Ky. city says it shouldn't pay for officer's fatal wreck


By Jason Riley
Courier-Journal

LOUISVILLE, Ky. — On Oct. 7, 2006, Louisville Metro Police Officer Kenten Measle was driving to work — speeding, investigators determined later — when he swerved into an emergency lane on Interstate 64 West and struck and killed Donnie Puente, a father who was putting gas into a friend's stranded vehicle.

At the time, Measle was in uniform, driving his take-home cruiser and listening to his police radio.

But he wasn't on duty, lawyers for the Louisville Metro Government contend, and because of that, the city shouldn't be responsible for paying damages to Puente's family.

Puente's family says differently and is suing the city and Officer Measle for unspecified damages. And Measle himself said in a deposition that he thought he was on duty because he was in his patrol car while on the way to work a late night shift at the 5th Division.

"I agree that you're on duty once you get in the police vehicle no matter where you are or what you are doing, because anything can happen at any time, and you're going to have to render help or aid," said Measle, who has denied any negligence in the wreck that killed the 37-year-old Puente.

The city has filed a motion asking Jefferson Circuit Judge Mary Shaw to absolve it of any financial responsibility that could come from the fatal wreck, outside of a $100,000 insurance policy the city has for all officers driving in their take-home cruisers. A ruling is expected soon.

Brian Clare, an attorney for Puente's estate, said in an interview that the city is exposing one of its own officers to damages that could climb over $2 million.

The central argument of the case, which could be precedent setting in Kentucky, revolves around the question of who is financially responsible for Measle's actions while he was in a patrol car involved in a fatal wreck — the officer or the city that hired him.

And a broader issue has been raised: Are Louisville Metro Police officers working for the city when they are in a patrol car on their own time?

Attorneys for Puente's family and estate have called the city's defense a "novel proposition" that isn't supported by any legal precedent in Kentucky, where, they say the law is clear that workers are on duty if they are in a company car driving to or from work and providing a benefit to the business.

And Joseph Souza, an attorney for Puente's teenage daughter, who was a passenger in the vehicle Measle struck, has pointed to national cases that have held police are "on duty 24 hours a day."

For example, in a similar case in New Mexico, in which a motorist sued a sheriff's deputy who caused an accident during a commute home, the state Court of Appeals ruled that the deputy was on duty because she had her badge and gun and was available to respond to calls.

Clare and Souza both have said that the Louisville Metro Police Departments' guidelines and regulations state that officers using police vehicles while off duty are still subject to numerous duties and regulations, such as responding to calls for service or assistance and stopping at a traffic wreck or to render aid.

"The irony here is had Officer Measle been cognizant and vigilant over his duties, he would have come upon a stranded motorist and a pedestrian and he would have been obligated to stop and render assistance," Souza, said during the May hearing before Shaw.

But Metro Government lawyers argue that Measle was not at work or being paid at the time of the wreck, so the city can't be held financially responsible for his actions.

"He's not performing any act that benefits Metro Government," Kent Wicker, an attorney for the city, said in the May 21 court hearing.

The city points to other cases across the country with rulings finding that employees, including police officers, are not on duty if they are running errands or on their way to work.

Measle said the vehicle in front of him hit its breaks and he decided to merge early between the interstate and an exit ramp, hitting Puente and the stranded vehicle in an emergency lane.

Two passengers in the vehicle Measle struck were taken to University Hospital. Puente died at the scene.

Measle was suspended without pay for 30 days and his take-home vehicle was taken away indefinitely. An accident reconstructionist ruled that Measle was driving about 68 mph in a 55 mph zone and that inattention and disregard of traffic control contributed to the wreck.

Jefferson Commonwealth's Attorney Dave Stengel reviewed the case and found that Measle was speeding "slightly" when he either swerved to avoid a vehicle that had braked in front of him or attempted to merge when he crossed into the emergency lane and hit Puente and the parked vehicle.

But Stengel ruled that Measle's actions did not "rise to the level of criminal conduct," according to a Dec. 11, 2006, letter to Police Chief Robert White.

The passengers in the struck vehicle have also filed a lawsuit against Louisville Metro Police Officer Paul Pegram, claiming Pegram failed to help the stranded motorists when he passed them before the wreck. The lawsuit also claims that Pegram failed to notify dispatchers.

Had Pegram stopped, as required by police department regulations, emergency lights might have been in place to warn oncoming traffic, the suit alleges.

In the May court hearing, an attorney for Pegram said his client denies any negligence in the case but added that Pegram agreed with Measle that an officer is on duty when he gets into his patrol car.

And Joseph Souza, an attorney for Puente's teenage daughter, who was a passenger in the vehicle Measle struck, has pointed to national cases that have held police are "on duty 24 hours a day."

For example, in a similar case in New Mexico, in which a motorist sued a sheriff's deputy who caused an accident during a commute home, the state Court of Appeals ruled that the deputy was on duty because she had her badge and gun and was available to respond to calls.

Clare and Souza both have said that the Louisville Metro Police Departments' guidelines and regulations state that officers using police vehicles while off duty are still subject to numerous duties and regulations, such as responding to calls for service or assistance and stopping at a traffic wreck or to render aid.

"The irony here is had Officer Measle been cognizant and vigilant over his duties, he would have come upon a stranded motorist and a pedestrian and he would have been obligated to stop and render assistance," Souza, said during the May hearing before Shaw.

But Metro Government lawyers argue that Measle was not at work or being paid at the time of the wreck, so the city can't be held financially responsible for his actions.

"He's not performing any act that benefits Metro Government," Kent Wicker, an attorney for the city, said in the May 21 court hearing.

The city points to other cases across the country with rulings finding that employees, including police officers, are not on duty if they are running errands or on their way to work.

Measle said the vehicle in front of him hit its breaks and he decided to merge early between the interstate and an exit ramp, hitting Puente and the stranded vehicle in an emergency lane.

Two passengers in the vehicle Measle struck were taken to University Hospital. Puente died at the scene.

Measle was suspended without pay for 30 days and his take-home vehicle was taken away indefinitely. An accident reconstructionist ruled that Measle was driving about 68 mph in a 55 mph zone and that inattention and disregard of traffic control contributed to the wreck.

Jefferson Commonwealth's Attorney Dave Stengel reviewed the case and found that Measle was speeding "slightly" when he either swerved to avoid a vehicle that had braked in front of him or attempted to merge when he crossed into the emergency lane and hit Puente and the parked vehicle.

But Stengel ruled that Measle's actions did not "rise to the level of criminal conduct," according to a Dec. 11, 2006, letter to Police Chief Robert White.

The passengers in the struck vehicle have also filed a lawsuit against Louisville Metro Police Officer Paul Pegram, claiming Pegram failed to help the stranded motorists when he passed them before the wreck. The lawsuit also claims that Pegram failed to notify dispatchers.

Had Pegram stopped, as required by police department regulations, emergency lights might have been in place to warn oncoming traffic, the suit alleges.

In the May court hearing, an attorney for Pegram said his client denies any negligence in the case but added that Pegram agreed with Measle that an officer is on duty when he gets into his patrol car.

Copyright 2009 Courier-Journal

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