Donald Eugene Belew v. United States , 263 F. App'x 1 ( 2007 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
October 17, 2007
No. 07-12881 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 06-00865-CV-3-IPJ
DONALD EUGENE BELEW, parent of Joseph Daniel
Belew, a minor decedent,
Plaintiff-Appellant,
versus
UNITED STATES OF AMERICA,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Alabama
_________________________
(October 17, 2007)
Before DUBINA, CARNES and KRAVITCH, Circuit Judges.
PER CURIAM:
Appellant Donald Eugene Belew appeals the district court’s grant of
summary judgment in this suit arising under the Federal Tort Claims Act
(“FTCA”), 28 U.S.C. § 1346(b)(1) (2006). He filed the suit on behalf of his son, a
deceased minor, alleging that Natchez Trace Parkway Ranger J.J. Montgomery
caused the decedent’s death following a high speed chase. For the reasons stated
below, we affirm the district court’s decision.
I. Background
On the evening of July 11, 2003, Eric Tate (age 22), Joseph Daniel Belew
(age 15), and Johnny Keith Yerbey (age 16) played pool just north of the Alabama/
Tennessee state line at a pool hall. During the evening, Yerbey drank alcohol,
Belew smoked marijuana, and Tate consumed both substances.
After leaving the pool hall, Tate—the driver of the vehicle—drove to the
intersection of County Road 10 and Natchez Trace Parkway in Alabama. Instead
of stopping at the stop sign, Tate came to a “rolling stop.” J.J. Montgomery, a
Natchez Trace Parkway Ranger employed by the United States National Park
Service, was sitting in his vehicle just north of the intersection with his headlights
off. After observing the traffic violation, Ranger Montgomery turned on his blue
lights and followed Tate. Tate stopped at the intersection of County Road 5 and
County Road 10. Montgomery pulled his vehicle behind Tate’s and exited. While
exiting, Montgomery reached for his shoulder microphone to radio-in the stop. As
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he did that, he observed Tate turn around and look at him. Tate immediately
“gas[sed] it” and took off on County Road 5. The relevant stretch of County Road
5 is a two-lane road with hills and curves. It has no paved shoulders and the speed
limit is 45 miles per hour.
Montgomery got into his car, turned on his siren, pursued Tate, and called
for backup. The call was placed at 10:46 p.m. The chase reached the speed of 90
miles per hour. When Montgomery noticed he was going that fast he slowed down
to “just keep a visual of the vehicle.” During the chase, Yerbey begged Tate to
stop but he failed to do so. There is no evidence that either Yerbey or Belew
encouraged the chase.
Montgomery observed Tate enter a curve, lose control, and strike a tree. At
the time of impact, Montgomery was at least 100-200 yards away. Both Yerbey
and Belew were severely injured in the crash; Belew later died as a result of his
injuries. Tate suffered only minor injuries.
Montgomery called in the crash at 10:47 p.m.—only one minute after he
called in the chase. The distance between where the traffic stop and the accident
occurred was only 1.75 miles.
Belew’s father, Donald Eugene Belew, filed this suit. The district court
granted summary judgment on the issue of proximate cause.
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II. Standard of Review
This Court reviews a district court’s grant of summary judgment de novo,
viewing the evidence in the light most favorable to the party opposing the motion.
Wilson v. B/E Aerospace, Inc., 376 F.3d 1079, 1085 (11th Cir. 2004). Summary
judgment is appropriate when “there is no genuine issue as to any material fact and
. . . the moving party is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a). This Court has held that the plain language of Rule 56 “mandates the entry
of summary judgment . . . against a party who fails to make a showing sufficient to
establish the existence of an element essential to that party’s case, and on which
that party will bear the burden of proof at trial.” Johnson v. Bd. of Regents, 263
F.3d 1234, 1243 (11th Cir. 2001).
III. Discussion
The plaintiff brought this claim pursuant to the FTCA. Under the FTCA, the
United States may be liable for personal injury or death caused by the negligent
conduct of a federal employee while acting within the scope of his or her
employment if the government would be liable were it a private person in the state
where the act or omission occurred. 28 U.S.C. § 1346(b)(1). We, therefore, must
look to the negligence law of Alabama to determine whether the plaintiff in this
case can recover from the defendant. Id. Under Alabama law, a plaintiff must
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demonstrate four elements to establish negligence: (1) duty, (2) breach of that duty,
(3) proximate cause, and (4) actual damages or injury. Martin v. Arnold, 643
So.2d. 564, 567 (Ala. 1994). This case is about proximate cause.
“Proximate cause is an act or omission that in a natural and continuous
sequence, unbroken by any new independent causes, produces the injury and
without which the injury would not have occurred.” Thetford v. City of Clanton,
605 So. 2d 835, 840 (Ala. 1992). Although proximate cause is an issue generally
determined by the fact-finder, it may be decided on summary judgment if “there is
a total lack of evidence from which the fact-finder may reasonably infer a direct
causal relation between the culpable conduct and the resulting injury.” Green v.
Alabama Power Co., 597 So. 2d 1325, 1328 (Ala. 1992).
The Alabama Supreme Court has stated that the proximate cause of injuries
sustained by an innocent third-party in a police chase is the driver of the fleeing
vehicle, not the police officers giving chase. See Doran v. City of Madison, 519
So. 2d 1308 (Ala. 1988); Madison v. Weldon, 446 So. 2d 21 (Ala. 1984). In
Weldon, the Court held that the district court erred when it failed to clearly explain
the proper standard of care and the issue of proximate cause in the jury
instructions. 446 So. 2d at 25-26. In that case, a minor and his mother sued Don
Edwin Adkins, two police officers, and the city after Adkins’s truck collided with
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the plaintiffs’ vehicle while the police officers pursued Adkins for speeding. Id. at
23. The Court noted that the duty the police officers owe while in pursuit is more
liberal than the duty they would owe if they were not acting within their official
police duties. Id. at 27. The Court also stated that the proximate cause of the
injury was the behavior of the driver of the pursued automobile, not the police
officer pursuing that offender. Id. The Court quoted a 1967 Florida Supreme
Court decision and adopted its conclusion. The Court wrote
The rule governing the conduct of [a] police [officer] in pursuit of an
escaping offender is that he must operate his car with due care and, in
doing so, he is not responsible for the acts of the offender. Although
pursuit may contribute to the reckless driving of the pursued, the
officer is not obligated to allow him to escape.
Id. at 28 (quoting City of Miami v. Horne, 198 So. 2d 10 (Fla. 1967) (emphasis
omitted)).
In Doran, police officers chased a vehicle after witnessing the driver commit
a minor traffic violation. 519 So. 2d at 1310. During the pursuit, the car ran
through an intersection and collided with a truck. Id. The passengers in the truck
sued the officers and the city under a negligence theory. Id. at 1311-1312.
Reviewing the trial court’s grant of summary judgment for the defendants, the
Alabama Supreme Court concluded that because the police vehicles did not
actually collide with the plaintiffs’, the police could not have proximately caused
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the accident. Id. at 1314. Noting the policy implication of the decision, the Court
went on further to quote the rule of Weldon that the police officer is “not
responsible for the acts of the offender.” Id.
The Alabama Supreme Court also has concluded that the driver of a fleeing
vehicle was the proximate cause of his own injuries—not the police giving chase.
Both decisions relied in part on Weldon and Doran. See Gooden v. City of
Talladega, __So.2d.__ (Ala. 2007); Blair v. City of Rainbow City, 542 So. 2d 275
(Ala. 1989). In Gooden, the mother of a deceased fleeing offender filed suit
against the city and the police officer who gave chase to her son. Her son, Tyrone
Gooden, pulled over and let his passengers out of his S.U.V. after being stopped
for a minor traffic violation. Id. at 1. Gooden then took off and the police
followed. Id. Officers chased Gooden for 3.2 miles at 70-80 miles per hour before
Gooden lost control of his vehicle and died as a result of a crash. Id. at 2. The trial
court entered summary judgment for the defendants and Gooden’s survivor
appealed. Id. The Alabama Supreme Court concluded that summary judgment
was proper for the defendants because the plaintiff failed to show that the fleeing
driver’s injury was caused by the police instead of Gooden himself. Id. at 9.
Particularly, the Court noted that there was no evidence that the police officer’s
vehicle made any contact with Gooden’s S.U.V. Id. The Court stated that Gooden
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had the opportunity to slow down or stop but failed to do so and, thus, he was the
proximate cause for his injuries—not the police officers giving chase. Id.
In Blair, the police attempted to stop Ricky Blair for speeding on his
motorcycle. Id. at 276. Instead of pulling over, however, Blair increased his speed
to 120 miles per hour, lost control of his vehicle, and crashed. Id. He died three
days later from the injuries he sustained. Id. The administrator of Blair’s estate
filed suit under negligence and other theories. Id. at 275. As in Gooden, the trial
court entered summary judgment for the defendants and the plaintiff appealed. Id.
at 276. The Alabama Supreme Court concluded that summary judgment was
proper because the plaintiff failed to contradict that “Ricky could have slowed
down and stopped at any time during the chase; the choice to speed and drive
recklessly to evade capture was Ricky’s alone.” Again, the Court noted the policy
implication of its decision: “The plaintiff would have us require police officers to
allow a fleeing offender to escape if the offender exceeds the speed limit; [we]
reject[] this contention.” Id. at 276.
The Alabama Supreme Court only once has found that there was a genuine
issue of material fact as to proximate cause on a case with similar facts and
reversed summary judgment. In Seale v. City of Columbia, 575 So. 2d 1061
(1994), the plaintiff’s decedent was driving and was struck head-on by a vehicle
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being pursued by police. Id. at 1248. It is not clear from the opinion why the
officer chased the vehicle. What is clear, however, is that police officers had setup
a road block ahead of where the chase was occurring. Id. It was proper procedure
for the officer to slow down and turn off his blue light and siren if a road block
existed ahead. Id. at 1248-1249. A fact issue existed as to whether the officer
continued to pursue the decedent despite being informed of the road block or
whether he followed procedure. Id. at 1250. Thus, there was a genuine issue of
material fact as to whether the defendant met his standard of care. Id.
Moreover—and more relevant for our purposes—the plaintiff’s evidence included
the testimony of an expert witness that the pursuit was unnecessary because the
road block was in place. Id. The plaintiff, therefore, submitted evidence that the
defendant was the proximate cause of the injury. Id. at 1248-1250. The Court
went through a lengthy discussion of proximate cause, distinguishing the case from
Doran and Blair. Id. It concluded that unlike those two cases, the plaintiff
established a genuine issue of material fact as to whether the police officer
exercised due care and Seal’s expert testified that no pursuit was necessary because
a road block was in place. In Doran and Blair, neither plaintiff submitted evidence
to suggest that the pursuit was unnecessary.
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This case is more similar to Doran, Gooden, and Blair than it is to Seals.1
Belew submitted no evidence that the pursuit was unnecessary, and there is no
evidence that Montgomery’s vehicle hit Tate’s, causing the accident to occur. Nor
is there any evidence that a road block existed or that the fleeing offender could be
apprehended at a later time. Montgomery did not have time to radio-in the license
plate information as Tate sped off too quickly. Moreover, Montgomery could not
obtain this information as he was never close enough to read it during the brief
chase.
IV. Conclusion
For the above reasons, we AFFIRM the district court’s grant of summary
judgment.
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Because the Alabama Supreme Court has concluded that the fleeing
offender is the proximate cause of injuries to both the driver (Gooden and Blair)
and innocent third-parties in other vehicles (Doran and Weldon), the same
conclusion should apply to innocent third-parties in the same vehicle as the fleeing
offender. Thus, the fact that Belew was in the same vehicle as Tate is irrelevant.
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