(concurring). I concur in the result but would hold that only if an injured passenger can prove that he is free of any criminal responsibility for the actions that caused the attempted police apprehension or encouraged the driver of the fleeing vehicle to flee can the passenger recover for the officer’s negligent conduct.
The rule in Fiser v Ann Arbor, 417 Mich 461; 339 NW2d 413 (1983), is that the operator of an emergency vehicle owes a duty to drive with due regard for the safety of others, taking various factors into *664consideration, including the existence of an emergency, the area of pursuit, weather and road conditions, vehicular and pedestrian traffic conditions, and the reason for the pursuit. The Court in Jackson v Oliver, 204 Mich App 122; 514 NW2d 195 (1994), ruled that the duty does not extend to a fleeing wrongdoer. I see no reason to impose a duty to a passenger who is in some way a participant in the wrongdoing with the driver of a fleeing vehicle. The lead opinion in this case would hold that the passenger’s fault in bringing about or continuing the police pursuit should be considered by the factfinder in apportioning fault. I would hold that the duty extends only to those who are criminally innocent third-party passengers taking no part in bringing about or continuing the pursuit. In this case, the participation of Cooper and Morris in the criminal wrongdoing remains a question of fact and the burden of proving innocence should be on them.