13-911. Vehicular pursuit by law enforcement officer; liability to third parties; reimbursement.

(1) In case of death, injury, or property damage to any innocent third party proximately caused by the action of a law enforcement officer employed by a political subdivision during vehicular pursuit, damages shall be paid to such third party by the political subdivision employing the officer.

(2) Upon payment by a political subdivision of those damages sustained by an innocent third party, whether upon voluntary settlement or in satisfaction of a judgment, the political subdivision shall be entitled to reimbursement of the amount of damages paid by the political subdivision from each and all of the following sources:

(a) The driver of the fleeing vehicle;

(b) Any organization, including a sole proprietorship, partnership, limited liability company, or corporation, liable for the conduct of the driver of the fleeing vehicle;

(c) Every insurer or self-insurance surety of either the driver of the fleeing vehicle or any organization, including a sole proprietorship, partnership, limited liability company, or corporation, liable for the conduct of the driver of the fleeing vehicle, except that no such insurer or self-insurance surety shall be required to pay in excess of the liability limit of its applicable policies or bonds;

(d) Any uninsured or underinsured motorist insurer or self-insurance surety legally liable to the innocent third party, except that the sum recoverable from such insurer or self-insurance surety shall not exceed the highest limit of liability determined in accord with the Uninsured and Underinsured Motorist Insurance Coverage Act;

(e) The state employing law enforcement officers whose actions contributed to the proximate cause of death, injury, or property damage sustained by the innocent third party, except that the liability of the state shall not exceed the damages sustained by the innocent third party apportioned equally among all political subdivisions employing law enforcement officers whose actions contributed to the proximate cause of the death, injury, or property damage sustained by the innocent third party and the state; and

(f) Any political subdivision employing law enforcement officers whose actions contributed to the proximate cause of death, injury, or property damage sustained by the innocent third party, except that the liability of the political subdivision shall not exceed the lesser of (i) its maximum statutory liability pursuant to the Political Subdivisions Tort Claims Act or (ii) damages sustained by the innocent third party apportioned equally among all political subdivisions and the state employing law enforcement officers whose actions contributed to the proximate cause of the death, injury, or property damage sustained by the innocent third party.

(3) This section shall not relieve any public or private source required statutorily or contractually to pay benefits for disability or loss of earned income or medical expenses of the duty to pay such benefits when due. No such source of payment shall have any right of subrogation or contribution against the political subdivision.

(4) This section shall be considered part of the Political Subdivisions Tort Claims Act and all provisions of the act apply.

(5) For purposes of this section, vehicular pursuit means an active attempt by a law enforcement officer operating a motor vehicle to apprehend one or more occupants of another motor vehicle, when the driver of the fleeing vehicle is or should be aware of such attempt and is resisting apprehension by maintaining or increasing his or her speed, ignoring the officer, or attempting to elude the officer while driving at speeds in excess of those reasonable and proper under the conditions.

Source

Cross References

Annotations

1. Innocent third party

2. Proximate cause

3. Vehicular pursuit

4. Miscellaneous

1. Innocent third party

If during a vehicular pursuit a passenger takes some action that makes him or her become a person sought to be apprehended, the passenger does not remain an innocent third party by virtue of the fact that law enforcement began the pursuit to apprehend the driver only. Fales v. County of Stanton, 297 Neb. 41, 898 N.W.2d 352 (2017).

Under subsection (1) of this section, a political subdivision is strictly liable for injuries to an “innocent third party” during a vehicular pursuit, regardless of whether the law enforcement officer’s actions were otherwise proper or even necessary. An “innocent third party” is one who has not promoted, provoked, or persuaded the driver to engage in flight from law enforcement personnel and one who is not sought to be apprehended in the fleeing vehicle. Werner v. County of Platte, 284 Neb. 899, 824 N.W.2d 38 (2012).

An "innocent third party" is one who has not promoted, provoked, or persuaded the driver to engage in flight from law enforcement personnel and one who is not sought to be apprehended in the fleeing vehicle. Henery v. City of Omaha, 263 Neb. 700, 641 N.W.2d 644 (2002).

A passenger in a fleeing vehicle is not an innocent third party if such passenger either (1) promoted, provoked, or persuaded the driver to engage in flight from law enforcement personnel or (2) is one who is sought to be apprehended in the fleeing vehicle. Jura v. City of Omaha, 15 Neb. App. 390, 727 N.W.2d 735 (2007).

A police officer's grounds for seeking to apprehend occupants in a vehicular chase situation must have a reasonable basis in the law and facts. Jura v. City of Omaha, 15 Neb. App. 390, 727 N.W.2d 735 (2007).

Apprehension can mean to arrest, catch, or detain. Jura v. City of Omaha, 15 Neb. App. 390, 727 N.W.2d 735 (2007).

A passenger is not an innocent third party if the passenger either (1) has promoted, provoked, or persuaded the driver to engage in flight from law enforcement personnel or (2) is sought to be apprehended in the fleeing vehicle. Reed v. City of Omaha, 15 Neb. App. 234, 724 N.W.2d 834 (2006).

2. Proximate cause

A law enforcement officer's decision and action to terminate a vehicular pursuit do not instantaneously eliminate the danger to innocent third parties contemplated in this section. That danger continues until the motorist reasonably perceives that the pursuit has ended and has had an opportunity to discontinue the hazardous, evasive driving behaviors contemplated in this section. Staley v. City of Omaha, 271 Neb. 543, 713 N.W.2d 457 (2006).

Whether an injury to an innocent third party is "proximately caused by the action of a law enforcement officer . . . during vehicular pursuit" is a question of fact which must necessarily be determined on a case-by-case basis. Staley v. City of Omaha, 271 Neb. 543, 713 N.W.2d 457 (2006).

In order for a city to be liable for injuries under this section, the first requirement is that the act of the police in pursuing a fleeing motorist must be such that without it the injury would not have occurred, commonly known as the "but for" rule, and the second requirement is that the injury must be the natural and probable result of that act and without an efficient intervening cause. Mid Century Ins. Co. v. City of Omaha, 242 Neb. 126, 494 N.W.2d 320 (1992).

3. Vehicular pursuit

The trial court's finding that prior to a collision, the police officers activated the cruiser's overhead lights and the cruiser was increasing its speed supported the court's conclusion that the officers were making an active attempt to apprehend. Williams v. City of Omaha, 291 Neb. 403, 865 N.W.2d 779 (2015).

This section does not apply where there is no active attempt to apprehend the vehicle. Lalley v. City of Omaha, 266 Neb. 893, 670 N.W.2d 327 (2003).

Pursuant to subsection (5) of this section, an officer's merely following a vehicle in order to provide information to other officers as to the vehicle's location does not constitute a vehicular pursuit. Perez v. City of Omaha, 15 Neb. App. 502, 731 N.W.2d 604 (2007).

4. Miscellaneous

This section has created strict liability on the part of a political subdivision when (1) a claimant suffers death, injury, or property damage; (2) such death, injury, or property damage is proximately caused by the actions of a pursuing law enforcement officer employed by the political subdivision; and (3) the claimant is an innocent third party. Stewart v. City of Omaha, 242 Neb. 240, 494 N.W.2d 130 (1993).