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Day v. State5/11/1999
tations, Personal Liability of Peace Officer or His Bond for Negligence Causing Personal Injury or Death, 18 A.L.R. 197 (1922), 39 A.L.R. 1306 (1925); Annotation, Personal Liability of Policeman, Sheriff, or Other Police Officer, or Bond, for Negligently Causing Personal Injury or Death, 60 A.L.R.2d 873 (1958); 80 C.J.S. Sheriffs and Constables § 52 (1953); 70 Am. Jur. 2d Sheriffs, Police, and Constables § 90 (1987).
Officers have also been liable for negligently injuring bystanders while trying to apprehend a fleeing misdemeanant. E.g., Edgin v. Talley, 276 S.W. 591 (Ark. 1925) (officer shot at car driven by misdemeanant with intent to force car to stop, but hit passenger; court observed that officer has no right to use firearms in such a negligent manner); Davis v. Hellwig, 122 A.2d 497 (N.J. 1956) (where officer shot at misdemeanant and bullet ricocheted and hit bystander, court found that bystander stated negligence claim); Young v. Kelley, 21 N.E.2d 602 (Ohio Ct. App. 1938) (officer could be held liable for injury to woman on street where he fired at drunk who had escaped custody, trying to frighten drunk into stopping). This duty of care toward bystanders in attempting an arrest has also been imposed where the degree of force used was lawful. See Shaw v. Lord, 137 P. 885, 886-87 (Okla. 1914) (officer's privilege to shoot at felony fugitive in attempting arrest did not relieve him of "duty to exercise such care to avoid injury to other persons as a person of ordinary prudence would usually exercise in doing so under like circumstances," so bystander hit by bullet stated jury negligence issue); Askay v. Maloney, 179 P. 899, 903-04 (Or. 1919) (although officers were within their authority in firing on fleeing robbery suspects, innocent bystanders were nevertheless owed duty of care, and thus bystander injured by stray bullet could state negligence claim).
The Court of Appeals relied on Garff v. Smith, 31 Utah 102, 86 P. 772 (1906), for the "Conclusion that a cause of action would not lie at common law against Trooper Colyar." Day, 882 P.2d at 1158. Garff held that an administrative officer was not liable in performing a quasi-judicial function pursuant to statute. See 86 P. at 774. Trooper Colyar's actions here were not quasi-judicial; they were not directed by statute; and although they involved some discretion in performing an operational task, they were not discretionary as our cases define that word for purposes of governmental immunity. Frank v. State, 613 P.2d 517 (Utah 1980), held that the discretionary function exception "should be confined to those decisions and acts occurring at the `basic policy-making level,' and not extended to those acts and decisions taking place at the operational level . . . `which concern routine, everyday matters, not requiring evaluation of broad policy factors.'" Id. at 520 (quoting Carroll v. State Road Comm'n, 27 Utah 2d 384, 388, 496 P.2d 888, 891 (1972)).
After initially clocking Floyd at ten miles per hour above the speed limit, Officer Colyar commenced pursuit and also inquired over the radio whether Floyd's vehicle was stolen. The dispatcher reported that there was no indication it was stolen, yet Officer Colyar continued the pursuit at speeds on and off the freeway in urban areas up to 120 miles per hour. The fact finder on remand will have to determine whether it was or should have been reasonably foreseeable to Officer Colyar that the high-speed pursuit through highly populated areas would endanger the lives of others on the road and whether, if he had terminated the pursuit, Floyd would likely have substantially reduced his speed and terminated his otherwise reckless driving. Officer Colyar had a statutory duty to use care for t
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