McCaffrey v. City of Wilmington , 133 A.3d 536 ( 2016 )

IN THE SUPREME COURT OF THE STATE OF DELAWARE
MORGAN McCAFFREY, §
§ No. 26, 2015
Plaintiff Below, §
Appellant, §
§ Court Below – Superior Court
v. § of the State of Delaware
§
CITY OF WILMINGTON, and § C.A. No. N12C-01-138
CHIEF MICHAEL J. SZCZERBA, §
individually and in his capacity as an §
officer, §
§
Defendants Below, §
Appellees. §
Submitted: December 9, 2015
Decided: February 4, 2016
Before STRINE, Chief Justice; HOLLAND, VALIHURA, VAUGHN, and SEITZ,
Justices, constituting the Court en Banc.
Upon appeal from the Superior Court of the State of Delaware. AFFIRMED.
Bartholomew J. Dalton, Esquire (argued), Laura J. Simon, Esquire, Dalton & Associates,
P.A., Wilmington, Delaware, for Plaintiff Below, Appellant, Morgan McCaffrey.
Daniel McAllister, Esquire (argued), City of Wilmington Law Department, Wilmington,
Delaware, for Defendants Below, Appellees, City of Wilmington and Chief Michael
Szczerba.
SEITZ, Justice, for the Majority:
I. INTRODUCTION
While off-duty, out of uniform, driving his own car, and under the influence of
alcohol, Wilmington Police Officer Michael Spencer ran a red light and collided with a
car driven by Morgan McCaffrey. After the accident, Officer Spencer asked McCaffrey
to handle the matter without police involvement and to move their damaged cars out of
the roadway and into parking spaces in front of McCaffrey’s nearby apartment. Officer
Spencer and McCaffrey then went into the apartment, where Officer Spencer undressed
and made sexual advances toward McCaffrey, which she refused. McCaffrey called the
police after Officer Spencer passed out in her bed. The responding officers took Officer
Spencer to the hospital, and later to the police station, where after a delay of five hours,
Officer Spencer supposedly passed field tests for intoxication. The Wilmington Police
Department (the “WPD”) disciplined Officer Spencer for his conduct that evening.
McCaffrey filed suit against Officer Spencer, the WPD, and others, including
former Chief of Police Michael Szczerba, stemming from the car accident and Officer
Spencer’s admitted inappropriate conduct with McCaffrey. In a series of opinions, the
Superior Court dismissed all claims against the defendants other than Officer Spencer,
and entered a final judgment excluding Officer Spencer. 1 The claims against Officer
Spencer are pending.
1
McCaffrey v. City of Wilmington, 2012 WL 1593062 (Del. Super. Apr. 25, 2012) (“McCaffrey
I”); McCaffrey v. City of Wilmington, 2012 WL 3518119 (Del. Super. Aug. 9, 2012) (“McCaffrey
II”); McCaffrey v. City of Wilmington, 2013 WL 4852497 (Del. Super. June 26, 2013)
(“McCaffrey III”), judgment vacated in part on reconsideration, 2014 WL 598030 (Del. Super.
2
McCaffrey raises two issues on appeal. First, McCaffrey claims that the Superior
Court erred by dismissing Count I of her second amended complaint as to the City.
McCaffrey argues that she sufficiently alleged that Officer Spencer was acting within the
scope of his employment as a Wilmington Police Officer when he ran into McCaffrey’s
car and made inappropriate sexual advances after the accident. Second, McCaffrey
claims that the Superior Court erred in dismissing Count IV of the second amended
complaint against Chief Szczerba and the City because the County and Municipal Tort
Claims Act (the “Tort Claims Act”) did not immunize them from suit for Officer
Spencer’s actions.
We find no merit to McCaffrey’s arguments. First, McCaffrey dropped the
claims against the City under Count I of her amended complaint. After the Superior
Court dismissed Count I of the original complaint, McCaffrey filed two amended
complaints that deleted the City as a defendant in the amended Count I, and deleted her
allegations of respondeat superior liability. Following amendment, McCaffrey never
alleged or argued below that the City could be liable under Count I for any conduct other
than the car accident. Therefore, she cannot recover against the City under the amended
Count I.
Second, as to Chief Szczerba, we agree with the Superior Court that, even after
considering the record in the light most favorable to McCaffrey, Chief Szczerba’s actions
in hiring, retaining, and supervising Officer Spencer do not fall within the wanton
Jan. 31, 2014); McCaffrey v. City of Wilmington, 2014 WL 6679176 (Del. Super. Nov. 3, 2014)
(“McCaffrey IV”).
3
negligence exception to immunity under the Tort Claims Act. Finally, we agree with the
Superior Court that the City is immune from suit under the Tort Claims Act, but for
different reasons than those found by the Superior Court. McCaffrey cannot show that
the mere fact that Officer Spencer had a weapon and other related items at the time of the
accident implicates the equipment exception to the Tort Claims Act. Therefore we affirm
the judgment of the Superior Court.
II. BACKGROUND 2
On June 4, 2010, Wilmington Police Officer Michael Spencer attended a “Beef
and Beer” police academy fundraiser and then drove under the influence of alcohol to a
bar in Wilmington. Officer Spencer was off duty, not in uniform, and driving his own
car. After leaving the bar, Officer Spencer again drove under the influence, eventually
colliding with Morgan McCaffrey’s vehicle at Second and Orange Streets in the City of
Wilmington. The accident occurred around 2:00 a.m. on June 5, 2010. McCaffrey does
not allege that Officer Spencer was on duty, in his police uniform, or driving a police
vehicle at the time of the accident.
Immediately following the accident, Officer Spencer contacted WPD dispatch to
report the accident using the WPD’s administrative line, a number that is not publicly
listed. McCaffrey overheard his conversation with the police and believed he was
3
speaking in “cop terms.” Officer Spencer then showed McCaffrey his police
2
Unless otherwise noted, the facts are taken from the Superior Court’s decision in McCaffrey IV,
the second amended complaint, and the discovery record.
3
App. to Opening Br. at 594.
4
identification and asked her if she would be willing to “handle it civilly,” to which she
agreed “[b]ecause he was a police officer.” 4
Officer Spencer cancelled the call to the police, and then approached McCaffrey,
put his hands on her shoulders, and kissed her on the lips. McCaffrey backed away, and
Officer Spencer apologized. He then asked McCaffrey where she lived and, after
determining that she lived nearby, suggested that they move their vehicles, presumably
closer to her apartment. McCaffrey agreed, expecting that once they got their cars out of
the road they would be able to exchange insurance information. She “had confidence in
him, because he was a police officer, that he was telling [her] the right things to do . . . .” 5
After they parked near McCaffrey’s apartment, Officer Spencer removed his gun,
magazine, and badge from the glove compartment of his car and asked McCaffrey to hold
them for him. McCaffrey placed the items in her purse, at which time she “just kind of
felt like at that point whatever he was asking [she] should probably just kind of go along
with.” 6
Meanwhile, Corporal Ralph Schifano arrived at the accident scene and found
evidence of a serious accident, but no vehicles or drivers. Corporal Schifano alerted the
WPD dispatch supervisor, who began investigating and found that the person who took
Officer Spencer’s original call into WPD dispatch knew that Officer Spencer was a police
officer and “could tell that he might be drunk because [of] the way he was acting on the
4
Id. at 596.
5
Id. at 601.
6
Id. at 602.
5
phone and the way he was talking.” 7 The dispatch supervisor did not alert anyone
because “he didn’t want to get the officer in trouble.” 8
Officer Spencer suggested to McCaffrey that they go to McCaffrey’s apartment to
discuss the accident. McCaffrey agreed, “solely based on the fact that . . . he was a police
officer.” 9 Once in the apartment, McCaffrey went to the bathroom and, upon emerging,
found that Officer Spencer had removed his pants, but still had on “basketball shorts.” 10
He gestured for McCaffrey to sit next to him on her futon, which doubled as her bed and
was the only piece of furniture in the one-room apartment. McCaffrey sat on the futon as
far away from him as she could, at which point Officer Spencer asked if she wanted to
have sex. After McCaffrey said no, Officer Spencer stood in front of her with one leg on
each side of her legs, then sat down such that he was straddling her. With his hands on
her shoulders, he asked a second time if McCaffrey wanted to have sex. After McCaffrey
rejected him a second time, he got up and laid down on the bed, at which point
McCaffrey returned to the bathroom “to get away from him.” 11 While in the bathroom,
she changed into a hoodie and sweatpants. After she returned to the main room of the
apartment, she found Officer Spencer asleep. McCaffrey then left the apartment to seek
help.
7
Id. at 738.
8
Id. at 441-42.
9
App. to Opening Br. at 605.
10
Id. at 608.
11
Id.
6
After trying to call several friends, McCaffrey made contact with a neighbor in
her building. McCaffrey informed him that she had been in an accident and wanted to
come down to his apartment and talk about it. The neighbor agreed. After hearing
everything that had happened, the neighbor advised her to call 911. McCaffrey told her
neighbor that she was scared to call the police because “it involved an officer.” 12
McCaffrey also suggested she was hesitant to call the authorities because, at the time, a
bench warrant was outstanding for her arrest for unpaid tickets. McCaffrey ultimately
called 911 at 3:52 a.m.
Several police officers arrived at the apartment building. When the officers
entered McCaffrey’s apartment, they found Officer Spencer “laying [sic] naked on the
bed covered by a sheet.” 13 He appeared drunk, smelled of alcohol, and attempted to dress
himself by “putting his legs through the shirt instead of over his head.” 14 After being
taken to Wilmington Hospital and cleared for injuries, the police took Officer Spencer to
the police station.
At the station, when Corporal Schifano informed Officer Spencer that he would
need to be chaperoned while going to the bathroom, Officer Spencer “became very upset
and agitated” and tried to stop Corporal Schifano from entering the restroom with him. 15
Officer Spencer initially refused sobriety tests, but eventually consented and after a five
hour delay supposedly passed eight tests. Officer Spencer later testified that he did not
12
Id. at 909.
13
Id. at 287.
14
Id.
15
App. to Opening Br. at 287.
7
remember taking any of the sobriety tests. After disciplinary proceedings conducted by
the Office of Professional Standards, the disciplinary arm of the WPD, the WPD
suspended Officer Spencer for 31 days. Officer Spencer also entered an alcohol
rehabilitation program after the incident. The only criminal charge that resulted from
Officer Spencer’s conduct was a traffic citation for failure to stop at a red light.
III. PROCEDURAL HISTORY
McCaffrey filed her first complaint on January 19, 2012, alleging negligence,
recklessness, and civil rights violations against Officer Spencer, the City of Wilmington,
the WPD, and various members of the WPD. She also alleged negligent hiring, retention,
and supervision against the WPD and the City, assault and battery against Officer
Spencer, and intentional infliction of emotional distress against all police officer
defendants.
The City moved to dismiss two counts of the complaint—Count I (negligence and
recklessness relating to the auto accident) and Count II (civil rights violations under 42
U.S.C. § 1983). The WPD moved to dismiss the entire complaint. In its first decision
dated April 25, 2012, 16 the Superior Court dismissed the WPD from all claims because it
is not an independent entity subject to suit, and dismissed the City from Count II because
respondeat superior liability is not recognized for federal civil rights violations under 42
U.S.C. § 1983. The court also granted the City’s motion to dismiss Count I because
McCaffrey limited Count I to the traffic accident, and Officer Spencer was not acting
16
McCaffrey I.
8
within the scope of his employment when he caused the traffic accident. As the court
stated in dismissing Count I, “Notably, Count I only addresses the traffic accident and
does not address the alleged unwanted sexual contact between Spencer and
McCaffrey.” 17
On May 24, 2012, and then on June 5, 2012, McCaffrey filed her first and then
second amended complaints. The amendments removed the WPD as a defendant, added
as defendants the additional police officers who had been involved in the incident, and
added Chief Szczerba as a defendant. In Count IV of the amended complaints,
McCaffrey alleged that Chief Szczerba had been negligent in hiring, training, and
18
supervising Officer Spencer (the “Supervisory Liability” claim). Importantly,
McCaffrey deleted the allegations in Count I of the original complaint where she had
alleged that Officer Spencer acted within the scope of his employment with the WPD and
the City. She also dropped the City as a defendant from Count I. The court eventually
disposed of each of the remaining counts by way of a circuitous path against all
defendants except Officer Spencer.
First, the City and the officer defendants moved to dismiss the assault and battery
and intentional infliction of emotional distress 19 counts of the second amended complaint
17
Id. at *2.
18
McCaffrey alleged “Negligent and Reckless Hiring, Retention and Supervision” in the heading
of Count IV of her second amended complaint and alleged “gross negligence and recklessness in
hiring, training and supervising” Officer Spencer in the body of Count IV.
19
The Superior Court referred to negligent infliction of emotional distress in its August 9, 2012
opinion even though McCaffrey alleged intentional infliction of emotional distress in Count VI
of her second amended complaint.
9
on the ground that the Tort Claims Act provided immunity from suit for these claims. 20
The Superior Court granted the motion, finding that no exception applied to the Tort
Claims Act because McCaffrey failed to plead that she suffered any physical injury, a
requirement for an exception to apply.
Next, on June 26, 2013, the Superior Court granted summary judgment to the
individual officer defendants for the federal civil rights claims where McCaffrey alleged
that the defendants failed to enforce the law against Officer Spencer. The court ruled that
the alleged conduct did not rise to the level of a deprivation of McCaffrey’s constitutional
rights. 21 The court also granted the City summary judgment on the constitutional claims,
finding that Spencer’s misconduct could not be traced to any policy or custom of the
City, and respondeat superior did not apply. As to the Supervisory Liability claim
against Chief Szczerba, the Superior Court found that there was no evidence to show that
Chief Szczerba or the City knew or were deliberately indifferent to Officer Spencer’s
propensity to drive drunk or to act inappropriately toward women. 22 As the court held,
“there [was] no evidence that Chief Szczerba had contemporaneous knowledge of the
events of June 5, 201[0] or a pattern of prior similar incidents for [McCaffrey] to
establish deliberate indifference [on his part.]” 23 The court therefore granted summary
judgment on this claim.
20
10 Del. C. § 4012.
21
McCaffrey III.
22
Id. at *12.
23
Id. at *13.
10
The Superior Court thereafter partially vacated its June 26, 2013 order dismissing
the Supervisory Liability count. In granting summary judgment on Count IV, the court
had assumed it was addressing exclusively a federal civil rights claim under 42 U.S.C. §
1983. McCaffrey asserted on reargument, and the court reluctantly agreed, that Count IV
also could be read to include a state-law Supervisory Liability claim against Chief
Szczerba and the City. 24
Chief Szczerba and the City then moved for summary judgment on the state-law
Supervisory Liability claim, which the court granted on November 3, 2014. 25 The court
reasoned that Chief Szczerba and the City were immune from liability under the Tort
Claims Act. For Chief Szczerba, the court granted summary judgment because, despite
possible indications that Officer Spencer might have problems with alcohol, the WPD
had taken steps to discipline him. Moreover, “these step[s] help demonstrate that Chief
Szczerba did not evidence conscious indifference evidencing an ‘I-don’t-care attitude’ as
to Officer Spencer’s behavior.” 26 For the City, the court found that the “decisions to hire,
retain, and supervise Officer Spencer were discretionary functions,” making the City
immune. 27 With summary judgment granted in favor of the defendants for the
Supervisory Liability claim, the only remaining claims were those against Officer
Spencer personally.
24
McCaffrey, 2014 WL 598030.
25
McCaffrey IV.
26
Id. at *9.
27
Id. at *7.
11
Although Officer Spencer remains a defendant, McCaffrey requested entry of final
judgment as to the City, the Officers, and Chief Szczerba, which the Superior Court
entered on January 5, 2015. This appeal followed.
IV. ANALYSIS
On appeal, McCaffrey makes two main arguments. First, she maintains that the
Superior Court erred in determining that Officer Spencer’s actions were outside the scope
of his employment. Second, she argues that the Superior Court erred in finding Chief
Szczerba and the City immune from suit under Count IV of the second amended
complaint alleging grossly negligent and reckless hiring, retaining, and supervising
Officer Spencer.
A. The Superior Court’s Dismissal Of Count I (Negligence And Recklessness
Relating To The Auto Accident)
McCaffrey claims that the Superior Court erred when it dismissed Count I of the
second amended complaint against the City because Officer Spencer’s actions during and
after the June 5, 2010 accident were within the scope of his employment. McCaffrey
cites to the Superior Court’s decision in McCaffrey I and challenges the court’s analysis
of the scope of employment issue. 28 This Court reviews de novo a trial court’s decision
on a motion to dismiss. 29 Likewise, we review a trial court’s determination of questions
of law de novo. 30
28
Opening Br. at 14 (citing McCaffrey I).
29
RBC Capital Mkts., LLC v. Educ. Loan Trust IV, 87 A.3d 632, 639 (Del. 2014).
30
Barley Mill, LLC v. Save Our Cnty., Inc., 89 A.3d 51, 60 (Del. 2014).
12
The problem with McCaffrey’s argument is that the Superior Court’s decision in
McCaffrey I addressed Count I of the original complaint. After the court dismissed that
complaint in part, McCaffrey amended her complaint two more times. The latest
complaint, the second amended complaint, superseded the earlier complaints and
rendered them of no legal effect. 31 The operative complaint is therefore the second
amended complaint, and the operative Count I is Count I of the second amended
complaint (“Second Count I”).
The Second Count I repeated most of the same factual allegations verbatim from
Count I of the earlier complaints, but made two significant changes. McCaffrey dropped
all defendants from the Second Count I except Officer Spencer. McCaffrey also deleted
the allegations claiming that “Defendant was an agent, servant, and employee of the
[WPD] and the [City] and operated within the scope of his employment,” and
“Defendant’s negligence and recklessness is imputed to the [WPD] and the [City].” 32
The Second Count I no longer alleged liability on the City’s part.
McCaffrey argues that the second amended complaint should be read as a whole,
and that when read in combination with the assault and battery allegations in Count V,
McCaffrey fairly alleged the City’s liability for Officer Spencer’s unwanted sexual
31
Bruce E. M. v. Dorothea A. M., 455 A.2d 866, 869 (Del. 1983) (pleadings are superseded by
amendments); Grobow v. Perot, 1990 WL 146, at *4 (Del. Ch. Jan. 3, 1990), aff’d sub nom.
Levine v. Smith, 591 A.2d 194 (Del. 1991) (“[A]s a general matter, where leave to amend a
complaint is granted . . . , the original pleadings are disregarded and all later motions are directed
to the amended pleading.”); W. Run Student Hous. Assocs., LLC v. Huntington Nat’l Bank, 712
F.3d 165, 171-72 (3d Cir. 2013) (collecting cases); see also 6 CHARLES ALAN WRIGHT &
ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE § 1476 (3d ed. 2008).
32
Jan. 19, 2011 Compl., ¶¶ 41-42.
13
advances. The Superior Court never considered this argument because McCaffrey did
not argue below that the Second Count I could reasonably be construed to place the City
on notice that it remained a defendant. 33 Rather, the Superior Court in McCaffrey I only
considered whether the City could be liable for the car accident. McCaffrey thereafter
dropped the City as a defendant in the Second Count I, as well as the respondeat superior
claim. Count V is also of no help to McCaffrey. McCaffrey conceded that the City was
immune from suit under Count V. 34 Therefore, even if we were to address McCaffrey’s
arguments for the first time on appeal, Counts I and V of the second amended complaint
do not state a claim against the City.
B. Chief Szczerba’s Liability Under Count IV For Grossly Negligent And
Reckless Hiring, Retaining, And Supervising Officer Spencer
McCaffrey argues the Superior Court erred by granting summary judgment in
favor of Chief Szczerba on her state law Supervisory Liability claim. According to
McCaffrey, she offered sufficient evidence of Chief Szczerba’s wanton negligence to
create a genuine issue of material fact whether the wanton negligence exception to
immunity should apply to Chief Szczerba. Chief Szczerba and the City argue in response
that the evidence offered by McCaffrey relating to Chief Szczerba’s supervision of
Officer Spencer does not amount to wanton negligence as a matter of law, and therefore
the Tort Claims Act immunized Chief Szczerba from suit.
33
See Supr. Ct. R. 8.
34
McCaffrey II, at *1 (Del. Super. Aug. 9, 2012) (“[McCaffrey] concedes in her Response to the
Motion that the City should be dismissed from Count V of the Complaint alleging assault and
battery against both the City and [Officer Spencer] as there are no exceptions in the immunity
statute applicable to the City with regard to this tort.”).
14
Our review of the Superior Court’s grant of summary judgment is de novo. This
Court must “undertake an independent review of the record and applicable legal
principles ‘to determine whether, after viewing the facts in the light most favorable to the
nonmoving party, the moving party has demonstrated that no material issues of fact are in
dispute and it is entitled to judgment as a matter of law.’” 35
1. The Tort Claims Act And Supervisory Liability
In general, municipalities in Delaware are immune from suit for state law claims
under the Tort Claims Act. The Act provides: “Except as otherwise expressly provided
by statute, all governmental entities and their employees shall be immune from suit on
any and all tort claims seeking recovery of damages.” 36 Delaware courts must apply the
Tort Claims Act in a manner consistent with its stated legislative intent and the goals
behind granting immunity to public officials. 37
The General Assembly enacted the Tort Claims Act in 1979 in response to several
court decisions restricting sovereign immunity for Delaware counties and
35
DaBaldo v. URS Energy & Constr., 85 A.3d 73, 77 (Del. 2014) (quoting United Vanguard
Fund, Inc. v. TakeCare, Inc., 693 A.2d 1076, 1079 (Del. 1997)).
36
10 Del. C. § 4011(a).
37
Moore v. Wilmington Hous. Auth., 619 A.2d 1166, 1168 (Del. 1993) (“Since the construction
of the term depends almost entirely on the context in which it is used, it is first necessary to
ascertain the intent of the General Assembly in enacting the legislation.”); Sadler v. New Castle
Cnty., 565 A.2d 917, 923 (Del. 1989) (“‘The Act was not a mere alteration of the doctrine of
municipal immunity’ but an extension of the doctrine ‘to areas where it did not formerly apply’
and as to which prior decisional law had cast doubt. Moreover, the section 4012 exceptions are
subject to strict construction as derogative of this broad grant of immunity.”) (quoting Fiat
Motors of N. Am., Inc., v. City of Wilmington, 498 A.2d 1062, 1064 (Del. 1985)).
15
municipalities. 38 As the preamble to the Tort Claims Act shows, the General Assembly
was concerned that “the provision of vital local governmental services [had been] placed
in substantial jeopardy” and “the cost of insurance, when obtainable, [had] reached
proportions unanticipated by local government as a result of the multiplicity of lawsuits
filed against local governments in recent years.” 39 While striking a balance between
individual rights and the interests of society, the General Assembly sought to “discourage
lawsuits which might create a chilling effect on the ability of public officials or
employees to exercise their discretionary authority.” 40
As public officials, police officers have traditionally enjoyed the protection of
governmental immunity. 41 The Restatement (Second) of Torts explains the important
policy underpinnings for this protection:
[P]ublic officers and employees would be unduly hampered, deterred and
intimidated in the discharge of their duties . . . if those who act improperly .
. . were not protected in some reasonable degree by being relieved from
private liability. The basis of the immunity has been not so much a desire
to protect an erring officer as it has been a recognition of the need of
preserving independence of action without deterrence or intimidation by the
fear of personal liability and vexatious suits. This, together with the
manifest unfairness of placing any person in a position in which he is
required to exercise his judgment and at the same time is held responsible
according to the judgment of others, who may have no experience in the
area and may be much less qualified than he to pass judgment in a
discerning fashion or who may now be acting largely on the basis of
hindsight, has led to a general rule that tort liability should not be imposed
38
62 Del. Laws 124; Moore, 619 A.2d at 1168 (“The Act was passed in the wake of two
Delaware Supreme Court decisions that essentially eliminated the constitutional defense of
sovereign immunity with respect to counties and municipalities.”).
39
62 Del. Laws 124.
40
Doe v. Cates, 499 A.2d 1175, 1180-81 (Del. 1985) (construing the similar State Tort Claims
Act).
41
See 80 C.J.S. Sheriffs and Constables § 102 (2015).
16
for conduct of a type for which the imposition of liability would
substantially impair the effective performance of a discretionary function. 42
Like qualified immunity under federal law, immunity under the Tort Claims Act is
not merely a “defense to liability,” but rather an “immunity from suit” for damages. 43
The United States Supreme Court has observed that “permitting damages suits against
government officials can entail substantial social costs, including the risk that fear of
personal monetary liability and harassing litigation will unduly inhibit officials in the
discharge of their duties.” 44 Where police officers are concerned, immunity “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.” 45
Immunity from suit for damages is not absolute. While exceptions to immunity
are narrowly construed, 46 immunity can be lost and a public employee held personally
42
RESTATEMENT (SECOND) OF TORTS § 895D cmt.b (1979); see also Gregoire v. Biddle, 177
F.2d 579 (2d Cir. 1949).
43
Hunter v. Bryant, 502 U.S. 224, 227 (1991) (quoting Mitchell v. Forsyth, 472 U.S. 511, 526
(1985)); 10 Del. C. § 4011(a) (“[A]ll governmental entities and their employees shall be immune
from suit on any and all tort claims seeking recovery of damages.”) (emphasis added). Because
the Tort Claims Act provides “immunity from suit,” and therefore the burdens of litigation, it is
important to resolve immunity issues at the earliest possible stage of the litigation. Otherwise,
the benefits of such immunity are lost. See Pearson v. Callahan, 555 U.S. 223, 236-37 (2009).
44
Anderson v. Creighton, 483 U.S. 635, 638 (1987).
45
Poe v. Leonard, 282 F.3d 123, 131 (2d Cir. 2002) (quoting Locurto v. Safir, 264 F.3d 154,
162-63 (2d Cir. 2001)).
46
See Walls v. Rees, 569 A.2d 1161, 1167 (Del. 1990).
17
liable “for those acts which were not within the scope of employment or which were
performed with wanton negligence or willful and malicious intent.” 47
2. Chief Szczerba And Wanton Negligence
The parties do not dispute that Chief Szczerba was a covered employee and was
acting within the scope of his employment. McCaffrey also does not claim “willful and
malicious intent” by Chief Szczerba. Therefore the immunity determination hinges on
whether he acted with wanton negligence in hiring, supervising and retaining Officer
Spencer.
We have defined wanton conduct as “such conduct as exhibits a conscious
indifference to consequences in circumstances where probability of harm to another
within the circumference of the conduct is reasonably apparent, although harm to such
other is not intended.” 48 The “conscious indifference” aspect of wantonness requires an
“I-don’t-care” attitude. 49 Whether conduct is wanton “is ordinarily one for the trier of
fact. Only where the facts permit reasonable persons to draw but one inference—adverse
to the non-moving party—is a moving party entitled to a finding and judgment as a
matter of law.” 50
47
10 Del. C. § 4011(c).
48
Wagner v. Shanks, 194 A.2d 701, 706 (Del. 1963) (quoting Law v. Gallegher, 197 A. 479, 482
(Del. 1938)) (emphasis omitted); see also Jardel Co. v. Hughes, 523 A.2d 518, 530 (Del. 1987)
(“We prefer the term ‘reckless indifference’ to the term ‘wanton,’ which has statutory roots now
largely extinct.”).
49
McHugh v. Brown, 125 A.2d 583, 586 (Del. 1956) (“The nub of this definition is in the phrase
‘conscious indifference.’ In homely language it means a foolhardy ‘I-don’t-care-a-bit-what-
happens’ attitude. . . . It is conscious indifference—the ‘don’t care’ attitude—that characterizes
wanton conduct.”) (internal citations omitted).
50
Eustice v. Rupert, 460 A.2d 507, 509 (Del. 1983) (citations omitted).
18
The Superior Court found that McCaffrey failed to present any evidence to create
a dispute of material fact whether there had been wanton negligence. 51 Specifically,
although the court noted that Chief Szczerba and the WPD were aware of several
incidents involving Officer Spencer that could have made him arguably negligent, the
fact that the WPD took steps to “reprimand and otherwise discipline Officer Spencer”
after each incident precluded any finding of conscious indifference. 52 After careful
review of the record, and keeping in mind the purpose behind the Tort Claims Act, we
agree with the Superior Court’s conclusion.
(i) Pre-hiring Conduct
Officer Spencer joined the WPD in January 2008. The WPD is a force of roughly
320 officers. Recruits undergo a vetting process before they are hired. Officer Spencer’s
pre-hiring investigation involved a lengthy written application with numerous required
disclosures, a polygraph examination, a background check, and a psychological
evaluation. Officer Spencer then spent several months training at the police academy,
and went through an eighteen month probationary period. In his application, Officer
Spencer disclosed that he had:
51
The Superior Court decided to overlook that fact that Count IV pled only gross negligence, not
wanton negligence, against Chief Szczerba.
52
McCaffrey IV, at *8-9. The Superior Court also determined in the context of constitutional
supervisory claims that Chief Szczerba did not exhibit “deliberate indifference” in supervising
Officer Spencer. Deliberate indifference for purposes of federal qualified immunity has been
described as “a stringent standard of fault, requiring proof that a municipal actor disregarded a
known or obvious consequence of his action.” Connick v. Thompson, 563 U.S. 51, 61 (2011)
(citing Bryan Cnty., Okla. v. Brown, 520 U.S. 397, 410 (1997)).
19
• been cited for six minor traffic violations between 2001 and 2007;
• been dismissed from a job at Value City for chasing a shoplifter into the
parking lot, in violation of store policy;
• admitted to having used marijuana, which delayed his admission to the
police academy; and
• admitted, at various times in the past, to having driven under the
influence of alcohol and committed minor traffic violations, and not
been caught.
Officer Spencer’s background check yielded overwhelmingly positive
recommendations from those who were asked about him. The worst anyone had to say
was that he could stand to mature. Officer Spencer’s polygraph test “showed signs of
53
being truthful.” His psychological evaluation revealed no problems, with the
psychiatrist commenting that he believed Officer Spencer was a “man of some
integrity.” 54 Officer Spencer interviewed well and appeared to be a promising candidate.
Chief Szczerba’s only direct involvement with the hiring process was a final interview
with Officer Spencer at the end of the process. 55
Considering this universe of facts available at the time Officer Spencer was hired,
McCaffrey has not offered evidence of wanton negligence by Chief Szczerba when he
approved the hiring of Officer Spencer. There was no indication that Chief Szczerba or
anyone else in the WPD was “consciously indifferent” to any “reasonably apparent”
risks. Most of Officer Spencer’s record was positive, and the few items that may have
53
App. to Opening Br. at 91.
54
App. to Answering Br. at 58.
55
See App. to Opening Br. at 842 (“Q: What’s your involvement [with the hiring process]?
Chief Szczerba: I conduct the final interview after the written test, physical agility test, oral
interview, a background investigation and the final list of candidates, they make it to an
interview with me as the chief of police.”).
20
raised flags did not approach the level where allowing him to become a police officer
would have been “wantonly negligent.” Police departments cannot be expected to reject
all candidates with some blemishes on their records.
(ii) Post-hiring Conduct
During the two years from 2008 to 2010, when he was a Wilmington police officer
but before the McCaffrey incident, Officer Spencer was involved in five disciplinary
matters:
• In September 2008, Officer Spencer failed to report to work on time and
had to be awoken by another officer who drove to his house.
• In October 2008, Officer Spencer responded to a call from a fellow off-
duty officer at a Wilmington bar about an altercation and did not
properly report the incident.
• In November 2008, Officer Spencer was involved in a domestic dispute
with the mother of his child and then, quite upset, drove to his
supervisor’s house seeking help.
• In April 2010, Officer Spencer was involved in a collision while driving
on Route 13 outside of the city, which he failed to report properly to the
WPD.
• Also in April 2010, Officer Spencer failed to file the correct report after
he discharged a taser.
Each time, the WPD internal disciplinary process investigated and responded to the
incidents. Officer Spencer was given written reprimands for all but the automobile
collision, for which he was counseled on proper procedures.
There is nothing in the record that shows that Chief Szczerba was or should have
been aware of Officer Spencer’s alcohol problems before the McCaffrey incident.
Officer Spencer’s five disciplinary incidents were well documented. McCaffrey points to
Chief Szczerba’s lack of direct involvement with the discipline of Officer Spencer as
evidence that he had an “I-don’t-care” attitude. This argument ignores the way the
21
internal discipline structure operates within the WPD. Chief Szczerba is not personally
involved with every disciplinary proceeding. The Office of Professional Standards is
responsible for investigating incidents involving officers and dispensing appropriate
discipline. The Chief of Police’s primary role in internal discipline is as a member of a
panel that serves as the final arbiter of appeals. Considering this structure, the Chief of
Police’s lack of personal involvement in every low-level discipline case does not reflect
an “I-don’t-care” attitude, but instead an understanding and respect for his role in the
process. Also, Spencer’s incidents of misconduct were relatively minor until the
McCaffrey incident in June 2010. This is especially the case because alcohol did not play
a prominent part in Officer Spencer’s record until after the McCaffrey incident.
(iii) Hindsight Bias
Importantly, although alcohol was involved when Officer Spencer failed to show
up to work in 2008 and in the April 2010 collision, and may have been involved in the
domestic incident in November 2008, 56 there is no evidence of record that anyone in the
WPD was aware that alcohol was involved in the first two incidents until Officer Spencer
admitted it during an interview after the McCaffrey incident. 57 The domestic incident
was not treated as one involving alcohol, as alcohol seemed to play only a peripheral role.
Further, Officer Spencer was new to the force in 2008, when three of the incidents
56
The investigative report produced after the incident noted that one of Officer Spencer’s female
friends “encountered Officer Spencer to be intoxicated and ‘talking out of his head,’” and Officer
Spencer was forthcoming about the fact that he had had some alcohol the day of the incident.
App. to Opening Br. at 150, 153. It is unclear from the record exactly what happened, but the
role, if any, that alcohol played was not prominent.
57
App. to Opening Br. at 366, 367.
22
occurred. Looking at the evidence in a light most favorable to McCaffrey, at best Chief
Szczerba would have been aware of a series of fairly minor disciplinary matters involving
a new officer, each of which ended when he was disciplined. None of these incidents are
of the type or severity for which McCaffrey seeks recovery. 58
We agree with the dissent’s concerns over events that occurred during and after
the June 5, 2010 incident. The conduct alleged in the second amended complaint, much
of which was admitted by Officer Spencer and others, raised concerns about Officer
Spencer’s fitness for duty as a police officer. It also raised troubling questions about the
legitimacy of the WPD’s response following the incident. But our narrow issue on
appeal is whether, without the benefit of hindsight, McCaffrey identified a material issue
of disputed fact about whether Chief Szczerba acted with wanton negligence in the
hiring, training, and supervising of Officer Spencer, such that Chief Szczerba should be
held personally liable for Officer Spencer’s actions. We agree with the Superior Court
that McCaffrey failed to meet her burden on summary judgment.
C. The City’s Liability Under Count IV For Grossly Negligent And Reckless
Hiring, Retaining, And Supervising Officer Spencer
Finally, McCaffrey argues that the Superior Court erred in finding the City
immune from suit for the state law negligent and reckless hiring, retaining, and
supervising claim. According to McCaffrey, Officer Spencer “used his WPD equipment,
58
See Jardel, 523 A.2d at 531 (“Where the claim of recklessness is based on an error of
judgment, a form of passive negligence, the plaintiff’s burden is substantial. It must be shown
that the precise harm which eventuated must have been reasonably apparent but consciously
ignored in the formulation of the judgment.”).
23
including his police identification, badge, gun, and magazine during this incident.” 59 The
City argues in response that a police officer’s accoutrements do not fall within the
definition of “equipment” under the statute, and, in any event, the City’s actions were
discretionary and therefore the City is immune from suit.
As noted earlier, the Tort Claims Act provides broad immunity from suit for
government entities and public officials. Section 4012 of the Act, however, provides
that “[a] governmental entity shall be exposed to liability for its negligent acts or
omissions causing property damage, bodily injury or death in . . . its ownership,
maintenance or use of any motor vehicle, special mobile equipment, trailer, aircraft or
other machinery or equipment, whether mobile or stationary.” 60 The exception applies to
the use of automobiles, but only when the automobile itself causes harm. 61 It also applies
to “instruments which are commonly at the center of tort suits and which, by virtue of
their potential to inflict damage and injury when negligently maintained or used, are
subject to regulation under our laws.” 62
Officer Spencer’s weapon and other items identified by McCaffrey do not fall
under the “other machinery or equipment” language in § 4012. The “other machinery or
equipment” intended by the statute are the same types of equipment listed in the
59
Opening Br. at 26.
60
10 Del. C. § 4012.
61
See Sussex Cnty. v. Morris, 610 A.2d 1354, 1359-60 (Del. 1992) (stating that the “motor
vehicle exception in Section 4012(1) applies when the vehicle itself is the instrument of the
harm” such as when the plaintiff, who had been involuntarily committed, flung himself from a
Sussex County constable’s moving vehicle); Walls, 569 A.2d at 1167 (declining to extend the
definition of “use of any motor vehicle” to include the police seizure of a suspect’s vehicle).
62
Sadler, 565 A.2d at 923 (quoting Sadler v. New Castle Cnty., 524 A.2d 18, 24 (Del. Super.
1987)).
24
remainder of the provision. 63 Even more fundamentally, the items identified by
McCaffrey did not cause any “property damage, bodily injury or death” to McCaffrey. 64
The City is therefore immune from suit for McCaffrey’s state law claims under Count IV
of the second amended complaint. 65
V. CONCLUSION
Officer Spencer’s conduct on June 10, 2010, much of which has been admitted,
was more than just embarrassing conduct by an off-duty Wilmington police officer. He
acted unprofessionally—perhaps criminally—and caused a woman great distress. He
remains a defendant in the case. But the liability of others for Officer Spencer’s off-duty
misconduct is a separate issue. After review of the record and the decisions of the
Superior Court, and keeping in mind the purpose behind the Tort Claims Act, we
conclude that the Superior Court did not err as a matter of law in dismissing McCaffrey’s
claims against Chief Szczerba and the City.
The judgment of the Superior Court is affirmed.
63
See id. (stating that a ejusdem generis approach is proper in construing § 4012 because
otherwise the “other machinery or equipment” phrase would make the exception too broad,
contrary to legislative intent); see also Hedrick v. Blake, 531 F. Supp 156, 158 (D. Del. 1982)
(finding that the General Assembly did not intend that an officer’s nightstick as used in the way
presented be considered “in the same category of ‘negligent acts or omissions’ as the
municipality’s ‘ownership, maintenance or use’ of the equipment described in § 4012(1)”);
White v. Crowley, 1986 WL 5850, at *3-4 (Del. Super. May 8, 1986) (predating this Court’s
instruction in Sadler but applying the same approach to find that handcuffs are not “equipment”
within the meaning of the statute because they are not of the same type as the items listed in §
4012—“vehicles which may be used to transport people or property”).
64
10 Del. C. § 4012.
65
Because we have found no exceptions to immunity under § 4012, we need not reach the
alternative argument that the City’s hiring, supervision, and retention of Officer Spencer is a
discretionary act and therefore immune from suit under § 4011.
25
STRINE, C.J, concurring in part and dissenting in part.
I join the excellent Majority opinion, except in one respect. Wanton negligence is
a very, very difficult standard to fall short of. The definition requires that the person
facing liability to act with “a ‘conscious indifference’ or an ‘I-don’t-care attitude.’” 1 I
respect the judgment of my colleagues in the majority that the Superior Court did not err
in finding that there was no triable issue of fact as to whether Chief Szczerba could be
held liable under that standard given the facts of record. But, I reluctantly come to a
different judgment.
The principal argument that Chief Szczerba uses to argue in his own favor is
ignorance. That is, Chief Szczerba argues that he was the chief of a very large police
organization and that it should be expected that he would not personally superintend the
disciplinary process governing line officers. Even further, although correspondence
would be addressed to him, he was not expected to read it. Nor, apparently, was he
charged with ensuring that if he did not read it, there was a genuine system of officer
supervision and discipline that functioned credibly and in good faith, to protect the
public, especially given the reality that police officers have special powers, get to carry
lethal force, and get to drive automobiles in the line of duty in ways that members of the
public cannot.
1
Adams v. Selhorst, 779 F. Supp. 2d 378, 395 (D. Del. 2011) (quoting Foster v. Shropshire, 375
A.2d 458, 461 (Del. 1997)) (discussing 10 Del. C. § 4011(c)); see also Wagoner v. Shanks, 194
A.2d 701, 707 (Del. 1963) (defining wanton as “the ‘I don’t care attitude’”); Hedrick v. Webb,
2004 WL 2735517, at *7 (Del. Super. Nov. 22, 2004) (“Wanton conduct reflects a ‘conscious
indifference’ or an ‘I don’t care attitude.’”).
The facts of record here are troubling. For starters, when Officer Spencer was
hired, he hardly came to the force with an unblemished record. Although it can be
deemed admirable that the Wilmington Police force would take on an officer with
multiple motor vehicle violations, prior drug use, and a drinking problem, one would
think that it would then consider that history when Officer Spencer then fell short of the
mark when he became an officer. But, when Officer Spencer began to engage in a
pattern of behavior that suggested that his pre-hiring behaviors were recurring, there is no
evidence that anything genuine was done to correct his behavior.
In three successive months in 2008, Officer Spencer got into trouble. After each
instance, he got a written reprimand, which was not accompanied by any requirement that
he undertake treatment, demonstrate that he had changed his behavior, or face any real
consequence. These incidents are notable.
Let’s consider them in turn. In September 2008, Officer Spencer did not show up
to work on time. His superiors tried to roust him by phone. Twice that was tried. 2 But
Officer Spencer did not answer his phone. Thus, an officer was dispatched to his home to
see if he was there. It took that door knocking to get him out of bed. Although Officer
Spencer initially claimed that he forgot to set his alarm clock—an excuse that does not
explain why he did not answer his ringing phone—he later acknowledged that he had
2
See App. to Opening Br. at 121 (Notification of Complaint) (“At approximately 0805 hours,
your Field Training Officer (FTO) . . . attempted to contact you via your provided telephone
number which met with no response and it went directly to voice mail as if your phone was in off
mode. This writer . . . also attempted to contact you with negative results and then verified you
were not off on compensatory time or vacation.”).
2
been out drinking and at “a club” the night before. 3 When all was taken together, Officer
Spencer’s police superiors had several hints that he had missed his shift because he was
too hungover to make it to work.
Then, in October, Officer Spencer was reprimanded for his investigation involving
a physical altercation between three off-duty officers and a civilian at a Wilmington bar.
One of the off-duty officers summoned him via text message. 4 Officer Spencer violated
Wilmington Police Department protocol by not notifying dispatch that he was going to
the location, not interviewing any of the three off-duty officers, and otherwise failing to
properly investigate the incident.
And then, in November, Officer Spencer’s girlfriend had a fight with his
daughter’s mother at his home. Officer Spencer’s girlfriend alleged that he “placed his
5
hands on” his daughter’s mother. His girlfriend called the Wilmington Police
Department, which sent an officer to investigate. Officer Spencer’s girlfriend told the
investigating officer that she had “encountered Officer Spencer to be intoxicated and
‘talking out of his head.’” 6 Officer Spencer then “grabbed [his] gun,” left his house, and
3
See id. at 689 (Deposition of Michael Spencer, Oct. 19, 2012) (“Q. Was alcohol involved in
that incident? A. The reason I was late to work? Q. Yes. A. I was hanging out the night
before, went to a club, went to Trolley Square, and woke up late for work. Q. You didn’t
attribute that to alcohol at all? A. I mean, it may have played a part. I’m not saying it was the
sole reason.”).
4
See id. at 138 (Citizen Complaint Investigative Report) (“[B]y Officer Spencer’s own
admission, he was texted by the off-duty officers with a message saying ‘Dude, I’m going to
fuck this guy up, come quick.’”).
5
Id. at 150 (Citizen Complaint Investigative Report).
6
Id.
3
drove to his superior’s home, where he showed up unannounced. 7 That is, Officer
Spencer—while appearing drunk—got in a vehicle with his weapon and drove off. When
he got to his superior’s home, Officer Spencer “seemed highly upset and was crying.” 8
Despite a finding that Officer Spencer did not violate the Department’s directive on
domestic violence, he was reprimanded for failing to inform the appropriate officer about
the domestic dispute at his ex-girlfriend’s home. What is notable about each of these
incidents is that they seem to involve a lack of judgment, a propensity to mix the use of
alcohol with driving and the carrying of a gun, and the notion that situations involving
police officers should be handled differently than those involving ordinary citizens.
Admittedly, Officer Spencer then had a period of nearly eighteen months in which
he did not get disciplined. During that period, he was allowed to proceed from
probationary status to full patrolman. But, then, on April 3, 2010, there was another
incident. Officer Spencer had been drinking alcohol at the Delaware Association of
Police. He then drove off in a police car and rear ended another vehicle. The State
Police investigated the accident, and cited Officer Spencer for inattentive driving because
he had been texting. And Officer Spencer failed to contact the watch commander in
violation of the Department’s protocol that an off-duty officer involved in an accident in
New Castle County do so.
Then came the night which occasions this case. Officer Spencer’s behavior that
evening can only be described as creepy at best, and incredibly scary and criminal at
7
Id. at 691 (Deposition of Michael Spencer, Oct. 19, 2012).
8
Id. at 152 (Citizen Complaint Investigative Report).
4
worst. On the evening of June 4, 2010, Officer Spencer attended a “Beef and Beer”
police fundraising event, at which he consumed at least three different kinds of alcohol. 9
He then drove under the influence of alcohol to a bar in Trolley Square. 10 After leaving
that bar—and again driving under the influence 11— Officer Spencer headed toward a
friend’s house. At 2:00 a.m. on June 5, 2010, he drove through a red light and struck
Morgan McCaffrey’s vehicle.
After the accident, Officer Spencer called WPD dispatch. The dispatcher who
took Officer Spencer’s call “could tell that he might be drunk because the way he was
acting on the phone and the way he was talking.” 12 But, the dispatcher did not inform his
supervisor about the call because “he didn’t want to get the officer in trouble.” 13 While
waiting for the police to arrive, Officer Spencer kissed McCaffrey on the lips and “asked
Ms. McCaffrey whether she would like to handle the matter civilly.” 14 She agreed, and
Officer Spencer cancelled the call to the police. Officer Spencer then asked McCaffrey if
they could go to her nearby apartment to discuss the accident and she said that they
could.
9
Id. at 660 (Deposition of Michael Spencer, Oct. 19, 2012) (“Q. Also, I’ll represent in the
records you stated that you drank beer, Captain Morgan and some other mixed drink. Would that
be your normal -- A. That’s not my normal, but if that’s what I said I had that evening then that’s
what I had.”).
10
See id. at 660–61 (“Q. When you left the beef and beer were you driving under the influence
of alcohol? A. Yes, because I had consumed alcohol at the beef and beer.”).
11
See id. at 662 (“Q. When you left Catherine Rooney’s would you say you were driving under
the influence of alcohol? A. Yes.”).
12
Id. at 738 (Deposition of Christopher M. Partlow, Jan. 10, 2013).
13
Id. at 441–42 (Departmental Information Report, June 16, 2010).
14
McCaffrey v. City of Wilmington, 2014 WL 6679176, at *2 (Del. Super. Nov. 3, 2014).
5
Once inside McCaffrey’s apartment, McCaffrey went into her bathroom. When
she came out a few minutes later, Officer Spencer was naked on her bed. 15 Officer
Spencer asked McCaffrey whether she wanted to have sex, and she said no. He then
straddled McCaffrey on her bed and again asked her if she wanted to have sex, and she
again said no. McCaffrey then went back into her bathroom. When she came out five
minutes later, Officer Spencer was asleep on her bed.
McCaffrey called the police. Four WPD officers responded to her call, and
McCaffrey gave these officers Officer Spencer’s gun, magazine, and police badge, which
he had given her earlier in the night. The officers then “questioned Ms. McCaffrey in a
way that indicated that the officers were unsympathetic to Ms. McCaffrey’s concerns and
fears. It also appears that the officers did not believe Ms. McCaffrey’s version of events
because she was a female and Officer Spencer was male and a WPD officer.” 16
The officers woke Officer Spencer, but failed to perform any field sobriety tests on
him immediately. Spencer smelled of alcohol and initially tried to put his shirt on as
pants. 17 The responding officers took him from McCaffrey’s apartment to Wilmington
Hospital at 5:00 a.m. He was released at 5:39 a.m. and finally questioned by an officer at
15
See App. to Opening Br. at 287 (Departmental Information Report, June 6, 2010) (“Upon
entering the apartment, this officer observed Ptlm Spencer laying naked on the bed covered by a
sheet.”).
16
McCaffrey, 2014 WL 6679176, at *3.
17
See App. to Opening Br. at 287 (Departmental Information Report, June 6, 2010) (“Sgt. . . .
flashed his light into Ptlm Spencer’s face several times to awaken him, however he did not [wake
up]. This officer then yelled his name at which point, he finally came too and appeared to be
extremely groggy from alcohol. There was an odor of alcohol coming from his person and his
eyes were blood shot. This officer handed him his clothes so he could get dressed. Ptlm Spencer
attempted to put a short sleeve white shirt on by putting his legs through the shirt instead of over
his head.”).
6
7:15 a.m. After initially refusing any field sobriety tests, he eventually complied and was
given and passed eight tests. At his deposition, Officer Spencer said that he did not
remember taking any of these tests. 18
Now, of course, Chief Szczerba will say, I knew nothing about this and would not
tolerate this kind of behavior. But what is the record evidence of how the organization he
ran responded that night, and especially that of the captain who involved himself? One of
the responding officers, a lieutenant, called the on-call
captain at 4:30. Because Officer Spencer was visibly drunk enough that the responding
officers decided to take him to the hospital, the lieutenant wanted to test Officer
Spencer’s blood for alcohol immediately. But, the captain instructed her—not once, not
twice, but three times—to hold off on testing him. 19 Consequently, no officer performed
any field sobriety or blood alcohol tests on Officer Spencer until six hours after the
accident. And, according to McCaffrey, the responding officers treated her with
disrespect and made her wait until 8:00 a.m. to be interviewed about the incident.
18
See id. at 669 (Deposition of Michael Spencer, Oct. 19, 2012).
19
See id. at 425 (Statement of Lieutenant) (“At 0429 hours, I notified the Duty Captain, . . . to
advise him of the situation. I stated to [the captain] that I wanted to take blood since [Officer
Spencer] had been drinking. [The captain] denied this request by stating that we can wait on that
because he wanted to notify the Office of Professional Standards. I stated to [the captain] that
my window was closing on my time to draw blood.”); id. at 425–26 (“At 0504 hours, I
telephoned [the captain] to advise that Spencer was awake and there was evidence of blood on
his shirt. [The captain] advised to transport Spencer to the hospital to make sure he is ok. For
the second time, I advised [the captain] that I wanted to take blood or put Spencer on the box.
[The captain] again denied my request and advised me to wait for the Office of Professional
Standards to arrive.”); id. at 426 (“At 0526 hours, I notified [the captain] again about my
timeline with putting Spencer on the box or drawing his blood. [The captain], a third time
denied my request by stating that John and Paul were enroute to handle.”).
7
Of course, it is of more limited relevance what happened after that fateful night,
but not of no relevance. Officer Spencer was suspended without pay for thirty-one days
and given one year of probation for any like offenses involving the consumption of
alcohol. But, unfortunately, Officer Spencer’s suspension did not mark an end to his
misbehavior. In August 2010, he was disciplined for negligently damaging a police
vehicle following a car chase. In November 2013, according to McCaffrey, Officer
Spencer was charged with a DUI after having a blood alcohol content almost four times
the legal limit. Still he kept his badge. Finally, judicial notice can be taken that in June
2015, Officer Spencer drunkenly broke into a home in Middletown, believing it to be his
own. 20 Officer Spencer, by then a WPD corporal, was placed on administrative duty after
being charged in the break-in. 21
Given this record, I reluctantly conclude that there is a triable issue of fact whether
Chief Szczerba acted with wanton negligence. It can only be a defense to know nothing,
if you know nothing because you take good faith efforts to ensure that the system below
you functions in good faith and credibility. It is only a defense to not reading your mail if
you ensure that someone else beneath you does and is charged with acting in good faith
on the substance of what is communicated.
20
See Brittany Horn & Esteban Parra, Wilmington Officer Charged With Breaking Into Home,
THE NEWS J., June 10, 2015, available at
http://www.delawareonline.com/story/news/crime/2015/06/08/wilmington-officer-charged-
breaking-home/28720215/?from=global&sessionKey=&autologin=.
21
Id.
8
Here, there exist large questions as to the credibility of the officer discipline
process that raise a fact question about the good faith of that process and the tone set at
the top of the organization. Huge red flags regarding the repeated, inappropriate use of
alcohol by Officer Spencer were not followed up on by officers who were trained to be
on the lookout for suspicious behavior. It does not take a great detective to smoke out a
hangover on the part of someone who can’t wake up when multiple calls to his house are
made, and who comes to the door only after an officer goes and bangs on it. What citizen
gets arrested for “inattentive driving” after having a few drinks and does not get tested for
alcohol use? What is a police culture where an officer responds to a bar fight and does
not follow up because some of the participants are fellow officers? In what state of the
world is no field sobriety or blood alcohol test timely given when a male gropes a female,
undresses and climbs on top of her in her bed, and falls asleep drunk there in her home?
In what state of the world does a police captain—a high ranking officer—get involved in
whether officers at the scene follow regular order?
The issues here of culture and credibility of the system were slighted by the
Superior Court. That is understandable because the wanton negligence standard is high
and it is easy to see why the narrow focus would be on precisely what Chief Szczerba
knew about each incident and when. But what is lost in that are a few things. First, it is a
jury question whether Chief Szczerba was telling the truth when he said he did not read
things. Second, not reading your mail raises as many questions as it answers. Many of
us who grew up in the Seventies and watched reruns on UHF channels had affection for
9
the bumbly Sergeant Schultz, 22 but that defense is one for a jury, not a Rule 56 victory.
Third, when someone is subject to five actions for discipline, particularly three in three
months, and has a prior history of problems, a question is raised about why a system has
no triggers to identify chronic offenders and to ensure their repetitive behaviors are
addressed. Fourth, the instances in which Officer Spencer was disciplined raise serious
questions themselves of a “broom” approach to investigation. In each instance, it seems
like the sort of skeptical and thorough approach to investigation that police usually take
when investigating ordinary citizens was dispensed with when dealing with Officer
Spencer. Red flags were not followed up on, questions were not asked, and Officer
Spencer’s word was taken (or not even solicited). Finally, it appears that no weight was
given to what the behavior of high-ranking subordinates of Chief Szczerba on the critical
night said about Chief Szczerba’s own good faith in overseeing the officer discipline
process and the culture he instilled.
The reality is that a reasonable juror could conclude that the boorish, creepy, and
dangerous behavior of Officer Spencer on the night in question—one where a heavy use
of alcohol influenced the use of a motor vehicle and the power that comes with being a
police officer in a way that endangered the public—was not unexpected of Officer
Spencer. To the contrary, it was exactly the kind of knucklehead, irresponsible, and
stupid behavior that his prior course of conduct might predict would eventually occur. It
22
Hogan’s Heroes (CBS television broadcast Sept. 17, 1965) (“I hear nothing, I see nothing, I
know nothing!”).
10
may be that a jury, upon a fuller explanation, would conclude that Chief Szczerba acted
in a way that could not be considered wantonly negligent.
But, it also may be that the jury would conclude that Chief Szczerba was
conscious that the officer disciplinary process over which he presided was not operating
in good faith; operated because it had to, and worked to sweep serious problems under
the rug, leaving the public at risk of dangerous encounters with officers with serious
personal and behavioral problems that made them unfit to wield deadly force. 23
It is not an easy thing to prove wanton negligence. But, the record here is
troubling enough to at least create a jury question that should not be answered by a judge
on a summary judgment motion. I respect that my colleagues in the majority have
reached a different conclusion in good faith, and I wish I could join them. The facts of
record, however, are too unsettling to allow me to do so.
23
My respected colleagues in the Majority suggest that there is no triable issue of fact regarding
whether Officer Spencer’s repeated problems could be traced to alcohol abuse in real time, rather
than in hindsight. I respectfully part company on that point. It may well be the case that a jury
would find that each incident was properly investigated in the same manner in which inquiring
minds like detectives and officers on the beat deal with citizens in situations where alcohol use is
frequently associated with problematic human behavior. But, to my mind at least, a fact question
exists as to whether the discipline system overseen by Chief Szczerba was one that, as a regular
matter, applied a different investigative standard when it examined officer behavior than it used
when investigating citizen behavior. As the Majority itself cites, there are several undisputed
examples of just that in this record, which include behavior by Officer Spencer himself, by a
police dispatcher, and by a police captain. A jury should decide whether any lack of knowledge
was the result of something being undiscoverable, mere negligence, or a pattern of institutional
indifference amounting to wanton negligence on the part of Chief Szczerba.
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