Day v. State of Utah, et al
Annotate this Casepublication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
----oo0oo----
Mary Day,
Plaintiff, Petitioner,
and Cross-Respondent,
v.
State of Utah, by and through the
Utah Dept. of Public Safety; the Utah Highway Patrol;
Ken Colyar; Salem City Corporation,
a municipal corporation of the State of Utah;
Brad James; Spanish Fork City Corp.,
a municipal corp.of the State of Utah;
Ed Asay; Public Entities 1-3; and
John Does 1-8,
and Cross-Petitioners.
No. 940583
F I L E D
May 11, 1999
1999 UT 46
---
Third District, Salt Lake County
The Honorable Richard H. Moffat
Attorneys:
Larry R. Keller, Craig L. Boorman,
Salt Lake City, for plaintiff
Jan Graham, Att'y Gen., Carol Clawson,
Solicitor Gen.,
Debra Moore, Asst. Att'y Gen., for
defendants
---
On certiorari to the Utah Court of Appeals
---
STEWART, Justice:
¶1
Mary Day brought this action against
the State of Utah, the Utah Highway Patrol (UHP), a UHP officer, and several
municipalities and law enforcement officers they employed for personal
injuries to herself and the wrongful death of her husband. The injuries
and death resulted from the collision of the Days' automobile with an automobile
driven by sixteen-year-old Stephen Edward Floyd. Floyd was fleeing from
UHP Officer Ken Colyar, who initiated the pursuit to cite Floyd for driving
ten miles per hour over the speed limit.
¶2
This case is here on a writ of certiorari
to the Utah Court of Appeals to review that court's affirmance of a trial
court's summary judgment against plaintiff on the ground that her claims
for severe personal injuries and the death of her husband were barred by
a now repealed provision of the Utah Governmental Immunity Act and that
that abrogation of a remedy for her injuries and her husband's death did
not violate Article I, section 11, the "open courts" provision of the Utah
Constitution. See Day v. State, 882 P.2d 1150 (Utah Ct. App.
1994). The Court of Appeals' panel that decided this case suggested that
this Court grant Day's petition for a writ of certiorari to answer important
questions of law. The State filed a conditional cross-petition for a writ
of certiorari asking this Court, if it granted Day's petition, to also
grant a writ of certiorari to review the Court of Appeals' ruling that
a police officer who undertakes a high-speed chase of a fleeing misdemeanant
owes a duty of due care to other persons using the highway. We granted
both petitions.
I. FACTS
¶3
On March 18, 1991, at approximately
5:45 p.m., Officer Colyar was parked just off Interstate 15 near Santaquin,
Utah, to monitor traffic. With a radar gun he clocked a northbound black
1982 Buick at 75 miles per hour, ten miles per hour over the posted speed
limit. Intending only to stop the vehicle and issue a citation for speeding,
Officer Colyar pulled onto I-15 and drove up behind the vehicle. Floyd,
the driver of the vehicle, increased his speed and exited I-15 at Santaquin.
Ignoring a stop sign, he turned onto a two-lane highway and proceeded,
at times in heavy traffic and at speeds of up to 120 miles per hour, through
the towns of Springville, Payson, Salem, and Spanish Fork, Utah. Officer
Colyar followed in close pursuit. At least two other local law enforcement
officers joined the chase through several populated areas in the towns
and villages at speeds far in excess of posted limits. Floyd and Officer
Colyar wove in and out between cars in heavy traffic in both the southbound
and northbound lanes, passing cars on both the left and the right and forcing
several cars off the road. Local police officers Brad James and Ed Asay
unsuccessfully attempted to block Floyd's way and later joined in the pursuit.
¶4
At one point, Floyd drove onto a
freeway entrance ramp with Officer Colyar close behind and collided with
a semi-trailer truck. Floyd's vehicle spun almost 240 degrees around and
temporarily came to a stop. Officer Colyar also stopped, but he neither
drew his gun nor attempted to disable Floyd's vehicle; however, he was
close enough to read the vehicle's license plate. Floyd eluded Officer
Colyar and again entered the freeway with Officer Colyar in pursuit through
heavy traffic and at speeds in excess of 100 miles per hour. Floyd entered
an off-ramp at high speed, ran a red light while driving at approximately
60 miles per hour, and collided with the Day vehicle and three other vehicles.
¶5
Mr. Day died immediately, and Mrs.
Day suffered numerous serious injuries. She was diagnosed with acute respiratory
failure, fractures in her ankle, hip, and ribs, various abrasions, and
trauma. She lay in a coma for several hours. The impact of the collision
also aggravated previously existing medical conditions, including cancer
and osteoporosis.
¶6
Mrs. Day brought this suit against
the State of Utah, by and through the Utah Department of Public Safety;
the UHP; Officer Colyar; and unnamed public entities and John Does for
the wrongful death of her husband and for her injuries. In her first amended
complaint, she also named Salem City Corporation, Officer Brad James, Spanish
Fork City Corporation, and Officer Ed Asay as defendants.
¶7
Plaintiff and defendants filed motions
for summary judgment. The trial court entered summary judgment against
plaintiff and in favor of all defendants. The Court of Appeals affirmed,
ruling that (1) Officer Colyar owed a tort duty of due care to plaintiff
and other users of the highway, but (2) the action was barred under the
Utah Governmental Immunity Act and (3) the relevant provisions of the Act
were not unconstitutional under the Open Courts, Due Process, or Equal
Protection provisions, i.e., Article I, sections 8, 11, and 22, of the
Utah Constitution. See Day v. State, 882 P.2d 1150 (Utah
Ct. App. 1994). Only these three rulings, as they involve the State and
the UHP, are now before this Court. Day does not challenge the Court of
Appeals' ruling affirming summary judgment in favor of the municipalities
and the law enforcement officers.
II. STANDARD OF REVIEW
¶8
The issues before the Court are
questions of law that we review for correctness. We accord no deference
to the legal decisions of the lower court. See Ferree v. State,
784 P.2d 149, 151 (Utah 1989); Bushnell Real Estate, Inc. v. Nielson,
672 P.2d 746, 749 (Utah 1983).
III. DUTY OF POLICE OFFICER TO
THIRD PERSONS WHILE EFFECTUATING
ARREST
¶9
We first consider the issue raised
by the State's cross-petition for certiorari: Whether the Motor Vehicle
Code imposes on a police officer engaged in pursuit of a suspect a duty
of care to third parties on the highway. The Court of Appeals held that
such a duty does exist. See Day, 882 P.2d at 1154. It addressed
the duty issue first on the principle that a case should be decided on
non-constitutional grounds if possible and that constitutional issues should
be addressed only when necessary. See World Peace Movement v.
Newspaper Agency Corp., 879 P.2d 253, 257 (Utah 1994); State v.
Thurman, 846 P.2d 1256, 1262 (Utah 1993). We take the same approach.
¶10
In a personal injury case involving
a defense of governmental immunity such as this case, we generally decide
first whether the defendant owed a duty of due care to the plaintiff before
deciding whether the defendant is entitled to the affirmative defense of
governmental immunity. See Rollins v. Petersen, 813 P.2d 1156, 1162 & n.3 (Utah 1991). On numerous occasions, this Court has
held that certain government agencies and their employees owed no duty
of care to the plaintiffs, even though such government agencies had a general
duty to further and protect the public's health, safety, and welfare. In
such cases, the immunity issue was not reached because the plaintiffs failed
to make out prima facie cases of negligence. See Ferree,
784 P.2d at 152-53; Ledfors v. Emery County Sch. Dist., 849 P.2d 1162, 1164 (Utah 1993). By distinguishing between an absence of duty of
due care on the part of a government agency to an injured person and the
affirmative defense of governmental immunity, a court can more clearly
define the scope of each body of law and the policies that underlie them.
If Officer Colyar owed no duty of care to the Days, there can be no prima
facie case of negligence as a matter of law, and immunity would be immaterial.
See Rocky Mt. Thrift Stores, Inc. v. Salt Lake City Corp.,
887 P.2d 848, 852 (Utah 1994); Rollins, 813 P.2d at 1162 & n.3;
see also Duncan v. Union Pac. R.R. Co., 842 P.2d 832, 836
n.1 (Utah 1992) (Stewart, J., dissenting).
¶11
The State denies that it or Officer
Colyar owed a duty of care to the Days. It relies on the position that
the State's "public duties" cannot be the basis for a tort duty of due
care that runs to specific individuals who are harmed by governmental action.
The law states, "For a governmental agency and its agents to be liable
for negligently caused injury suffered by a member of the public, the 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." Ferree, 784 P.2d at 151. The State denies that it owes
any duty of care to third persons who are injured by a collision with one
fleeing arrest, irrespective of the reason for the pursuit.
¶12
The public duty doctrine provides
that although a government entity owes a general duty to all members of
the public, that duty does not impose a specific duty of due care on the
government with respect to individuals who may be harmed by governmental
action or inaction, unless there is some specific connection between the
government agency and the individuals that makes it reasonable to impose
a duty. See, e.g., DeBry v. Noble, 889 P.2d 428, 440 n.12
(Utah 1995); Madsen v. Borthick, 850 P.2d 442, 444 (Utah 1993);
South v. Maryland, 59 U.S. (18 How.) 396 (1855).
¶13
At least four circumstances may
give rise to a special relationship between the government and specific
individuals.(1) A special relationship can
be established (1) by a statute intended to protect a specific class of
persons of which the plaintiff is a member from a particular type of harm;
(2) when a government agent undertakes specific action to protect a person
or property; (3) by governmental actions that reasonably induce detrimental
reliance by a member of the public; and (4) under certain circumstances,
when the agency has actual custody of the plaintiff or of a third person
who causes harm to the plaintiff.(2) See,
e.g., Nelson v. Salt Lake City, 919 P.2d 568 (Utah 1996) (city's
maintenance of fence along waterway); Rollins v. Peterson, 813 P.2d 1156 (Utah 1991) (mental hospital patient);
Ferree v. State, 784 P.2d 149 (Utah 1989) (no duty to protect from specific threats from halfway-house
inmate); Little v. Division of Family Servs., 667 P.2d 49, 53-54
(Utah 1983) (state had legal custody of autistic child); Benally v.
Robinson, 14 Utah 2d 6, 376 P.2d 388 (1962) (officer had duty of due
care to drunk person taken into custody); Restatement (Second) of Torts
§ 314A (1965).
¶14
The first exception applies in this
case. Officer Colyar had a statutory duty to exercise reasonable care in
using his patrol car to pursue Floyd. The Motor Vehicle Code in effect
at the time of the accident, Utah Code Ann. § 41-6-14 (1988), imposed
a duty on operators of emergency vehicles such as police cars to act with
due regard for the safety of other persons on the road, as the Court of
Appeals held. See Day, 882 P.2d at 1154. Section 41-6-14
exempted drivers of emergency vehicles from compliance with (1) speed limits,
"if the operator does not endanger life or property," and (2) other traffic
laws, if the operator provides audible and visual signals when in pursuit
of an actual or suspected violator of the law.(3)
However, section 41-6-14(3)(a), which was in effect at the time of the
accident in this case, states that "[t]he privilege[] [of disregarding
traffic laws] do[es] not relieve the operator of an authorized emergency
vehicle from the duty to operate the vehicle with regard for the safety
of all persons." Id. § 41-6-14(3)(a) (repealed effective
July 1, 1993) (emphasis added). In addition, § 41-6-76 of the Motor
Vehicle Code states that although all other motor vehicle operators have
an obligation to yield the right-of-way to an emergency vehicle operating
under the guidelines of § 41-6-14, "the operator of an authorized
emergency vehicle [is not relieved] from the duty to drive with regard
for the safety of all persons using the highway. Id. §
41-6-76(2) (1988) (emphasis added). These provisions clearly state that
operators of emergency vehicles must operate their vehicles in "regard
for the safety of all persons."(4) That
language imposes on operators of emergency vehicles a duty of care with
regard to others using the streets and highways. Utah cases decided under
this provision and its antecedents have specifically imposed such a duty.
Howe v. Jackson, 18 Utah 2d 269, 421 P.2d 159, 161-62 (1966), held
that even though an ambulance driver was exempt from certain traffic regulations,
"he was nevertheless not excused from using reasonable care under the circumstances,
and . . . any careless, arbitrary or unreasonable exercise of those privileges
would be negligence." Jensen v. Taylor, 2 Utah 2d 196, 271 P.2d 838 (1954), held that the statute imposed on a fire truck driver a duty
of due care that was not satisfied merely by using a siren or warning lights.
See also Cornwall v. Larsen, 571 P.2d 925, 928 (Utah 1977)
(Ellett, C.J., concurring with explanation) ("The driver of a police car,
thus is liable in a civil action for a failure to drive with due
regard for the safety of others.").
¶15
The State contends that the statute
does not impose a duty on the emergency vehicle driver "to control the
manner in which another operates his vehicle on the road." We agree, but
neither the Court of Appeals nor plaintiff has asserted that Officer Colyar
had a duty to "control" Floyd. Plaintiff contends simply that Officer Colyar
breached his duty to conduct his pursuit with due regard for the safety
of all persons because it should have been reasonably foreseeable to
Officer Colyar that his high-speed chase of Floyd through populated
areas, if continued, would likely cause a collision between another vehicle
and either Floyd's or Officer Colyar's vehicle, resulting in injury or
death to the driver or passengers of the other vehicle. Had Officer Colyar
terminated the pursuit, that risk would undoubtedly have terminated. At
least that is an inference to which plaintiff was entitled on the motion
for summary judgment.
¶16
The State correctly states that
emergency vehicles in the above cases were directly involved in the accident
that gave rise to the injuries for which suit was brought. Nevertheless,
the instant case does not fall outside the scope of the legal principles
applied in those cases. Whether the State might be liable in the instant
case raises an issue of proximate cause as to whether it was reasonably
foreseeable that Colyar's continuing the chase might result in Floyd's
car colliding with another. That is not an issue for summary judgment.
See Harline v. Barker, 912 P.2d 433, 439 (Utah 1996); Mitchell
v. Pearson Enters., 697 P.2d 240, 245 (Utah 1985). In similar instances,
we have held that such an issue is for the jury. See Cruz v.
Middlekauff Lincoln-Mercury, Inc., 909 P.2d 1252, 1257 (Utah 1996)
(holding that car dealership that left keys in cars parked on its lot that
were stolen could be liable for injuries to third person negligently caused
by thief); City of Pinellas Park v. Brown, 604 So. 2d 1222, 1228
(Fla. 1992) (police chase presented jury proximate cause issue); Lowrimore
v. Dimmitt, 979 P.2d 1027, 1030-31 (Or. 1990) (recognizing that proximate
cause could be satisfied in police chase context); Travis v. City of
Mesquite, 830 S.W.2d 94, 98-99 (Tex. 1992) (rejecting argument that
there is no proximate cause as a matter of law in police chase context).
¶17
The issue of whether police officers
owe a duty of care to third parties who are injured by fleeing suspects
is an issue that a number of other states have decided. The majority of
recent cases holds that an action will lie in such circumstances. The New
Jersey Supreme Court, in Tice v. Cramer, 627 A.2d 1090, 1103-04
(N.J. 1993), stated: "The majority of recent cases, however, hold that
a police officer or a governmental employer may be held liable for third-party
injuries when the police officer is negligent in continuing a vehicular
chase." AccordBiscoe v. Arlington County, 738 F.2d 1352, 1366 (D.C.
Cir. 1984) (stating "numerous jurisdictions have recognized a cause of
action for negligent conduct of a high-speed chase, where the pursued vehicle
strikes and injures an innocent third party"). See also Seals
v. City of Columbia, 575 So. 2d 1061 (Ala. 1991);
Tetro v. Town
of Stratford, 458 A.2d 5 (Conn. 1983); City of Miami v. Horne,
198 So. 2d 10 (Fla. 1967); Mixon v. City of Warner Robins, 444 S.E.2d 761 (Ga. 1994); Boyer v. State, 594 A.2d 121 (Md. 1991); Fiser
v. City of Ann Arbor, 339 N.W.2d 413 (Mich. 1983); Lee v. City of
Omaha, 307 N.W.2d 800 (Neb. 1981);
Lowrimore v. Dimmitt, 797 P.2d 1027 (Or. 1990); Haynes v. Hamilton County, 883 S.W.2d 606
(Tenn. 1994); Travis v. City of Mesquite, 830 S.W.2d 94 (Tex. 1992);
Mason v. Bitton, 534 P.2d 1360 (Wash. 1975). A few states, however,
require a showing of gross negligence before imposing liability. See
Breck v. Cortez, 490 N.E.2d 88 (Ill. App. Ct. 1986); Bullins
v. Schmidt, 369 S.E.2d 601 (N.C. 1988); Peak v. Ratliff, 408 S.E.2d 300 (W. Va. 1991).(5)
¶18
Several of these cases are closely
on point. The Washington Supreme Court, in Mason v. Bitton, 534 P.2d 1360 (Wash. 1975), construing an emergency vehicle statute with nearly
identical provisions to Utah Code Ann. § 41-6-14, rejected the argument
that the State advances in the instant case. The court concluded that the
Washington Legislature, by enacting the statute, intended to protect "persons
and property from all consequences resulting from negligent behavior
of the enforcement officers," including injury to third parties caused
by fleeing suspects. Id. at 1363.
¶19
The Michigan Supreme Court in Fiser
v. City of Ann Arbor, 339 N.W.2d 413 (Mich. 1983), also construed a
statute similar to Utah's and held that a police officer owes a duty to
other drivers on the road who may be injured as a proximate result of his
negligence. As in the instant case, Fiser involved a motorist whose
vehicle was struck by a fleeing suspect. The court stated that the legislative
intent behind the statute was clear: "[E]mergency vehicles must be driven
with due regard for the safety of others," id. at 417, and the jury,
in deciding whether a police officer breached this duty, should consider,
among other things, the speed and location of the chase, the presence of
pedestrians and other vehicles, and the reason for initiating the pursuit.
See id.
¶20 Maryland's highest court has also held that the state can be held liable for injuries to third persons arising from a high-speed chase. The court held that police officers owe a duty of care to a plaintiff injured by suspected criminals fleeing the officers if the officer "set in motion a chain of events which they know or should have known would lead to . . . [the plaintiff's] injury by the [party being pursued] or by the police effort to stop the vehicle." Boyer v. State, 594 A.2d 121, 134 (Md. 1991) (quoting Keesling v. State, 420 A.2d 261, 267 (Md. 1980)). The court grounded its decision on both statutory and common law. See id. (citing Maryland Code § 21-106(d); Martin v. Rossignol, 174 A.2d 149 (Md. 1961); Sudbrook v. State, 138 A. 12 (Md. 1927)).
¶21
The State argues that a pursuing
officer owes no duty of care to protect other persons on the highway from
a negligent or reckless fleeing suspect. Specifically, the State asserts
that because Officer Colyar could not directly control Floyd's actions,
Floyd alone was responsible for Mrs. Day's injuries and her husband's death.
However, the cases discussed above and Utah Code Ann. § 41-6-14(3)(a)
support the proposition that Officer Colyar had a duty of care to other
users of the highways and streets. Those cases also support the proposition
that his conduct could be found to be a proximate cause of the Days' injuries
if they were reasonably foreseeable. This Court has held that one may be
liable for the reckless or negligent acts of another if they are reasonably
foreseeable. See Cruz v. Middlekauff Lincoln-Mercury, Inc.,
909 P.2d 1252, 1257 (Utah 1996); cf. United States v. First Sec.
Bank, 208 F.2d 424, 429-30 (10th Cir. 1953) (construing Utah law);
see also Stark v. City of Los Angeles, 214 Cal. Rptr. 216
(Ct. App. 1985) (police have duty to drive so as not to impose unreasonable
risk of harm on others, even when pursued person collides with third party);
Tetro v. Town of Stratford, 458 A.2d 5 (Conn. 1983) (negligence
of pursued does not foreclose liability of officers); 8 Am. Jur. 2d
Automobiles
and Highway Traffic § 456 (1997); Restatement (Second) of Torts
§ 303 (1965). This duty is based on a reasonable person's obligation
to refrain from actions that may foreseeably result in injury. See
2 Fowler V. Harper & Fleming James, Jr., The Law of Torts §
16.12, at 940 (1956).
¶22
According to the State, Officer
Colyar owed only a generalized duty to the public at large to enforce the
law; therefore, the State cannot be held liable for Floyd's conduct. The
State relies on the following cases: Rollins v. Petersen, 813 P.2d 1156 (Utah 1991); Ferree v. State, 784 P.2d 149 (Utah 1989); see
also Obray v. Malmberg, 26 Utah 2d 17, 484 P.2d 160 (Utah 1971)
(sheriff held not liable for failing to investigate burglary); Cannon
v. University of Utah, 866 P.2d 586 (Utah Ct. App. 1993); Lamarr
v. Utah Dep't of Transp., 828 P.2d 535 (Utah Ct. App. 1992).
¶23
These cases are clearly distinguishable.
First, none of them dealt with facts similar to those in the instant case.
Second, in none of the cases was there a statute that imposed a duty of
care on the government employee with respect to others in the particular
circumstances. Third, the defendants in those cases were not, as here,
acting in a continuous manner that created a direct, obvious, and imminent
hazard to third persons that could have been obviated by the officer's
ceasing the conduct creating the risk. Clearly, those cases in which injuries
are caused by persons who have been chased or have escaped from custody,
such as in Rollins and Ferree, stand for different principles
than those applicable to this case.
¶24
The nature of Officer Colyar's pursuit
of Floyd created an immediate, obvious, and significant threat of serious
harm to other users of the highway that would no doubt have ended had he
terminated his pursuit. Although law enforcement officers have a general
duty to apprehend those who break the law, that duty is not absolute, especially
where the violation is only a misdemeanor or an infraction--such as driving
ten miles per hour over the speed limit--and the attempt to apprehend the
person creates a serious risk of death or injury to third persons or the
fugitive. It has been held that, in apprehending someone, a law enforcement
officer must act reasonably and may not use all available means to apprehend
a fleeing suspect to arrest him for a misdemeanor. Thus, officers may not
use lethal force to stop one who has committed a misdemeanor. See
Graham v. State, 237 P. 462 (Okla. Crim. App. 1925); Gosczinski
v. Carlson, 147 N.W. 1018, 1020 (Wis. 1914) ("Under the rules of the
common law, officers were not justified to shoot persons attempting to
escape from their custody in case of arrests for a misdemeanor . . . .").
The threat of injury to the safety of the person fleeing and to the safety
of bystanders is significant enough, and the magnitude of the possible
harm so momentous, to dictate that the fleeing person be allowed to escape
rather than imperiling his safety or the safety of others. See Edgin
v. Talley, 276 S.W. 591, 594 (Ark. 1925) (officer who fired at misdemeanant's
auto, injuring passenger, could be held liable for "negligent and careless"
use of firearms); Davis v. Hellwig, 122 A.2d 497 (N.J. 1956) (negligence
claim stated where officer fired at fleeing misdemeanant and bullet ricocheted
and hit bystander);
Moore v. Foster, 180 So. 73, 74 (Miss. 1938)
(officers who hit plaintiff when they fired above heads of fleeing misdemeanants
to frighten them into stopping, acted "negligently and wrongfully");
see
also Shaw v. Lord, 137 P. 885, 886-87 (Okla. 1914) (peace officer's
privilege to use firearm in attempt to arrest felony fugitive did not relieve
officer of duty to avoid injuring bystander); Askay v. Maloney,
179 P. 899, 903-04 (Or. 1919) (same).
¶25
The State also argues that Officer
Colyar's pursuit was nonactionable because he was engaged in a discretionary
function. For reasons discussed infra, the law that governs is not
the law at the time of statehood with respect to whether a cause of action
lies against a law enforcement officer for actions taken in trying to apprehend
a misdemeanant, as the State argues and the Court of Appeals ruled. Rather,
the issue is determined by the standards imposed by section 41-6-14 (1988)
and the current general principles governing police conduct. Implicit in
the cases discussed above that hold officers liable for carelessly injuring
others while engaged in hot pursuit is the proposition that the discretion
which an officer uses in such a pursuit is not sufficient to bar such an
action.
¶26
The general rule with respect to
whether police conduct and its endangerment of others is actionable is
stated in K.C. Davis & R.J. Pierce, Jr., Administrative Law Treatise
¶ 19.3 at 217 (3d ed. 1994): "Although much police work is highly
discretionary, the courts over long period have classified police action
as ministerial; that means that a [police] officer generally has only qualified
immunity, not absolute immunity, even when what he does is clearly discretionary."
That proposition is implicitly and firmly established in Utah law. See
Cornwall v. Larsen, 571 P.2d 925, 927 (Utah 1977); Benally v.
Robinson, 14 Utah 2d 6, 376 P.2d 388 (1962); Jackson v. Harries,
65 Utah 282, 236 P. 234 (1925); Geros v. Harries, 65 Utah 227, 236 P. 220 (1925); see also Payne v. Myers, 743 P.2d 186 (Utah
1987); Frank v. State, 613 P.2d 517 (Utah 1980).
¶27
Indeed, older cases say little or
nothing about the official immunity of police officers, but they clearly
support holding police officers liable for their negligent acts, particularly
when attempting arrests. See, e.g., Restatement (Second) of Torts
§ 895D (1979); Annotations, Personal Liability of Peace Officer
or His Bond for Negligence Causing Personal Injury or Death, 18 A.L.R.
197 (1922), 39 A.L.R. 1306 (1925); Annotation, Personal Liability of
Policeman, Sheriff, or Other Police Officer, or Bond, for Negligently Causing
Personal Injury or Death, 60 A.L.R.2d 873 (1958); 80 C.J.S. Sheriffs
and Constables § 52 (1953); 70 Am. Jur. 2d Sheriffs, Police,
and Constables § 90 (1987).
¶28
Officers have also been liable for
negligently injuring bystanders while trying to apprehend a fleeing misdemeanant.
E.g., Edgin v. Talley, 276 S.W. 591 (Ark. 1925) (officer
shot at car driven by misdemeanant with intent to force car to stop, but
hit passenger; court observed that officer has no right to use firearms
in such a negligent manner); Davis v. Hellwig, 122 A.2d 497 (N.J.
1956) (where officer shot at misdemeanant and bullet ricocheted and hit
bystander, court found that bystander stated negligence claim); Young
v. Kelley, 21 N.E.2d 602 (Ohio Ct. App. 1938) (officer could be held
liable for injury to woman on street where he fired at drunk who had escaped
custody, trying to frighten drunk into stopping). This duty of care toward
bystanders in attempting an arrest has also been imposed where the degree
of force used was lawful. See Shaw v. Lord, 137 P. 885, 886-87
(Okla. 1914) (officer's privilege to shoot at felony fugitive in attempting
arrest did not relieve him of "duty to exercise such care to avoid injury
to other persons as a person of ordinary prudence would usually exercise
in doing so under like circumstances," so bystander hit by bullet stated
jury negligence issue); Askay v. Maloney, 179 P. 899, 903-04 (Or.
1919) (although officers were within their authority in firing on fleeing
robbery suspects, innocent bystanders were nevertheless owed duty of care,
and thus bystander injured by stray bullet could state negligence claim).
¶29
The Court of Appeals relied on Garff
v. Smith, 31 Utah 102, 86 P. 772 (1906), for the "conclusion that a
cause of action would not lie at common law against Trooper Colyar." Day,
882 P.2d at 1158. Garff held that an administrative officer
was not liable in performing a quasi-judicial function pursuant to statute.
See 86 P. at 774. Trooper Colyar's actions here were not quasi-judicial;
they were not directed by statute; and although they involved some discretion
in performing an operational task, they were not discretionary as our cases
define that word for purposes of governmental immunity. Frank v. State,
613 P.2d 517 (Utah 1980), held that the discretionary function exception
"should be confined to those decisions and acts occurring at the 'basic
policy-making level,' and not extended to those acts and decisions taking
place at the operational level . . . 'which concern routine, everyday matters,
not requiring evaluation of broad policy factors.'" Id. at 520 (quoting
Carroll
v. State Road Comm'n, 27 Utah 2d 384, 388, 496 P.2d 888, 891 (1972)).
¶30
After initially clocking Floyd at
ten miles per hour above the speed limit, Officer Colyar commenced pursuit
and also inquired over the radio whether Floyd's vehicle was stolen. The
dispatcher reported that there was no indication it was stolen, yet Officer
Colyar continued the pursuit at speeds on and off the freeway in urban
areas up to 120 miles per hour.(6) The fact
finder on remand will have to determine whether it was or should have been
reasonably foreseeable to Officer Colyar that the high-speed pursuit through
highly populated areas would endanger the lives of others on the road and
whether, if he had terminated the pursuit, Floyd would likely have substantially
reduced his speed and terminated his otherwise reckless driving. Officer
Colyar had a statutory duty to use care for the safety of other persons
on the road. See Utah Code Ann. § 41-6-14. Whether he failed
to comply with the statute and breached his duty is a question for the
jury.
¶31
In conclusion, while police officers
and drivers of other emergency vehicles are not bound by all traffic laws
and do not necessarily violate a duty of due care when they exceed the
speed limit or do not comply with certain other safety regulations, a police
officer in pursuing another on a public highway or street nevertheless
does owe a duty of reasonable care under the circumstances to other motorists
on the road. We certainly do not suggest that police officers are never
justified in engaging in high-speed pursuits. The need to apprehend a person
who is a danger to others because of the serious and violent nature of
the crime for which he or she is sought or because his or her presence
on the highway presents a threat to public safety may well outweigh the
risks that a high-speed pursuit poses to innocent third parties.(7)
See City of Pinellas Park v. Brown, 604 So. 2d 1222, 1227
(Fla. 1992) (police required "to use reasonable means in light of the nature
of the offense and threats to safety involved"); see also Mixon
v. City of Warner Robins, 444 S.E.2d 761, 763-64 (Ga. 1994) (holding
that decision to initiate or continue pursuit may be negligent when heightened
risk of injury to third parties is unreasonable in relation to need to
apprehend suspects); Travis v. City of Mesquite, 830 S.W.2d 94,
99 (Tex. 1992) (same).
¶32
The test is whether the driver of
the emergency vehicle acted reasonably and with appropriate care for the
safety of others in light of all the circumstances. Among the factors that
should be considered in deciding whether an officer acts with reasonable
care for the safety of others using the highways and streets are the density
of traffic and population of the area in which the pursuit occurs; whether
the area is rural or urban; the nature of the street, e.g., whether freeway
or city streets with stop signs and semaphores; the presence of pedestrians
and school zones; the weather and visibility; and, of course, the urgency
of apprehending the fleeing person and whether allowing that person to
escape may itself pose a serious threat to the safety of others. See
Peak v. Ratliff, 408 S.E.2d 300, 308 (W. Va. 1991).
IV. SOVEREIGN IMMUNITY, OFFICIAL
IMMUNITY,
AND THE OPEN COURTS CLAUSE OF THE
UTAH CONSTITUTION
¶33
The statutory provision that the
Court of Appeals held barred Day's action against the State was in effect
for only one year and six days. Section 63-30-7 of the Governmental Immunity
Act, as it read just prior to the amendment that gave rise to this case,
waived immunity under certain conditions if the operator of an emergency
vehicle exceeded the speed limit and thereby endangered life or property
or did not operate his vehicle "with regard for the safety of all persons"
or arbitrarily exercised the privileges granted. Section 63-30-7 (1989)
stated:
Immunity from suit of all
governmental agencies is waived for injury resulting from the negligent
operation by any employee of a motor vehicle or other equipment during
the performance of his duties, within the scope of employment, or under
color of authority;
provided, however, that this section shall not apply
to the operation of emergency vehicles as defined by law and while being
driven in accordance with the requirements of Section 41-6-14.
(Emphasis added.) Section 41-6-14 (1988)
of the Motor Vehicle Code, referred to in section 63-30-7 above, exempted
the operator of an authorized emergency vehicle from speed limits, "if
the operator does not endanger life or property," id. §
41-6-14(2)(c) (emphasis added), and from certain other traffic regulations.
Subsection 3(a) of section 41-6-14 stated: "The privileges under this
section do not relieve the operator of an authorized emergency vehicle
from the duty to operate the vehicle with regard for the safety of all
persons, or protect the operator from the consequences of an arbitrary
exercise of the privileges." (Emphasis added.)
¶34
Effective April 23, 1990, the Legislature
amended section 63-30-7 by adding subsection (2)(a) to provide a limited
immunity for a very narrow type of emergency vehicle operation. However,
the amendment maintained the general waiver of immunity if an emergency
vehicle was not operated in compliance with section 41-6-14. The amended
section read as follows:
(1)(a) Immunity from suit
of all governmental entities is waived for injury resulting from the negligent
operation by any employee of a motor vehicle or other equipment during
the performance of his duties, within the scope of employment, or under
color of authority.
(b) This subsection does not apply to the operation of emergency vehicles as defined by law and while being driven in accordance with the requirements of Section 41-6-14.
(2)(a) All governmental entities employing peace officers retain and do not waive immunity from liability for civil damages for personal injury or death or for damage to property resulting from the collision of a vehicle being operated by an actual or suspected violator of the law who is being, has been, or believes he is being or has been pursued by a peace officer employed by the governmental entity in a motor vehicle. Utah Code Ann. § 63-10-7 (Supp. 1990). Subsection (2)(a) was in effect for six days more than a year. It was repealed effective April 29, 1991, six weeks after the collision between Floyd and the Days, when the Legislature repealed all of section 63-30-7, see 1991 Utah Laws ch. 76, § 10, and in lieu thereof added subsection 15 to section 63-30-10, the general waiver of governmental immunity for injury caused by an act or omission of a government employee, with a list of exceptions to the waiver. See id. ch. 76, § 4. Subsection 15 of § 63-30-10 barred an action for the negligent "operation of an emergency vehicle whilebeing driven in accordance with the requirements of Section 41-6-14." Utah Code Ann. § 63-30-10(15) (Supp. 1991) (emphasis added). Thus, the Legislature abolished the narrow immunity created by subsection (2)(a) and reestablished the law as it had existed from the time the Governmental Immunity Act was first established.
¶35
The Court of Appeals ruled that
subsection (2)(a) of section 63-30-7 was constitutional and barred Mrs.
Day's claims. See Day v. State, 882 P.2d 1150, 1159 (Utah
Ct. App. 1994). The consequence of that ruling, together with the immunity
conferred on government employees in 1983 by enactment of section
63-30-4(3)(a) and (b) of the Governmental Immunity Act for negligent and
reckless acts,(8) was to leave Mrs. Day
with no remedy at all against the State or its employees. The rationale
for the Court of Appeals' opinion that section 63-30-7(2)(a) was constitutional
was that the "common law doctrine of governmental immunity as it had developed
to the time of Utah's statehood[] precluded a cause of action" in favor
of one injured by a high-speed police pursuit of a fleeing suspect. Day,
882 P.2d at 1159. In our view, the Court of Appeals erred in two respects.
First, the rights protected by Article I, section 11 are not defined by
those causes of action that existed in 1896. Second, the law, both in Utah
and in other states, has long recognized the principle that negligence
of law enforcement officers in apprehending a fleeing misdemeanant may
be actionable by one injured as a result of the negligence. We have established
that point above.
¶36
The proposition that Article I,
section 11 should be construed to protect only those rights and remedies
that were recognized under the common law at the time of statehood is not
supported by Berry v. Beech Aircraft, 717 P.2d 670 (Utah 1985),
or by its progeny with one exception, or by the case law preceding Berry.
Indeed, the proposition that section 11 protects only those rights and
remedies that existed at the time of statehood conflicts with the tenor
and underlying purpose of Article I, section 11. To hold that Article I,
section 11 rights are defined by the state of the law at the time of statehood
would be to ossify the law pertaining to remedies designed to protect the
constitutionally protected values of "person, property [and] reputation."
In addition, it would improperly interfere with legislative prerogatives
necessary to make the law responsive to the exigencies of changing conditions.
The plain language of section 11 provides no basis for concluding that
those rights are time-bound. Article I, section 11 states in pertinent
part:
All courts shall be open,
and every person, for an injury done to him in his person, property or
reputation, shall have remedy by due course of law, which shall be administered
without denial or unnecessary delay . . . .
¶37
The proposition that the rights
protected by this provision are defined by the law as it existed in 1896
has been rejected in a number of opinions of this Court, both expressly
and implicitly, in part because it has no textual basis, would tend to
freeze the law at a particular point in time and thereby subvert the normal
and necessary evolution of the law as times change, and would otherwise
improperly interfere with legislative prerogatives. Berry made explicit
that a person's right to a remedy for an injury to person, property, or
reputation by due course of law is not determined by whether the common
law recognized the particular cause of action in 1896:(9)
[N]either the due process
nor the open courts provision constitutionalizes the common law or otherwise
freezes the law governing private rights and remedies as of the time of
statehood. It is, in fact, one of the important functions of the Legislature
to change and modify the law that governs relations between individuals
as society evolves and conditions require.
Id. at 676 (citation and footnote
omitted). In Cruz v. Wright, 765 P.2d 869 (Utah 1988), Justice Zimmerman
wrote for the Court:
Nowhere in this state's
jurisprudence is it suggested that article I, section 11 flatly prohibits
the legislature from altering or even abolishing certain rights which existed
at common law. See Berry ex rel. Berry v. Beech Aircraft Corp.,
717 P.2d 670, 676, 680 (Utah 1985) . . . . In fact, in Berry, we
specifically stated that the legislature may eliminate or abrogate a cause
of action entirely if there is sufficient reason and the elimination or
abrogation "is not an arbitrary or unreasonable means [of] achieving the
objective." 717 P.2d at 680.
Id. at 871. This Court has sounded
the same theme in numerous other opinions. See DeBry v. Noble,
889 P.2d 428, 435-36 (Utah 1995); Horton v. Goldminer's Daughter,
785 P.2d 1087, 1090 (Utah 1989); Sun Valley Water Beds v. Herm Hughes
& Son, Inc., 782 P.2d 188, 191 (Utah 1989); see also Paxton
R. Guymon, Note, Utah Prison Physicians: Can They Commit Malpractice
With Impunity or Does Their Official Immunity Violate the Open Courts Clause?,
1997 Utah L. Rev. 873, 882, 897-900.(10)
More recently, Justice Howe, writing for a unanimous court in Hirpa
v. IHC Hospitals, 948 P.2d 785, 792 (Utah 1997), sustained the constitutionality
of the Utah Good Samaritan Act against an Article I, section 11 challenge:
This provision, as we have
interpreted it, imposes a substantive limitation on the legislature's ability
to eliminate or unduly restrict causes of action seeking relief for injury
to "person, property, or reputation." Berry v. Beech Aircraft Corp.,
717 P.2d 670, 676 (Utah 1985).
Despite the importance of this function,
the rights of individuals protected by the open courts provision must be
balanced against the legislature's need to enact laws to meet changing
societal needs. Thus, the rights protected by the open courts provision
are "not always paramount," id. at 677, and "the Legislature has
great latitude in defining, changing, and modernizing the law, and in doing
so may create new rules of law and abrogate old ones." Id. at 676.
This is so because "[i]t is, in fact, one of the important functions of
the Legislature to change and modify the law that governs relations between
individuals as society evolves and conditions require." Id. Thus,
we will declare a statute violative of the open courts provision only if
it "is unreasonable and arbitrary and will not further the statutory objectives."
Id. at 681.
¶38
The determination of whether a person
who is injured in "person, property, or reputation" has been denied a remedy
by due course of law should be decided by reference to the general law
of rights and remedies at the time that the Legislature abrogates a remedy.
Then Chief Justice Hall, writing for a unanimous Court in Sun Valley
Water Beds, 782 P.2d at 191, addressed that precise issue in stating
that the Legislature "does not have unbridled power to deny to contemporary
plaintiffs their existing common law rights and remedies." (Emphasis
added.) In Masich v. United States Smelting, Refining & Mining Co.,
113 Utah 101, 191 P.2d 612 (Utah 1948), the plaintiff asserted the Legislature
had unconstitutionally abrogated his common law action for damages that
existed at the time of the lawsuit by enacting the exclusive remedy provision
of the Occupational Disease Act. The Court sustained the constitutionality
of the abrogation of a plaintiff's common law course of action, but the
decision was not concerned at all with the causes of action the plaintiff
had as of 1896. See id. at 624-25. The Court was concerned
only with whether the remedies provided under the Act were reasonable alternatives
to the common law remedies that the Act displaced.
¶39
The remedies unconstitutionally
abrogated by the statute of repose in Berry were remedies based
on the existing body of rights and remedies then available generally to
persons injured in their person, property or reputation. The Court in
Berry
focused only on the abrogation of those legal remedies that were generally
available at the time of the lawsuit for the protection of person and property.
See 717 P.2d at 681-83. That was also the focus of the Court's analysis
in Craftsman Builders Supply, Inc. v. Butler Mfg. Co., 364 Utah
Adv. Rep. 22 (1999),
Horton v. Goldminer's Daughter, 785 P.2d 1087
(Utah 1989), and
Sun Valley Water Beds v. Herm Hughes & Son,
782 P.2d 188 (Utah 1989). Indeed, some of the remedies abrogated in Craftsman,
Horton,
Sun Valley, and Berry did not even exist in 1896. SeeHorton,
785 P.2d at 1088-90. Accord, e.g., Hazine v. Montgomery Elevator
Co., 861 P.2d 625, 629 (Ariz. 1993); Boswell v. Phoenix Newspapers,
730 P.2d 186, 194-95 (Ariz. 1986), cert denied, 481 U.S. 1029 (1987);
Kluger v. White, 281 So. 2d 1, 4 (Fla. 1973);
Perkins v. Northeastern
Log Homes, 808 S.W.2d 809, 816 (Ky. 1991); Nat'l Ref. Co. v. Seehorn,
127 S.W.2d 418, 424 (Mo. 1939). The general precept was stated more recently
in DeBry v. Noble, 889 P.2d 428 (Utah 1995):
The fundamental interests
of "life, liberty, and property," as protected by the due process clause
and of "person, property and reputation" as protected by article I, section
11 were to be protected as societal and jurisprudential concepts of those
terms evolved. For the law to freeze the meaning of those clauses as of
one point in time would be to deny the essential meaning and purpose that
was built into those clauses by the broad, expansive language that the
Constitution uses.
889 P.2d at 435.
¶40
The Legislature does, of course,
have the power to abrogate such remedies. However, that power is not absolute.
Under the test stated in Berry, an abrogation of remedies must meet
the following standards:
First, section 11 is satisfied
if the law provides an injured person an effective and reasonable alternative
remedy "by due course of law" for vindication of his constitutional interest.
The benefit provided by the substitute must be substantially equal in value
or other benefit to the remedy abrogated in providing essentially comparable
substantive protection to one's person, property, or reputation, although
the form of the substitute remedy may be different. . . .
Second, if there is no substitute or alternative remedy provided, abrogation of the remedy or cause of action may be justified only if there is a clear social or economic evil to be eliminated and the elimination of an existing legal remedy is not an arbitrary or unreasonable means for achieving the objective. Berry, 717 P.2d at 680.
¶41
Thus, if the Legislature abrogates
a remedy, and if it provides an "effective and reasonable alternative remedy,"
id., the abrogation meets the requirements of Article I, section
11. See Payne v. Myers, 743 P.2d 186, 190 (Utah 1987) (suit
against the State for negligence in lieu of suit against state employee).
In a number of instances, the Legislature has provided non-common law alternative
remedies in lieu of common law remedies that it abrogated, such as in the
No-Fault Insurance Act, the Worker's Compensation Act, and the Occupational
Disease Act. See Masich v. United States Smelting, Refining &
Mining Co., 113 Utah 101, 191 P.2d 612, 624-25 (Utah 1948).
¶42
We examine now the first part of
the Berry test. In 1983, the Legislature amended section 63-30-4(3)
and abrogated all remedies against the tortfeasors themselves for negligence
and recklessness of government employees acting in the course and scope
of their employment. 1983 Utah Laws ch. 129, § 3. Government employees
are now personally liable only for fraud or malice. See id.
The consequence of that amendment was to abrogate the remedies that one
who had been injured by the negligence or recklessness of a government
employee had against the government employee personally. However, in lieu
of that remedy, one injured by the negligence or recklessness of a government
employee was provided a remedy against the government agency.
¶43
Thus, Mrs. Day was barred by section
63-30-4 from asserting an action against Officer Colyar. However, the amendment
to section 63-30-7 in 1990 also barred her action against the government
agency. Thus, for a period of a year and six days, the State barred all
actions of the type asserted by Mrs. Day against both the government agency
and its employees.(11)
¶44
Under this circumstance, we must
turn to the second part of the Berry test. If the Legislature provides
no alternative remedy, the abrogation is valid if it is justified by a
"clear social or economic evil to be eliminated and the elimination of
an existing legal remedy is not an arbitrary or unreasonable means for
achieving the objective." Berry, 717 P.2d at 680. In this case,
we can look to the legislative history of the bill that amended §
63-30-7 to bar the action against the government agency to determine the
reason for its enactment and whether the abrogation was "an arbitrary or
unreasonable means for achieving" the elimination of a "clear social or
economic evil." Berry, 717 P.2d at 680.
¶45
Senator Richard Carling, the sponsor
of Senate Bill 194, explained the reason for the bill on the Senate floor:
Mr. President, this is a
bill that came to us from the law enforcement community. They are being
bothered by frivolous lawsuits now, by individuals not particularly in
Utah, but this is a rash that started especially in California. . . . But
because of the rash of suits mainly to try to get the government entity
to come up with some money and settle these types of cases, suits have
been filed. We want to put in statute what we understand to be the common
law rule that if a police vehicle is chasing a suspect, and that suspect
is involved in an accident, that there will not be liability to the police
department or to the local government unless there was a reckless disregard
of the safety of the public and therefore they would be able to come back
against the police agency for that reason. . . . We understand that is
the common law, and it [is] merely to try to stop some frivolous lawsuits
that are being filed harassing government and police entities.
See Senate debate, Senator Richard J.
Carling, S.B. 194, February 4, 1990.
¶46
On its face, this statement identifies
no social, economic, or any other "evil" in Utah. The problem identified
by the sponsor of the amendment was a "rash" of "frivolous lawsuits" in
California. No evidence was presented showing that Utah had experienced
a similar rash of such frivolous lawsuits. Indeed, the sponsor made clear
that the basis for the amendment was the situation in California, but "not
particularly in Utah." In other words, the Legislature was not acting to
obviate a "clear social evil" in Utah. See Lee v. Gaufin,
867 P.2d 572, 583-88 (Utah 1993) (holding unconstitutional legislative
abrogation of remedies based on economic and social problems that had occurred
in other states but not in Utah).
¶47
Nor was there any showing that such
an evil was likely to occur in Utah. Indeed, the fact that there was truly
no factual basis for the abrogation of plaintiff's remedy is convincingly
shown by the Legislature's repeal of the Act a little more than one year
after its enactment and six weeks after the accident in issue.
¶48
Finally, Senator Carling's statement
in support of the amendment misstated the actual effect of the amendment.
Senator Carling stated that the amendment was intended to enact "the common
law rule" that where a police vehicle chases a suspect and that suspect
is involved in an accident, there is no liability unless the officer was
engaged in "reckless disregard of the safety of the public." That clearly
was not the effect of the amendment. In fact, it imposed an absolute bar
to such an action, whether based on recklessness or some other standard.
In truth, the stated factual and legal bases justifying the amendment were
simply in error, as is evident from its quick repeal. The stated basis
for the abrogation of the remedy had no foundation. It follows that the
Act barring the action for the time it was in effect was unconstitutional.
¶49
Reversed and remanded to the district
court for trial.
---
¶50
Associate Chief Justice Durham and
Justice Russon concur in Justice Stewart's opinion.
¶51
Chief Justice Howe concurs in the
result.
---
ZIMMERMAN, Justice, dissenting:
¶52
I dissent from the conclusion that
section 63-30-4 is unconstitutional because it violates article I, section
11 of the Utah Constitution. I would affirm the grant of judgment to the
defendants.
¶53
Today's majority opinion marks yet
another twist in the
Berry v. Beech Aircraft saga. While our cases
applying the Berry analysis in the area of governmental immunity
have heretofore looked to the state of the law at the time of statehood
as a reference point for determining the tort rights that the legislature
may not reduce without meeting Berry's high standards, see
Craftsman Builder's Supply, Inc. v. Butler Mfg. Co., 364 Utah Adv.
Rep. 22, 42, 44-45 (March 5, 1999)(Zimmerman, J., concurring in the result),
today Justice Stewart explicitly abandons that reference point. See
supra ¶¶ 36-40. This may be because of the absurdities that
this standard has introduced into the law, as highlighted by the court
of appeals analysis in this case. See Craftsman, 364 Utah
Adv. Rep at 44-45 (Zimmerman, J., concurring in the result). But in any
event, Justice Stewart now says that under Berry, the sole referent
against which any legislative attempt to limit tort liability will be measured
is the "general law of rights and remedies at the time that the Legislature
abrogates a remedy." See supra ¶ 38. The majority, then, no
longer even purports to refer to any fixed historical point or fact to
set the measure of the rights that article I, section 11 protects. It reads
the Utah Constitution to effectively enshrine safe from legislative diminishment
our tort case law and any pertinent legislative enactments on any day that
the legislature tries to act.
¶54
It cannot be doubted that the Berry
analysis puts this court in the role of second guessing the wisdom of the
legislature by a standard that can seldom be met. The majority opinion,
like other of our Berry precedents, closely reviews the whys and
wherefores of the legislation under attack and finds them wanting. Here,
as in Berry and Sun Valley Water Beds of Utah, Inc. V. Herm Hughes
& Son, Inc., 782 P.2d 188, 193 (Utah 1989), for example, the majority
finds that the legislature was naive and poorly informed, and concludes
that "the stated factual and legal bases justifying the amendment were
simply in error."
See supra ¶ 48. The evil that the legislature
thought it was addressing just doesn't exist, according to this court.
Therefore, the statute is unconstitutional. Whatever I may think of the
profundity of the legislature's justifications for section 63-30-4--justifications
it found unpersuasive only a year later when it repealed the statute--I
reject this court's claim of entitlement to constitutionally second guess
the legislature in this fashion under the guise of article I, section 11.
I continue to view this ad hoc constitutionalization of the existing law
to put it beyond the legitimate reach of the legislature as an unjustifiable
judicial arrogation of power, one certainly never intended by the drafters
of the constitution and never anticipated by this court before Berry.
See Craftsman, 364 Utah Adv. Rep at 45-48 (Zimmerman, J.,
concurring in the result).
¶55
My views on this matter, and on
Berry v. Beach Aircraft where this claim originated, are fully set
forth in my concurrence in Craftsman, and will not be repeated here.
But I will persist in asserting the illegitimacy of the course we are embarked
on under Berry.
---
1. Beach v. University of Utah, 726 P.2d 413 (Utah 1986), stated some of the considerations that determine whether a special relationship exists: Determining whether one party has an affirmative duty to protect another . . . requires a careful consideration of the consequences for the parties and society at large. If the duty is realistically incapable of performance, or if it is fundamentally at odds with the nature of the parties' relationship, we should be loath to term that relationship "special" and to impose a resulting "duty," for it is meaningless to speak of "special relationships" and "duties" in the abstract. These terms are only labels which the legal system applies to defined situations to indicate that certain rights and obligations flow from them . . . . Id. at 418.
2. Some courts have also recognized an exception to the public duty rule "where there is an affirmative act by the officer causing injury." Dauffenbach v. City of Wichita, 667 P.2d 380, 385 (Kan. 1983); see also Frye v. Clark County, 637 P.2d 1215, 1216 (Nev. 1981) (noting an exception to the public duty rule "where the official negligence affirmatively causes the individual harm"); Warren v. District of Columbia, 444 A.2d 1, 7-8 (D.C. Ct. App. 1981) (distinguishing cases involving "negligent performance of police duties" on the ground that those cases "involve[d] acts of affirmative negligence, for which anyone--police or civilian--would be liable"); cf. Garnett v. City of Bellevue, 796 P.2d 782, 785 (Wash. Ct. App. 1990) (where officers allegedly mistreated women accused of soliciting lounge patrons, court found public duty doctrine inapplicable because the "infliction of emotional distress [in the case] was the result of direct contact with the plaintiff, not the performance of a general public duty").
3. The text of
Utah Code Ann. § 41-6-14 (1988), as pertinent here, states:
(2) The operator of an authorized
emergency vehicle may:
(a) park or stand, irrespective
of the provisions of this chapter;
(b) proceed past a red or stop signal
or stop sign, but only after slowing down as may be necessary for safe
operation;
(c) exceed the maximum speed limits
if the operator does not endanger life or property; or
(d) disregard regulations governing
direction of movement or turning in specified directions.
(3) Privileges granted under this section
to an authorized emergency vehicle apply only when the vehicle sounds an
audible signal under Section 41-6-146, or uses a visual signal as defined
under Section 41-6-132, which is visible from in front of the vehicle.
(a) The privileges under
this section do not relieve the operator of an authorized emergency vehicle
from the duty to operate the vehicle with regard for the safety of all
persons, or protect the operator from the consequences of an arbitrary
exercise of the privileges.
Id. (emphasis added).
4. The statute was first enacted in 1931. It clearly established a duty of reasonable care on the part of operators of emergency vehicles to those sharing the use of a road with emergency vehicles. The statute imposed a duty of care on the driver toward "all persons using the street." Although the statute exempted drivers of an emergency vehicle from speed limits, it did not "relieve the driver . . . from the duty to drive with due regard for the safety of all persons using the street, nor shall it protect the driver of any such vehicle from the consequences of a reckless disregard of the safety of others." 1931 Utah Laws ch. 49, § 25. That statutory provision has been subsequently revised, repealed, reinstated, and repealed again in 1993. See 1941 Utah Laws ch. 52, § 5 (duty provision repealed); 1949 Utah Laws ch. 65, § 57-7-82(e) (duty provision reinstated); 1995 Utah Laws ch. 71, § 41-6-14(b) ("arbitrary exercise" replaced "reckless disregard for the safety of others"); 1961 Utah Laws ch. 86, § 41-6-14 ((b) repealed); 1965 Utah Laws ch. 83, § 41-6-14 ((b) reinstated); 1978 Utah Laws ch. 33 (recodified at § 41-6-14(3)(a)); 1987 Utah Laws ch. 138, § 7 (revised, "driver" changed to "operator," "due" struck from "due regard"); 1993 Utah Laws ch. 71, § 3 ((3)(a) repealed).
5. A small minority of opinions holds that a police officer cannot be held liable for injuries to a third person arising out of a high-speed chase. See United States v. Hutchins, 268 F.2d 69 (6th Cir. 1959); Thornton v. Shore, 666 P.2d 655 (Kan. 1983); Chambers v. Ideal Pure Milk Co., 245 S.W.2d 589 (Ky. Ct. App. 1952); Kelly v. City of Tulsa, 791 P.2d 826 (Okla. Ct. App. 1990); Dickens v. Horner, 611 A.2d 693 (Pa. 1992); Nevill v. City of Tullahoma, 756 S.W.2d 226 (Tenn. 1988).
6. It was later learned that the vehicle was stolen, but that is irrelevant to Officer Colyar's reasons for the high-speed chase. We are concerned only with what Officer Colyar knew or reasonably should have known at the time.
7. Recognizing these conflicting considerations and concluding that high-speed chases are not justified at all in certain circumstances, the Salt Lake City Police Department has adopted guidelines barring high-speed chases in all cases but those involving the commission of a violent felony, when the suspect "poses an imminent danger if not apprehended immediately." Salt Lake City Police Dep't, Police Manual § 4-08-20.03 (rev. June 1995). Even more explicitly, under the most current regulations, a police officer must terminate his pursuit "[w]hen the risks of the pursuit are not warranted because the danger it is causing the community is greater than the need for immediate apprehension of the suspect." Id. at § 4-08-20.08. Police departments and courts in other jurisdictions have required a similar balancing. See City of Pinellas Park v. Brown, 604 So. 2d 1222, 1224 (Fla. 1992) (police policy); Lee v. City of Omaha, 307 N.W.2d 800, 803 (Neb. 1981) (same); Travis v. City of Mesquite, 830 S.W.2d 94, 98 (Tex. 1992); Mason v. Bitton, 534 P.2d 1360, 1363 (Wash. 1975) (same).
8. Utah Code Ann. § 63-30-4(3) (Supp. 1991) states: (a) Except as provided in Subsection (b), an action under this chapter against a governmental entity or its employee for an injury caused by an act or omission that occurs during the performance of the employee's duties, within the scope of employment, or under color of authority is a plaintiff's exclusive remedy.
(b) A plaintiff may not bring or pursue any other civil action or proceeding based upon the same subject matter against the employee or the estate of the employee whose act or omission gave rise to the claim, unless: (i) the employee acted or failed to act through fraud or malice; or
(ii) the injury or damage resulted from the conditions set forth in Subsection 63-30-36(3)(c). 9. The proposition that Berry in effect constitutionalized the common law was explored at some length in the separate concurring opinions of Justices Stewart and Zimmerman in Craftsman Builders Supply, Inc. v. Butler Mfg. Co., 364 Utah Adv. Rep. 22, 34-37 (1999) (Stewart, J., concurring); id. at 44-47 (Zimmerman, J., concurring). Justice Russon and Justice Durham concurred in the concurring opinion of Justice Stewart. See id. at 28 n.5, 39.
10. Concededly, Ross v. Schackel, 920 P.2d 1159 (Utah 1996), sounded a discordant note with respect to the above principles. See generally Guymon, supra ¶ 37. In Ross, the Court stated that whether section 63-30-4(4), the provision in the Governmental Immunity Act that barred suits against government employees for negligence, was unconstitutional as applied to a prison physician for malpractice on a prisoner turned on whether the provision abrogated a remedy that existed under the common law at the time of statehood. Id. at 1162. For that proposition, the Court cited Berry, 717 P.2d at 676 n.3. The footnote in Berry which Ross relied on stated in pertinent part that to "some extent, . . . the common law at the time of statehood provides at least a measure of the kinds of legal rights that the framers must have had in mind for the protection of life, property, and reputation." Id. This language refers to the kinds of "legal rights" that tended to define the legal nature of person, property, and reputation that were entitled to a "remedy by due course of law." That footnote can certainly not be construed to override the basic thesis reiterated several times in the text of the Berry opinion that Article I, section 11 did not constitutionalize the common law or freeze the law at any given point in time. See id. at 676, 677; Guymon, supra ¶ 37, at 882. Moreover, Ross was decided to some extent on the basis of the policy considerations of allowing an action to proceed against a prison physician by inmates, a position consistent with that part of Berry that allows the abrogation of a remedy by the necessity of vindicating a "social or an economic evil." Ross, 920 P.2d at 1162 (citing Berry, 717 P.2d at 677 n.4, 680). It may be that the notion that Article I, section 11 protected only those remedies recognized in 1896 came from statements in our opinions that the Framers of the Constitution, in adopting Article I, section 11, undoubtedly intended that the general principles on which the common law was founded were not ipso facto displaced by section 11. See DeBry v. Noble, 889 P.2d 428 (Utah 1995).
11. It is of no legal consequence under our Article I, section 11 analysis that plaintiff might have had a claim against Floyd. Indeed, the State does not argue otherwise. In Sun Valley Water Beds v. Herm Hughes & Co., 782 P.2d 188, 192 (Utah 1989), this Court held that alternative claims against other possible defendants do not constitute "substitute or alternative remedies" for section 11 purposes. The Court stated that "alternative claims are to be distinguished from substitute or alternative remedies." Id.
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