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Day v. State5/11/1999
ever, section 41-6-14(3)(a), which was in effect at the time of the accident in this case, states that " he privilege [of disregarding traffic laws] do not relieve the operator of an authorized emergency vehicle from the duty to operate the vehicle with regard for the safety of all persons." Id. § 41-6-14(3)(a) (repealed effective July 1, 1993) (emphasis added). In addition, § 41-6-76 of the Motor Vehicle Code states that although all other motor vehicle operators have an obligation to yield the right-of-way to an emergency vehicle operating under the guidelines of § 41-6-14, "the operator of an authorized emergency vehicle [is not relieved] from the duty to drive with regard for the safety of all persons using the highway. Id. § 41-6-76(2) (1988) (emphasis added). These provisions clearly state that operators of emergency vehicles must operate their vehicles in "regard for the safety of all persons." That language imposes on operators of emergency vehicles a duty of care with regard to others using the streets and highways. Utah cases decided under this provision and its antecedents have specifically imposed such a duty. Howe v. Jackson, 18 Utah 2d 269, 421 P.2d 159, 161-62 (1966), held that even though an ambulance driver was exempt from certain traffic regulations, "he was nevertheless not excused from using reasonable care under the circumstances, and . . . any careless, arbitrary or unreasonable exercise of those privileges would be negligence." Jensen v. Taylor, 2 Utah 2d 196, 271 P.2d 838 (1954), held that the statute imposed on a fire truck driver a duty of due care that was not satisfied merely by using a siren or warning lights. See also Cornwall v. Larsen, 571 P.2d 925, 928 (Utah 1977) (Ellett, C.J., Concurring with explanation) ("The driver of a police car, thus is liable in a civil action for a failure to drive with due regard for the safety of others.").
The State contends that the statute does not impose a duty on the emergency vehicle driver "to control the manner in which another operates his vehicle on the road." We agree, but neither the Court of Appeals nor plaintiff has asserted that Officer Colyar had a duty to "control" Floyd. Plaintiff contends simply that Officer Colyar breached his duty to conduct his pursuit with due regard for the safety of all persons because it should have been reasonably foreseeable to Officer Colyar that his high-speed chase of Floyd through populated areas, if continued, would likely cause a collision between another vehicle and either Floyd's or Officer Colyar's vehicle, resulting in injury or death to the driver or passengers of the other vehicle. Had Officer Colyar terminated the pursuit, that risk would undoubtedly have terminated. At least that is an inference to which plaintiff was entitled on the motion for summary judgment.
The State correctly states that emergency vehicles in the above cases were directly involved in the accident that gave rise to the injuries for which suit was brought. Nevertheless, the instant case does not fall outside the scope of the legal principles applied in those cases. Whether the State might be liable in the instant case raises an issue of proximate cause as to whether it was reasonably foreseeable that Colyar's continuing the chase might result in Floyd's car colliding with another. That is not an issue for summary judgment. See Harline v. Barker, 912 P.2d 433, 439 (Utah 1996); Mitchell v. Pearson Enters., 697 P.2d 240, 245 (Utah 1985). In similar instances, we have held that such an issue is for the jury. See Cruz v. Middlekauff Lincoln-Mercury, Inc., 909 P.2d 1252, 1257 (Utah 1996) (holding that car dealership that left keys in cars parked on its lot that were stolen could be liable for injuries to third
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