lowa Electronicalty signed on 2078-11-04 20:17:50 page 9 of 9