State v. Simpson

732 P.2d 788, 11 Kan. App. 2d 666, 1987 Kan. App. LEXIS 811
CourtCourt of Appeals of Kansas
DecidedFebruary 12, 1987
DocketNo. 58,961
StatusPublished
Cited by1 cases

This text of 732 P.2d 788 (State v. Simpson) is published on Counsel Stack Legal Research, covering Court of Appeals of Kansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Simpson, 732 P.2d 788, 11 Kan. App. 2d 666, 1987 Kan. App. LEXIS 811 (kanctapp 1987).

Opinion

Abbott, C.J.:

This is a direct appeal by Joseph C. Simpson from his convictions for reckless driving (K.S.A. 1986 Supp. 8-1566) and passing in a no-passing zone (K.S.A. 8-1520[b]). Simpson was performing his duty as a police officer for the City of St. George, Kansas, and was pursuing a traffic offender with his siren and flashing lights activated when the incident leading to the traffic citations occurred.

Simpson was headed west on old highway 24 pursuing a vehicle that was attempting to elude him. It was dark and the road was narrow and hilly with soft shoulders. Simpson was familiar with the sight distances and all other pertinent aspects of the road he was traveling.

The fleeing vehicle passed two westbound cars. Simpson also attempted to pass the two westbound cars, which were approxi[667]*667mately I-V2 to 2 car lengths apart. In doing so, he pulled into the eastbound lane of traffic, which was clearly marked, “No passing.” After he passed the first westbound car near the crest of a hill, a pickup appeared in the eastbound lane of traffic traveling east. Simpson then attempted to go left and the police car was struck nearly broadside after it left the highway.

Simpson conceded at trial that a driver of an ordinary car would be guilty of reckless driving and passing in a no-passing zone. We agree. Simpson contends that as a driver of an authorized emergency vehicle, his conduct was privileged under K.S.A. 8-1506 and Thornton v. Shore, 233 Kan. 737, 666 P.2d 655 (1983). However, we agree with the trial judge that Thornton v. Shore is not controlling. Thornton involved consolidated wrongful death actions arising from an accident caused by the defendant, Donald Bender, who ran a stop sign while trying to elude a police officer (defendant Shore). The collision marked the end of a high-speed chase in the City of Lawrence, in which Officer Shore was pursuing Bender for traffic violations. Officer Shore’s car was not physically involved in the collision. The trial court found that Shore was in compliance with K.S.A. 8-1506 and therefore immune from liability. The trial court granted summary judgment in favor of Shore.

The appellants in Thornton contended that under K.S.A. 8-1506(d) the officer still had a duty, even with the statutory privileges, to drive with due regard for the safety of others, and that the officer violated this duty by continuing to chase the traffic violator when his extreme recklessness became apparent. The Supreme Court disagreed.

After stating that “[t]he privileges and immunities granted to police officers under K.S.A. 8-1506 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,” 233 Kan. at 745, the court then noted a series of outside cases which held that law enforcement officers are not liable for the acts of a fleeing motorist. The Kansas Supreme Court adopted the majority view, finding:

“[T]he ‘due care’ requirement of K.S.A. 8-1506(d) applies only to the police officer’s physical operation of his own vehicle and not to the decision to chase or continue to chase a law violator. If the officer is in compliance with the statute in [668]*668the operation of his own vehicle, he is entitled to the privileges and immunities afforded by the statute and is not vicariously liable or responsible for the reckless or negligent acts of the law violator he is pursuing. The officer is not the insurer of the fleeing law violator. The officer in such circumstances has breached no duty owed to persons injured by the fleeing violator’s own negligence or wanton conduct and, accordingly, as a matter of law the officer has not committed a tort upon such injured persons.” (Emphasis supplied.) Thornton v. Shore, 233 Kan. at 753.

The holding in Thornton is a policy determination that law enforcement officers should not be held vicariously liable for the acts of fleeing motorists. The issue in the present case does not concern the vicarious liability of Officer Simpson for the negligent acts of another. Instead, the question presented is whether the trial court erred in finding that, even with the privileges contained in K.S.A. 8-1506, the defendant was guilty beyond a reasonable doubt of reckless driving and passing in a no-passing zone.

A law enforcement officer has the right to pursue a violator of the law in the manner set forth in K.S.A. 8-1506, which provides:

“(a) The driver of an authorized emergency vehicle, when responding to an emergency call or when in the pursuit of an actual or suspected violator of the law, or when responding to but not upon returning from a fire alarm, may exercise the privileges set forth in this section, but subject to the conditions herein stated.
“(b) The driver of an authorized emergency vehicle may:
“(1) Park or stand, irrespective of the provisions of this article;
“(2) Proceed past a red or stop signal or stop sign, but only after slowing down as may be necessary for safe operation;
“(3) Exceed the maximum speed limits so long as such driver does not endanger life or property;
“(4) Disregard regulations governing direction of movement or turning in specified directions; and
“(5) Proceed through toll booths on roads or bridges without stopping for payment of tolls, but only after slowing down as may be necessary for safe operation and the picking up or returning of toll cards.
“(c) The exemptions herein granted to an authorized emergency vehicle shall apply only when such vehicle is making use of an audible signal meeting the requirements of K.S.A. 8-1738 and visual signals meeting the requirements of K.S.A. 8-1720, except that an authorized emergency vehicle operated as a police vehicle need not be equipped with or display a red light visible from in front of the vehicle.
“(d) The foregoing provisions shall not relieve the driver of an authorized emergency vehicle from the duty to drive with due regard for the safety of all [669]*669

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Cite This Page — Counsel Stack

Bluebook (online)
732 P.2d 788, 11 Kan. App. 2d 666, 1987 Kan. App. LEXIS 811, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-simpson-kanctapp-1987.