Justice and Due Process

Could you sue the government if its employees hurt you?

In the world of “tort” lawsuits, individuals who are harmed by the negligence of others must first show that someone ignored their legal “duty of care” to them in order to recover damages in a lawsuit for negligence. This “duty of care” is the idea that there is a general legal obligation on all people to be reasonably careful in their interactions with others.

For example, if a woman enters a restaurant and slips and falls on a wet floor, she can sue the restaurant to pay for her medical care. In order to recover damages, her lawyers would have to prove to the court that the restaurant had a duty to ensure a reasonably safe environment for patrons in their establishment and that the wet floor was not managed in a careful manner—thus constituting a breach of that duty. If the court determined that the restaurant owed no duty to her, then the restaurant would owe the woman nothing. This is a common body of law that applies to everyone and frequently plays out with commercial establishments.

But what if the establishment’s owner was the government?

What happens when government employees harm another person in their line of work? Unfortunately, government has ways to avoid responsibility in such negligence suits. Most commonly, government can invoke “immunity.”  This government or “sovereign” immunity is not absolute. There are a number of limits and exceptions where the government waives its right to immunity and permits a lawsuit by a harmed person. Also, government officers are not entitled to absolute immunity if they act with gross negligence–immunity is “qualified,” or conditional. However, under each of these exceptions, an injured party must still establish the legal duty owed by the government and the breach of that duty—but at least the citizen gets their day in court to make their case.

The Utah Supreme Court recognized this right in a 2010 case where a teenager was killed after being chased by police. This case clarified that even police officers owe a duty of care to suspects they pursue—meaning that officers have an obligation to act as a reasonably prudent police officer should act by ensuring a reasonable amount of safety for the suspect while in pursuit. If the suspect were injured or killed during a pursuit, the individual or family could have standing to sue the government to try and prove that the injury or death was the result of negligence on the part of the officer in breaching this duty of care.

The Court’s ruling pointed out that an average of 329 people are killed every year from high speed chases and that it is particularly important for police to be careful in chases because of how treacherous they can be. Such events have killed thousands of people across the nation and injured even more–not to mention the amount of property damage that results from such pursuits. Nearly half of the lives lost in high speed chases are those of innocent bystanders. This is not surprising considering one third of police chases end in a car crash.

The Court’s 2010 ruling didn’t last very long. Four years later, the Utah Legislature passed a law which directly undermined the Court decision. The law now states that the “operator of a marked authorized emergency vehicle owes no duty of care” to fleeing suspects—period, no matter what. This creates a form of absolute (not qualified) immunity for such vehicle operators.

Now Utah law essentially permits officers to act with gross negligence, even ignoring protocol or department policies, with no legal responsibility on the part of such agencies to those injured. This is because current law created such a broad exception by using the words “owes no duty of care.” Now, unless an individual can prove that the intent of the officer was to harm the suspect, an officer can freely act with negligence even if in violation of established protocols.

Why is this so problematic? This law effectively tells police officers that they can employ dangerous and reckless tactics during chases without the fear of any legal liability for their department. It provides absolute immunity for them in high speed chases, regardless of whether the officer was following the law and department policy. Most alarmingly, this law sends a message that police officers are above the law, beyond reach of a lawsuit. The appropriate immunity standard in such cases ought to be “qualified” immunity where departments are not liable when officers act reasonably by following department policy and protocol and are not grossly negligent or reckless.

Government agencies need to be held liable and accountable for their actions. If the Legislature wants to protect such agencies from legal liability in providing a duty of care towards individuals in a chase, then it needs to be limited and qualified—not absolute. There need to be legal repercussions for acting recklessly or with gross negligence. This approach would ensure balance in holding government agencies accountable when appropriate by giving families of victims standing in court, in rare cases, while still ensuring officers can do their job acting reasonably and in compliance with established protocols.