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Amalfitano v. Cocolin

Superior Court of Delaware

July 18, 2017

CHRISTOPHER A. AMALFITANO, as Administrator For THE ESTATE OF MARY SMITH and ROBLISHA SMITH, individually, Plaintiffs,
v.
OWEN COCOLIN and STATE OF DELAWARE DEPARTMENT OF SAFETY AND HOMELAND SECURITY DIVISION DELAWARE STATE POLICE, Defendants/Third Party Plaintiffs,
v.
STEPHEN J. JEFFERIS, Third Party Defendant.

          Submitted: June 14, 2017

         Upon State Defendants' Motion for Summary Judgment DENIED.

         Upon State Defendants' Motions in Limine DENIED.

         Upon Plaintiffs' Motion in Limine DENIED.

          MEMORANDUM OPINION

          The Honorable Andrea L. Rocanelli, Judge

         This is a wrongful death case arising from the death of Mary Smith, who was killed on October 3, 2014 in a motor vehicle collision with Third-Party Defendant Stephen J. Jefferis ("Jefferis"). Defendant Trooper Owen Cocolin of the Delaware State Police ("Trooper Cocolin") was pursuing Jefferis at high speeds when Jefferis proceeded through a red stop signal at the intersection of Lea Boulevard and Philadelphia Pike in Wilmington, Delaware, and struck a vehicle carrying Ms. Smith as a passenger. Ms. Smith died as a result of the collision.

         This civil action is brought by Ms. Smith's estate and daughter ("Plaintiffs") against Trooper Cocolin and the Delaware Department of Public Safety and Homeland Security, Division of State Police ("Delaware State Police"). Plaintiffs assert that Trooper Cocolin caused Ms. Smith's death by acting with gross negligence in his pursuit of Jefferis. For ease of reference, the Court refers to Trooper Cocolin and the Delaware State Police collectively as "State Defendants."

         The State of Delaware has appeared on behalf of State Defendants and filed an Answer to Plaintiffs' Complaint. State Defendants deny liability and assert a number of affirmative defenses. State Defendants also seek third-party contribution and/or indemnification against Jefferis for liability arising from the incident.[1]

         Trial is scheduled to begin on August 14, 2017. The parties have completed discovery and State Defendants have moved for summary judgment. In addition, State Defendants and Plaintiffs have moved to preclude certain expert testimony at trial. To date, Jefferis has not filed a response to State Defendants' Motion for Summary Judgment or the pending Motions in Limine. This is the Court's Memorandum Opinion on State Defendants' Motion for Summary Judgment, State Defendants' Motions in Limine, and Plaintiffs' Motion in Limine.

         I. FACTUAL BACKGROUND

         On October 2, 2014, Trooper Cocolin was on-duty in an unmarked Delaware State Police vehicle when he received a report of two men using heroin in a Ford Mustang at a shopping center parking lot on Miller Road in Wilmington, Delaware. At approximately 9:08 p.m., Trooper Cocolin entered the shopping center parking lot and observed a Ford Mustang with two occupants. Jefferis was in the driver's seat of the Mustang while another man was in the passenger seat. Trooper Cocolin stopped his police vehicle near the left-side rear of the Mustang and activated his emergency lights. Trooper Cocolin exited his vehicle and approached the driver's side door of the Mustang.

         Upon approaching the Mustang, Trooper Cocolin reportedly observed a hypodermic needle and other paraphernalia consistent with the use of heroin. According to Trooper Cocolin, Jefferis noticed Trooper Cocolin outside the driver's side window of the Mustang and proceeded to move his hands away from Trooper Cocolin's line of sight. Trooper Cocolin responded by drawing his service weapon and ordering Jefferis to keep his hands visible. Jefferis pulled the Mustang out of its parking spot and exited the shopping center parking lot toward 37thStreet.

         Trooper Cocolin returned to his police vehicle and pursued Jefferis in close proximity as Jefferis operated the Mustang at high speeds around stopped vehicles and through intersections against red stop signals. Jefferis eventually struck the vehicle in which Ms. Smith was a passenger after running a red light at the intersection of Lea Boulevard and Philadelphia Pike. Investigating officers estimated that Jefferis was traveling at approximately 99 mph at the time of impact. Ms. Smith died as a result of the collision.

         II. APPLICABLE LAW AND LEGAL STANDARDS

         State Defendants argue that Plaintiffs cannot establish a prima facie case of negligence because there is insufficient evidence that Trooper Cocolin proximately caused Ms. Smith's death. In addition, State Defendants assert that State Defendants are immune from liability pursuant to Section 4001 of the State Tort Claims Act ("Section 4001")[2] and Delaware's Authorized Emergency Vehicle Statute ("AEVS")[3] because there are no genuine issues of material fact as to whether Trooper Cocolin acted with gross negligence in initiating, conducting, or failing to terminate his pursuit of Jefferis.

         Plaintiffs oppose State Defendants' Motion for Summary Judgment on the grounds that there are genuine issues of material fact as to whether Trooper Cocolin was grossly negligent and proximately caused Ms. Smith's death. In addition, Plaintiffs contend that Plaintiffs may proceed against the Delaware State Police pursuant to AEVS by establishing ordinary negligence as opposed to gross negligence.

         A. Superior Court Civil Rule 56(c).

         State Defendants have moved for summary judgment pursuant to Superior Court Civil Rule 56(c). The Court may grant summary judgment only where the moving party can "show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law."[4] A genuine issue of material fact is one that "may reasonably be resolved in favor of either party."[5]The moving party bears the initial burden of proof and, once that is met, the burden shifts to the non-moving party to show that a material issue of fact exists.[6] At the motion for summary judgment phase, the Court must view the facts "in the light most favorable to the non-moving party."[7] Summary judgment is appropriate if Plaintiffs' claims lack evidentiary support such that no reasonable jury could find in Plaintiffs' favor.[8]

         B. Sovereign Immunity and Section 6511 of the Insurance for the Protection of the State Act.

         State Defendants are eligible for sovereign immunity, which bars a lawsuit against the state or federal government in the absence of express consent from the legislature.[9] Delaware courts are not empowered to disregard the doctrine of sovereign immunity.[10] Rather, sovereign immunity must be waived pursuant to a clear statutory manifestation of intent by the General Assembly.[11]

         The General Assembly has waived sovereign immunity pursuant to Section 6511 of Delaware's Insurance for the Protection of the State Act ("Section 6511").[12] Section 6511 provides:

The defense of sovereignty is waived and cannot and will not be asserted as to any risk or loss covered by the state insurance coverage program, whether same be covered by commercially procured insurance or by self insurance, and every commercially procured insurance contract shall contain a provision to this effect, where appropriate.[13]

         The Delaware Supreme Court has construed Section 6511 as a waiver of immunity "to the extent that either the State insurance program was funded by direct appropriation (self-insurance) or that the State purchased commercially available insurance to cover the loss."[14]

         C. Section 4001 of the State Tort Claims Act.

         The waiver of sovereign immunity through self-insurance does not necessarily mean that a lawsuit against the State is permissible. In Pauley v. Reinhoehl, [15] the Delaware Supreme Court articulated an additional prerequisite for a cause of action to proceed against the State or its officials. Specifically, Pauley requires Plaintiffs to demonstrate that (i) the State has waived the defense of sovereign immunity for the actions mentioned in the complaint; and (ii) Section 4001 does not bar the cause of action.[16] The Delaware Supreme Court has held that Section 4001 is analyzed "only after an express intent to waive sovereign immunity has been identified."[17]

         Section 4001 provides an additional limit to civil liability "where [the State] has, by some means independent of 10 Del. C. § 4001, waived immunity."[18]Section 4001 shields the State and its employees from liability if the State actor's conduct (i) arose out of and in connection with the performance of official duties involving the exercise of discretion, (ii) was performed in good faith, and (iii) was performed without gross or wanton negligence.[19] Plaintiffs must establish the absence of one of these elements to defeat immunity under Section 4001.[20] In circumstances involving a police officer, Section 4001 "strikes a balance between the need, on one hand, to hold responsible public officials exercising their power in a wholly unjustified manner and, on the other hand, to shield officials responsibly attempting to perform their public duties in good faith from having to explain their actions to the satisfaction of a jury."[21]

         D. Delaware's Authorized Emergency Vehicle Statute (AEVS).

         AEVS extends certain privileges to the driver of an authorized emergency vehicle in pursuit of a criminal suspect.[22] AEVS authorizes a driver to (i) park or stand, irrespective of the other provisions of Title 21 of the Delaware Code; (ii) proceed past red lights or stop signs, but only after slowing down as may be necessary for safe operation; (iii) exceed the speed limit in circumstances where the driver does not endanger life or property; and (iv) disregard regulations governing the direction of movement or turning in a specified direction.[23]Although AEVS's privileges typically apply if the driver "is making use of audible or visual signals, "[24] AEVS expressly provides that "an authorized emergency vehicle operated as a police vehicle need not make use of such signals."[25]

         In addition to extending certain privileges, AEVS sets forth specific standards of liability for the driver and owner of an authorized emergency vehicle. As to the driver, subsection (d) of AEVS provides:

The driver of an emergency vehicle is not liable for damage to or loss of property or for any personal injury or death caused by the negligent or wrongful act or omission of such driver except acts or omissions amounting to gross or wilful or wanton negligence so long as the applicable portions of subsection (c) of this section [requiring the use of audible or visual signals for all emergency vehicles except police vehicles] have been followed.[26]

         In the next sentence of subsection (d), AEVS differentiates between the driver of an authorized emergency vehicle and the owner of an authorized emergency vehicle, providing that "[t]he owner of such emergency vehicle may not assert the defense of governmental immunity in any action on account of any damage to or loss of property or on account of personal injury or death caused by the negligent or wrongful act or omission of such driver or owner."[27] A police vehicle is an "authorized emergency vehicle" under AEVS.[28]

         III. DISCUSSION

         A. There are Genuine Issues of Material Fact as to whether Trooper Cocolin Proximately Caused Ms. Smith's Death.

         State Defendants assert that the record lacks sufficient evidence of proximate cause. "In order to prevail in a negligence action, a plaintiff must show, by a preponderance of the evidence, that a defendant's negligent act or omission breached a duty of care owed to plaintiff in a way that proximately caused the plaintiff injury."[29] Delaware courts utilize the "but-for" standard of causation, [30]and define proximate cause as a direct cause without which an injury would not have occurred.[31] It is well-established that "there may be more than one proximate cause of an injury."[32] Moreover, issues of proximate cause are typically fact-intensive and contrary to judicial resolution as a matter of law.[33] Viewing the facts in a light most favorable to Plaintiffs, the record reflects that Trooper Cocolin attempted to apprehend Jefferis by drawing his service weapon and ordering Jefferis to keep his hands visible. If Trooper Cocolin's actions were limited to this initial encounter, Trooper Cocolin's relationship to Ms. Smith's death may be too attenuated for a jury to consider. However, viewing the facts in a light most favorable to Plaintiffs, Trooper Cocolin continued to pursue Jefferis at high speeds through red stop signals until Jefferis collided with Ms. Smith's vehicle. In consideration of Trooper Cocolin's continuing course of conduct and proximity to the ultimate collision, the record contains an adequate basis for a jury to conclude that "but-for" Trooper Cocolin's decision to initiate and continue the pursuit, Ms. Smith's death would not have occurred.

         Delaware law does not require Trooper Cocolin to be the sole cause of Ms. Smith's death in order for Plaintiffs to recover.[34] Furthermore, it is not this Court's role to weigh evidence or resolve factual conflicts reflected in the record.[35] Rather, "if a rational trier of fact could find any material fact that would favor the non-moving party in a determinative way . . . summary judgment is inappropriate."[36] Viewing the record and making all reasonable inferences in a light most favorable to Plaintiffs, there are genuine issues of material fact regarding the nature and impact of Trooper Cocolin's conduct on the collision. A reasonable jury could conclude that Trooper Cocolin proximately caused Ms. Smith's death. Accordingly, the Court declines to relieve State Defendants from liability as a matter of law for insufficient evidence of proximate cause.

         B. The State has Waived Sovereign Immunity to the Extent of Coverage under the State's Automobile Insurance Policy.

         Pursuant to Section 6511 and the General Assembly's mandate, the State has procured one million dollars of insurance coverage for liabilities arising from the operation of State-owned automobiles. The parties do not dispute that Trooper Cocolin is a State employee who was operating a State-owned automobile at the time of Ms. Smith's death. Accordingly, with respect to Plaintiffs' claims that relate to Trooper Cocolin's operation of his police vehicle, the State has waived the defense of sovereign immunity to the extent of coverage under the State's automobile insurance policy. Pauley's initial requirement is satisfied.

         C. State Defendants are not entitled to Summary Judgment under Section 4001 or AEVS.

         Because this case involves a State employee acting in the scope of his employment for a State entity, State Defendants are eligible for immunity pursuant to Section 4001. Moreover, as the operator of an authorized emergency vehicle in pursuit of a criminal suspect, Trooper Cocolin is eligible for the privileges and heightened standard of liability under AEVS. Upon consideration of both Section 4001 and AEVS in light of the specific circumstances of this case, the Court finds that State Defendants are not entitled to judgment as a matter of law.

         i. Plaintiffs must establish a genuine issue of material fact as to gross negligence in order to proceed against Trooper Cocolin.

         Plaintiffs must establish a genuine issue of material fact as to gross negligence in order to survive State Defendants' Motion for Summary Judgment as to Trooper Cocolin. First, AEVS plainly requires Plaintiffs to establish "gross or wilful or wanton negligence" to hold Trooper Cocolin, the driver of an authorized emergency vehicle, liable for Ms. Smith's death.[37] In addition, as to Section 4001, Plaintiffs must also establish gross negligence by Trooper Cocolin because Plaintiffs cannot establish either of the other two possible avenues for relief, i.e. ministerial action or bad faith. In other words, because Trooper Cocolin was acting in good faith and exercising discretion, gross negligence must be established to satisfy Section 4001 as a matter of law.[38]

         With respect to Section 4001(1), Plaintiffs cannot establish that Trooper Cocolin's pursuit of Jefferis constitutes a non-discretionary act. A discretionary act is where "there is no hard and fast rule as to [the] course of conduct that one must or must not take."[39] In contrast, "[a]n act is ministerial if the act of the official involves less in the way of personal decision or judgment or the matter for which judgment is required has little bearing of importance upon the validity of the act."[40] Here, the Court finds that the pursuit of a fleeing criminal suspect is not subject to "hard and fast" rules that leave no room for discretion. Although Plaintiffs assert that the Delaware State Police maintain a Pursuit Policy that contains ministerial guidelines for initiating and conducting a pursuit, the Pursuit Policy expressly provides that all pursuits are subject to an officer's discretion with the public safety as the primary focus.[41] With respect to Section 4001(2), Plaintiffs cannot establish that Trooper Cocolin acted in bad faith. Rather, the record establishes that Trooper Cocolin had an honest intention to serve the public interest by apprehending a fleeing criminal suspect.

         Accordingly, gross negligence is the legal standard for Plaintiffs to prevail against Trooper Cocolin under either AEVS or Section 4001.

         ii. Plaintiffs may proceed against the Delaware State Police for Trooper Cocolin's ordinary negligence pursuant to AEVS.

         By its very terms, Section 4001 is subject to the requirements of other Delaware laws.[42] As previously noted, the Court finds that AEVS is applicable to this case because Trooper Cocolin is the driver of an authorized emergency vehicle in pursuit of a fleeing criminal suspect. AEVS unambiguously provides that the owner of an authorized emergency vehicle (in this case, the Delaware State Police) "may not assert the defense of governmental immunity . . . on account of personal injury or death caused by the negligent or wrongful act or omission" of the vehicle's driver.[43] The Court finds that this statute prevents the Delaware State Police from asserting "immunity" pursuant to Section 4001[44] in order to avoid liability arising from Trooper Cocolin's ordinary negligence. Accordingly, Plaintiffs may proceed against the Delaware ...


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