Highway Patrol; Public Officers and Employees; Use of Vehicles

Subject:

Highway Patrol; Public Officers and Employees; Use of Vehicles.

Requested By:

Burley B. Mitchell, Jr., Secretary Department of Crime Control and Public Safety

Questions:

1. A Highway Patrolman is attired in his official Patrol uniform but driving his personally owned vehicle while commuting on public highways. Would the Patrolman be in violation of any statute if he refused to perform any of the duties required as a law enforcement officer by statute or policy?

2. A Highway Patrolman attired in his official Patrol uniform but driving a State owned vehicle while reimbursing the State for commuting mileage. Would the Patrolman be in violation of any statute if he refused to perform any of the duties required as a law enforcement officer by statute or policy?

3. A Highway Patrolman is attired in his official uniform and driving his personally owned vehicle while commuting. He exercises lawful authority by performing one of the duties defined by law and policy and while doing so he is involved in a traffic collision. Would the State of North Carolina be liable for injuries sustained by the Patrolman and for damages to his personally owned vehicle?

4. A Highway Patrolman arrives at the scene of a traffic collision or other emergency situation while attired in his official uniform. He is not equipped with his emergency gear normally furnished all Highway Patrolmen because he is operating his personal vehicle at the time and commuting to and from work. Would the State be liable if the Patrolman could not respond to protect life and property because he is not equipped with emergency gear normally furnished all Patrolmen?

5. Can any State Government authority legally require a State Highway Patrolman to operate a State owned vehicle in the course of performing the duties of the Highway Patrol, as defined by law and policy, and at the same time require the patrolman to pay a sum of money for each mile traveled?

Conclusions:

1. Yes.

2. Yes.

3. Yes.

4. It is possible in certain situations.

5. No.

The Highway Patrol is not a State police but has limited state-wide jurisdiction. See N.C.G.S. 20

188. Patrol members are, however law enforcement officers and have the same duties and responsibilities as a police officer. N.C.G.S. 20-183(a) reads, in part, as follows:

"It shall be the duty of the law enforcement officers of the State and of each county, city, or municipality to see that the provisions of this Article are enforced within their respective jurisdictions, and such officers hall have the power to arrest on sight or upon warrant any person found violating the provisions of this Article."

This statute would place a duty upon a member of the Highway Patrol who is attired in his official Patrol uniform but driving his personally owned vehicle while commuting on the public highway to perform his duties and enforce the Motor Vehicle Code.

In addition, the present policy of the Highway Patrol is for a trooper to begin work at his residence. When an officer checks in service (10-8), he is considered on duty. See NCSHP Directive 81 (P11.D.). Even if the policy changed, police officers are generally considered on call 24 hours a day and subject to duty at all times. See 57 Am.Jur.2d Municipal, School, and State Tort Liability § 254 p. 221. "A police officer when off duty is still an officer and a policeman, having authority, if not indeed the duty to exercise functions pertaining to his office in appropriate circumstances without regard to departmental rules relating to hours." 18 McQuillin, Municipal Corporations 3d. § 553.806, p. 348; 41 N.C.A.G. 911 (1972).

A Highway Patrolman when on duty shall be dressed in his uniform. N.C.G.S. 20-190. It should follow, therefore, that a Highway Patrolman when attired in his official Patrol uniform, although operating his personal car, would be considered on duty. The public has come to expect that an officer in uniform will respond and protect the public when necessary without regard for assigned hours. This public expectation is the basis of the Patrol’s policy. When on duty, and off duty,

N.C.G.S. 20-183 imposes upon him the responsibility to enforce the Motor Vehicle Code.

The policy of the Highway Patrol is to take enforcement action for every definite, clear-cut and substantial violation of the law. See, 14A N.C.A.C. 9H.0101. A member of the Patrol uniform who fails to take enforcement action for a definite, clear-cut and substantial violation of the law would be in violation of the policy of the Highway Patrol and subject to dismissal. See 14 A

N.C.A.C. 9C.0003. In summary, the failure of a Highway Patrolman attired in his official uniform but driving his personally owned vehicle while commuting on public highways, to perform enforcement duties would be a violation of N.C.G.S. 20-183 and Highway Patrol policy.

Question No. 2 requires the same answer as question No. 1. Reimbursement of the State for use of a Patrol vehicle would not change either N.C.G.S. 20-183 or the Patrol policy. The Highway Patrolman attired in his official Patrol uniform but driving a State owned vehicle while reimbursing the State for commuting mileage, would be in violation of N.C.G.S. 20-183 and Patrol policy if he failed to take enforcement action for definite, clear-cut and substantial violations of the Motor Vehicle Code.

A Highway Patrolman, who is attired in his complete uniform and driving his personally owned vehicle while commuting, who undertakes to perform one of his duties and is thereby injured in a traffic collision, or otherwise, would be entitled to compensation pursuant to Article 12B of Chapter 143 of the General Statutes of North Carolina. N.C.G.S 143-166.14 provides, in part:

"The salary of any of the above listed persons shall be paid as long as his employment in that position continues, notwithstanding his total or partial incapacity to perform any duties to which he may be lawfully assigned, if that incapacity is the result of an injury by accident or an occupational disease arising out of and in the course of the performance by him of his official duties, except if that incapacity continues for more than two years from its inception, the person shall, during the further continuance of that incapacity, be subject to the provisions of Chapter 97 of the General Statutes pertaining to workers’ compensation."

The general rule in North Carolina has always been that an injury suffered by an employee while going to or returning from the place where he is employed does not "arise out of and in the course of his employment." Humphrey v. Laundry, 251 N.C. 47, 49 (1959); Hardy v. Small, 246

N.C. 581, (1957). This is true even though the employee is a police officer who is subject to call at any hour of the day or night and has a duty to investigate and make an arrest if necessary in the event of any law violation in his presence as he commutes to or from his regular eight-hour duty. Davis v. Mecklenburg County, 214 N.C. 469, 470 (1938).

An employee is, however, entitled to compensation while commuting to or from work when an employer is under a contractual duty to transport the employee or furnishes the means of transportation as an incident of the contract of employment, Whittington v. Schnierson & Sons, 255 N.C. 724, (1961), or when the employee engages in doing an act or performing a duty, which he is definitely engages in doing an act or performing a duty, which he is definitely charged with doing as part of his contract of service or under express or implied direction of his employer.

Humphrey v. Laundry, supra.

The Patrol member, therefore, would be entitled to compensation in the situation listed in question 3 on the basis of performing some act required by his employment. In addition, as indicated in response to question 1, a member of the Patrol checks in service and on duty when he leaves his residence. He, therefore, would be considered on duty or employed for any injury occurring between his residence and his office. Such injury is considered as "arising out of and in the course of the performance by him of his official duties." N.C.G.S. 143-166.14.

The second issue is whether the State would be liable for damages to the personally owned vehicle of the trooper. When a member of the Patrol is on duty and his property is wrongfully damaged, the person damaging it would be primarily liable. It is possible that the State would be liable for such damage. A Patrol member who properly performs a duty expected of him and suffers a loss could possibly recover from the State on the theory of a taking by the State.

The fourth question presents one unique to jurisprudence in North Carolina. The general rule and the one followed in most other states, is that neither that state nor a state law enforcement officer will be held liable for failure to enforce the law or protect citizens. See Police-Personal Liability, 41 A.L.R. 3d 700. This rule, however, changes when the State or a state law enforcement officer undertakes to provide protection to life and property and negligently fails to perform his duty. The basis for not holding a law enforcement officer liable is that the officer has a specific duty to protect the public in general but this duty does not extend to particular individuals. Since there is no duty, there is no liability or negligence. If however, an officer undertakes to protect a certain individual, and does so negligently, then he can be held liable for injuries or property damage. See Zibbon v. Town of Cheetowaga, 282 N.Y.S.2d 152 (App. Div., (1976); Frietas v. City and County of Honolulu, 574 P. 2d 529 (Hawaii, 1970); Warian v. District of Columbia, F.2d C.A. 79-6 (D.C. App. 1981).

If a State Highway Patrolman is not provided the emergency gear normally furnished to all members of the Highway Patrol and this lack of emergency gear is a proximate cause of injury or property damage, then the officer could be held liable. All of these factors must be present before liability could be established.

The final question is whether any State government authority can require a State Highway Patrolman to operate a State-owned vehicle in the course of performing his duties and require him to pay a sum for each mile traveled. We think not.

N.C.G.S. 20-190 provides, in part, as follows:

"The Department of Crime Control and Public Safety shall likewise furnish each member of the Patrol with a suitable motor vehicle, and necessary arms, and provide for all reasonable expense incurred by said Patrol while on duty, provided, that not less than eighty-three percent (83%) of the number of motor vehicles operated on the highways of the State by members of the State Highway Patrol shall be painted a uniform color of black and silver."

The 1981 General Assembly in two separate budget acts provided for the payment of fees for use of certain State-owned vehicles. See, c. 859 and c. 1127, 1981 Session Laws.

N.C.G.S. 143-341(8)i.3., concerning the authority of the Department of Administration, required the transfer of ownership, custody or control of all passenger motor vehicles held by State agencies to the Department of Administration except those motor vehicles owned or controlled by the Highway patrol or the State Bureau of Investigation which are used primarily for law enforcement purposes. c. 859, sec. 48, 1981 Session Laws. Subsequent to this section the General Assembly stated:

"All law enforcement, firefighting, public safety and other emergency vehicles of the Department of Crime Control and Public Safety shall be maintained and controlled by the State Highway Patrol Division of that Department." c. 1127, sec. 49, 1981 Session Laws.

The General Assembly further provided that by January 1, 1982 an individual who drives a permanently assigned State-owned passenger motor vehicle between his official work station and his home shall reimburse the State for the trips at the current motor pool mileage rate established by the Department of Administration. This Section further provided "no reimbursement shall be required for the use of vehicles by law enforcement officers whose primary duties are not administrative." c. 859, sec. 51, 1981 Session Laws. Nowhere in the Section dealing with reimbursement for mileage between work station and home did the General Assembly mention the State Highway Patrol. The legislative history does not show a clear, intent to include members of the Highway Patrol.

Statutes related to the same subject matter should be construed in connection with each other as together constituting one law, giving effect to all parts of the statute when possible; and the history of the legislation may be considered in an effort to ascertain the uniform and consistent purpose of the legislature. Allen v. Town of Reidsville, 178 N.C. 513 (1919). We must also presume that the legislature was aware of N.C.G.S. 20-190 when it enacted the subsequent amendments to N.C.G.S. 143-341(8)i.7a. See Bridges v. Taylor, 102 N.C. 86 (1889). As a general rule of construction, the law does not favor a repeal of an older statute by a later one by mere implication. State ex. rel. County Trustee v. Woodside, 30 N.C. 104 (1847); State v. Hockaday, 265 N.C. 688 (1965); Person v. Garrett, 280 N.C. 163 (1971).

It must also be presumed that the legislature acted with care and deliberation and full knowledge of prior and existing law. State v. Benton, 270 N.C. 641 (1967). We also must assume that the legislature was aware of the policy of the Highway Patrol concerning an officer being on duty and in service when he leaves his home. "When two statutes deal with the same subject matter takes precedence over the statute which is general in application unless the General Assembly intended to make the general statute controlling." In Re Greene, 297 N.C. 305, 310 (1979).

Based upon the foregoing, we cannot say that the General Assembly intended to amend N.C.G.S. 20-190 when it enacted the budget bill. The specific General Statute controlling assignment of Patrol vehicles to members of the Patrol should control over the general act concerning the operation of State-owned passenger motor vehicles. Absent a specific act by the General Assembly, therefore, there is no State agency which currently has authority to require a Highway Patrolman to pay a sum of money for each mile traveled while operating his State Highway Patrol car between his residence and the State office to which he is assigned.

Rufus L. Edmisten Attorney General

Isaac T. Avery, III Special Deputy Attorney General