law enforcement officer allegedly acted negligently after choosing to enforce law by conducting a vehicular pursuit of suspected offender
How later courts described this case
- law enforcement officer allegedly acted negligently after choosing to enforce law by conducting a vehicular pursuit of suspected offender
- “There are three elements to a claim for negligence: 1
Written by the judges who cited it.
The opinion
REIF, V.C.J.,
concurring in part, dissenting in part.
T1 Even though I concur to vacate the opinion of the Court of Civil Appeals, I dissent from the disposition of this case reached by the majority. I would resolve the issues of duty and liability in this case based on the privilege set forth in 47 0.8.2011, § 11-106. See State v. Gurich, 2010 OK 56 , dissent ¶¶ 1-11, 238 P.3d 1, 8-10 (dissenting opinion by Reif, J., with whom Taylor, V.C.J. and Hargrave, J., join). Briefly, the reason the pursuit in this case gave rise to no liability is that the pursuing officers acted completely within the legal privilege to pursue violators created in § 11-106. Accordingly, I would affirm the trial court's dismissals of the City of Stillwater and the Board of County Commissioners of Payne County on that basis and not extend the teachings of the Gurich case to injuries sustained by the fleeing violator.
T2. By its express terms, section 11-106 extends a "privilege" to the driver of an emergency vehicle to pursue violators and operate the vehicle in ways that would otherwise violate certain traffic laws. The duty imposed upon the driver of the emergency vehicle when exercising the privilege is "to drive with due regard for the safety of all persons." Id. at 11-106(E) (emphasis added). While the privilege does not protect the driver "from the consequences of reckless disregard for the safety of others," this provision, like every other provision in § 11-106, addresses the operation of the emergency vehicle, not the decision to commence or the decision to continue the pursuit. [d.
1 3 A reading of the entire text of § 11-106 indicates that "a driver who maintains control of the emergency vehicle and does not harm anyone with the vehicle, remains within the privilege, breaches no duty, and commits no tort as a matter of law." Gurick, 2010 OK 56 , dissent I 5, 238 P.3d at 9 . Very simply put, "once a pursuit is commenced, section 11-106 governs the action of the pursuing officer ... and its continuation in compliance with section 11-106 creates nothing more than a condition for harm caused by the violator being pursued." Id. at dissent 19, 238 P.3d at 9 (emphasis omitted). This includes self-inflicted harm as in the case at hand.
T 4 Unlike the majority, I do find the statutory duty imposed upon the pursuing officer "to drive with due regard for the safety of all persons" to extend to the fleeing violator. In a proper case, breach of that duty in the operation of the emergency vehicle can visit liability on the governmental entities employing the pursuing officers. For example, losing control of the emergency vehicle and crashing into the vehicle of the fleeing violator who has stopped could take the officer outside of the privilege and give rise to liability under the Governmental Tort Claims Act.
€ 5 This was not what happened in the case at hand, however. In the case at hand, the fleeing violator failed to negotiate a turn at a T-intersection and ran off the road untouched and unimpeded by any pursuing emergency vehicles. Because the pursuit of the deceased by the city and county law enforcement officers complied with 47 0.8. 2011, § 11-106 in every material regard, the privilege given by this statute shields both the City of Stillwater and the Board of County Commissioners of Payne County from liability under the Governmental Tort Claims Act.