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Estate of Debra Aten v. City of Tucson3/28/1991
orcement officers. Lippincott, supra.
In determining whether a law enforcement officer exceeded the standard of care enunciated in the statute, the officer's "actions are to be considered as of the time and under the circumstances in which they occurred and not by subsequent facts or in retrospect." Zulauf v. State, 119 Misc.2d 135, 138, 462 N.Y.S.2d 560, 562 (Ct.Cl.1983), aff'd, Baratier v. State, 110 A.D.2d 1042, 489 N.Y.S.2d 1019 (1985). By the time the police officers' pursuit in this case commenced, Bable had already engaged in reckless conduct, having forced other vehicles from his path, jumped curbs, hit a sign and sideswiped another car. The pursuit occurred at 1:30 a.m. At the time the fatal collision occurred, Officer Gehm was approximately 100 yards behind Bable and Officer Richards was approximately 200 yards behind Bable. These undisputed facts disprove plaintiff's claim that the officers violated a regulation requiring that police officers slow down once air support units have established visual contact with fleeing suspects. Bable, nevertheless, continued to drive dangerously until he ran the red light and collided with Debra Aten's vehicle. None of the three theories advanced by plaintiff, whether viewed individually or cumulatively, can reasonably be said to constitute gross negligence by the police. See Breck, 490 N.E.2d at 94; Bullins, 369 S.E.2d at 603 ("gross negligence is wanton conduct done with conscious or reckless disregard for the rights and safety of others").
In Thornton, the Supreme Court of Kansas commented on the "due care" standard in a Kansas statute similar to A.R.S. § 28-624:
The privileges and immunities granted to police officers . . . would indeed be hollow if the test of due care . . . were extended to include the acts of the fleeing motorist whom the officer is trying to apprehend. The net effect of such an extension would be to make the officer the insurer of the fleeing violator, be he
or she a mentally deranged person, prison escapee, murderer, drug addict or drunk.
233 Kan. at 745, 666 P.2d at 661-62.
Conclusion
A.R.S. § 28-624 constitutes a legislative determination that authorized emergency vehicles should not be subject to liability unless and until operators of such vehicles are grossly negligent. The legislature set out the privileges and the standard of care by which police officers are governed in such instances. The standard, when applied in this case, reveals a lack of any evidence in the record before the trial court that could demonstrate gross negligence on the part of the police, and therefore, summary judgment was appropriate.
I respectfully dissent.
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