Police pursuit liability in Missouri

Robert T. Plunkert
Robert T. Plunkert is a 2009 graduate of Saint Louis University School of Law and principal of Pitzer Snodgrass, P.C. in St. Louis. Special thanks to my father, Thomas Plunkert, a longtime litigator and fan of Jake and Elwood Blues; to my sister, Christi Weidler, a veteran of over two decades of the St. Louis Metropolitan Police Department and oft-quoter of “The Blues Brothers;” and my mother, Katherine Plunkert, for maintaining law and order among us all.

When Elwood Blues and “Joliet” Jake Blues began their 106-mile crusade to Chicago in the 1980 movie “The Blues Brothers,” it could scarcely be said that anyone could predict with any accuracy the staggering amount of property damage which would be sustained or number of individuals who would be injured. The pursuit, which began at night and continued into daylight, drew the untoward attention of the Good Ol’ Boys, the Illinois State Police, the Chicago Police, and the Illinois Nazis. Reaching speeds over 115 miles per hour, the Blues Brothers attempted to evade highway patrol and police cruisers, whizzing firearm rounds, mounted officers, the Chicago Marine Unit, air patrollers, ax-toting firefighters, soldiers, and rappelling SWAT team members.

Though obviously lampooning police chases, the film implicitly raises a question concerning when an attempt to apprehend fugitives of the law crosses the line. The debate concerning the efficacy of police vehicular pursuits seems a perpetuum mobile. Should a law enforcement officer pursue a suspect, potentially reaching high speeds and endangering members of the public? Should an officer simply let the evading suspect go or terminate a pursuit at a certain stage? Should an officer refrain from instigating a pursuit in the first place?

This article provides a summary of typical issues surrounding police pursuit liability in Missouri, under both state and federal law.

Missouri law

Duty

The Supreme Court of Missouri recognized the dual standards of duty regarding an officer pursuing a fleeing suspect: “[F]irst, he has the obligation to apprehend the traffic violator and prevent him from doing any harm to innocent users of the highway and, second, he has the obligation to pursue the traffic violator in a manner that is neither careless, reckless, or wanton.”² With respect to a public entity, the Court has implicitly found there to be a duty by a pursuing officer to a third party where the pursuing officer collides with the third party.³

Does a pursuing officer owe a duty to a fleeing suspect? There does not appear to be any published case interpreting Missouri law in favor of such a duty. Typically, when determining whether a duty is owed, a court will examine public policy from a calculus of factors:

[A]mong them, the social consensus that the interest is worthy of protection; the foreseeability of harm and the degree of certainty that the protected person suffered injury; moral blame society attaches to the conduct; the prevention of future harm; consideration of cost and ability to spread the risk of loss; the economic burden upon the actor and the community — the others.⁴

Though no Missouri appellate court has examined the issue, other courts in the nation have found public policy weighs against finding a pursuing officer owes a duty to a fleeing suspect.⁵ The Supreme Court of Oklahoma went so far as to say, “It would be absurd to conclude that law enforcement officers, out of concern for the safety of a fleeing suspect, must cease pursuit of that individual or risk possible civil liability to the suspect.”⁶

The minority position expressed by the Supreme Court of Utah is that a duty exists in light of interpreting the plain language of a statute: “The privileges granted under this section do not relieve the operator of an authorized emergency vehicle of the duty to act as a reasonably prudent emergency vehicle operator in like circumstances.”⁷ In 2014, however, the Utah Legislature amended the statute at issue to declare that no duty of care was owed to a suspect in the commission of a crime evading pursuit.⁸ The amended statute contained an exception, in that a duty of care is owed if the officer had “actual intent [malicious motive to cause injury, not merely an intent to do the act resulting in the injury] to cause harm to the fleeing suspect in an act that was unrelated to the legitimate object of the arrest.”⁹

That is all well and good for fleeing drivers, like Elwood Blues in the film, but what about Jake? Do the police owe him a duty as an innocent passenger? Most jurisdictions have found that there is no duty owed by a pursuing officer to an unknown or voluntary passenger in a vehicle evading law enforcement.¹⁰ Specifically, courts have found public policy weighed against “the undesirable chilling effect upon law enforcement to the detriment of public safety” in the event liability would attach to injuries sustained by passengers in vehicles evading law enforcement.¹¹

Proximate cause

The Missouri Court of Appeals has held that the question of proximate cause was for the jury when a fleeing suspect encountered police-deployed tire-deflation devices causing a loss of control of the vehicle.¹² What about a situation where the police cruiser does not contact the fleeing suspect or where the fleeing suspect collides with an innocent third party? Considering a scenario where a vehicle operated by a fleeing suspect collided with a third party during a pursuit, the Supreme Court of Missouri stated:

Here, [the pursuing officer’s] conduct was not a proximate cause of the collision. The suspects in the van made the initial decision to flee, sped through red lights and in the wrong lane of traffic, and collided with the decedents. Any negligence by [the pursuing officer] is connected to the plaintiffs’ injury solely through the conduct of the fleeing van. Thus, the only conceivable causal link between the officer’s alleged negligence and the collision is the conjectural effect of his pursuit on the pursued vehicle. Shortly after initiating the pursuit, the officer observed, “[T]his guy is going nuts on us.” There is nothing other than speculation to reach a conclusion that the officer’s conduct was a “cause” of the collision. Put another way, there is no way to tell whether the collision would have been avoided if the officer had abandoned the pursuit after initiating it. Thus, there is no factual basis to support a finding of proximate cause.¹³

Generally, the Missouri Court of Appeals has closely followed Stanley and found it controlling.¹⁴

One Court of Appeals decision, Moyer v. St. Francois County Sheriff Dep’t, considered a pursuit lasting 10 miles, at speeds near 120 miles per hour, and for several minutes in reversing an order granting summary judgment on behalf of the public entity and holding, “[A]s the time and distance between an officer and a fleeing suspect grows, the more likely it becomes that the suspect will cease fleeing in a reckless manner.”¹⁵ This appears to embrace a more expansive view of police pursuit liability, suggesting that under growing distance, speed, and duration circumstances, it may become “more likely … that the suspect will cease fleeing in a reckless manner” if the pursuit had been terminated.¹⁶ Judge Clifford H. Ahrens authored a dissenting opinion, relying on the above rationale in Stanley, stating that “there is nothing here other than speculation and conjecture to reach a conclusion that the officer’s conduct was the proximate cause of the collision.”¹⁷ Specifically, Ahrens disagreed that time, distance, and speeds should allow for a “‘common sense’ inference that the suspect would have ceased driving in a reckless manner had the deputy abandoned the chase.”¹⁸

The Court of Appeals has since appeared to limit Moyer to its facts.¹⁹ In Throneberry v. Missouri State Highway Patrol, the Court of Appeals referenced its “discomfort” with its holding in Moyer and stated Moyer attempted to “differentiate its facts” from Stanley “inaccurately …  by mischaracterizing ‘time and distance’ facts involved in Stanley and [another decision].”²⁰ The Throneberry court stated:

[O]n that topic, Stanley’s holding is plain. “[T]he only conceivable causal link between the officer’s alleged negligence and the collision is the conjectural effect of his pursuit on the pursued vehicle ... There is nothing other than speculation to reach a conclusion that the officer’s conduct was a ‘cause’ of the collision.” This holding is not susceptible to variance based on the speed, distance, or duration of the pursuit. Moyer did not, and could not, have held to the contrary.²¹

In short, although the Missouri Court of Appeals in Moyer has previously found speed, distance, and duration may help bridge the gap from conjecture and speculation to proximate causation, its subsequent holdings have indicated a trend against finding such to be a valid argument considering Stanley.

Sovereign immunity

Sovereign immunity, which applies to public entities with exceptions, also may be invoked regarding police pursuit matters.²² Section 537.600 of the Missouri Revised Statutes, which codifies sovereign immunity pertaining to torts, excepts application of sovereign immunity to negligent acts.²³ This indicates that sovereign immunity would bar any claim against a public entity if any intentional act were taken in connection with a police pursuit against a fleeing suspect.²⁴ Regardless, any negligence claim against a public entity would presumably be subject to the cap on damages found in § 537.610.

Official immunity

Official immunity, which may apply to public officials engaged in discretionary conduct without malice, is also a defense typically raised in police pursuit matters. The Supreme Court of Missouri recently addressed this defense in State ex. rel. Barron v. Beger.²⁵ There, Missouri State Highway Patrol trooper Mayela Barron received information from another trooper that a white truck was traveling approximately 92 miles per hour in a 55-miles-per-hour zone.²⁶ By the time the white truck passed Barron, it was traveling at approximately 99 miles per hour.²⁷ Barron determined that she should pursue the white truck with emergency lights and sirens engaged based on its “increasing speed, the hilly terrain, the time of day, and upcoming service roads.”²⁸ As Barron crested a hill, a third-party vehicle entered the intersection where Barron was unable to avoid striking the vehicle.²⁹ The third party raised suit against Barron, asserting negligence claims against the trooper.³⁰

The Supreme Court of Missouri noted that whether a public official is in an emergency situation is irrelevant to the inquiry regarding whether the affirmative defense of official immunity bars claims against the official.³¹ Rather, the central question in assessing whether official immunity bars certain claims is to determine whether the official’s act/omission is discretionary.³² This is decided by determining “whether there is any room whatsoever for variation in when and how a particular task can be done.”³³ Addressing this central question in the context of a police pursuit, the Barron Court stated:

The decisions Trooper Barron made when attempting to overtake the truck could have been made in various different ways and were subject to Trooper Barron’s discretion. This included the discretion over Trooper Barron’s vehicle’s speed, discretion over her vehicle’s emergency lights, and discretion over her vehicle’s emergency sirens … Because there was ‘room for variation’ in how Trooper Barron pursued the truck, “that task – by definition – is not ministerial.”³⁴

The Court further found that whether the incident to which Barron was responding was an “emergency” was not an element of her affirmative defense of official immunity.³⁵ Barron’s attempt to overtake the fleeing vehicle could have been made in various ways subject to her discretion (including speed, emergency lights, and emergency sirens) with room for variation. Official immunity, therefore, barred the innocent third-party claims as a matter of law.³⁶

Regarding the malice exception to official immunity, the Supreme Court of Missouri stated:

A defendant acts with malice when he wantonly does that which a man of reasonable intelligence would know to be contrary to his duty and which he intends to be prejudicial or injurious to another. An act is wanton when it is done of wicked purpose, or when done needlessly, manifesting a reckless indifference to the rights of others.³⁷

To fall within the malice exception, the act must be done “knowingly and deliberately, for an improper motive and without legal justification.”³⁸

Public duty doctrine

The public duty doctrine, which states a public employee “is not civilly liable for the breach of a duty owed to the general public, rather than a particular individual,” negates the duty element required to prove negligence.³⁹ The doctrine does not apply where there is a breach of ministerial duties in which an injured party had a special, direct, and distinctive interest or where the public employee acts in bad faith or malice.⁴⁰ Courts have found this doctrine shields pursuing officers from liability, so long as the above criteria are met.⁴¹

Federal law

Under the Fourth Amendment to the U.S. Constitution incorporated to the states by the Fourteenth Amendment, a seizure occurs “when there is a governmental termination of freedom of movement through means intentionally applied.”⁴² In addition, the seizure must be “unreasonable” to give rise to potential recovery under 42 U.S.C. § 1983.⁴³

The U.S. Supreme Court addressed a scenario where an officer ended a chase, exceeding 85 miles per hour at times, by applying his “push bumper” to the back of the fleeing suspect’s vehicle and causing a crash.⁴⁴ The plaintiff argued this maneuver was use of unreasonable, deadly force.⁴⁵ Justice Antonin Scalia, delivering the opinion for the Court in Scott v. Harris, disagreed with the trial court’s opinion giving the impression the suspect, “rather than fleeing from police, was attempting to pass his driving test.”⁴⁶ Based on videotape of the pursuit, the plaintiff raced down narrow roads “in the dead of night at speeds shockingly fast,” swerved around multiple cars, crossed the double-yellow line, ran multiple red lights, drove in the “occasional center left-turn-only lane,” and caused multiple police cars to engage in the “same hazardous maneuvers just to keep up.”⁴⁷ To the Scott Court, this “resemble[d] a Hollywood-style car chase of the most frightening sort, placing police officers and innocent bystanders alike at great risk of serious injury.”⁴⁸

The Scott Court examined the benefits and risks pertaining to public policy in announcing its holding, and ultimately found no unreasonable seizure took place, stating:

Thus, in judging whether [Deputy Timothy] Scott’s actions were reasonable, we must consider the risk of bodily harm that Scott’s actions posed to respondent in light of the threat to the public that Scott was trying to eliminate. Although there is no obvious way to quantify the risks on either side, it is clear from the videotape that respondent posed an actual and imminent threat to the lives of any pedestrians who might have been present, to other civilian motorists, and to the officers involved in the chase. It is equally clear that Scott’s actions posed a high likelihood of serious injury or death to respondent – though not the near certainty of death posed by, say, shooting a fleeing felon in the back of the head, or pulling alongside a fleeing motorist’s car and shooting the motorist. So how does a court go about weighing the perhaps lesser probability of injuring or killing numerous bystanders against the perhaps larger probability of injuring or killing a single person? We think it appropriate in this process to take into account not only the number of lives at risk, but also their relative culpability. It was respondent, after all, who intentionally placed himself and the public in danger by unlawfully engaging in the reckless, high-speed flight that ultimately produced the choice between two evils that Scott confronted. Multiple police cars, with blue lights flashing and sirens blaring, had been chasing respondent for nearly 10 miles, but he ignored their warning to stop. By contrast, those who might have been harmed had Scott not taken the action he did were entirely innocent. We have little difficulty in concluding it was reasonable for Scott to take the action that he did.

But wait, says respondent: Couldn’t the innocent public equally have been protected, and the tragic accident entirely avoided, if the police had simply ceased their pursuit? We think the police need not have taken that chance and hoped for the best. Whereas [the officer’s] action – ramming respondent off the road – was certain to eliminate the risk that respondent posed to the public, ceasing pursuit was not. First of all, there would have been no way to convey convincingly to respondent that the chase was off, and that he was free to go. Had respondent looked in his rearview mirror and seen the police cars deactivate their flashing lights and turn around, he would have had no idea whether they were truly letting him get away, or simply devising a new strategy for capture. Perhaps the police knew a shortcut he didn't know, and would reappear down the road to intercept him; or perhaps they were setting up a roadblock in his path. Given such uncertainty, respondent might have been just as likely to respond by continuing to drive recklessly as by slowing down and wiping his brow.

Second, we are loath to lay down a rule requiring the police to allow fleeing suspects to get away whenever they drive so recklessly that they put other people’s lives in danger. It is obvious the perverse incentives such a rule would create: Every fleeing motorist would know that escape is within his grasp, if only he accelerates to 90 miles per hour, crosses the double-yellow line a few times, and runs a few red lights. The Constitution assuredly does not impose this invitation to impunity-earned-by-recklessness. Instead, we lay down a more sensible rule: A police officer's attempt to terminate a dangerous high-speed car chase that threatens the lives of innocent bystanders does not violate the Fourth Amendment, even when it places the fleeing motorist at risk of serious injury or death.⁴⁹

Justice John Paul Stevens, dissenting, believed the Court’s decision set forth a per se rule and impermissibly stripped jurors of the ability to determine the issue of whether the conduct of the officer was reasonable.⁵⁰

In Christiansen v. Eral, the 8th U.S. Circuit Court of Appeals recently applied the rhetoric in Scott in connection with a pursuit intervention technique (PIT) maneuver.⁵¹ In Christiansen, an officer observed a truck leaving a casino parking lot in the middle of the night and attempted to initiate a traffic stop.⁵² The truck fled and the officer pursued.⁵³ The suspect’s vehicle reached speeds of about 80 miles per hour.⁵⁴ Approximately two minutes into the pursuit, the officer informed the defendant that he suspected the suspect of driving while intoxicated.⁵⁵ Though stop sticks were used, the sticks disabled a different vehicle and the initial pursuing police vehicle.⁵⁶

As the defendant entered the pursuit, he announced his intention to end the chase with a PIT maneuver while the suspect was driving 80-90 miles per hour.⁵⁷ The officer struck the truck, “causing it to spin into a ditch and collide with a light pole.”⁵⁸ The Court refused to find the officer acted,

unreasonably or with a malicious intent to harm because it’s not plausible to believe that an officer, traveling eighty to ninety miles per hour, could perform the PIT maneuver with any confidence that the resulting crash, if there is one, would involve the fleeing motorist crashing against the pole in a manner that would elevate the risk of harm.⁵⁹

The Court found the defendant officer “made a split-second decision in a high-pressure circumstance to end a chase in a manner that the Supreme Court has already blessed; there is simply no indication from the complaint that [the defendant] had a purpose ‘unrelated to the legitimate object of arrest.’”⁶⁰

With respect to injuries sustained without a seizure, such as where an individual flees from the police in a motorcycle and tips over the motorcycle in the process, the Fourteenth Amendment’s substantive due process clause may be implicated.⁶¹ The U.S. Supreme Court has held, in reviewing whether conduct satisfied the element of arbitrary conduct shocking to the conscious: “[H]igh-speed chases with no intent to harm suspects physically or to worsen their legal plight do not give rise to liability under the Fourteenth Amendment, redressible by an action under § 1983.”⁶² Finding no liability under 42 U.S.C. § 1983, the Lewis Court reasoned:

[The deputy] was faced with a course of lawless behavior for which the police were not to blame. They had done nothing to cause [the suspect’s] high-speed driving in the first place, nothing to excuse his flouting of the commonly understood law enforcement authority to control traffic, and nothing (beyond a refusal to call off the chase) to encourage him to race through traffic at breakneck speed forcing other drivers out of their travel lanes. [The suspect’s] outrageous behavior was practically instantaneous, and so was [the deputy’s] instinctive response. While prudence would have repressed the reaction, the officer’s instinct was to do his job as a law enforcement officer, not to induce [the suspect’s] lawlessness, or to terrorize, cause harm, or kill. Prudence, that is, was subject to countervailing enforcement considerations, and while [the deputy] exaggerated their demands, there is no reason to believe that they were tainted by an improper or malicious motive on his part.⁶³

Conclusion

Handcuffed at gunpoint, the Blues brothers were ultimately apprehended. Who is to blame for the wreckage in the wake of the chase: the police, Elwood, and/or Jake? So far as public policy is concerned, perhaps a turn to Scalia’s analysis of the Fourth Amendment will shed light on one vantage point:

Street pursuits always place the public at some risk, and compliance with police orders to stop should therefore be encouraged. Only a few of those orders, we must presume, will be without adequate basis, and since the addressee has no ready means of identifying the deficient ones it almost invariably is the responsible course to comply. Unlawful orders will not be deterred, moreover, by sanctioning through the exclusionary rule those of them that are not obeyed. Since policemen do not command “Stop!” expecting to be ignored, or give chase hoping to be outrun, it fully suffices to apply the deterrent to their genuine, successful seizures.⁶⁴

Though Elwood and Jake did not seem to hesitate to embark on the high-speed chase in the film, Missouri practitioners should pause to consider the various pitfalls in police pursuit liability to avoid hitting an untimely, dispositive end of the road.

1 The Blues Brothers (Universal Pictures 1980).

2 Oberkramer v. City of Ellisville, 706 S.W.2d 440, 442 (Mo. banc 1986); see also Mo. Rev. Stat. § 537.060 (2016). All statutory citations are to Mo. Rev. Stat.  2016, unless otherwise stated.

3 Southers v. City of Farmington, 263 S.W.3d 603, 609-10 (Mo. banc 2008).

4 Hoover's Dairy, Inc. v. Mid-America Dairymen, Inc./Special Prods., Inc., 700 S.W.2d 426, 432 (Mo. banc 1985).

5 Lack of a social consensus

Smith v. City of Stillwater, 328 P.3d 1192, 1203-04 (Okla. 2014); City of Winder v. McDougald, 276 Ga. 866, 583 S.E.2d 879, 867-68 (Ga. 2003); Lindstrom v. City of Corry, 763 A.2d 394, 397 (Penn. 2000); Robinson v. City of Detroit, 613 N.W.2d 307, 314 (Mich. 2000) (“[T]he police owe no duty to a wrongdoer, whether the wrongdoer is the fleeing driver or a passenger.”); Bryant v. Beary, 766 So. 2d 1157, 1160 (Fla. Dist. Ct. App. 2000) (review denied by Bryant v. Beary, 789 So. 2d 343 (Fla. 2001) (“the deputy did not create a zone of risk to Bryant by pursuing him for his violation of law, nor did he cause Bryant any harm.  Bryant had the absolute duty to stop, and any injuries incurred by him because he failed to do so were caused solely by himself.”)); Estate of Day by Strosin v. Willis, 897 P.2d 78, 82 (Alaska 1995).

Risk of foreseeability of injury

City of Stillwater, 328 P.3d at 1204 (“By fleeing from law enforcement, it is the suspect who’s unlawful and dangerous actions necessitate pursuit in the first place.”); see also Willis, 897 P.2d at 82 (“[D]espite any possible close connection, public policy should emphasize the blameworthiness of the fleeing offender’s criminal conduct.”).

No moral blame attaching to attempt to apprehend suspect

As stated above, the Supreme Court of Missouri has recognized a police officer has an “obligation to apprehend the traffic violator and prevent him from doing any harm to innocent users of the roadway. . .” Oberkramer v. Ellisville, 706 S.W.2d 440, 442 (Mo. banc 1986) (emphasis added); see also Lindstrom, 763 A.2d at 397 (“The second factor weighs against imposing a duty, as the social utility of a police officer’s attempt to apprehend a person suspected of violating the law is beyond dispute”); Willis, 897 P.2d at 82 (“[E]ven if the officer was negligent, his negligence ‘does not carry the same moral negativity as does [the fleeing offender’s] actions.’”).

Imposing a duty would not prevent future harm, but may encourage it

See Willis, 897 P.2d at 82 (Failing to pursue could be seen as “inviting future harm to innocent third-parties by failing to attempt to take dangerous drivers off the road.”); see also California v. Hodari D., 499 U.S. 621, 627 (1991); Willis, 897 P.2d at 82 (“[I]mposing such a duty on officers could have the effect of encouraging offenders to attempt escape.”).

Risk of loss and economic burden on community

Willis, 897 P.2d at 82 (“The consequences to the community of imposing a duty are easily ascertainable.  It would be the public that would incur the cost, because it is the State that usually will be sued. Thus, public funds would be used to compensate a person who chose to flee from an officer. Again, the State persuasively argues that this would be poor public policy.”).

6 City of Stillwater, 328 P.3d at 1204.

7 Torrie v. Weber Cnty., 309 P.3d 216, 220 (Utah 2013) (finding duty owed to fleeing suspect after review of Utah statute and interpreting former Utah Code Ann. § 41-6a-212).

8 See Utah Code Ann. § 41-6a-212(7).

9 Id.

10 See Borelli (Estate of Giordano) v. Renaldi, 336 Conn. 1, 33, 243 A.3d 1064, 1085 (2020) (no duty owed to passenger, as passenger was not specifically identifiable individual); Ombres v. City of Palm Beach Gardens, 788 F. App’x 665, 668 (11th Cir. 2019) (summarizing Florida law finding no duty owed to voluntary passenger in car fleeing from policy); Sellers v. Twp. of Abington, 630 Pa. 330, 348, 106 A.3d 679, 689 (2014) (finding no duty where officer unaware of passenger’s presence); Fawcett v. Adreon, No. M2000-00940-COA-R3-CV, 2001 Tenn. App. LEXIS 621, at *12 (Ct. App. Aug. 21, 2001) (finding no duty owed and reasonable to assume passenger is engaged in common criminal activity with the driver); Parish v. Hill, 350 N.C. 231, 246, 513 S.E.2d 547, 556 (1999) (finding no duty owed) (citing County of Sacramento v. Lewis, 523 U.S. 833, 853 (1999) (discussing split-second decisions and threat to others, regardless of whether others are passengers)); Robinson v. City of Detroit, 225 Mich. App. 14, 16, 571 N.W.2d 34, 34 (1997); see also Utah Code Ann.§ 41-6a-212(7) (finding no duty owed to passenger unless it is proven by a preponderance of the evidence the passenger’s presence in the vehicle was involuntary and the passenger’s participation in the evasion was involuntary).

11 Fisher v. Miami-Dade Cty., 883 So. 2d 335, 336 (Fla. Dist. Ct. App. 2004) (quoting Robinson, 571 N.W.2d at 35).

12 Moody v. Kansas City Bd. of Police Commissioners, 539 S.W.3d 784, 793 (Mo. App. W.D. 2017) (“the jury could reasonably find that the stop sticks deployed on the basis of potentially misleading information about Mr. Fields’ speed were what caused the SUV to veer, flip, and crash into Mr. Moody’s vehicle”).

13 Stanley v. City of Independence, 995 S.W.2d 485, 488 (Mo. banc 1999); see York v. Ohio State Highway Patrol, No. 89AP-143, 1990 Ohio App. LEXIS 1804, at *10-11 (Ct. App. May 8, 1990), aff’d, 60 Ohio St. 3d 143, 573 N.E.2d 1063 (Ohio 1991), reh’g denied, 61 Ohio St. 3d 1423, 574 N.E.2d 1093 (Ohio 1991).

14 Harris v. City of St. Louis, ED 110325, 2022 WL 6579557, at *6 (Mo. App. E.D. Oct. 11, 2022), rehearing and/or trans. denied (Nov. 14, 2022), trans. denied (Jan. 31, 2023); Throneberry v. Mo. State Highway Patrol, 526 S.W.3d 198, 206 (Mo. App. W.D. 2017) (finding trooper owed no personal duty of care to third party involved in collision with pursued vehicle); Frazier v. City of Kansas, 467 S.W.3d 327, 336 (Mo. App. W.D. 2015); Dilley v. Valentine, 401 S.W.3d 544, 549 (Mo. App. W.D. 2013) (citing Mo. Const. art. V, sec. 2); see also Baidy v. Marah, 760 S.W.2d 195, 196 (Mo. App. E.D. 1988) (“A police officer is not liable for damages caused by a vehicle being pursued by the officer in performance of his duties.”).

15 449 S.W.3d 415, 418 (Mo. App. E.D. 2014).

16 Id.

17 Id. at 419 (J. Ahrens, dissenting).

18 Id. at 420 (J. Ahrens, dissenting).

19 Throneberry, 526 S.W.3d at 211; see also Harris, at *6 (distinguishing Moyer); Frazier, 467 S.W.3d at 336 (distinguishing Moyer).

20 Throneberry, 526 S.W.3d at 211-12.

21 Id. at 212 (internal citation omitted).

22 See Southers v. City of Farmington, 263 S.W.3d 603, 609-10, 620-21 (Mo. banc 2008). For further discussion of sovereign immunity, official immunity, and the public duty doctrine, see Shane K. Blank, The King’s Court: Demystifying Missouri’s Governmental Immunity Doctrines, 71 J. Mo. B. 192 (2015).

23  Mo. Rev. Stat. § 537.600.

24 “[T]he theories of negligence and intentional tort are contradictory and mutually exclusive.” Friday v. McClure, 536 S.W.3d 235, 239 (Mo. App. W.D. 2017).

25 655 S.W.3d 356, 360 (Mo. banc Dec. 6, 2022).

26 Id. at 358-59.

27 Id. at 359.

28 Id.

29 State ex rel. Barron, 665 S.W.3d at 359.

30 Id.

31 Id.

32 See id. at 360.

33 State ex rel. Alsup v. Kanatzar, 588 S.W.3d 187, 191 (Mo. banc 2019).

34 State ex rel. Barron, 655 S.W.3d at 361.

35 Id.

36 Id.

37 State ex rel. Twiehaus v. Adolf, 706 S.W.2d 443, 447 (Mo. banc 1986) (internal quotations and citation omitted).

38 Id. (quoting parenthetical of Elliott v. Kupferman, 58 Md. App. 510, 473 A.2d 960, 969 (1984)).

39 Throneberry v. Missouri State Highway Patrol, 526 S.W.3d 198, 205 (Mo. App. W.D. 2017) (internal quotations and citations omitted).

40 Id. at 205.

41 Id. at 205-06; see also Southers v. City of Farmington, 263 S.W.3d 603, 620 (Mo. banc 2008), as modified on denial of reh’g (Sept. 30, 2008).

42 Brower v. Cnty. of Inyo, 489 U.S. 593, 597 (1989).

43 Id. at 599.

44 Scott v. Harris, 550 U.S. 372, 374-75 (2007).

45 Id. at 376.

46 Id. at 379.

47 Id. at 379-80.

48 Scott, 550 U.S. at 380.

49 Id. at 383-86 (original emphasis) (internal citations and footnote omitted).

50 Id. at 389-97 (J. Stevens, dissenting).

51 52 F.4th 377, 378 (8th Cir. 2022).

52 Id.

53 Id.

54 Id.

55 Id.

56 Christiansen, 52 F.4th. at 379-80.

57 Id. at 380

58 Id.

59 Id. at 380-81; see also Moore-Jones v. Quick, 909 F.3d 983 (8th Cir. 2018) (reversing denial of qualified immunity during low-speed pursuit where PIT maneuver was implemented; no clearly established right to be free from PIT maneuver under circumstances).

60 Id. at 380 (quoting Cty. of Sacramento v. Lewis, 523 U.S. 833, 836 (1998)).

61 Lewis, 523 U.S. at 837.

62 Id. at 853.

63 Id. at 855.

64 California v. Hodari D., 499 U.S. 621, 627 (1991).