Recently, the Austrian Supreme Court (Oberster Gerichtshof) ruled that a fleeing criminal must pay damages to a police officer who was injured while pursuing the criminal.
What happened?
In the course of a police stop during the Covid19 pandemic “curfew,” police officers checked on a group of people. One person (the defendant) initially moved away, but then stopped and returned. One of the police officers (the plaintiff) discovered a bag of cannabis under the group’s car. The three persons were then patted down, and their identity established. While patting down the defendant, a hard object was felt, whereupon the defendant suddenly began to run. The plaintiff took up the pursuit, which the defendant expected. During the pursuit, the defendant discarded a packet of cocaine. Subsequently, the plaintiff fell because he overlooked a washed-out hole on a gravel road. During the fall, the plaintiff sustained injuries. After a colleague of the plaintiff caught up with the defendant, the defendant gave up his escape.
The plaintiff sought damages for the injuries sustained in the fall and a declaration that the defendant was liable for all resulting damages.
What did the courts decide?
While the court of first instance granted the claim for payment on the merits, the appellate court upheld the appeal against the court of first instance’s judgment and dismissed the claim for payment.
The Supreme Court considered the plaintiff’s appeal to be admissible and well-founded.
In its reasoning, the Supreme Court stated that not every escape triggers liability of the fleeing person towards the police officer pursuing him, but it does in this particular case. This is because the police officer had reasonable suspicion that the fleeing person had committed a crime (he found a packet of cannabis and felt a hard object during the pat-down). Due to the sudden escape, the pursuit by the police was necessary and the plaintiff was also obliged to do so due to his police duty. According to the Supreme Court, the subsequent pursuit, during which the plaintiff had to move on different surfaces, cannot be compared to a “normal training run”. The Supreme Court further stated that a person suspected of a crime lacks a generally recognized interest in fleeing. This is because the general public disapproves of such behavior. According to the Supreme Court, whether or not there is a right to flee is irrelevant, since it can in no way be deduced from the right against self-incrimination that one may encourage police officers to engage in a dangerous chase, according to the Supreme Court.
In the specific case, the plaintiff therefore had to compensate the defendant’s damage.
(Decision OGH 1 Ob 158/21y, 07.09.2021)
I will be happy to advise and support you in questions regarding claims for damages as well as in the enforcement or defense of claims.
