"the clear language of [a similar] statute imposes on a highway patrol trooper who is pursuing a suspected violator of the law a duty of due care toward those members of the public who are using the highway during the high-speed chase and whose vehicles come within a reasonable proximity to the speeding vehicles"
How later courts described this case
- "the clear language of [a similar] statute imposes on a highway patrol trooper who is pursuing a suspected violator of the law a duty of due care toward those members of the public who are using the highway during the high-speed chase and whose vehicles come within a reasonable proximity to the speeding vehicles"
Written by the judges who cited it.
The opinion
BENCH, Judge
(concurring in the result):
I would affirm the summary judgment but, rather than reaching the governmental immunity issues, I would simply hold that plaintiff has not established that the defendants owed her a duty of care. See Ferree v. State, 784 P.2d 149, 152-53 (Utah 1989) (“Having decided that the defendants owed no duty of care toward the victim, we need not reach the questions raised by the doctrine of sovereign immunity- Sovereign immunity ... is an affirmative defense and eoneeptionally arises subsequent to the question of whether there is tort liability in the first instance.”); cf. Smith v. Weber County Sch. Dist., 877 P.2d 1276, 1278 (Utah App.1994) (stating that eourt may generally reach governmental immunity issue first only when it is clear and dispositive). In the present case, it is the duty issue that is “clearcut,” and not the governmental immunity issues.
An “essential element of a negligence claim” is establishing that the defendant owed the plaintiff a duty of care. Lamarr v. Utah State Dep’t of Transp., 828 P.2d 535, 537 (Utah App.1992) (quoting Owens v. Garfield, 784 P.2d 1187, 1189 (Utah 1989)). The duty identified in the main opinion under Utah Code Ann. § 41-6-14 (1988) is a duty owed to the public generally. A negligence claim, however, may not be based upon a public duty. Id. at 539 (“a duty to all is a duty to none”). To successfully claim negligence against a state entity, plaintiff must show that defendants owed her a “special duty” beyond that already owed to the general public. Cannon v. University of Utah, 866 P.2d 586, 588-89 (Utah App.1993) (“when the government deals generally with the welfare of all, it does so without a duty to anyone, unless there is a ‘special relationship’ between the government and the individual”), cert. denied, 879 P.2d 266 (Utah 1994); see also Ferree, 784 P.2d at 151 (“plaintiff must show a breach of a duty owed him as an individual, not merely the breach of an obligation owed to the general public at large by the governmental official”). In the present case, plaintiff makes no claim of a special duty owed to her or her husband at the time of the accident. 1
I would therefore affirm the summary judgment on the ground that defendants had no duty of care to this particular plaintiff.
. The main opinion misinterprets the special-duty requirement, stating that the "clear language” of § 41-6-14 imposes upon officers a special duty of care to all members of the public "whose vehicles come within a reasonable proximity to the speeding vehicles." I disagree, and believe that the plain language of the statute creates only a general duty to the public. If there is to be a special duty, it is for the legislature to so provide.
The main opinion also attempts to minimize the special-duty requirement by distinguishing controlling case law and by pointing to the officer's affirmative action toward someone who is not even a party to the lawsuit. I do not believe that the officer’s action in response to a fleeing suspect, ipso facto, creates a "special duty” to plaintiff, as that term is defined by our case law. I believe it is unreasonable in the present case to hold the officer responsible for the accident between the fleeing suspect and the plaintiff, a third party. It is even more unreasonable to suggest that, unless sovereign immunity applies, the governmental entity is liable as an insurer for the willful, wanton, or reckless conduct of fleeing suspects or violators of the law.