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Day v. Willis6/30/1995
specified considerations that this court enumerated in D.S.W. v. Fairbanks N. Star Borough Sch. Dist., 628 P.2d 554, 555 (Alaska 1981).
"The foreseeability of harm to the plaintiff, the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant's conduct and the injury suffered, the moral blame attached to the defendant's conduct, the policy of preventing future harm, the extent of the burden to the defendant and the consequences to the community of imposing a duty to exercise care with resulting liability for breach, and the availability, cost and prevalence of insurance for the risk involved." Id. at 555 (quoting Peter W. v. San Francisco v. Unified Sch. Dist., 131 Cal. Rptr. 854, 859-64 (Cal. App. 1976)); see also Busby v. Municipality of Anchorage, 741 P.2d 230, 233 (Alaska 1987) (citing D.S.W.).
Application of these factors to the present case leads us to the conclusion that officers do not owe a legal duty to fleeing offenders to protect these offenders from their own actions.
It is foreseeable that most people driving a car will stop promptly when pursued by an officer. However, it is equally foreseeable that some will not. An officer pursing a fleeing offender at high speeds creates a significant risk that an accident will occur. We assume, for purposes of discussion, that there may be a close connection between an officer's pursuit of a fleeing offender and fleeing offender's injury during the pursuit. The State persuasively argues that despite any possible close connection, public policy should emphasize the blameworthiness of the fleeing offender's criminal conduct. An officer was attempting to make a lawful stop. The offender was unlawfully fleeing from the officer. Therefore, as stated by the superior court, even if the officer was negligent, his negligence "does not carry the same moral negativity as does [the fleeing offender's] actions." It is undisputed that officers owe a legal duty to innocent third parties who are injured during high speed pursuits. The State argues that this duty is sufficient to minimize the risk that chases will be conducted in a negligent manner. The State further effectively asserts that adding fleeing offenders to the zone of duty owed would "minimize [the offender's] criminal conduct, and impede lawful police efforts to pursue fleeing offenders. In fact, failing to pursue could be seen as inviting future harm to innocent third-parties by failing to attempt to take dangerous drivers off the road." Additionally, imposing such a duty on officers could have the effect of encouraging offenders to attempt escape. The consequences to the community of imposing a duty are easily ascertainable. It would be the public that would incur the cost, because it is the State that usually will be sued. Thus, public funds would be used to compensate a person who chose to flee from an officer. Again, the State persuasively argues that this would be poor public policy. Cf. Lord v. Fogcutter Bar, 813 P.2d 660, 663 (Alaska 1991) (" ourts have consistently refused to aid those whose claims are based upon their own illegal acts").
After balancing the above considerations, we conclude that public policy and the D.S.W. factors dictate against imposing a legal duty on officers to protect fleeing offenders from their own actions.
III. CONCLUSION
Summary judgment was proper. Law enforcement officers do not owe a legal duty to fleeing offenders to refrain from pursuing them in order to protect the offenders from the consequences of their own actions. Therefore, the judgment of the superior court is AFFIRMED.
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