Litigating High-Speed Vehicle Pursuit Cases, 0320 COBJ, SC Lawyer, March 2020, #32

AuthorBy Samuel R. Clawson, Jr. and Christy R. Fargnoli.
PositionVol. 31 Issue 5 Pg. 32

Litigating High-Speed Vehicle Pursuit Cases

Vol. 31 Issue 5 Pg. 32

South Carolina BAR Journal

March, 2020

By Samuel R. Clawson, Jr. and Christy R. Fargnoli.

High-speed vehicle pursuits by law enforcement frequently result in motor vehicle accidents that cause life altering injuries or death for feeing drivers, their passengers and bystanders. In fact, from 2014 to 2018 there were 59 fatal motor vehicle crashes in South Carolina involving police pursuit, according to National Highway Traffic Safety Administration data.1 This puts the Palmetto State behind only Texas (222), California (155), Georgia (110), Michigan (71), and Illinois (70). Recent media reports have indicated that a “review of data from the National Highway Traffic Safety Administration ranks South Carolina in the top ten nationally for deaths as a result of law enforcement vehicle pursuits per capita.”2 This article discusses South Carolina statutory and common law regarding vehicle pursuits, law enforcement policies and procedures governing vehicle pursuits, alternatives to vehicle pursuits, and practical considerations for litigating vehicle pursuits.

South Carolina law on vehicle pursuits

South Carolina statutory and common law provide the basis for liability of a law enforcement agency for vehicle pursuits where the pursing officer fails to apply the required balancing test or when he or she fails to drive with due regard for the safety of all persons – feeing drivers, their passengers, and bystanders.

Clark v. South Carolina Dept. of Public Safety is the seminal case in South Carolina regarding law enforcement liability for high-speed pursuits.3 In Clark, the plaintiff’s decedent was killed by a feeing suspect during a high-speed pursuit by a trooper with the South Carolina Highway Patrol. The South Carolina Supreme Court confirmed that the applicable standard of care in initiating and failing to terminate a pursuit is gross negligence, i.e., the failure to exercise a slight degree of care or when a person is so indifferent to the consequences of his conduct so as to not give slight care to what he is doing. The Court further held that there was evidence of gross negligence where the plaintiff’s law enforcement expert testified that the pursuing officer failed to apply the required balancing test, which requires the officer to continuously evaluate the danger of the pursuit, weigh the need to apprehend the suspect against the danger posed by the pursuit, and to discontinue the pursuit if the danger of the pursuit outweighs the need to apprehend the suspect. The Court further held that the supervision of the pursuit is a separate and independent duty and that a breach of this duty can be the proximate cause of an accident arising from a pursuit. Finally, the Court held that a law enforcement officer is not immune from liability under the basis of discretionary immunity for the decision of whether to begin or continue the pursuit of a suspect.

Section 56-5-760 of the South Carolina Code governs the operation of emergency vehicles. The statute allows the driver of an authorized emergency vehicle to exercise certain privileges when in the pursuit of an actual or suspected violator of the law. For example, pursuant to the statute, a law enforcement officer may exceed the maximum speed limit if he or she “does not endanger life or property.” 4 However, the statute specifically provides that the privileges conferred by this statute do not relieve the officer from “the duty to drive with due regard for the safety of all persons.”5 A determination of a violation of this statute can support a finding of gross negligence and additionally serve as the basis for a claim of negligence per se.

Law enforcement policies and procedures

Law enforcement agencies frequently have policies and procedures that govern the initiation, conduct and termination of vehicle pursuits. Many of these policies and procedures are modeled after the International Association of Chiefs of Police’s Model Policy for Vehicular Pursuits, which is a recognized industry standard. For the purpose of this article, we will examine aspects of the South Carolina Department of Public Safety Policy 300.02 (the “Policy”), which governs emergency response and vehicle pursuit operations by the South Carolina Highway Patrol.6

The stated purpose of the Policy is to minimize any potential danger to officers, the general public, and feeing suspects involved in a vehicle pursuit in accordance with Section 56-5-760 of the South Carolina Code. The Policy states that officers shall pursue feeing suspects in a manner that is reasonable and necessary to accomplish lawful objectives, while protecting their lives “and the lives of others.” The Policy explicitly states that officers engaged in an emergency response situation are not relieved from the “duty to drive with due regard for the safety of all persons.”

The Policy states that, “a vehicle pursuit is justified only when the necessity of the apprehension of a suspect outweighs the risks created by the pursuit.” The decision to pursue and the determination of whether to continue a pursuit lies with the officer, subject to instruction from a supervisor to terminate the pursuit. The officer must consider and evaluate various circumstances and conditions before initiating a pursuit and must continuously evaluate these factors during the pursuit in order to determine if the pursuit should be terminated: • the seriousness of the original offense that led to the pursuit;

• the time, day and location of the pursuit;


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