COMES NOW the Georgia Trial Lawyers Association and, having made its appearance as Amicus Curiae, respectfully urges the Court to consider the following legal analysis and to affirm, with modifications, the decision of the Court of Appeals, showing the Court as follows:

1. What, if any, duty of care, statutory or otherwise, do the police owe to a person fleeing from the police?

2. In light of O.C.G.A. §40-6-6(d) and the doctrines of last clear chance (O.C.G.A. §51-11-7) and assumption of the risk, under what circumstances, if any, may a person who was injured while fleeing from the police recover against the police of the police's employer?

A. A PERSON FLEEING FROM THE POLICE IS OWED THE SAME DUTY OF DUE CARE AS EVERY OTHER MEMBER OF THE MOTORING PUBLIC

The Court's formulation of the first question invites the parties to propose a per se rule which can be conveniently applied to tort claims brought by plaintiffs injured while fleeing from the police. Unfortunately, such a rule could beget a variety of unintended consequences if not properly crafted.

The phrase "a person fleeing from the police" includes not only the 14-year-old traffic offender killed in this case, but the unarmed, nonviolent burglar who is shot in the back while running away in violation of the Fourth Amendment to the United States Constitution. Tennessee v. Garner, 471 U.S. 1 (1985) (Fourth Amendment's prohibition of unreasonable seizures of the person prohibits unreasonable use of deadly force to terminate pursuit) In the words of the United States Supreme Court, "it is not better that all felony suspects die than that they escape." Id. at 9-10 (emphasis added). That principle applies with equal force to fleeing misdemeanants and traffic offenders. Even a rule limited to vehicular pursuits must take into consideration the large number of high-speed chases in which the underlying offense is too minor to justify the danger to human life or the offender can be readily identified and later apprehended under less dangerous conditions. If the Court endeavors to adopt a rule which differentiates between the risk to the fleeing offender and the risk to innocent third parties, the Court must necessarily make a value judgment about whether fleeing from the police, in and of itself, it is an acceptable reason for someone to die. If expert testimony indicates that the police deviated from generally accepted standards of law enforcement in pursuing-and continuing to pursue--a frightened 14-year-old girl for driving without headlights, should the fact that the offender has naively chosen to run be the sole determinant of whether her parents have a claim for her wrongful death?

The general rule, to the extent that it is not modified by the subject statute (O.C.G.A. §40-6-6(d)) and to the extent that there is no immunity, is that police officers may be liable for negligence when they unreasonably pursue a fleeing suspect under circumstances where the heightened risk caused by the pursuit outweighs the benefits of apprehending the suspect. Mixon v. City of Warner Robins, 264 Ga. 385, 444 SE. 2d 761 (1994) The provisions of that code section-some of which were enacted in direct response to Mixon-restrict liability under certain circumstances. For example, where the pursuing police vehicle is running with siren and flashing blue or red lights, the officer is permitted to violate some-but not all-traffic laws. §40-6-6(a), (b)(1)-(4), (c). The officer is permitted to park or stop, run stop signs and lights, exceed the speed limit, and move or turn in specified directions without regard for the rules of the road; however, the officer is not allowed to follow too closely in violation of O.C.G.A. §40-6-49. §40-6-6(b)(1)-(4). A jury could find from the facts of this case that the pursuing officer indeed was following too closely. (R82-7-13; R80-15; R81-5-6, 9-11)

Accordingly, the statute in question does not modify the duty owed by the pursuing officer in all cases, but only under the circumstances and conditions expressly set out therein. Even under those circumstances where the officer is permitted to disregard certain traffic laws, the officer still has "a duty to drive with due regard for the safety of all persons." §40-6-6(b) (emphasis added). The phrase "all persons" necessarily includes those being pursued, since the code section refers to the "fleeing suspect" and the "actual or suspected violator of the law" but does not qualify the phrase "all persons" to exclude them. §40-6-6(a), (d)(2).

B. O.C.G.A. §40-6-6 ONLY IMPOSES A 'RECKLESS DISREGARD' STANDARD WHERE A PLAINTIFF ATTEMPTS TO HOLD POLICE LIABLE FOR THE CONDUCT OF A FLEEING THIRD PARTY

In addition to delineating the specific rules of the road which officers are entitled to disregard during pursuits, O.C.G.A. §40-6-6 also sets out a rule of causation which only applies under the specific circumstance where "the fleeing suspect damages any property or injures or kills any person during the pursuit..." §40-6-6(d)(2) (emphasis added). If an injury is caused by the pursuing officer rather than the fleeing suspect, then this subsection-which modifies the general rule of negligence by establishing a standard of "reckless disregard for proper law enforcement standards" in order to impose liability upon the officer-does not apply at all. In other words, since an officer can be held liable under Mixon v. City of Warner Robins, 264 Ga. 385, 444 SE. 2d 761 (1994) for mere negligence in the course of an unreasonable pursuit which does not meet the special exceptions created by this code section, the reckless disregard standard of subsection (d)(2) does not apply except where the injury is caused by the fleeing suspect and the officer has violated no traffic laws except to the extent authorized by the statute.

Accordingly, the most general statement of the rule which can be formulated consistently with both Mixon and O.C.G.A. §40-6-6 is as follows: An officer can be held liable for negligence in the initiation or continuation of a vehicular pursuit where the heightened risk posed by the pursuit is greater than the benefits of apprehending the offender, except to the extent that the facts of the pursuit fall under the exceptions created by O.C.G.A. §40-6-6. At first glance this may appear to be a restatement of the obvious, but consider the applicability of this rule to the following hypothetical fact patterns:

1) The pursued suspect injures a third party solely because of his or her own misconduct in trying to flee the police;

2) The pursued suspect injures a third party partly because of his own conduct and partly because of police misconduct in initiating or continuing a pursuit;

3) The police themselves cause injury to a third party while pursuing a suspect;

4) The pursued suspect is injured as a direct result of police misconduct and not by his or her own conduct in fleeing;

5) The fleeing suspect is injured partly as a result of his or her own misconduct and partly as a result of police misconduct; and

6) The suspect is injured solely by his or her own misconduct.

Under hypotheticals no. 1 and 6, the fleeing offender is solely responsible for any injury to self or others and the police obviously have no liability. Under hypotheticals no. 3 and 4, the police are solely at fault because it is they rather than the suspect who have inflicted the injury, and the standard of care is negligence under Mixon because the facts necessary to bring the case within O.C.G.A. §40-6-6 (i.e., that the injury be caused by the fleeing offender) are not present. An illustration of this hypothetical is where the police ram or shoot at the offender's vehicle without justification,⁽¹⁾ or where an officer loses control of his vehicle and collides with a third party. There is no injustice in applying a negligence standard under these facts because the police are being held liable for their own misconduct rather than for the conduct of another, unlike the situation under §40-6-6(d)(2) in which the police are being held accountable for an injury caused by a fleeing offender, for which the police are only liable if they act with reckless disregard for proper law enforcement procedures. Even then, "the existence of such reckless disregard shall not in and of itself establish causation," which means that the plaintiff must still show that the police proximately caused the suspect to injure the plaintiff.

In response to the criticism of the dissent below that the same standard should not apply to the claims of injured offenders and the claims of injured bystanders, the critical issue is who caused the injury rather than the status of the injured party. Just as it cannot be said that a fleeing traffic offender deserves to die for making a stupid and impulsive decision to run from the police, it cannot be said as a matter of law or public policy that a person injured by police misconduct who may be guilty of a traffic offense is less entitled to recover for her injury than a person who is not known to have committed any wrongdoing. While there are certainly circumstances under which a jury might refuse to impose liability for the consequences of a pursuit that could have been avoided had the plaintiff obeyed the law in the first place, it cannot be categorically stated as a matter of law that no wrongdoer, no matter how minor the offense, deserves to recover for injuries received while attempting to elude the police, no matter how severe the misconduct of the police. It cannot be said that the offender's decision to flee is the proximate cause of the officer's improper decision to engage in an unreasonably dangerous chase, just as it cannot be said that "Garner's independent decision to flee eliminated the Memphis police officer's responsibility for the termination of his movement effected by the bullet" fired into his back while unarmed and merely attempting to flee. Brower v. County of Inyo, 489 U.S. 593, 595 (1989), citing Tennessee v. Garner, 471 U.S. 1(1985).

While there may be less sympathy for the claim of a fleeing offender injured by police than that of an innocent bystander, the aim of the tort system is the same in both cases: to compensate for injuries that are proximately caused by the misconduct of others, and to promote public safety by discouraging such misconduct. To the extent that the offender rather than the police are the proximate cause of his or her injuries, the police are not responsible. Given the offender's difficulty in convincing a jury that his injuries were caused by the police decision to pursue rather than his own decision to run, it is not unfair to hold the offender plaintiff to the same standard as everyone else. More importantly, the negligent decision of a police officer to engage in an unreasonably dangerous pursuit is an intentional act directed toward the fleeing offender, and the officer who makes such a decision does not intend for the fleeing offender to respond to the pursuit in a manner which injures an innocent third party. Given that the negligent decision to pursue is tantamount to an intentional act against the fleeing offender, there is no injustice in requiring an innocent third party to show recklessness before imputing liability to the police for a criminal act committed by a fleeing offender, while only requiring the fleeing offender to prove that the decision directed toward him was negligently made.

C. BECAUSE THE STANDARD IS NEGLIGENCE EXCEPT WHERE LIABILITY FOR INJURY CAUSED BY THE OFFENDER IS BEING IMPUTED TO THE POLICE, TRADITIONAL NEGLIGENCE DEFENSES MAY BAR OR REDUCE THE PLAINTIFF'S RECOVERY UNDER THE PARTICULARIZED FACTS OF SPECIFIC CASES

Because the standard is negligence in all cases where §40-6-6(d) does not apply, traditional negligence defenses such as comparative negligence and assumption of the risk may be invoked by the defendant at trial, and the Court does not have to ponder the question of whether negligence defenses apply to claims of reckless or intentional conduct. For example, hypotheticals no. 2 and 5 in the previous section concern the more complex situation where the facts suggest that both the police and the offender are responsible for causing the injury. In example no. 5, where the offender is the injured party, liability simply turns upon issues of comparative negligence. If the plaintiff offender's negligence is equal or greater to that of the defendant officer, there will be no recovery, but if the offender is less negligent than the officer, then the recovery will be diminished according to the plaintiff's degree of comparative negligence.

The second hypothetical fact pattern, where a third party is injured by the misconduct of both the officer and the fleeing suspect, may or may not result in the imposition of liability against the police. Under traditional tort law principles which apply in cases where two (2) defendants cause a single injury, a jury must decide whether to apportion liability between the suspect and the police, whether to impose joint and several liability, or whether the negligence of one defendant supercedes that of the other. Since O.C.G.A.§40-6-6 modifies the duty owed by a driver who happens to be a police officer involved in a pursuit, the jury's apportionment of liability between the defendants is complicated by the fact that the fleeing suspect need only be negligent while the pursuing officer must be reckless, but once the determination is made that each defendant has breached his or her respective duty, it is still possible to find apportioned, joint and several, or superceding liability. Once again, O.C.G.A. §40-6-6 must be applied in the context of traditional tort principles.

If the officer's conduct is not the proximate cause or a contributing cause of the injury, then the police cannot be liable under traditional tort principles no matter how reckless their conduct, which is recognized by the following language of O.C.G.A. §40-6-6(d)(2): "Where such reckless disregard exists [on the part of the pursuing officer), the pursuit may be found to constitute a proximate cause of the damage, injury or death caused by the fleeing suspect, but the existence of such reckless disregard shall not in and of itself establish causation." (Emphasis added) This language obviously reflects the Legislature's intent that this statute be construed against the backdrop of traditional tort principles. It is also important to note that there may or may not be immunity available to the police independently of the provisions of this statute, which "shall apply only to issues of causation and duty and shall not affect the existence of immunity which shall be determined as otherwise provided by law." O.C.G.A. §40-6-6(d)(3) Any public policy concerns about subjecting police officers or their employees for the good faith performance of their duties is addressed by the immunity analysis and not by this statute, which merely modifies the existing tort law principles which apply whenever immunity has been waived or is otherwise not available.

The short answer to the first question presented by the Court is as thus as follows: A person injured by the police during the course of a pursuit may recover for damages caused by the police if the negligence of the police is greater than that of the plaintiff, and then only to the extent that the negligence of the police proximately caused the plaintiff's injury. Negligence, in this context, means that the police chose to pursue or continue pursing the plaintiff under conditions in which the risk of injury to the public (including the police and the person being pursued) outweighed the benefits of pursuing and apprehending the offender. The rule is the same whether the plaintiff is the fleeing offender or an innocent third party, but in application, the jury as finder of fact will be less likely to impose liability where the plaintiff is the fleeing offender-either by finding that the negligence of the fleeing offender exceeded that of the officer or that the plaintiff's own negligence in fleeing was the sole proximate cause of injury. On the other hand, O.C.G.A. §40-6-6(d) provides that the police will not be liable for injuries caused by the fleeing offender unless the police act with reckless disregard for proper law enforcement procedures and said reckless disregard proximately causes the plaintiff's injury.

While it is understandable that the Plaintiffs /Appellees would, as a tactical matter, support the favorable decision of the court below, it is the position of the Georgia Trial Lawyers Association that the decision works mischief with established law. Even though the Plaintiffs/Appellees prevailed under the reckless disregard standard adopted by the court below, this Court should affirm the outcome but apply a negligence standard instead. While the position taken by the majority of the Court of Appeals and urged herein by the Plaintiffs/Appellees is certainly based upon sounder legal reasoning than the position taken by the Defendant/Appellant and the dissent below, the position of the Georgia Trial Lawyers Association is that Mims was properly decided by this Court and that the questions posed by the Court herein should be resolved in a manner consistent with Mims and traditional tort principles.

Based upon the foregoing argument of law and citation of authority, the Georgia Trial Lawyers Association respectfully requests that the decision of the Court of Appeals be affirmed with modifications.

Respectfully submitted,

_______________________

/s/ CRAIG T. JONES

1. In Brower v. County of Inyo, 489 U.S. 593 (1989), the Supreme Court observed that "if ... the police cruiser had pulled alongside the fleeing car and sideswiped it, producing the crash, then the termination of the suspect's freedom of movement would have been a seizure" subject to the reasonableness requirement of the Fourth Amendment. 489 U.S. at 596-597. The Eleventh Circuit has held that the intentional ramming of a fleeing suspect's car by a police car could amount to the use of excessive force actionable under the Fourth Amendment, but that the officer who did the ramming was entitled to qualified immunity under federal civil rights law because the law in effect at the time of the 1985 incident had not clearly established the unconstitutionality of the practice. Adams v. St. Lucie County Sheriff's Dept., 962 F. 2d 1563 (11^th Cir. 1992), vacated en banc, 998 F. 2d 923 (11^th Cir. 1993) (adopting Edmondson dissent)