dissenting.
Respectfully, I dissent. I believe that the major difficulty in resolving this case stems from the fact that the wrong party was sued. Officer Miller had placed the prisoner in the custody of Deputy Embrey, and Deputy Embrey assumed control of the prisoner. It follows that Officer Miller cannot be regarded as a cause of the accident. Additionally, the actions of the prisoner were a superseding act which precludes liability for the accident on the part of Officer Miller or the City.
The rule is stated that, “[a] superseding cause is an intervening independent force; however, an intervening cause is not necessarily a superseding cause. ... if the resultant injury is reasonably foreseeable from the view of the original actor, then the other factors causing to bring about the injury are not a superseding cause.” NKC Hospitals, Inc. v. Anthony, 849 S.W.2d 564, 568 (Ky.App.1993). In the case at bar, the resulting injury was not foreseeable to the original actor — that being Officer Miller. He handcuffed his prisoner, put him in the back seat of the police vehicle with a Plexiglas divider in place, and left him in the custody of another law enforcement officer. It was not foreseeable to Officer Miller that the prisoner would then be left alone and allowed to escape and cause the ensuing accident. He did not leave the prisoner completely alone. He thus did not commit an act of negligence. Therefore, the events which followed must surely be considered an independent chain of events which were not foreseeable.
Further, I do not believe the majority opinion convincingly distinguishes this case from those in which the special relation*44ship test was applied. The special relationship test is an additional test when the issue is whether law enforcement failed to protect by their acts or omissions. I regard the real issue in the case at bar as whether Mrs. Foltz was not protected by the law enforcement officials from a drunk driver. Thus, the special relationship test must be considered for this case. Under the special relationship test, the victim, Mrs. Foltz, was not in state custody or otherwise restrained at the time the injury-producing act occurred. Therefore, the police officer had no affirmative legal duty to act on behalf of Mrs. Foltz. Fryman v. Harrison, 896 S.W.2d 908, 909-10 (Ky. 1995).
I believe the trial court’s decision was sound in granting summary judgment to the City and Officer Miller. I would affirm the Court of Appeals’ opinion.
NOBLE, J., joins this dissent.