with whom TAYLOR, V.C.J. and HARGRAVE, J., join, dissenting.
T1 The majority opinion holds that law enforcement officers and their government entity employers can be liable to third parties for harm caused by drivers who are fleeing apprehension by the officers. The majority finds support for such liability in the statute governing the operation of emer-geney vehicles when in pursuit of an actual or suspected violator-47 O.S. Supp.2004 § 11-106. The majority points out that the statute expressly provides that its "provisions [do not] protect the driver of an emer-geney vehicle from the consequences of reckless disregard for the safety of others." The majority concludes that this language applies not only to the officer's operation of his vehicle, but also to the officer's decisions to commence and to continue pursuit I respectfully dissent from this interpretation because the text of section 11-106 as a whole indicates that the "reckless disregard" language relates to the driving or operation of an emergency vehicle.
I 2 It should be first noted that subsection (A) of section 11-106 extends a "privilege" to the driver an emergency vehicle to operate the vehicle in ways that would otherwise violate certain traffic laws and constitute negligence per se. A privilege is a rule that relieves an actor from liability for conduct which, under ordinary cireumstances, would subject the actor to liability. Restatement (Second) of Torts § 10(1) (1965). A privilege may be based upon the fact that its exercise is necessary for the protection of some interest of the public which is of such importance as to justify the harm caused or threatened by its exercise. Id. at § 10(2)(b). If the acts are done for the purpose of protecting or advancing the interest, the privilege protects the actor from lability. Id. at emt. d.
*93 Under subsection (A) of section 11-106, the driver of an authorized emergency vehicle may exercise the privilege set forth therein "[1] when responding to an emergency call or [2] when in the pursuit of an actual or suspected violator of the law or [8] when responding to ... a fire alarm." These are public interests protected by the privilege. Clearly, the decision that the driver of an emergency vehicle should act for the purpose of protecting or advancing these public interests has been made by the Legislature.
T 4 To balance the protection of these specific interests, with a more general interest of public safety, the Legislature made exercise of the emergency vehicle privilege subject to certain conditions. These conditions deal with the operation of the emergency vehicle. In subsection (B)(2), the Legislature authorizes the driver of an emergency vehicle to "[plroceed past a red or stop signal or stop sign, but only after slowing down as may be necessary for safe operation." (Emphasis added.) Subsection (C) generally requires the driver of an emergency vehicle to make use of an audible signal or flashing red or blue lights or combination thereof, Subsection (E) further provides "[the provisions of this section shall not relieve the driver of an authorized emergency vehicle from the duty to drive with due regard for the safety of all persons." (Emphasis added.)
T5 The language that the provisions of section 11-106 shall not protect the driver "from the consequences of reckless disregard for the safety of others," is simply another condition on the exercise of the privilege. That is, a driver of an emergency vehicle who acts (drives) with reckless disregard loses the protection of the privilege. Conversely, a driver who maintains control of the emergency vehicle and does not harm anyone with the vehicle, remains within the privilege, breaches no duty, and commits no tort as a matter of law.
16 The view in this dissent that liability arising under section 11-106 arises only from the operation of the emergency vehicle was first expressed by the Court of Civil Appeals in the case of Kelly v. City of Tulsa, 1990 OK CIV APP 30, 791 P.2d 826. In Kelly, the Court of Civil Appeals rejected the plaintiff's contention that liability could be imposed under section 11-106 for an officer's decision to initiate and continue a pursuit. The Court of Civil Appeals correctly observed that the decision to pursue is not the consideration addressed by section 11-106.
T7 In the case of Taylor v. City of Oklahoma City, 1995 OK CIV APP 133, 914 P.2d 1073, the Court of Civil Appeals would again consider the seope of section 11-106. The Court of Civil Appeals followed Kelly and concluded the duty of care created by the emergency vehicle statutes applies only to the operation of the emergency vehicle itself and cannot be the basis for governmental liability absent evidence that the emergency vehicle itself was being driven in an unsafe manner.
T 8 While Kelly and Taylor are not binding precedent, they are published opinions by an appellate court of this State that construe a statute of significant public concern. Since Kelly and Taylor were decided, the Legislature has amended section 11-106 four times, the most recent amendment occurring in 2004. If the Legislature had disapproved of the interpretation of section 11-106 in Kelly and Taylor, it would surely have expanded the privilege and its conditions to include the decision to initiate and continue a pursuit. By not doing so, the Legislature has tacitly approved of the interpretation in Kelly and Taylor.
19 As concerns the issue of "concurrent causes," a law enforcement officer who initiates a pursuit of a violator does an act that public policy encourages and protects. The initiation of pursuit simply cannot be a legal wrong that can operate concurrently with the wrong of the violator. In addition, once a pursuit is commenced, section 11-106 governs the action of the pursuing officer. The initiation of a pursuit and its continuation in compliance with section 11-106 creates nothing more than a condition for harm caused by the violator being pursued.
{10 In summary, the Legislature created the emergency vehicle privilege in section 11-106, provided the conditions for its exercise and specified the conditions under which the driver of an emergency vehicle would *10incur liability. The current text of section 11-106, as well as Oklahoma appellate court interpretations of section 11-106, indicate that the privilege and any lability thereunder extend to the driving or operation of an emergency vehicle, and not the decision to pursue a violator or to respond to emergency calls. In setting public policy, the Legislature has decided that the public benefit to be achieved by pursuit of violators outweighs any potential harm caused by the violators being pursued, who are under a duty to stop pursuant to 47 0.8.2001 §§ 11-103 and 11-405, and if they attempt to allude, commit a crime under 21 0.8.2001 § 540A. Additionally, section 540A(C) addresses the issue of accidents caused by violators who attempt to allude pursuit by law enforcement; in cases where such accidents result in great bodily injury, the Legislature has provided a felony penalty for the violator being pursued. If the Legislature has believed victims of such accidents should have some remedy from the pursuing law enforcement agency, it could have also provided such a remedy in section 540A(C) but did not do so. In my opinion, any change in the status quo of the laws governing the emergency vehicle privilege of section 11-106 should be made by the Legislature and not by this Court.
11 I respectfully dissent.