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Hildebrandt v. Malone and City of Fairbanks (11/12/93), 863 P 2d 240
NOTICE: This opinion is subject to
formal correction before publication in the
Pacific Reporter. Readers are requested to
bring typographical or other formal errors to
the attention of the Clerk of the Appellate
Courts, 303 K Street, Anchorage, Alaska
99501, in order that corrections may be made
prior to permanent publication.
THE SUPREME COURT OF THE STATE OF ALASKA
MICHAEL C. HILDEBRANDT, )
) Supreme Court No. S-4960
v. ) Superior Court No.
) 4FA-90-701 CIVIL
CITY OF FAIRBANKS and )
ROBERT W. MALONE, )
) O P I N I O N
______________________________) [No. 4026, November 12, 1993]
Appeal from the Superior Court of the
State of Alaska, Fourth Judicial District,
Jay Hodges, Judge.
Appearances: Joseph L. Paskvan, Hoppner
& Paskvan, P.C., Fairbanks, for Appellant.
James R. Blair, Bliss Riordan, Fairbanks, for
Appellee, City of Fairbanks.
Before: Moore, Chief Justice,
Rabinowitz, Burke, Matthews, and Compton,
This appeal arises out of a collision between Michael
C. Hildebrandt's vehicle and a City of Fairbanks (City) police
vehicle which was in pursuit of a fleeing arrestee's vehicle.
Three questions are presented by this appeal: whether the
superior court erred by treating the fleeing motorist as a
separate party for purposes of apportionment of fault pursuant to
AS 09.17.080; whether the superior court erred in ruling that
Hildebrandt was comparatively negligent; and whether the superior
court erred in granting summary judgment to the City in
Hildebrandt's 42 U.S.C. 1983 claim.
On April 18, 1990, Perry Williamson, a City police
officer, stopped driver Robert Malone for a traffic stop.
Williamson determined that Malone was driving on a revoked
license, and attempted to place him under arrest. Malone fled in
his car at a high rate of speed, and Williamson pursued him.
Malone proceeded south on Peger Road and passed through the
intersection of Peger Road and Mitchell Expressway on a green
light, but travelling in a dangerous manner. Williamson entered
the intersection on a red light and struck Hildebrandt's vehicle,
which was heading east on Mitchell Expressway. At the time of
the collision, Hildebrandt was traveling within the speed limit,
and the light was green for his direction of travel.
The impact of the collision pushed Hildebrandt's
vehicle off the Expressway. He was trapped in his vehicle in
excess of one hour while efforts were made to extricate him.
Hildebrandt sustained injuries to his face, right arm, abdomen,
and left leg. As a result of his injuries, Hildebrandt's spleen
Prior to trial the superior court made the following
rulings. Summary judgment was granted in the City's favor on
Hildebrandt's 42 U.S.C. 1983 claim, which was based on the
City's alleged failure to properly train its police officers with
respect to vehicle pursuit policy. The superior court ruled that
if the siren and emergency warning lights on Williamson's vehicle
were activated prior to the collision, then Hildebrandt was
comparatively negligent (negligent per se) in failing to yield to
Williamson's vehicle. On its cross-claim against Malone, the
City was granted summary judgment as to the issue of Malone's
negligence, and a default judgment as to liability was entered
against Malone. Also prior to trial, the City admitted that
Williamson was negligent and that the City was responsible for
some portion of Hildebrandt's damages.
After a non-jury trial, the superior court determined
that "Hildebrandt, Williamson and Malone were all negligent and
the negligence of each was a legal cause of the accident and
resulting injuries sustained by Hildebrandt." The superior court
further held that the City was negligent in failing to properly
train Officer Williamson in proper pursuit driving. In regard to
the apportionment of fault required by AS 09.17.080, the superior
court concluded that the City, Williamson, and Malone would not
be treated as a single party for purposes of apportionment, but
that the City and Williamson would be treated as one.1 Malone
was allocated 60%, the City 32%, and Hildebrandt 8% of the total
Based on its findings regarding liability and damages
the superior court entered judgment in favor of Hildebrandt
against the City in the amount of $80,503.10, and in favor of
Hildebrandt against Malone in the amount of $187,936.73.
This appeal followed.
I. DID THE SUPERIOR COURT ERR IN REJECTING HILDEBRANDT'S
REQUEST THAT THE CITY, WILLIAMSON, AND MALONE BE TREATED AS
A SINGLE PARTY FOR PURPOSES OF APPORTIONING FAULT?
Alaska Statute 09.17.080 mandates that the trial court
apportion fault. The statute provides:
(a) In all actions involving fault of
more than one party to the action, including
third party defendants . . . the court . . .
shall make findings, indicating . . .
. . . .
(2) the percentage of the total fault of
all of the parties to each claim that is
allocated to each claimant [and defendant]
. . . .
(b) In determining the percentages of
fault, the trier of fact shall consider both
the nature of the conduct of each party at
fault, and the extent of the causal relation
between the conduct and the damages claimed.
The trier of fact may determine that two or
more persons are to be treated as a single
party if their conduct was a cause of the
damages claimed and the separate act or
omission of each person cannot be
In its Memorandum Decision and Findings of Fact,
Conclusions of Law, the superior court resolved the allocation
issues in the following manner:
Hildebrandt contends under AS
09.17.080(b) the City, Williamson and Malone
should be treated as a single party for
allocation of fault. The City has admitted
based on the theory of respondeat superior
that they are liable for the conduct of
Williamson. . . . The court finds that the
City was negligent in failing to properly
train Officer Williamson in proper pursuit
driving. The City and Williamson should be
treated as one since their conduct can not be
separated. Malone's conduct is separate and
apart from that of the City and Williamson,
and therefore the City, Williamson, and
Malone will not be treated as a single party.
Given the text of AS 09.17.080 and our review of the
evidentiary record, we conclude that the superior court did not
err in its refusal to treat Malone, Williamson, and the City as
one party for purposes of apportionment of fault. It is
abundantly clear that the acts and omissions of Malone, at all
relevant times, are easily distinguishable from the acts and
omissions of Williamson and the City.2
II. DID THE SUPERIOR COURT ERR IN HOLDING HILDEBRANDT
In its memorandum decision the superior court made the
following findings of fact relevant to the question of
Hildebrandt's comparative negligence:
Hildebrandt was negligent in not
yielding to a police vehicle displaying
emergency lights and sounding a siren.
Hildebrandt's view of the Peger/Parks
intersection was unobstructed and a
reasonable man would have seen the police
The superior court further noted:
Prior to trial the court ruled that if
Williamson was displaying emergency
lights/siren, Hildebrandt would be negligent
per se. The court concludes that Williamson
had activated the emergency lights and siren
on the vehicle he was driving. The court
further concludes regardless of the prior per
se ruling Hildebrandt was negligent in not
seeing the police vehicle and in not yielding
Review of the relevant portions of the record persuades
us that the superior court's findings of fact regarding
Hildebrandt's comparative negligence are not clearly erroneous.4
Thus we affirm the superior court's determination that
Hildebrandt was comparatively negligent.
Viewing the evidence in the light most favorable to the
City, we conclude that the record indicates that numerous
witnesses observed the police vehicle's flashing emergency lights
or heard its siren from different vantage points to the
intersection. Additionally, there was testimony to the effect
that a person in Hildebrandt's location immediately prior to the
collision would have had an unobstructed view of Peger Road as he
approached on the Mitchell Expressway. In regard to
Hildebrandt's duty, 13 AAC 02.140(a) speaks to the manner of
operating a vehicle when approaching an operating emergency
Upon the approach of an authorized
emergency vehicle making use of a visual
signal meeting the requirements of 13 AAC
04.090 [red light of specified intensity] and
audible signals meeting the requirements of
13 AAC 04.210(d) [a siren of specified
intensity], or a police vehicle making use of
either a visual or audible signal, the driver
of every vehicle proceeding in any direction
shall yield the right-of-way by slowing,
stopping, changing lanes or pulling to the
right-hand edge of the roadway clear of an
intersection to await passage of the
III. DID THE SUPERIOR COURT ERR IN GRANTING SUMMARY JUDGMENT IN
FAVOR OF THE CITY ON HILDEBRANDT'S 42 U.S.C. 1983 CLAIM?
In his amended complaint, Hildebrandt alleged in Count
[t]he defendant, City of Fairbanks, has
a duty to adequately train, instruct and
supervise its officers as to its policies
pertaining to pursuit driving. The City of
Fairbanks has failed in this duty. . . .
The failure of the City of Fairbanks to
adequately train, instruct and supervise its
officers regarding pursuit driving
constitutes official policy of the City of
Fairbanks as it pertains to pursuit
driving. . . .
The City of Fairbanks is liable to
Michael C. Hildebrandt for its violation of
42 U.S.C.A. 1983.
Prior to trial the City moved for summary judgment on
Count VI of Hildebrandt's 1983 claim. Hildebrandt opposed the
motion and the City responded. Thereafter the superior court
granted the City's motion, explaining:
As to the motion concerning the 42
U.S.C. 1983 claims, the Court does not find
that there are any facts in dispute
concerning those, therefore that motion is
granted. . . .
I don't find any facts from your side
[Hildebrandt's] of the case to show that
under the City of Canton vs. Harris case that
there are those facts based on that standard.
I don't find any facts that you've submitted
in the record to substantiate that and,
therefore, I don't find there is a factual
issue. Therefore, as a matter of law, the
City is entitled to summary judgment. . . .6
The controlling precedent in regard to Hildebrandt's
1983 claim is the United States Supreme Court opinion in City of
Canton v. Harris, 489 U.S. 378 (1989). There the Court was asked
whether "a municipality can ever be liable under 42 U.S.C. 1983
. . . for constitutional violations resulting from its failure to
train municipal employees." Id. at 380. In answering in the
affirmative the Court stated:
[T]he inadequacy of police training may
serve as the basis for 1983 liability only
where the failure to train amounts to
deliberate indifference to the rights of
persons with whom the police come into
Id. at 388. The Court explained:
[The] rule that a city is not liable
under 1983 unless a municipal policy causes
a constitutional deprivation will not be
satisfied by merely alleging that the
existing training program for a class of
employees, such as police officers,
represents a policy for which the city is
responsible. That much may be true. The
issue in a case like this one, however, is
whether that training program is adequate;
and if it is not, the question becomes
whether such inadequate training can
justifiably be said to represent "city
policy." It may seem contrary to common
sense to assert that a municipality will
actually have a policy of not taking
reasonable steps to train its employees. But
it may happen that in light of the duties
assigned to specific officers or employees
the need for more or different training is so
obvious, and the inadequacy so likely to
result in the violation of constitutional
rights, that the policy-makers of the city
can reasonably be said to have been
deliberately indifferent to the need. In
that event, the failure to provide proper
training may fairly be said to represent a
policy for which the city is responsible, and
for which the city may be held liable if it
actually causes injury.
Id. at 389-90 (footnotes omitted).
In support of its motion for summary judgment on
Hildebrandt's 1983 claim, the City relied on the Fairbanks
Police Department's adoption of Standard Operating Procedures for
pursuit driving roughly eighteen months before the collision in
question, as well the deposition testimony of Police Chief
Richard Cummings. Emphasis was placed on the following exchange
during the Chief's deposition:
Q. (By Mr. Paskvan) Just so I
understand this clearly, how is it that
you understand that the pursuit driving
policy was distributed at the City of
Fairbanks Police Department?
A. It was distributed -- copies
were made to each officer. . . .
Q. So, other than the
distribution of this policy, you have no
knowledge as to whether the officers are
-- are or are not following this policy.
A. Except for my knowledge of the
fact that there's been other pursuits,
and other --other pursuits have complied
with policy, and there's been no
violations reported of it, I have to
assume it -- it's complied with. . . .
In opposition to the City's summary judgment motion,
Hildebrandt relied on portions of Police Chief Cummings'
deposition as well as portions of the depositions of four other
Fairbanks Police Department officers. These excerpts suggest a
lack of training by the Fairbanks Police Department of its
officers in pursuit driving, no supervision of the officers'
pursuit driving, and no critiques of individual officers' pursuit
driving methods. In reply to Hildebrandt's opposition, the City
filed affidavits from Police Chief Cummings as well as the
officers whose deposition testimony formed the basis of
Hildebrandt's opposition. Each of the four officers' affidavits
states that irrespective of their responses in depositions, they
have a clear understanding of the department's policy on pursuit
driving and they have made every effort to comply with the
department's policy. The City also filed an affidavit by Captain
Nielsen, which detailed the pursuit driving training that
Fairbanks Police Department officers received.7
In our view, the conflict between the deposition
testimony relied on by Hildebrandt in his opposition to the
summary judgment motion and the City's affidavits in opposition
clearly expose the existence of genuine issues of material fact
as to (1) whether the City's pursuit driving training was
inadequate; (2) whether such inadequate training can justifiably
be said to represent City policy; (3) whether, as stated in City
of Canton, 489 U.S. at 390, "the need for more or different
training is so obvious, and the inadequacy so likely to result in
the violation of constitutional rights, that the policy-makers of
the city can reasonably be said to have been deliberately
indifferent to the need"; and (4) whether the policy actually
caused Hildebrandt's injuries.
We therefore hold that the superior court erred in
granting summary judgment as to Hildebrandt's 1983 claim.8
AFFIRMED in part, REVERSED in part, and REMANDED for
further proceedings in conformity with this opinion.
1. Whether Williamson and the City were properly treated as
one has not been made an issue on appeal.
2. In light of the unambiguous directive of AS 09.17.080,
we reject Hildebrandt's unsupported claim that "[s]ocial policy
requires the treatment of the pursued and the pursuer as a single
person when the failure to train is a proximate cause of the
3. As indicated above, the superior court allocated 8% of
the total fault to Hildebrandt pursuant to AS 09.17.080.
4. Findings of fact will not be set aside unless clearly
erroneous. Parker v. Northern Mixing Co., 756 P.2d 881, 887 n.11
(Alaska 1988). A finding of fact is clearly erroneous if we are
left with the definite and firm conviction on the entire record
that a mistake has been committed. Moran v. Holman, 514 P.2d
817, 818 (Alaska 1973). An appellate court must take the view of
the evidence most favorable to the party who prevailed below. G
& A Contractors, Inc. v. Alaska Greenhouses, Inc., 517 P.2d 1379,
1385 (Alaska 1974).
The superior court's post-trial finding that
Hildebrandt was negligent obviates the need to address the
pre-trial negligence per se ruling.
We also find no merit in Hildebrandt's contention that
the superior court erred in denying his motion for summary
judgment on the issue of his alleged comparative negligence. It
is evident that genuine issues of material fact as to
Hildebrandt's negligence precluded a ruling in his favor.
5. In support of his claim that he was not comparatively
negligent Hildebrandt emphasizes 13 AAC 02.517(f), which requires
an emergency vehicle displaying a flashing blue light to stop
before proceeding through a red signal. We have difficulty
seeing how this argument advances Hildebrandt's cause. We note
that 13 AAC 04.100(e) provides: "Police . . . vehicles may not
use a flashing blue light except simultaneously with a flashing
red light as required in sec. 90 of this chapter." Thus it is
unclear whether a vehicle displaying both flashing red and blue
lights is required to stop before proceeding through a red
signal. Chief of Police Cummings was asked:
Q. So, if someone sees a police
car approaching and they observe the
blue, then, they're going to observe the
. . . .
Q. And do you have an opinion as
to whether the reasonable person in the
public viewing a red light means that
they're supposed to yield to that red
A. Yes, I do, that the public
6. A movant is entitled to summary judgment "if the
pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, show that there
is no genuine issue as to any material fact and that any party is
entitled to a judgment as a matter of law." Alaska R. Civ. P.
On review we determine whether there were genuine
issues of material fact and whether the movant was entitled to
judgment as a matter of law. Lord v. Wilcox, 813 P.2d 656, 658
(Alaska 1991). In carrying out this review we draw all
reasonable inferences in favor of the non-moving party and
against the movant. Lord v. Fogcutter Bar, 813 P.2d 660, 662
(Alaska 1991). Once the movant has met the initial burden of
establishing the absence of a genuine issue of material fact the
non-movant is required to set forth "specific facts showing that
he could produce evidence reasonably tending to dispute or
contradict the movant's evidence and thus demonstrate that a
material issue of fact exists." Bauman v. State, Div. of
Family & Youth Servs., 768 P.2d 1097, 1099 (Alaska 1989) (quoting
State, Dep't of Highways v. Green, 586 P.2d 595, 606 n.32 (Alaska
7. Police Chief Cummings explained that "Captain Nielsen
would have far more actual knowledge of what actually went on day
by day with respect to passing on information, guidance and
training to individual officers who become involved in pursuit
8. We consider it inappropriate at this time to address
Hildebrandt's contentions that a favorable judgment on his 1983
claim removes any issues of apportionment and comparative
negligence from the case since "the standard for a 1983
municipal liability is a higher standard and further, general
common law damages as awardable under federal law control." If
necessary, resolution of this legal question should follow a full