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Day v. State5/11/1999
he safety of other persons on the road. See Utah Code Ann. § 41-6-14. Whether he failed to comply with the statute and breached his duty is a question for the jury.
In Conclusion, while police officers and drivers of other emergency vehicles are not bound by all traffic laws and do not necessarily violate a duty of due care when they exceed the speed limit or do not comply with certain other safety regulations, a police officer in pursuing another on a public highway or street nevertheless does owe a duty of reasonable care under the circumstances to other motorists on the road. We certainly do not suggest that police officers are never justified in engaging in high-speed pursuits. The need to apprehend a person who is a danger to others because of the serious and violent nature of the crime for which he or she is sought or because his or her presence on the highway presents a threat to public safety may well outweigh the risks that a high-speed pursuit poses to innocent third parties. See City of Pinellas Park v. Brown, 604 So. 2d 1222, 1227 (Fla. 1992) (police required "to use reasonable means in light of the nature of the offense and threats to safety involved"); see also Mixon v. City of Warner Robins, 444 S.E.2d 761, 763-64 (Ga. 1994) (holding that decision to initiate or continue pursuit may be negligent when heightened risk of injury to third parties is unreasonable in relation to need to apprehend suspects); Travis v. City of Mesquite, 830 S.W.2d 94, 99 (Tex. 1992) (same).
The test is whether the driver of the emergency vehicle acted reasonably and with appropriate care for the safety of others in light of all the circumstances. Among the factors that should be considered in deciding whether an officer acts with reasonable care for the safety of others using the highways and streets are the density of traffic and population of the area in which the pursuit occurs; whether the area is rural or urban; the nature of the street, e.g., whether freeway or city streets with stop signs and semaphores; the presence of pedestrians and school zones; the weather and visibility; and, of course, the urgency of apprehending the fleeing person and whether allowing that person to escape may itself pose a serious threat to the safety of others. See Peak v. Ratliff, 408 S.E.2d 300, 308 (W. Va. 1991).
IV. SOVEREIGN IMMUNITY, OFFICIAL IMMUNITY, AND THE OPEN COURTS CLAUSE OF THE UTAH CONSTITUTION
The statutory provision that the Court of Appeals held barred Day's action against the State was in effect for only one year and six days. Section 63-30-7 of the Governmental Immunity Act, as it read just prior to the amendment that gave rise to this case, waived immunity under certain conditions if the operator of an emergency vehicle exceeded the speed limit and thereby endangered life or property or did not operate his vehicle "with regard for the safety of all persons" or arbitrarily exercised the privileges granted. Section 63-30-7 (1989) stated:
"Immunity from suit of all governmental agencies is waived for injury resulting from the negligent operation by any employee of a motor vehicle or other equipment during the performance of his duties, within the scope of employment, or under color of authority; provided, however, that this section shall not apply to the operation of emergency vehicles as defined by law and while being driven in accordance with the requirements of Section 41-6-14." (Emphasis added.)
Section 41-6-14 (1988) of the Motor Vehicle Code, referred to in section 63-30-7 above, exempted the operator of an authorized emergency vehicle from speed limits, "if the operator does not endanger life or property," id. § 41-6-14(2)(c) (emphasis a
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