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State Law May Impact Claims Based on Pursuits

Jack Ryan

The law regarding the liability, under state tort claims, against an entity and public officers varies from state to state. Law enforcement officers are protected by various immunities under state laws. These immunities are not limitless shields but instead provide limited protection for officers and the agencies they work for.

Many states limit the liability of officers when they are undertaking a “discretionary” function. Discretionary functions are those which involve personal deliberation or decision and judgment before undertaking the particular act. Generally the discretionary acts protected are those acts which are generally undertaken by government actors and not by members of the public. Law enforcement activities are a good example.

The reason these discretionary acts have been protected is to encourage officers to take action without concern for liability. The rationale is if officers are subject to liability for everything they do, they will simply avoid taking any action unless directed to do so.

Many states consider the decision to pursue a vehicle as a “discretionary act.” In states where discretionary acts are protected, officers may have some level of protection from liability.

Texas Dept. of Public Safety v. Mathison, 2003 Tex. App. LEXIS 2272 provides a good example. Mark Mathison was killed as the result of a collision with D.P.S. Officer Burman. Mathison estate filed suit.

Under Texas law, government employees are immune from suit in their individual capacity where the harm was the result of the employee’s good faith performance of a discretionary function.

Officer Burman sought immunity under this provision arguing that he was involved in a pursuit at the time of the collision and therefore was performing a discretionary function.

The issue in the case was whether the officer was actually involved in a pursuit or whether he was simply on routine patrol and speeding. A witness to the accident reported that she observed the officer speeding but did not see any vehicle in front of the officer. Further, the witness reported that she did not believe that the officer was using his lights or siren.

The court concluded that this case would have to proceed to trial so that a jury could determine, based on this conflicting evidence, whether the officer was in pursuit, (a discretionary function entitling the officer to immunity) or whether the officer was on routine patrol, (a non-discretionary function for which there would be no immunity). It should be noted that immunity would also cover an officer in the discretionary decision not to pursue.

Points to Remember:

Liability may be imposed under state tort law for harm that occurs during a pursuit.

Law varies from state to state on this issue.

Policy makers must be aware of the requirements of their particular state as defined by statute or case law on high-speed pursuits.

In jurisdictions where state mandates exist, policies must reflect the mandates within the law.

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