Estate of Aten By and Through Kitchens for and on Behalf of Aten v. City of Tucson, 2

• Decision Date: 28 March 1991
• Docket Number: CA-CV,No. 2,2
• Parties: The ESTATE OF Debra ATEN, By and Through its personal representative, Jerry KITCHENS, for and on Behalf of Brandon Dale ATEN, Taine Feist and Jerry Kitchens, Plaintiff/Appellant, v. The CITY OF TUCSON, a municipal corporation, Defendant/Appellee. 90-0233.
• Court: Arizona Court of Appeals

Page 951

817 P.2d 951

169 Ariz. 147

The ESTATE OF Debra ATEN, By and Through its personal representative, Jerry KITCHENS, for and on Behalf of Brandon Dale ATEN, Taine Feist and Jerry Kitchens, Plaintiff/Appellant, v. The CITY OF TUCSON, a municipal corporation, Defendant/Appellee.

No. 2 CA-CV 90-0233.

Court of Appeals of Arizona Division 2, Department B.

March 28, 1991.

Review Denied Oct. 22, 1991.

Mesch, Clark & Rothschild, P.C. by Tom R. Clark and Scott H. Gan, Tucson, for plaintiff/appellant.

Kimble, Gothreau & Nelson, P.C. by Daryl A. Audilett, Tucson, for defendant/appellee.

OPINION

FERNANDEZ, Chief Judge.

In this appeal from the granting of summary judgment against it, appellant Estate of 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 up on the sidewalk and back on the road around the corner. 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 continuing 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 Horne on the ground that institution of the chase was alleged to have been negligent in Horne, 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 either 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...