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Estate of Debra Aten v. City of Tucson3/28/1991
at that time, even if considered negligent, cannot be said to have risen to the level of reckless disregard for the safety of others, which is the standard required to find him responsible for the accident.
108 A.D.2d at 1034-35, 486 N.Y.S.2d at 99. See also Selkowitz v. State, 55 A.D.2d 709, 389 N.Y.S.2d 45 (1976).
In Illinois , a statute virtually identical to A.R.S. ยง 28-624 has been interpreted as precluding liability absent a finding of wilful and wanton negligence on the part of the police officer. In Breck v. Cortez, 141 Ill.App.3d 351, 95 Ill.Dec. 615, 490 N.E.2d 88 (1986), an appellate court upheld summary judgment in favor of the police on the question of wilful and wanton negligence, stating:
We are aware that the question of whether conduct amounts to wilful and wanton negligence is normally a question of fact for determination by the jury, . . . and that summary judgment should not be granted if there is a genuine issue as to any material fact . . . . The question of wilful and wanton misconduct may, however, be determined by the court . . . if all of the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors movant that no contrary determination based on that evidence could ever stand.
141 Ill.App.3d at 359-60, 95 Ill.Dec. at 620-21, 490 N.E.2d at 93-94 (citations omitted).
Breck is particularly instructive because of its factual similarity to the matter before us. The court noted that in order for the police officer's acts "to be characterized as wilful or wanton, they must have been committed with actual or deliberate intention to harm or with an utter indifference to or conscious disregard for the safety of others." 141 Ill.App.3d at 360, 95 Ill.Dec. at 621, 490 N.E.2d at 94. The court then went on to analyze the conduct of the officers during their chase of the suspected law violator, which resulted in injury to a third party:
In evaluating the conduct of the police officers here, we must be mindful of the reason for their pursuit of Cortez. The evidence in the instant case, even when viewed in its aspect most favorable to plaintiffs, establishes that Cortez was driving his car in a reckless manner and endangering the public before the police began to chase him . . . . Cortez did not deny that this occurred. He testified only that he could not remember whether it happened or not . . . . Under these circumstances, a failure on the part of the police to act would have presented a substantial threat to public safety.
141 Ill.App.3d at 360, 95 Ill.Dec. at 621, 490 N.E.2d at 94; see also Thornton v. Shore, 233 Kan. 737, 666 P.2d 655 (1983).
The majority suggests that the interpretation given by appellate courts of other states to similarly-worded statutes should not be considered because the city has not advanced such an argument on appeal. The city, however, is the appellee. We are required to affirm the trial court if it was correct for any reason, whether elaborated upon or not. Perez, supra; Gibson, supra.
Compelling reasons exist for limiting governmental and/or police officers' liability in pursuit situations to those cases in which reasonable people could conclude that the officer has operated an emergency vehicle in a grossly negligent fashion. "The law allows police pursuit of fleeing violators as a matter of public policy; the benefit of apprehending these individuals outweighs the ordinary risks inherently involved in such pursuit." Kelly v. City of Tulsa, 791 P.2d 826, 829 (Okl.App.1990). Not only is police pursuit permissible, it may well be a duty imposed upon law enf
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