dissenting
As I am unable to agree with the majority opinion, I must respectfully dissent.
Recently, in Rahn v. City of Whitehall (Mar. 16, 1989), Franklin App. No. 88AP-960, unreported (1989 Opinions 617), this court affirmed the trial court's decision dismissing plaintiff's complaint in which plaintiff alleged defendant's police department negligently conducted a high-speed automobile chase of another vehicle which proximately resulted in injuries to her. While Rahn involved municipality liability, addressed under the provisions ofR.C. 2744.02, there exists language in that opinion relevant to the liability which plaintiff seeks to impose upon defendant in the present casa This court specifically held:
"* * * To the extent plaintiff's complaint alleges negligence only in the fact that defendant initiated pursuit of the suspect, most jurisdictions which have reviewed this question have refused to impose a duty upon police officials to refrain from pursuing criminal suspects Jackson v. Olson (1985), 77 Or. App. 41,_, fn. 4, 712 P. 2d 128, 131, fn. 4. (Collecting cases) Accordingly, to the extent plaintiff's complaint alleges negligence on the part of the police in initially deciding to pursue a suspect, we find no duty on the *287part of defendant to refrain from chasing the suspect." Id. at 621.
In the present case, the mere fact that police officers were in pursuit of decedent does not give rise to a duty of due care owed to decedent who, by his own efforts, attempted to elude capture and suffers injury. While not involving R.C. 4511.24, the Third District Court of Appeals declined to impose a duty upon a landowner in pursuing a party whom the landowner had seen damage his property. In Riepenhoff v. Miller (Aug. 30, 1988), Putnam App. No. 12-87-10, unreported, the court stated:
"An owner in fresh pursuit of a criminal has no duty to use ordinary care to anticipate and protect a participant in the criminal venture, while in flight, from new and independent dangers of the criminal’sown creation and incidental to a reckless disregard of his own safety in his effort to escape The law does not roll out a red carpet in front of such person to exonerate misdeeds in flight or to facilitate the escape of such person from the consequences of his original offense The flight from the scene of a motor vehicle accident is in itself unlawful.
"Continuation of the flight and of the pursuit did not excuse either party from proceeding in a lawful manner on the roadway, and not being a joint adventure neither party was responsible for the conduct of the other. Each violation was a separate, independent act for which only the one that committed it was responsible
"We find that reasonable minds can only conclude that the appellee did not violate a duty to appellant; that the tragedy was caused solely and independently by the negligent acts of appellant. While the causal factor provides an obvious solution, as adopted by the trial court, the failure of appellant to establish a violation by appellee of a legal duty is equally determinative." Id. at 6-8.
I believe such reasoning to be even more appropriately applied to the context of an individual attemptingto elude capture by police officers. From the allegations contained in plaintiff's complaint, it is reasonable to conclude that decedent was speeding, in violation of R.C. 4511.21. An even more obvious violation of Ohio traffic laws was decedent's failure to bring his motor vehicle to a stop after receiving signals to do so by defendant, a violation of R.C. 4511.02. In the present case, plaintiff has failed to allege any facts sufficient to demonstrate a breach of any duty owed the decedent (i.&, that the officers were not in uniform, were not in a marked patrol car, had not operated a siren or other sound device, or had failed to operate flashing lights during the chase). If, as the majority opinion insists, such a duty were imposed upon police while in pursuit of a suspect, that individual need only flee and by necessity the chasing police officers would have to end their pursuit. See Wrubel v. State of New York (Ct. Cl. 1958), 11 Misc. 2d 878, 174 N.Y. Supp. 2d 687. Accordingly, as I believe plaintiff has failed to enumerate in her complaint a breach of any duty owed to the decedent, I find no error in the trial court's decision to grant defendant's Civ. R. 12(BX6) motion.
In Chambers v. Ideal Pure Milk Co. (Ky. 1952), 245 S.W. 2d 589, police officers gave chase covering approximately thirteen city blocks at speeds in excess of 70 m.p.h. The escaping individual's car eventually crashed into plaintiff's vehicle who sued for his resulting injuries. In rejecting liability, the court held:
"Charged as they were with the obligation to enforce the law, the traffic laws included, they [the police] would have been derelict in their duty had they not pursued him. The police were performing their duty when Shearer, in gross violation of his duty to obey the speed laws, crashed into the milk wagon. To argue that the officers' pursuit caused Shearer to speed may be factually true, but it does not follow that the officers are liable at law for the results of Shearer's negligent speed. Police cannotbe made insurers of the conduct of the culprits they chase. It is our conclusion that the action of the police was not the legal or proximate cause of the accident. * * *" Id. at 590-591.
In Wrubel, supra, a state trooper gave chase with siren and flashing lights of a vehicle he had observed speeding. While the state trooper was able to pull alongside the fleeing vehicle and give further signals to stop the vehicle, the speeding violator continued his attempt to elude arrest. Subsequently, in negotiating a curve with the trooper still in pursuit, the fleeing vehicle struck an oncoming car injuring plaintiff and his wife. The court held that the sole proximate cause of the accident was the action of the speeding violator. The court went on to note:
"Claimants' predication of liability on the State is founded on the novel position that the trooper, in attempting to halt one increasing the danger on the highway, did by his attempt alone increase the danger himself. To extend this position to the ultimate would require a police officer *288to pursue* at an otherwise lawful rate of speed, a law-breaker traveling at an unlawful rate of speed, or to ignore him in the first placa
"An operator who is speeding, or who is a reckless driver on the highway, would know that all he had to do was go faster--and under claimants' theory escape would be possible-theie would be no chasa A burglar, bank robber or any other felon could threaten to shoot and under claimants' theory escape would be possible and arrest avoided. It is fantastic to further expand claimants' theory-such thinking would place a police officer in the same category as the Marquis of Queensbury in a pier six brawl." Id. at 878, 174 N.Y. Supp. 2d at 689.
Similarly, in Roll v. Timherman (1967), 94 N.J. Super. 530, 229 A. 2d 281, in which plaintiffs were injured by an escaping vehicle in flight from a police officer, the court agreed with the reasoning of Chambers, supra, and Wrubel, supra, holding that "the proximate cause of such an accident is the reckless driving of the pursued, notwithstanding recognition of the fact that the police pursuit contributed to the pursued's reckless driving."
More recently, in Nevill v. City of Tullahoma (Tenn. 1988), 756 S.W. 2d 226, the Supreme Court of Tennessee applied the foregoing case law and concluded that the parents of the passengers in an automobile attempting to elude capture could not maintain an action against the city since the sole proximate cause of the accident was the negligence of the driver who operated his car at high speeds in order to elude police. In Nevill, supra, the court dismissed the plaintiffs cause of action and refused to impose liability on the city merely because its police officers engaged in a chase of an individual observed violating traffic laws and operating his vehicle in a reckless manner.
While apparently disposing of similar cases on the basis there exists no probable cause, I am inclined to agree with such reasoning and hold that police officers' pursuit of a suspect may not, as a matter of law, constitute a breach of a duty owed to an individual who suffers injury due to his own efforts to elude capture. In the present case* while the chase may have prolonged decedent's flight, it was not the cause of decedent's accident nor the injuries which resulted. To the extent plaintiffs complaint appears to allege nothing more than that the police officers conducted a high-speed chase which resulted in decedent's death, I would hold that plaintiff has failed to allege a breach of any duty owed decedent.
I also note that to the extent that plaintiffs cause of action appears to be alleging a violation of a type embodied in Section 1983, Title 42, U.S. Code, such a claim is properly dismissed in the Court of Claims since it has been determined that the state is not a person for the purposes of a Section 1983 violation. See Burkey v. Southern Ohio Correctional Facility (1988), 38 Ohio App. 3d 170; Will v. Michigan Dept. of State Police (1989), 105 Law. Ed. 2d 45.
Based on the foregoing, I would overrule plaintiff's arguments and affirm the judgment of the trial court.