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Estate of Debra Aten v. City of Tucson3/28/1991
[169 Ariz Page 147] 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 h
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