Estate of Aten v. City of Tucson

OPINION

FERNANDEZ, Chief Judge.

In this appeal from the granting of summary judgment against it, appellant Estate *148of Debra Aten argues that it raised a question of material fact on the issue of whether appellee City of Tucson’s police pursuit of a fleeing vehicle was conducted in a negligent manner. The pursued vehicle crashed into Aten’s vehicle and killed her. We agree that appellant raised a fact issue that precluded entry of summary judgment and reverse.

In the early morning hours of January 18, 1987, three private security officers were driving on Ft. Lowell near First Avenue. A car drove up beside them and the driver gunned the engine, honked his horn, and waved at them as though he wanted to race. When they declined, the driver accelerated, heading east and weaving in and out of traffic. Phillip Rankin, the front passenger in the security officers’ car, estimated his speed at 45 to 50 miles per hour. The driver ran a red light at Ft. Lowell and Mountain, then drove up over the curb, went back on the street, sideswiped another car, and continued eastbound.

Rankin’s car then began following the man, later identified as Mark Bable. Rankin called the police on a mobile phone and reported the hit-and-run accident. Rankin testified at his deposition that at times Bable was driving 60 to 65 miles per hour. The security officers followed Bable for several miles while he turned on various streets, slowed down and speeded up, and even stopped once and got out of his car for a few moments. Rankin kept the police advised of Bable’s movements.

Rankin stated that when they reached the intersection of Glenn and Dodge a police car arrived. The security officers signalled to the officer and pointed out Bable’s car. Rankin testified that Bable pulled over and stopped when he saw the police car, and when it pulled up behind him after the officer made a U-turn, Bable “punched it again” and took off eastbound at a high rate of speed.

Another police car arrived, and the two cars chased Bable for several miles on several different streets. Bable continued to drive at high speeds. One of the pursuing officers stated in his affidavit that Bable made a right turn through a red light by driving üp on the sidewalk and back on the road around the comer. While he was traveling westbound on Glenn, he ran a red light at Country Club and collided with Aten’s vehicle. The evidence was that a police helicopter arrived at the chase scene shortly after the two police cars began their pursuit. Rankin testified that they listened to the police pursuit over a police scanner, and he heard someone say to drop back and let the helicopter handle the chase. The security officers identified Bable at the scene of the accident as the man they had begun following earlier.

Aten’s estate filed a wrongful death action against the city on behalf of her son and her parents, alleging that the police failed to comply with department procedures in conducting the pursuit. The city moved for summary judgment, arguing that the police had a duty to pursue Bable, that they exercised reasonable care in meeting that duty, and that their actions, as a matter of law, were not the proximate cause of Aten’s death. The trial court granted the motion and this appeal followed.

In its opposition, appellant pointed to the police department procedures manual section on hot pursuits and specifically to the following:

5. Air Support Unit Assistance
When the air support unit is used to assist in a hot pursuit, the dispatcher shall be advised by the observer in the airborne unit when visual contact has been made with the suspect vehicle. The dispatcher shall then advise the ground units that the air support unit has visual contact, and the air support unit will then coordinate the remainder of the pursuit. Pursuing ground units will immediately slow down and respond to the directions of the air support unit.

Appellant also presented the affidavit of an expert whose opinion was that the pursuing officers were negligent in not having blocked Bable’s car when they first made contact with him. The expert also stated that the pursuing officers were negligent and violated departmental policy in continu*149ing pursuit after the arrival of the helicopter and that the helicopter was negligent in illuminating Bable’s car while observing and reporting his movements.

As appellant points out, negligence actions are generally not proper subjects for summary judgment motions, an area in which “as a matter of historical practice and constitutional requirement, the jury is given the most deference in weighing evidence, drawing inferences, and reaching conclusions on questions of negligence, causation, and damages.” Orme School v. Reeves, 166 Ariz. 301, 802 P.2d 1000, 1009 (1990). Summary judgment in such cases is proper only if the plaintiff “presents no evidence from which a reasonable jury could find, directly or by inference, that the probabilities” favor the plaintiff. Id. Having noted that, we must first address the city’s argument that, as a matter of law, the pursuing officers’ conduct was not the proximate cause of Aten’s death.

The city contends that the majority of jurisdictions hold, as a matter of law, that a law enforcement officer’s pursuit of a fleeing suspect is not the proximate cause of the injuries that suspect inflicts on innocent bystanders as a result of the pursuit. In support of that contention, the city cites a Texas case, Dent v. City of Dallas, 729 S.W.2d 114 (Tex.App.1986), cert. denied, 485 U.S. 977, 108 S.Ct. 1272, 99 L.Ed.2d 483 (1988). The court there reversed a jury verdict for the plaintiffs, in part because of its view that an officer’s duty is a general duty owed to the public at large rather than a specific one owed to the person injured, citing among other decisions, Wilson v. City of Tucson, 8 Ariz.App. 398, 446 P.2d 504 (1968). Arizona no longer follows that view. Ryan v. State, 134 Ariz. 308, 656 P.2d 597 (1982). Another basis for the court’s holding in Dent was the fact that plaintiffs had alleged that the officer was negligent in failing to arrest the suspect before the chase began. The court refused to impose liability upon the officer’s exercise of a discretionary duty. In the case at issue, however, appellant does not allege that the officers were negligent in failing to arrest Bable.

The court in Dent also held that the sole proximate cause of the accident, as a matter of law, was the suspect’s negligence and ruled that peace officers are not insurers of the conduct of fleeing suspects. In support of that ruling, the court cited a number of cases. An analysis of those cases reveals, however, that the issue is not quite so clear cut as it might seem. The two California cases the Dent court cited, for instance, held that police officers are not liable for injuries caused by pursuing vehicles based on the officers’ failure to activate their sirens. Pagels v. City and County of San Francisco, 135 Cal.App.2d 152, 286 P.2d 877 (1955); Draper v. City of Los Angeles, 91 Cal.App.2d 315, 205 P.2d 46 (1949). In both cases the courts spoke in terms of the lack of a duty owed to the injured persons. Those cases are apparently no longer the law in California. City of Sacramento v. Superior Court, 131 Cal. App.3d 395, 182 Cal.Rptr. 443 (1982). In that case, the court reversed a summary judgment, finding that a fact issue had been raised both as to the pursuing officers’ negligence in failing to sound their siren and as to proximate cause.

In City of Miami v. Horne, 198 So.2d 10 (Fla.1967), the Florida Supreme Court upheld the entry of summary judgment in a suit for wrongful death resulting from a police pursuit. The court held that an officer is not liable merely because he chooses to pursue a suspect, noting that the officer had a duty to apprehend the offender. In Brown v. City of Pinellas Park, 557 So.2d 161 (Fla.App.1990), however, the court distinguished Home on the ground that institution of the chase was alleged to have been negligent in Home, whereas in Brown, the chase was alleged to have been negligently conducted. The court also noted that proximate cause is typically a question for the jury, quoting the following: “ ‘If an intervening cause is foreseeable the original actor may still be held liable. The question of whether an intervening cause is foreseeable is for the trier of fact.’ ” Id. at 177, quoting Gibson v. Avis Rent-A-Car System, Inc., 386 So.2d 520, 522 (Fla.1980).

Three of the cases cited in Dent are inapplicable because they involved a suit *150either by the pursued suspect’s estate or that of a passenger in the suspect’s vehicle. Bailey v. L.W. Edison Charitable Foundation, 152 Ind.App. 460, 284 N.E.2d 141 (1972); Blanchard v. Town of Kearny, 145 N.J. Super. 246, 367 A.2d 464 (1976), aff'd, 153 N.J. Super. 158, 379 A.2d 288 (1977); Silva v. City of Albuquerque, 94 N.M. 332, 610 P.2d 219 (App.1980). In another case, the officers’ alleged negligence was in failing to properly arrest the suspect before the chase began. Downs v. Camp, 113 Ill.App.2d 221, 252 N.E.2d 46 (1969). We note, however, that the case was submitted to the jury, including the issue of proximate cause.

The most significant reason why Dent is not persuasive, however, is because its holding as to proximate cause is apparently no longer good law. In Travis v. City of Mesquite, No. C-8576 (Tex. Dec. 31, 1990) (1990 WL 224258), the Texas Supreme Court reversed a summary judgment entered in favor of two police officers and their employer in a negligence action brought by the survivors of an innocent person killed by a person being pursued by the police. The court ruled that a fact issue existed as to proximate cause, concluding that “there is no special statutory provision excepting police officers from the recited legal standards for proximate cause.” Id.

Considering the weaknesses in Dent and the authorities it relied upon, we find more persuasive the holding in a Connecticut case that “[t]he intervention of negligent or even reckless behavior by the driver of the car whom the police pursue does not, under the emergent majority view, require the conclusion that there is a lack of proximate cause between police negligence and an innocent victim’s injuries.” Tetro v. Town of Stratford, 189 Conn. 601, 607, 458 A.2d 5, 8 (1983), cited in Travis v. City of Mesquite, supra. The court in Tetro affirmed judgment for plaintiffs, ruling that the issue of proximate cause had been properly submitted to the jury. The allegation there was that the officer violated department procedures governing high speed chases. Other cases hold similarly. Fiser v. City of Ann Arbor, 417 Mich. 461, 339 N.W.2d 413 (1983) (summary judgment for city reversed; allegations of negligence in manner pursuit conducted and proximate cause were for jury); Selkowitz v. County of Nassau, 45 N.Y.2d 97, 408 N.Y.S.2d 10, 379 N.E.2d 1140 (1978) (jury verdict for plaintiffs affirmed; expert testimony on proper police practices in high speed chase admissible); Kuzmics v. Santiago, 256 Pa.Super. 35, 389 A.2d 587 (1978) (nonsuit reversed; allegations of negligence in conducting pursuit and proximate cause were jury questions); Mason v. Bitton, 85 Wash.2d 321, 534 P.2d 1360 (1975) (summary judgment for city and state reversed; fact issues existed on conduct of pursuit).

That approach also comports with Arizona law that the issue of proximate cause is ordinarily left to the jury. Gosewisch v. American Honda Motor Co., 153 Ariz. 400, 737 P.2d 376 (1987); Markowitz v. Arizona Parks Board, 146 Ariz. 352, 706 P.2d 364 (1985); Tennen v. Lane, 149 Ariz. 94, 716 P.2d 1031 (App.1985). “[I]t is only when reasonable persons could not differ that the court may direct a verdict on the issue.” Markowitz, 146 Ariz. at 358, 706 P.2d at 370. We do not find that to be the case here. “The defendant’s act or omission need not be a ‘large’ or ‘abundant’ cause of the injury; even if defendant’s conduct contributes ‘only a little’ to plaintiff’s damages, liability exists if the damages would not have occurred but for that conduct.” Robertson v. Sixpence Inns of America, 163 Ariz. 539, 546, 789 P.2d 1040, 1047 (1990), quoting Ontiveros v. Borak, 136 Ariz. 500, 505, 667 P.2d 200, 205 (1983). We conclude that the city is not entitled to summary judgment as a matter of law on the issue of proximate cause.

We also find no merit to the city’s other arguments in support of the summary judgment. Its contention that police officers have a duty to pursue those who present a danger to the public is irrelevant. Appellant does not contend that the police should not have pursued Bable; it contends instead that the police conducted the pursuit negligently. The city’s contentions that one of the pursuing officers had no *151duty to pull her vehicle in front of Bable’s and that appellant’s expert misstated the facts in his affidavit filed in opposition to the summary judgment motion are not proper issues in this appeal. Our obligation is only to determine whether a material fact issue exists so as to preclude summary judgment; it is not appropriate for us to engage in weighing the facts presented or in determining the credibility of witnesses. Elson Development Co. v. Arizona Savings & Loan Association, 99 Ariz. 217, 407 P.2d 930 (1965).

Finally, the city argues that A.R.S. § 28-624 does not impose liability in this case. That section permits emergency vehicles to exceed speed limits, to disregard regulations governing turning and direction of movement, to park in no parking areas, and to go through stop signs and red lights when responding to emergency calls or pursuing a law offender. Subsection D of that section states:

The provisions of this section do not relieve the driver of an authorized emergency vehicle from the duty to drive with due regard for the safety of all persons nor do these provisions protect the driver from the consequences of his reckless disregard for the safety of others.

A.R.S. § 28-624(D). The city contends that the statute does not render drivers of emergency vehicles the insurers of the safety of others who are at risk because of the conduct of fleeing suspects. That argument is nothing more, however, than a restatement of its arguments that there is no proximate cause as a matter of law.

The dissent asserts that § 28-624 restricts the liability of municipalities and/or law enforcement officers to those situations in which the officer has been grossly negligent in the pursuit. We note initially that the city has not made that argument on appeal. We believe it is unwise to reach a decision on such an issue unless it has been properly raised and briefed.

We also believe that the issue has already been decided in Arizona. We disagree with the dissent that the statement in Herderick v. State, 23 Ariz.App. 111, 530 P.2d 1144 (1975), that the statute imposes the same duty imposed on all highway users, is dictum. The court’s conclusion as to the meaning of the statute was an essential part of its analysis on whether the officer owed a duty to the decedents.

That conclusion is also consistent with the conclusion reached in a previous case. In Ruth v. Rhodes, 66 Ariz. 129, 185 P.2d 304 (1947), the supreme court interpreted a predecessor statute to § 28-624. The statute in that case read as follows:

The speed limitations set forth in this article shall not apply to vehicles when operated with due regard for safety under the direction of the police in the pursuit or apprehension of persons charged with or suspected of any violation of law____ This exemption shall not however protect the driver of any such vehicle from the consequences of a reckless disregard of the safety of others.

Ariz.Code Ann.1939 § 66-105. Holding that the trial court was correct in refusing to instruct the jury that the statute required the plaintiff to show a higher degree of negligence in order to recover against the police officer, the court explained:

The intent of section 66-105 ... is not to hold patrolmen to less than the usual degree or standard of care. Instead, by its very words the section holds him to ‘due regard for safety’ making exception only for the speed at which a patrolman’s job sometimes requires him to travel. The last sentence of this section upon which defendants so heavily rely to carry their point refers only to the speed exception, and is by its own terms so limited. It would breach all rules of construction to apply the ‘reckless disregard’ standard to any but this speed exception.

66 Ariz. at 137, 185 P.2d at 309-10.

We conclude that appellant has raised a material fact issue that precludes entry of summary judgment.

Reversed and remanded.

HOWARD, J., concurs.