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Pogoso v. Sarae

Intermediate Court of Appeals of Hawaii

September 22, 2016

CIRILO POGOSO, Plaintiff-Appellant,
v.
JEFF SARAE and CITY & COUNTY OF HONOLULU, Defendants-Appellees, and JOHN DOES, DOE PARTNERSHIPS, CORPORATIONS, and/or OTHER ENTITIES, Defendants.

         APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT (CIVIL NO. 11-1-1172-06(RAN))

          Melvin Y. Agena (Law Offices of Melvin Y. Agena) for Plaintiff-Appellant

          John P. Moran Deputy Corporation Counsel City and County of Honolulu for Defendants-Appellees

          NAKAMURA, C.J., and FOLEY and REIFURTH, JJ.

          OPINION

          NAKAMURA, C.J.

         Plaintiff-Appellant Cirilo Pogoso (Pogoso) filed a lawsuit arising out of an automobile accident against Defendant-Appellee Jeff Sarae (Sarae), a Honolulu Police Department officer, and his employer, Defendant-Appellee City and County of Honolulu (City). Sarae was on duty and pursuing another vehicle to issue a traffic citation when the accident occurred. Pogoso's Complaint alleged that the accident was caused by Sarae's negligence, which included Sarae's "reckless and careless" operation of his vehicle.

         Sarae and the City (collectively, Defendants) filed a motion for summary judgment, arguing the Sarae was "entitled to immunity protection under the doctrine of conditional privilege." If applicable, this doctrine would shield Sarae from liability unless his actions were "motivated by malice and not by an otherwise proper purpose." Towse v. State, 64 Haw. 624, 632, 647 P.2d 696, 702 (1982). The Circuit Court of the First Circuit (Circuit Court)[1] granted Defendants' motion based on its conclusion that the doctrine of conditional privilege applied and there was no basis to find that Sarae had acted with malice.

         On appeal, Pogoso argues, among other things, that the Circuit Court erred in applying the common law doctrine of conditional privilege because Sarae was subject to a duty of care prescribed by Hawaii Revised Statutes (HRS) § 291C-26 (2007) under the circumstances of this case. Pogoso further argues that there were genuine issues of material fact regarding whether Sarae had satisfied his statutory duty of care, and therefore, the Circuit Court erred in granting summary judgment in Defendants' favor.

         As explained below, we conclude that the Circuit Court erred in applying the doctrine of conditional privilege because the Legislature's enactment of HRS § 291C-26 takes precedence over any common law conditional privilege that might otherwise apply to Sarae's conduct in this case. HRS § 291C-26 applies to drivers of "authorized emergency vehicle[s, ]" which includes a police officer, like Sarae, driving a police car "when in the pursuit of an actual or suspected violator of the law[.]" HRS § 291C-26(a). HRS § 291C-26 grants such drivers a privilege to disregard certain traffic laws, such as the prohibition against speeding, running a red light, or making an improper turn. HRS § 291C-26(b). However, HRS § 291C-26 further provides that these exemptions "shall not relieve the driver of an authorized emergency vehicle from the duty to drive with due regard for the safety of all persons, nor . . . protect the driver from the consequences of the driver's reckless disregard for the safety of others." HRS § 291C-26(d).

         We construe HRS § 291C-26(d) to impose a negligence duty of care, but a specialized one that must take into account the privilege granted to an emergency vehicle driver to disregard certain traffic laws, the obligation of other motorists to yield the right-of-way, and the nature of the emergency to which the driver is responding. We further conclude that Pogoso raised genuine issues of material fact as to whether Sarae could be found liable under this specialized negligence standard. We therefore vacate the Circuit Court's grant of summary judgment in favor of Defendants and remand the case for further proceedings.

         BACKGROUND

         I.

         Pogoso's lawsuit was based on a traffic accident that occurred at the intersection of Paki and Kapahulu Avenues at approximately 12:25 a.m. At this intersection, Paki Avenue has two westbound lanes and a single eastbound lane, and there are traffic lights at the intersection. Pogoso was stopped in his car at the intersection in the left westbound lane of Paki Avenue. Another motorist, Evan Anderson (Anderson), was behind Pogoso waiting to make a left turn onto Kapahulu Avenue. Anderson drove around Pogoso into the right lane and made a left turn in front of Pogoso's car onto Kapahulu Avenue.

         Sarae, who was on duty in a marked blue and white patrol car, was headed westbound on Paki Avenue. Sarae saw Pogoso stopped at a red light, with Anderson directly behind Pogoso, in the left westbound lane of Paki Avenue. Sarae observed Anderson make "an unsafe lane change" from the left lane to the right lane to go around Pogoso, and then make an improper left turn onto Kapahulu Avenue. Sarae pursued Anderson from the right westbound lane of Paki Avenue to issue him a traffic citation. While Sarae was turning left in front of Pogoso in pursuit of Anderson, Sarae's patrol car and Pogoso's vehicle collided.

         II.

         Pogoso filed a Complaint in Circuit Court against Defendants Sarae and the City arising out of this incident. In the Complaint, Pogoso alleged that he was involved in a traffic accident with Sarae that was caused by Sarae's "negligent acts and/or omissions, " which included Sarae's "reckless and careless" operation of his motor vehicle. Pogoso asserted that as a result of Sarae's negligent acts and omissions, Pogoso had sustained personal injuries and other damages for which he sought recovery.

         Defendants filed a motion for summary judgment on Pogoso's Complaint, arguing that Sarae was entitled to immunity under the doctrine of conditional privilege. Defendants asserted that under this doctrine, Sarae was immune from liability unless Pogoso could show by clear and convincing evidence that Sarae (1) was motivated by actual malice and (2) that he acted for an improper purpose.[2] In support of their motion, Defendants submitted Sarae's declaration in which he stated that prior to the accident, he did not know Pogoso or Anderson and that he did not perform his duties "for any malicious or improper purpose." Defendants argued that because there was no genuine issue of material fact that Sarae had not acted with malice and for an improper purpose, Sarae was immune from liability based on his claim of conditional privilege. Defendants further argued that if Sarae was immune from liability, then the City could not be held vicariously liable for his acts.

         In opposing Defendants' motion for summary judgment, Pogoso argued that HRS § 291C-26(d), HRS § 291C-65(b) (2007), and Revised Ordinances of Honolulu (ROH) § 15-4.4(c) (1990) established the standard of care owed by Sarae under the circumstances of this case. Pogoso asserted that these legislative enactments superceded any conditional privilege that might otherwise apply and entitled him to recover upon a showing of negligence. Pogoso argued that there were genuine issues of fact regarding whether Sarae had met the applicable standard of care which precluded the Circuit Court from granting summary judgment in favor of Defendants.

         III.

         In their summary judgment pleadings, the parties presented evidence that provided conflicting versions of the circumstances that caused the accident. During the hearing on Defendants' motion for summary judgment, the Circuit Court indicated that there appeared to be "inconsistencies in the individuals' versions or their perspective as to what happened" that would normally preclude summary judgment. However, the Circuit Court concluded that Sarae was entitled to qualified immunity under the conditional privilege doctrine. Based on its determination that Pogoso had failed to raise a genuine issue of material fact to contravene Sarae's declaration that Sarae was not motivated by malice, the Circuit Court granted Defendants' motion for summary judgment. The Circuit Court entered its Judgment on March 21, 2012, in favor of Defendants and against Pogoso as to Pogoso's Complaint, and this appeal followed.

         DISCUSSION

         On appeal, Pogoso argues that the Circuit Court erred in granting summary judgment based on the doctrine of conditional privilege. Pogoso argues that provisions of the Statewide Traffic Code and the Traffic Code of the City and County of Honolulu, HRS § 291C-26(d), HRS § 291C-65(b), and ROH 15-4.4(c), establish the applicable duty of care owed by Sarae under the circumstances of this case and supercede the common law doctrine of conditional privilege. He further argues that there were genuine issues of material fact under the negligence duty of care prescribed by these provisions which preclude summary judgment.

         As explained below, we conclude that the Circuit Court erred in applying the doctrine of conditional privilege in granting summary judgment in favor of Defendants. We hold that HRS § 291C-26 takes precedence over any conditional privilege that might otherwise apply and that HRS § 291C-26(d) establishes the duty of care owed by Sarae under the circumstances of this case. We construe HRS § 291C-26(d) as imposing a specialized negligence standard that imposes a duty of reasonable care, but one that must take into account the privilege granted under HRS § 291C-26(b) to an emergency vehicle driver to disregard certain traffic laws, the obligation of other motorists to yield the right-of-way, and the nature of the emergency to which the driver is responding. In other words, a negligence standard that does not treat the emergency vehicle driver the same as an ordinary motorist, but focuses on what a reasonably prudent emergency vehicle driver would have done under the circumstances presented. We conclude that Pogoso raised genuine issues of material fact as to whether Sarae could be found liable under this standard. We therefore vacate the Circuit Court's grant of summary judgment and remand the case for further proceedings.

         I.

         The Circuit Court agreed with Defendants that the common law doctrine of conditional privilege protected Sarae from liability unless Pogoso could demonstrate that Sarae acted with malice. We conclude that in doing so, the Circuit Court erred.

         The Hawai'i Supreme Court has recognized and established a qualified immunity for "non-judicial governmental officials, when acting in the performance of their public duty, " which is referred to as a conditional privilege. Towse, 64 Haw. at 631, 647 P.2d at 702. This conditional privilege "effectively shields the official from liability" unless the injured party can demonstrate by clear and convincing proof "that the official had been motivated by malice and not by an otherwise proper purpose." Id. at 631-32, 647 P.2d at 702. The supreme court has indicated that for non-defamation cases, the term "malice" for purposes of the conditional privilege should be defined "in its ordinary and ususal sense" to mean "'the intent, without justification or excuse, to commit a wrongful act, ' 'reckless disregard of the law or of a person's legal rights, ' and 'ill will; wickedness of heart.'" See Awakuni v. Awana, 115 Hawai'i 126, 141, 165 P.3d 1027, 1042 (2007) (brackets omitted) (quoting Black's Law Dictionary 977 (8th ed. 2004)).[3] This court has applied the conditional privilege in lawsuits alleging certain tortious conduct filed against police officers. See Woodard v. Tabanara, No. 30096, 2011 WL 2611288, at *2-3 (Hawai'i App. June 30, 2011) (SDO); Sanchez v. County of Kaua'i, No. CAAP-14-0000903, 2015 WL 4546861 (Hawai'i App. July 28, 2015) (Mem.).

         However, the conditional privilege is a common law doctrine. The law is clear that legislative enactments have priority over and supercede the common law. In re Water Use Permit Applications, 94 Hawai'i 97, 130, 9 P.3d 409, 442 (2000) ("The legislature may, subject to the constitution, modify or abrogate common law rules by statute."); Fujioka v. Kam, 55 Haw. 7, 10, 514 P.2d 568, 570 (1973) ("[O]ur state legislature may, by legislative act, change or entirely abrogate common law rules through its exercise of the legislative power under the Hawaii State Constitution[.]"); Saranillio v. Silva, 78 Hawai'i 1, 13, 889 P.2d 685, 697 (1995) ("[W]e are constrained to give effect to the plain meaning of the statute [that is consistent with the legislative purpose], even if it results in the derogation of a common law rule.").

         We conclude that HRS § 291C-26 supercedes and takes precedence over any conditional privilege that might otherwise apply to Sarae and that HRS § 291C-26 establishes the duty of care owed by Sarae under the circumstances of this case.[4]In enacting HRS § 291C-26, the Legislature clearly intended to establish standards that govern and control the activities of emergency vehicle drivers, including the conduct engaged in by Sarae in this case. HRS 291C-26[5] applies, in relevant part, to "[t]he driver of an authorized emergency vehicle, " which includes police vehicles, [6] "when responding to an emergency call or when in the pursuit of an actual or suspected violator of the law[.]" HRS § 291C-26(a). The statute grants such emergency vehicle drivers the privilege to disregard certain traffic laws, such as those prohibiting speeding and running a red light, and as relevant to Sarae's conduct, laws "governing direction of movement or turning in specified directions[.]" HRS § 291C-26(b).

         While exempting these drivers from the requirements of certain traffic laws, HRS § 291C-26 further states that its provisions "shall not relieve the driver of an authorized emergency vehicle from the duty to drive with due regard for the safety of all persons, nor shall [the] provisions protect the driver from the consequences of the driver's reckless disregard for the safety of others." HRS § 291C-26(d). Because HRS § 291C-26 evinces the Legislature's clear purpose to establish the standards applicable to Sarae's conduct in this case, HRS § 291C-26 trumps any common law conditional privilege that would otherwise apply. See Morais v. Yee, 648 A.2d 405, 410 (Vt. 1994) (holding that where the Vermont Legislature enacted a statute similar to HRS § 291C-26, which established a statutory duty and liability for a breach of that duty for drivers of authorized emergency vehicles, the judicially created doctrine of qualified immunity did not apply). Accordingly, the Circuit Court erred in applying the doctrine of conditional privilege, instead of the standards set forth in HRS § 291C-26, in granting summary judgment in favor of Defendants.

         II.

         A.

         While the Legislature's intent to establish the duty of care owed by authorized emergency vehicle drivers is clear, the duty of care actually imposed is subject to debate and requires us to engage in statutory construction. When construing a statute,

our foremost obligation is to ascertain and give effect to the intention of the legislature, which is to be obtained primarily from the language contained in the statute itself. And we must read statutory language in the context of the entire statute and construe it in a manner consistent with its purpose.
When there is doubt, doubleness of meaning, or indistinctiveness or uncertainty of an expression used in a ...

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