Estate of Aten v. City of Tucson

ATEN, By OF Debra The ESTATE representative,

Through personal its KITCHENS, Jerry and on Behalf of for ATEN, Taine Feist and Brandon Dale Kitchens, Plaintiff/Appellant, Jerry TUCSON, municipal OF The CITY Defendant/Appellee. corporation, No. 2 90-0233. CA-CV Arizona, Appeals Court B. Department Division 28, 1991. March Denied 1991. Review Oct.

Mesch, Rothschild, by Tom Clark & P.C. Tucson, Gan, R. H. Clark and Scott plaintiff/appellant.

Kimble, Nelson, by Da- & P.C. Gothreau Audilett, Tucson, defendant/ap- ryl A. pellee.

OPINION FERNANDEZ, Judge. Chief of sum- appeal granting from this it,

mary judgment against appellant Estate Two, Appeals, pursu- Court of Division 1990. Arizona July to Arizona Court Order ant filed argues ques- driving üp of Debra Aten that it raised a on the and on the sidewalk back tion of material fact on the issue of wheth- road around the comer. While he was Glenn, appellee City traveling of police er Tucson’s westbound on he ran a red fleeing light Country of vehicle was conducted Club and collided with negligent pursued manner. The vehicle Aten’s vehicle. The evidence was that a police helicopter crashed into Aten’s vehicle and killed her. at the arrived chase scene agree appellant shortly police began We that raised a fact issue after the two cars precluded entry summary judgment pursuit. they that their Rankin testified that police pursuit police and reverse. listened to the over a scanner, say drop and he heard someone early morning January In the hours of helicopter back and let the handle the private security three officers security chase. The officers identified Ba- driving were on Ft. Lowell near First Ave- ble at the scene of the accident as the man up nue. A car drove beside them and the they begun following had earlier. horn, gunned engine, driver the honked his though wrongful and waved at them as he wanted to Aten’s estate filed a death ac- declined, they against race. When the driver accel- city tion the on behalf of her son erated, heading weaving in parents, alleging police east and and and her the Rankin, Phillip comply department out of traffic. the front proce- failed to with car, passenger in security conducting pursuit. the officers’ esti- dures in The the speed per mated his at 45 to 50 miles summary judgment, arguing hour. moved for light Bable, The driver police pursue ran a red at Ft. Lowell and that the had a Mountain, curb, up then the they drove over exercised reasonable care street, sideswiped meeting actions, went back on the anoth- duty, and that their car, law, er and continued eastbound. as a matter of were not the cause Aten’s death. The trial court began following Rankin’s car then granted appeal the motion and this fol- man, later identified as Bable. Ran- Mark lowed. police kin called phone on a mobile and reported the hit-and-run accident. Rankin opposition, appellant In its pointed to the deposition testified at his that at times police department procedures manual sec- driving per Bable was 60 to 65 miles hour. pursuits specifically tion on hot and to the security The officers followed Bable for following: several miles while he turned on various Support 5. Air Unit Assistance streets, speeded up, slowed down and support When the air unit is used to stopped got even once and out of his car pursuit, dispatcher assist in a hot kept for a few moments. Rankin shall be advised the observer in the advised of Bable’s movements. airborne unit when visual contact has they

Rankin stated that when reached suspect been made with the vehicle. Dodge po- intersection of Glenn and dispatcher shall then advise the security sig- lice car arrived. officers ground support units air that the unit pointed nalled to the officer and out Ba- contact, has visual and the air ble’s car. Rankin testified that Bable unit will then coordinate the remainder pulled stopped over and when he saw the pursuit. Pursuing ground of the units car, pulled up and when it behind immediately will slow down and re- U-turn, him after the officer made a Bable spond sup- to the directions of the air “punched again” it and took off eastbound port unit. high speed. at a rate Appellant presented also the affidavit of an arrived, expert Another opinion pursu- car and the two whose was that the ing negligent having cars chased Bable for several miles on sev- officers were in not eral different they streets. Bable continued blocked Bable’s car when first made high speeds. pursuing expert drive at contact with him. One also stated in his officers stated affidavit that Bable officers were right through light by departmental policy made a turn a red violated in continu- in Dent held that the sole helicop- The court also ing pursuit after arrival accident, as a mat- proximate cause helicopter negligent in and that the ter law, suspect’s negligence was the ter observing illuminating Bable’s car while peace are not insur- and ruled that reporting his movements. fleeing suspects. conduct of ers out, appellant points negligence ac- As ruling, court cited a support of that the subjects not for generally proper are tions analysis An of those number of cases. motions, in summary judgment an area however, reveals, the is that issue cases practice matter of which “as a historical might quite clear as it seem. not so cut requirement, jury the is and constitutional the The cases Dent court two California weighing given most deference in evi- the instance, cited, that officers for held dence, inferences, drawing reaching and injuries by pursu- for caused are not liable questions negligence, conclusions on of ing on the officers’ failure vehicles based damages.” causation, School v. Orme v. Pagels City to their sirens. activate 1000, Reeves, 301, 1009 802 P.2d Francisco, Cal.App.2d 135 County San of (1990). Summary judgment in such cases 152, (1955); Draper City 286 P.2d 877 v. of plaintiff “presents proper only is if the no 315, Cal.App.2d 91 Angeles, Los jury evidence from which a reasonable (1949). spoke 46 In both the courts cases inference, find, directly or by could duty in the lack a owed to the terms of of the probabilities” plaintiff. favor Id. Hav- injured are persons. apparent- Those cases that, ing we must first address the noted ly longer City no the law in California. of that, law, city’s matter of argument as a Court, Superior v. 131 Cal. Sacramento pursuing the officers’ was not the conduct 395, (1982). App.3d 443 In Cal.Rptr. 182 proximate cause of Aten’s death. case, summary a that the court reversed finding judgment, that a fact issue had city majority contends the of that as been raised both to the offi- hold, law, as a jurisdictions matter of that a negligence failing cers’ in to sound their of pursuit law enforcement officer’s a flee proximate siren as to cause. ing suspect proximate is not the of cause injuries suspect the that inflicts on innocent Horne, In 198 10 City Miami v. So.2d of bystanders pursuit. as a result of the In (Fla.1967), up the Florida Court contention, city of that the cites a entry summary judgment held of in a the case, Dallas, City resulting Texas Dent v. 729 wrongful suit death from a for of (Tex.App.1986), denied, S.W.2d 114 cert. held pursuit. court that an offi 977, 108 1272, he merely cer is not liable because chooses 485 U.S. S.Ct. 99 L.Ed.2d 483 pursue suspect, noting (1988). to that the officer jury The court there reversed a duty apprehend In had to the offender. plaintiffs, verdict for the in because of Park, City Brown v. Pinellas 557 So.2d general duty an is a its view that officer’s of however, (Fla.App.1990), 161 the court dis public large owed to at rather tinguished ground on insti Home person specific than a one to the owed alleged tution the chase was to have of decisions, injured, citing among other Wil Home, in in negligent been whereas Tucson, Ariz.App. v. City son Brown, alleged to the chase was have been (1968). longer P.2d 504 Arizona no follows negligently The court not conducted. also State, Ryan v. view. typically ques proximate ed that cause is P.2d basis Another for following: jury, quoting the tion for the holding in court’s Dent was the fact that “ intervening ‘If an is cause foreseeable alleged plaintiffs had that the officer was original may still held liable. The actor be negligent failing suspect to in arrest intervening question of whether an cause began. court the chase refused before ” fact.’ is for the trier of Id. foreseeable impose liability upon officer’s exer 177, quoting Avis Rent-A-Car Gibson v. discretionary In the duty. of a case at cise (Fla.1980). Inc., System, 386 So.2d issue, however, appellant allege does not in failing were of the cases cited in Dent are Three inapplicable they suit because involved a arrest Bable. pursued suspect’s Arbor, either estate or Ann 417 Mich. 339 N.W.2d (1983) passenger suspect’s (summary judgment that of a in the vehicle. 413 re- versed; allegations negligence in man- Bailey v. L.W. Edison Charitable Foun dation, ner conducted and Ind.App. 284 N.E.2d 141 cause (1972); jury); Kearny, County Blanchard v. Town 145 were Selkowitz v. Nassau, 45 N.Y.2d Super. aff'd, N.J. 367 A.2d 464 408 N.Y.S.2d (1978) (jury plain- Super. 153 N.J. 379 A.2d 288 N.E.2d 1140 verdict for affirmed; expert testimony proper tiffs City Albuquerque, v. 94 N.M. Silva case, police practices high speed (App.1980). another chase admis- sible); alleged negligence Santiago, Pa.Super. the officers’ fail Kuzmics v. (1978) (nonsuit reversed; ing properly suspect arrest before 389 A.2d 587 allegations negligence conducting pur- began. Camp, the chase Downs 221, (1969). Ill.App.2d proximate jury ques- suit and 252 N.E.2d 46 We cause were note, however, tions); Bitton, 321, that the case submitted Mason v. 85 Wash.2d (1975) jury, including proxi (summary judgment to the the issue of 534 P.2d 1360 reversed; city for mate cause. and state fact issues pursuit). existed on conduct of significant The most why reason Dent is however, persuasive, approach comports not is because its That also with holding proximate proximate apparently as to cause is Arizona law that the issue of longer good City ordinarily jury. no law. Travis v. cause is left to the Gosew (Tex. 31, 1990) Co., Mesquite, No. C-8576 Dec. isch v. American Honda Motor (1990 224258), (1987); WL the Texas Ariz. 737 P.2d 376 Markowitz Board, summary judgment reversed a en- v. Arizona Parks 146 Ariz. Court Lane, police tered in favor of two officers and P.2d 364 Ariz. Tennen v. employer negligence in (App.1985). only their a action 716 P.2d 1031 “[I]t brought by persons the survivors of an innocent when reasonable could not differ person by person being pursued by may killed a that the court direct a on the verdict police. Markowitz, the The court ruled that a fact issue.” 146 Ariz. at cause, proximate issue existed as to con- P.2d at 370. We do not find that to be the cluding special statutory that “there is no case here. “The defendant’s act or omis provision excepting police ‘large’ officers from the sion need not be a or ‘abundant’ legal proximate injury; recited standards for cause of the even if defendant’s ‘only plain cause.” Id. conduct contributes a little’ to damages, liability tiff’s exists the dam Considering in the weaknesses Dent and ages would not have occurred but for that upon, the authorities it relied we find more Sixpence conduct.” Robertson v. Inns of persuasive holding the in a Connecticut America, 539, 546, 789 P.2d case that intervention of or “[t]he (1990), Borak, quoting Ontiveros v. even reckless behavior the driver of the (1983). 667 P.2d not, police pursue car whom the does under city We conclude that the is not entitled to view, emergent majority require summary judgment as a matter of law on proximate conclusion that there is a lack of proximate the issue of cause. police negligence cause between and an injuries.” city’s innocent victim’s Tetro v. Town We also find no merit to the arguments in Stratford, 189 Conn. 458 A.2d other of the sum (1983), City mary judgment. police cited in Travis v. Its Mes- contention supra. pursue in quite, duty The court Tetro affirmed officers have a to those who ruling judgment plaintiffs, present danger public that the is- to the is irrelevant. properly Appellant cause had sue been does not contend that the Bable; jury. allegation pursued submitted to the The there should not have it contends department pur instead that the was that officer violated conducted the procedures governing high speed negligently. chases. suit city’s contentions cases hold that one of the similarly. City Other Fiser v. had no high imposed on all duty same poses the in front of Bable’s duty pull to her vehicle conclu users, The court’s way misstated the is dictum. appellant’s expert and that meaning of the statute was opposition in affidavit filed sion as to facts his analysis are not on whether judgment motion of its summary an essential Our obli- to the decedents. appeal. in this proper issues the officer owed a mate- only to determine whether gation is with is also consistent That conclusion preclude sum- issue exists so as to rial fact previous in a case. reached the conclusion appropriate for us mary judgment; it is not Rhodes, Ariz. In Ruth v. presented engage weighing the facts interpreted supreme court determining credibility of witness- or in 28-624. stat- predecessor statute to § Arizona Development Co. v. es. Elson as follows: in that case read ute Association, 99 Ariz. Savings Loan& speed limitations set forth this apply to vehicles when article shall not argues A.R.S. Finally, regard un- operated with due impose liability in this 28-624 does not in the der the direction of emergency ve permits That section case. persons apprehension limits, speed hicles to exceed suspected any viola- charged with or turning di regulations governing law____ exemption shall not This tion movement, park parking in no rection of to any of such protect however the driver areas, signs red go through stop and to and consequences a reck- from the of vehicle lights responding emergency to calls when disregard safety of others. less D pursuing a offender. law Subsection Holding 66-105. Ariz.Code Ann.1939 § of that section states: refusing correct in that the trial court was provisions of this section do not re- jury that the statute to instruct relieve the driver of an authorized emer- plaintiff higher to show a de- quired the gency vehicle from the to drive with recover gree negligence order to persons regard safety due for the of all officer, the court ex- against provisions protect the driver nor do these plained: consequences his reckless from the safety for the of others. of section 66-105 is not to The intent ... usual patrolmen hold to less than the 28-624(D). contends that A.R.S. § Instead, by degree of care. or standard does not render drivers of emer- statute holds him to very its words the section gency vehicles the insurers of the making exception regard safety’ ‘due are at risk because of the con- others who only speed patrolman’s at which a fleeing argument is suspects. duct of That job requires him to travel. sometimes more, however, nothing than a restatement upon of this section The last sentence arguments its that there is no carry heavily rely defendants so which matter of cause as a law. only speed ex- point refers to the their asserts that 28-624 re- The dissent ception, byis its terms so limit- and own liability municipalities stricts the and/or all rules of con- ed. It would breach situa- law enforcement officers to those apply the ‘reckless dis- struction grossly has tions in which the officer been any speed regard’ standard to but this initially negligent pursuit. in the We note exception. argument city has not made that that the reach appeal. on We believe it is unwise to 185 P.2d at 309-10. 66 Ariz. such an issue unless it has a decision on a appellant has raised We conclude properly been raised and briefed. precludes entry material fact issue has al We also believe that the issue summary judgment. We dis ready been decided Arizona. Reversed and remanded. agree with the dissent that the statement State, Ariz.App. in Herderick v. HOWARD, J., im concurs. statute

530 P.2d ROLL, Judge, dissenting. Club, Country Glenn and where he struck a by vehicle driven innocent party third De- respectfully I dissent. Aten, bra who died as a result of the colli- Today, majority of this court holds that sion. public municipality may inju- liable for be being hospital, While treated at a Bable ries caused grossly third indicated that he did not realize that the party seeking apprehension by to elude chasing were him and that the first police, proof even the absence of thing seeing that he remembered law enforcement officers were emergency lights being transported grossly negligent. also facts, hospital. On these the trial court FACTS granted summary judgment in favor of the City of Tucson. Shortly midnight January after 1987, Mark Bable came to the attention of operating three individuals who were a mo- STANDARD OF REVIEW vicinity tor vehicle in the of Ft. Lowell and reviewing summary judgment, this individuals, First Avenue in Tucson. These court light views the evidence in the most Phillip Troy Sherman, Rankin and Bob motion, to the party opposing favorable

noticed up” Bable when Bable “revved and all favorable fairly arising inferences engine of his vehicle and swerved toward from the evidence given must be to the Thereafter, the Rankin vehicle. pro- Bable opposing party. Partnership traffic, ceeded to weave in and out of re- Hill-Shafer Trust, Family Chilson quiring other vehicles to take evasive ac- 799 P.2d Wisener v. tion, having near collisions with three State, vicinity to four other vehicles. In the (1979). Summary judgment appropriate Lowell, Mountain and Ft. the Rankins and where “the claim defense so little light, ha[s] Sherman observed Bable run a red value, probative given quantum curb, of evi hop a sign, strike a re-enter the road- required, dence people reasonable way, vehicle, and collide with another then agree could not with the conclusion ad flee the scene of the collision. At that by proponent vanced of the claim or point, they notified the department Reeves, defense.” Orme School v. 166 of Bable’s actions. Police officers in the 301, 309, 1000, (1990). Ariz. 802 P.2d 1008 vicinity report probable received a of a moving The party must judg be entitled to drunk engaged driver who had in speeding, ment aas matter of law. Ins. v. running lights, red Co. and a hit-and-run acci- Gulf Grisham, 123, 124, 126 Ariz. 613 P.2d dent. As the Rankins and Sherman fol- (1980); 284 Bable, Auto-Owners Ins. v. Co. they lowed observed Bable continue Moore, 184, 185, 156 Ariz. 750 P.2d speed, road,” weave “all over the (App.1988). Questions 1388 of law are re force other vehicles off of the road. He viewed de novo. Tovrea Land & Cattle through raced a residential area. Linsenmeyer, 107, 114, Co. v. 100 Ariz. 412 Eventually, Tucson Police Officer Gehm P.2d 51 Aldabbagh v. Arizona encountered Bable as Bable was eastbound Dept. Liquor Control, Licenses & 162 Dodge. on Glenn near Bable accelerated. 415, 418, Ariz. 783 P.2d (App. Soon, police helicopter joined a pursuit. 1989). light Bable ran another red vicinity at the of Glenn and Swan travelling Summary while south- judgment may be affirmed on Road, bound toward Grant appeal grounds turned west- on explicitly not considered bound on Grant Road where he accelerated below. Gibson Boyle, v. per hour, excess of over 65 miles then (App.1983). 679 P.2d We are Dodge

turned obliged north on from the ruling westbound to affirm the trial court’s left turn lane Ultimately, of Grant Road. the result was legally any correct for rea- Perez, Bable went west on 459, 464, Glenn and accelerated son. State v. through light a red at the intersection of P.2d

TORT LIABILITY OF CITY FOR AC- The rationale for these decisions is that proximate

TIONS OF LAW ENFORCE- the sole cause of the accident MENT OFFICERS suspect’s negligent is the conduct and electing not the officer’s conduct in argues The Estate of Debra Aten stated, pursue Simply the lawbreaker. negligence is City of Tucson liable for courts will not make officers the the law enforcement officers behalf of suspects insurers for the conduct of the pursued who In order for tort lia- Bable. they pursue. vest, bility duty, there must be duty, duty con- breach of that breach majority upon focuses the citations stituting plain- cause of the given above-quoted propo- injuries, damages. tiff’s Ontiveros v. believe, however, I sition. A.R.S. 28-624 § Borak, Ariz. 667 P.2d dispositive of this matter. (1983); Wisener, 123 Ariz. at Arizona, duty prescribed owed is P.2d at 512. 28-624, authorizing A.R.S. emergency § us, plaintiff In the matter argues before disregard regulations. vehicles to traffic (1) negligence: three theories of Several Paragraph D of the statute reads: minutes before the time that the accident provisions of this section do not occurred, ultimately Officer Gehm should relieve the driver of an authorized emer- have blocked Bable’s vehicle at Alvernon gency vehicle from the duty to drive with eastbound; (2) and Glenn when Bable was regard safety persons, due for the of all police helicopter should not have illu- provisions nor protect do these the driver vehicle, minated Bable’s because the illumi- consequences from the of his reckless “may nation have contributed to his contin- for the of others. flight ...;” (3) ued Ground units A number of interpreted courts have should have ceased or slowed down nearly statutory language identical as of Bable once the air support unit had 28-624(D) restricting Bable in contained in as view. lia- bility municipalities and/or law enforce- previous- While law enforcement officers ment officers to those situations in which a ly persons, owed no to third Wilson grossly negligent officer is in the Tucson, City Ariz.App. pursuit of a law violator. Arizona and the majority of longer states no Ryan follow that view. v. case, Only prior one Arizona Herderick State, 308, (1982). 134 Ariz. 656 P.2d 597 State, 111, Ariz.App. v. 23 530 P.2d 1144 (1975), interpreted has the standard of care duty have a to intervene. imposed by 28-624(D). A.R.S. State, 171, 173, § Lippincott v. 781 1012, (App.1989); P.2d 1014 Roll v. Tim Herderick, In in upholding summary berman, N.J.Super. 530, 281, 94 229 A.2d judgment in favor of the state a lawsuit (1967); State, 643, 283 v. DeWald P.2d brought by the passenger survivors of a (Wyo.1986). duty Officers also have a accident, who died in a one-vehicle Division operate emergency vehicles with due One of this court held that the officer’s regard for others. failure to emergency equipment activate Dallas, City In Dent v. 729 S.W.2d while the vehicle in which Herder- of (Tex.App.1986), 116-17 the Texas ick rode not the was cause of the Appeals Court of stated: dicta, In accident. Division One observed duty imposed upon operators question liability of a officer’s 28-624(D) emergency by vehicles A.R.S. party, injured to an innocent third who is § nothing duty “is more than im- involving or killed in an accident the same a sus- officer, posed every pect being pursued by highways, other user of the has is, duty never been addressed Texas. In the to use due care.” 23 jurisdictions question Ariz.App. where this at This has 530 P.2d at 1148. arisen, majority interpretation of courts have found of the statute Division liability part on the no of the officers. One is binding instructive but not on this from traf- exempts emergency vehicles law court, Savings & Scappaticci v. Southwest laws, to drive 456, 461, not “from Association, 662 fic but Loan safety per- of all regard for the due 131, 136 Higgins v. Fireman’s with P.2d protect the sons, provisions nor shall such Co., Ariz. Ins. Fund consequences of his reck- from the Ariz. 770 driver (App.1988),aff'd, 160 safety of others.” disregard for the (1989). less P.2d 324 1104(e). & Traf. N.Y. Veh. § upon majority also relies Ruth Mitchell, head- (1947), party a third collided Rhodes, In Ariz. being pursued by an a vehicle interpretation of on with supreme court’s and the officer, undisputed that the officer. It was Ann.1939 66-105. former Ariz.Code § regula- departmental however, in contravention of statute, specifically en- was That emergen- tions, using his siren and was not speed applicable.” limit not titled “When nevertheless conclud- 28-624, cy lights. The court governing the the statute A.R.S. § was not liable because us, ed that the state expressly authorizes matter before constitute reckless conduct did not only to travel in officer’s emergency vehicles not safety of others: limits, disregard for the pro- posted speed but excess of signs stop signals and to past stop lights ceed his failure [use officer’s] [The di- regulations governing time, “[disregard even con- siren] specified turning in of movement or rection be said to have negligent, cannot sidered 28-624(B). Accord- A.R.S. directions.” level of reckless § risen to the persuasive. ingly, others, Ruth is not which is the for the responsible him required to find standard Court, in a North Carolina’s for the accident. interpreting a stat- impression first case of 1034-35, at 99. Arizona’s, 486 N.Y.S.2d concluded 108 A.D.2d at nearly identical to ute State, 55 A.D.2d only also Selkowitz v. enforcement officer See that a law (1976). 389 N.Y.S.2d gross negligence: liable for faces for the first time Illinois, This Court virtually identical to a statute proper standard determination interpreted as A.R.S. 28-624 has been complained do injuries finding care where liability wil- precluding absent col- from the officer’s vehicle not result negligence on the ful and wanton vehicle, person, or liding Cortez, another with police officer. In Breck v. apprehension object in the chase 490 N.E.2d Ill.App.3d 95 Ill.Dec. these circum- violator. Under upheld law sum- appellate an court stances, applicable conclude that the we in favor of the on the mary judgment conduct is whether the officer’s negligence, standard and wanton question of wilful gross negligence. constitutes stating: question of Schmidt, are aware that 369 We 322 N.C.

Bullins v. amounts to wilful its whether conduct The court based S.E.2d normally question negligence is the statute wanton analysis language the on jury, ... public policy of of fact for determination which establishes as summary judgment should not showing that “upon a North Carolina genuine if is a issue as safety granted there disregard of the of oth- be the reckless fact____ question of any material of the ers the officer loses benefit may, misconduct how- and wanton statute,” may liable for wilful and the officer be ever, if by the court ... resulting such be determined damages from proximately evidence, in its when viewed 369 all of negligence. 322 N.C. at gross opponent, favorable to the aspect most S.E.2d at 603. overwhelmingly favors movant so reached courts in other states have Other on that contrary determination based no interpretations. In Mitchell v. similar ever stand. evidence could State, 486 N.Y.S.2d 108 A.D.2d 359-60, Ill.App.3d at 95 Ill.Dec. at 620- interpreted New York’s the court omitted). (citations 1104(e). 490 N.E.2d at 93-94 That and Traffic Law Vehicle § pursuit.” Kelly City v. Breck particularly is instructive because volved in such Tulsa, (Okl.App.1990). similarity the matter of its factual be- only police pursuit permissible, Not it is us. The court that in order for fore noted may duty imposed upon law en- well be police officer’s acts “to be character- Lippincott, supra. forcement officers. wanton, they ized as or must wilful have been committed with actual or deliberate determining In whether a law enforce to harm intention or with an utter indiffer- ment officer exceeded the standard of care disregard to or ence conscious for the safe- statute, enunciated in the the officer’s “ac ty 141 Ill.App.3d of others.” at 95 tions are to be considered as of the time Ill.Dec. at 490 N.E.2d at 94. The court they and under the circumstances in which analyze then went on to the conduct of the by subsequent occurred and not facts or in during suspected officers their chase of the State, retrospect.” Misc.2d Zulauf violator, injury law which resulted in to a (Ct.C1.1983), 462 N.Y.S.2d State, party: third aff'd, Baratier v. 110 A.D.2d (1985). By 489 N.Y.S.2d 1019 the time the evaluating In police the conduct of the police pursuit in officers’ this case com here, we must be mindful of the menced, engaged already Bable had in reason for their of Cortez. The conduct, having reckless forced other ve case, evidence the instant even when curbs, path, jumped hicles from his hit a aspect viewed its most favorable to sign sideswiped pur car. The another plaintiffs, establishes that Cortez was suit occurred at 1:30 a.m. At the time the driving his car a reckless manner and occurred, fatal collision Officer Gehm was endangering public before the approximately yards behind Bable and him____ began to chase Cortez did not approximately Officer Richards was deny that this occurred. He testified yards undisputed behind Bable. These only that he could not remember whether disprove plaintiff’s facts claim that the offi not____ happened it or Under these cir- regulation requiring cers violated a cumstances, a failure on the officers slow down once air police to act presented would have a sub- units have established visual contact with public safety. stantial threat Bable, nevertheless, fleeing suspects. con Ill.App.3d 95 Ill.Dec. at dangerously tinued to drive until he ran the Shore, 94; see also Thornton v. N.E.2d at light red and collided with Debra Aten’s 233 Kan. vehicle. None of the three theories ad majority suggests interpre- by plaintiff, vanced whether viewed individ given by appellate tation courts of other ually cumulatively, can reasonably be similarly-worded states to statutes should gross negligence by said to constitute not be considered because the has not Breck, See police. 94; Bul 490 N.E.2d at argument advanced such an appeal. lins, (“gross negligence 369 S.E.2d at 603 however, city, appellee. We are is wanton conduct done with conscious or required to affirm the trial court it was rights reckless for the reason, any correct for whether elaborated others”). Perez, supra; Gibson, upon su- or not. Thornton, Court of Kan- pra. sas commented on the “due care” standard Compelling limiting reasons exist in a Kansas statute similar to A.R.S. 28- governmental and/or officers’ liabili- 624: ty situations to those cases privileges granted and immunities which people reasonable could conclude ... would indeed be operated that the officer has emergency an hollow the test of due care were ... grossly vehicle in a fashion. extended to include the acts of the flee- police pursuit fleeing “The law allows ing trying motorist whom the officer is violators public policy; as a matter of apprehend. The net effect of an such apprehending benefit of these individuals extension would be to make the officer outweighs ordinary inherently risks in- fleeing violator, the insurer of the be he pris- mentally deranged person,

or she murderer, drug addict escapee, drunk. at 661-62. Kan. at

CONCLUSION legislative 28-624 constitutes A.R.S. § emergency determination that authorized liability subject not be vehicles should operators of such vehicles unless and until legislature grossly negligent. The set are of care privileges out the and the standard governed by police officers are which standard, ap- such instances. when case, any in this reveals a lack of plied the trial court evidence in the record before gross negligence on demonstrate that could therefore, sum- police, mary judgment appropriate. respectfully

I dissent. P.2d Arizona, Plaintiff-Appellee, STATE & FIVE HUNDRED FIVE THOUSAND ($5,500.00) DOLLARS IN U.S. 00/100 (1) CURRENCY; Colt .45 Caliber One Revolver, Serial Semi-Automatic #F633799, Defendants, Chaison, Appellant.

Sherwood 1No. CA-CV 89-588. Mesa, plaintiff- Kasper, P. Richard Arizona, Appeals Court appellee. 1, Department Division A. Phoenix, II, appel- Ray C. Kenneth Sept. 1991. lant. Woods, Atty. H. Gen. Cameron Grant Gen., Phoenix, Holmes, Atty. for ami- Asst. cus curiae.

OPINION

BROOKS, Presiding Judge. dispositive appeal in this issue person assert-

whether must file claim

Case Details

Case Name: Estate of Aten v. City of Tucson

Court Name: Court of Appeals of Arizona

Date Published: Mar 28, 1991

Citation: 817 P.2d 951

Docket Number: 2 CA-CV 90-0233

Court Abbreviation: Ariz. Ct. App.