In a decision released on June 13, 2019, the Kentucky Supreme Court held that officers may be found liable in situations where a citizen of the general public is injured by the actions of a fleeing suspect. The decision, Gonzalez v. Johnson, 2018-SC-000224-DG (June 13, 2019), is set to be published once it becomes final. Under Gonzalez, a jury will now be able to apportion fault based on the facts surrounding the incident. Prior to this decision, Kentucky courts adhered to the per se no proximate cause rule, which was first recognized 67 years ago in Chambers v. Ideal Pure Milk Co., 245 S.W.2d 589 (Ky. 1952). Gonzalez overrules Chambers insofar as it held there was a per se no proximate cause rule where there is no contact with the pursuing vehicle, but injury or damage occurs, due to an alleged negligent pursuit.
Gonzalez involved a wrongful death claim filed after a deputy sheriff initiated a high-speed chase that resulted in the fleeing suspect crashing into and claiming the life of a third-party, where the deputy sheriff’s vehicle was not directly involved in the fatal collision. Relying on precedent, including Chambers, the trial court and appellate court granted defendants motion for summary judgement because of the per se no proximate cause rule that relieved officers from fault in these situations.
In the 6-1 decision, the Court first noted that Kentucky tort law has undergone many changes since the Chambers decision. When determining causation in a tort claim, Kentucky applies the substantial factor test, which considers the actor’s conduct and whether that conduct is the substantial factor in causing the harm. There is no rule of law relieving the actor from liability because of the manner in which his negligence has resulted in the harm. Thus, the Court found, though the sheriff deputy’s vehicle was not the vehicle to hit the third party, the officer’s actions are not relieved from liability under the substantial factor test. Also, when Chambers was decided Kentucky tort law only allowed for fault to fall on one party. Presently, Kentucky employs a comparative fault approach, which allows the jury to apportion liability to the parties of a negligence suit in direct proportion to their individual fault. Allowing the jury to find that the officer has a percentage of fault in injuring the third party through the actions of the fleeing suspect.
Next, the Court noted that Kentucky has undergone impactful statutory amendments since the Chambers decision. KRS 189.940 has been amended to require the driver of an emergency vehicle or public safety vehicle to give warning by illuminating warning lights and sounding sirens continuously during an emergency. Additionally, KRS Sections 189.910 through 189.950 requires that the driver of any emergency vehicle or public safety vehicle to use due regard when driving under emergency situations. This standard of care has not changed since the Chambers decision but now the Kentucky Supreme Court will allow for juries to consider this standard and whether the officer was acting with due regard when determining the apportionment of fault under the comparative fault approach.
Gonzalez will now require that juries determine whether the pursuing officer’s actions were a substantial factor in causing the injury of the third party. Juries will also assess the facts and circumstances while considering whether the officer was using due regard when apportioning fault between the parties involved.
*DBL Law Summer Associate Madison Gamble contributed to this article.
