PORTLAND, Maine (Legal Newsline) - The Maine Supreme Judicial Court affirmed the award of summary judgment to Cumberland County and a Cumberland County sheriff's deputy who was pursuing a man on a motorcycle when the driver lost control and suffered a fatal accident.

Justice Donald G. Alexander delivered the opinion of the unanimous seven-member court on Jan. 29.

On July 12, 2008, Cumberland County Sheriff's Deputy Andrew Feeney observed a motorcycle traveling at 47 miles per hour in a 30-mph zone. Feeney turned around to follow the motorcycle and activated his blue lights to initiate a traffic stop.

The motorcycle did not stop and Feeney continued to follow at speeds exceeding 90 mph without catching the motorcycle, according to the opinion.

"Once the pursuit began, there is no dispute that the operator of the motorcycle was committing the crimes of failure to stop for an officer; eluding an officer; criminal speeding by exceeding the maximum rate of speed by thirty miles per hour or more; and driving to endanger," the opinion states.

"At times during the pursuit, the motorcycle crossed the centerline and traveled in the oncoming traffic lane."

According to Feeney, after slowing at an intersection he lost sight of the motorcycle as it turned a corner. When Feeney turned the corner, he found the motorcycle off the pavement on its side and Smith lying on the ground approximately 27 feet from the motorcycle.

"Feeney asserts that his cruiser did not make contact with the motorcycle, but he admits that he radioed dispatch using an erroneous code number that indicated that his cruiser was involved in a collision," the opinion says.

"The Estate cites the code number given in this radio transmission as evidence that there is a disputed issue of fact as to whether Feeney's vehicle made contact with the motorcycle. The parties agree, however, that there is no physical evidence that the cruiser made contact with the motorcycle.

"Feeney's supervisor, Sergeant David Hall, reconstructed the crash. Hall determined that the cause of the accident was not speed and that Smith's blood alcohol content was 0.17%, over twice the legal limit of 0.08%. Hall concluded that the cause of the accident was more likely than not Smith's impairment..."

The Sherriff's Office had a written policy regarding high-speed chases and specifically the policy states that a "deputy shall not pursue vehicles for minor traffic violations." The policy also stated that "the department expects a deputy to end his/her involvement in pursuit" whenever his/her own safety or the safety of others outweighs the danger to the community in the event the suspect is not caught.

The Estate sued Cumberland County, former Sheriff Mark Dion, and Andrew Feeney for negligence. Cumberland County and Feeney moved for summary judgment which was granted by the court on the basis of discretionary function immunity. The Estate appealed.

"Following our decision in Norton v. Hall," Alexander wrote, "which applied the discretionary function immunity provisions of the Maine Tort Claims Act in the context of an accident occurring in the course of a deputy's high-speed response to a call, the Legislature amended the Act.

"The amendment removed immunity from a governmental entity for an employee's negligent operation of the motor vehicle resulting in a collision, regardless of whether the employee has immunity.

"The Legislature did not amend [the statute] to limit discretionary function immunity for individual officers exercising discretion in deciding whether to pursue a fleeing vehicle. If, however, the officer operates the vehicle negligently, the government entity, here the County, may be liable for damages.

"The revision of section 8104-B(3) may be ambiguous as to whether it applies in a case of alleged negligent driving when a party has been injured, although there has been no "collision" or contact between a government vehicle and the injured party or the injured party's vehicle.

"We need not resolve that issue today, however, because, assuming that a negligence standard would apply, there is no dispute in this record that the essential causation element of the Estate's negligence claim is missing.

"Because the record before us is devoid of facts that could support a finding of causation, we focus on that element here. Causation in almost all vehicle accident cases will be a matter for the fact-finder and will not be resolvable on summary judgment.

"In his reconstruction of the accident, Hall concluded that speed did not cause Smith to lose control and crash. Hall further concluded that Smith's impairment was the cause of the crash. In responding to the motion for summary judgment, the Estate admitted that Hall found that speed did not cause the accident, but it denied that impairment was the cause of the accident.

"Even if there is a factual dispute concerning whether Smith's impairment caused the crash, such a dispute does not relate to a material issue of fact regarding whether Feeney's actions caused Smith to crash.

"Although we reach our conclusion for reasons different from those indicated by the Superior Court when it relied on discretionary function immunity, entry of summary judgment may be affirmed when we determine, as a matter of law, that there is another valid basis for the judgment."

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