Schemberg v. Smicherko

85 A.3d 1071, 2014 Pa. Super. 23, 2014 WL 545443, 2014 Pa. Super. LEXIS 35

• Court: Superior Court of Pennsylvania
• Decided: February 11, 2014
• Status: Published

Opinions

OPINION BY

STRASSBURGER, J.:

Karl Schemberg, Jr. (Plaintiff) appeals from the November 8, 2012 order which sustained the preliminary objections of James Smicherko (Defendant) and dismissed Plaintiffs complaint with prejudice. We reverse and remand for further proceedings consistent with this opinion.

The trial court summarized the facts and procedural history of this case as follows:

Plaintiff ... filed a complaint against [Defendant] for negligence per se and negligence. Plaintiff is a police officer for the Borough of Kutztown Police Department. Around midnight on February 17, 2012, while on duty, [P]laintiff observed [Defendant urinating in public against the side of a private residence which [P]laintiff believed was not [D]e-fendant’s private residence in violation of municipal ordinances and state laws. Defendant ran away to avoid [P]laintiffs investigation. [Plaintiff] pursued [Defendant and eventually apprehended him not far from the area where he first saw [Defendant urinating. The area of the pursuit was not well lit, and [P]laintiff fell from a height between twelve inches to fifteen inches while pursuing [Defendant. Plaintiff sustained injuries to his right leg which required, inter alia, surgery. Defendant pled guilty to violating the Borough of Kutztown ordinance prohibiting urination in public. Plaintiff contends in his complaint that [Defendant committed negligence per se because he violated the ordinance of Kutz-town Borough and 18 Pa.C.S.A. § 5104 which reads as follows:

A person commits a misdemeanor of the second degree if, with the intent of preventing a public servant from effecting a lawful arrest or discharging any other duty, the person creates a substantial risk of bodily injury to the public servant or anyone else, or employs means justifying or requiring substantial force to overcome the resistance.

Defendant filed preliminary objections to the complaint contending that [Plaintiff was not able to prove claims of negligence per se and negligence. [The trial court] agreed with [Defendant and sustained the preliminary objections.

Trial Court Opinion, 2/21/2013, at 1-2.

Plaintiff filed a timely notice of appeal, and both Plaintiff and the trial court complied with Pa.R.A.P. 1925. Plaintiff presents the following questions for our review:

A. DID THE TRIAL JUDGE ERR IN CONCLUDING THAT [PLAINTIFF] COULD NOT ESTABLISH A CLAIM FOR NEGLIGENCE OR NEGLIGENCE PER SE BECAUSE THE STATUTE VIOLATED BY [DEFENDANT] WAS NOT INTENDED TO PROTECT A SPECIFIC GROUP OF INDIVIDUALS AS OPPOSED TO THE GENERAL PUBLIC?

B. DID THE TRIAL JUDGE ERR IN CONCLUDING THAT [PLAINTIFF] COULD NOT ESTABLISH A CLAIM FOR NEGLIGENCE PER SE OR NEGLIGENCE BECAUSE THE ACTIONS OF [DEFENDANT] WERE NOT THE PROXIMATE CAUSE OF THE INJURIES SUFFERED BY [PLAINTIFF]?

Plaintiffs Brief at 4 (trial court and suggested answers omitted; italics added).

We examine Plaintiffs questions mindful of the following standards.

Our standard of review of an order of the trial court overruling or granting preliminary objections is to determine whether the trial court committed an error of law. When considering the appropriateness of a ruling on preliminary objections, the appellate court must apply the same standard as the trial court. Preliminary objections in the nature of a demurrer test the legal sufficiency of the complaint. When considering preliminary objections, all material facts set forth in the challenged pleadings are admitted as true, as well as all inferences reasonably deducible therefrom. Preliminary objections which seek the dismissal of a cause of action should be sustained only in cases in which it is clear and free from doubt that the pleader will be unable to prove facts legally sufficient to establish the right to relief. If any doubt exists as to whether a demurrer should be sustained, it should be resolved in favor of overruling the preliminary objections.

Joyce v. Erie Ins. Exchange, 74 A.3d 157, 162 (Pa.Super.2013) (quoting Feingold v. Hendrzak, 15 A.3d 937, 941 (Pa.Super.2011)).

This Court has summarized the applicable principles of law as follows.

Generally, to prevail in a negligence case, a plaintiff must demonstrate the following elements: (1) the defendant owed a duty to the plaintiff; (2) the defendant breached that duty; (3) a causal relationship between the breach and the resulting injury suffered by the plaintiff; and (4) actual loss suffered by the plaintiff....

The concept of negligence per se establishes the elements of duty and breach of duty where an individual violates an applicable statute, ordinance, or regulation designed to prevent a public harm. However, a plaintiff, having proven negligence per se cannot recover unless it can be proven that such negligence was the proximate cause of the injury suffered.

We have defined negligence per se in the following fashion:

[Negligence per se is] conduct, whether of action or omission, which may be declared and treated as negligence without any argument or proof as to the particular surrounding circumstances. Pennsylvania recognizes that a violation of a statute or ordinance may serve as the basis for negligence per se. However, a court will not use a statute or regulation as the basis of negligence per se where the purpose of the statute is to secure to individuals the enjoyment of rights or privileges to which they are entitled only as members of the public.

In order to prove a claim based on negligence per se, the following four requirements must be met:

(1) The purpose of the statute must be, at least in part, to protect the interest of a group of individuals, as opposed to the public generally;

(2) The statute or regulation must clearly apply to the conduct of the defendant;

(3) The defendant must violate the statute or regulation;

(4) The violation of the statute or regulation must be the proximate cause of the plaintiffs injuries.

Mahan v. Am-Gard, Inc., 841 A.2d 1052, 1058-1059 (Pa.Super.2003) (citations and quotations omitted).

The statute Plaintiff claims that Defendant violated provides as follows.

A person commits a misdemeanor of the second degree if, with the intent of preventing a public servant from effecting a lawful arrest or discharging any other duty, the person creates a substantial risk of bodily injury to the public servant or anyone else, or employs means justifying or requiring substantial force to overcome the resistance.

18 Pa.C.S. § 5104.

The trial court rejected Plaintiffs negligence per se claim based upon violation of this statute upon the following analysis: “[f]leeing the scene of a summary arrest, without more, does not create a substantial risk of bodily harm to a police officer. Moreover, [Defendant] did not employ any resistance which forced [Plaintiff] to overcome the resistance with substantial force.” Trial Court Opinion, 2/21/2013, at 4. We disagree.

Plaintiffs complaint does not allege merely flight to avoid arrest. Plaintiff alleged that Defendant attempted to prevent Plaintiff from performing his duty by fleeing, in the middle of the night, through a poorly-lit area of uneven terrain. Complaint, 7/13/2012, at ¶¶ 4, 6, 9. Accepting these averments as true, and giving Plaintiff the benefit of all reasonable inferences therefrom, the fact finder could reasonably conclude that Defendant’s flight created a substantial risk of bodily injury. See, e.g., Commonwealth v. Lyons, 382 Pa.Super. 438, 555 A.2d 920, 925 (1989) (holding, inter alia, that Lyons’ flight from deputies into a cold stream with an uneven bed created a substantial risk of bodily injury). Therefore, it is not clear and free from doubt that Plaintiff will be unable to prove that Defendant violated 18 Pa.C.S. § 5104.

Defendant argues his preliminary objections were nonetheless properly granted because the purpose of Section 5104 is not to protect officers specifically, but rather the public in general. Defendant’s Brief at 4. Again, we disagree.

Clearly the purpose of the statute is to protect the group of individuals, specifically including public servants, who find themselves in the zone of danger created by the individual preventing the public servant from discharging his or her duty. That the protected group includes bystanders as well as public servants does not make it so general as to prevent the application of Section 5104 in a negligence per se claim.

For example, although the criminal code provision against underage drinking “represents an obvious legislative decision to protect both minors and the public at large from the perceived deleterious effects of serving alcohol to persons under twenty-one years of age[,]” our Supreme Court held that violation of that statute constituted negligence per se. Congini by Congini v. Portersville Valve Co., 504 Pa. 157, 470 A.2d 515, 518 (1983) (emphasis added) (reversing trial court order sustaining preliminary objections). Similarly, the intention to protect from harm manifested in the statute at issue in this case is more specific than provisions of the motor vehicle code; yet violations of traffic laws constitute negligence per se. See e.g., Garcia v. Bang, 375 Pa.Super. 356, 544 A.2d 509, 511 (1988) (holding that passing in a no-passing zone, in violation of the vehicle code, was negligence per se); Bumbarger v. Kaminsky, 311 Pa.Super. 177, 457 A.2d 552, 554 (1983) (“The law of this Commonwealth is clear that the failure to obey a stop sign is negligence per se_”).

In contrast, statutes which this Court has held were too general to support a negligence per se claim involve statutes that less clearly indicate an intention to protect specific groups from specific types of harm. See, e.g., Wagner v. Anzon, Inc., 453 Pa.Super. 619, 684 A.2d 570, 574-575 (1996) (holding that there was no negligence per se claim based upon violation of Philadelphia Air Management Code, because “the purpose of the Code was to protect the ‘atmosphere over the City¹ of Philadelphia, with ... concomitant benefits to its ‘inhabitants.’ ”).

Thus, we conclude that the purpose of 18 Pa.C.S. § 5104 is to protect the interests of a group of which Plaintiff is a member and applies to Defendant’s alleged conduct, and that, accepting the facts alleged in Plaintiffs complaint as true, a fact-finder could reasonably conclude that Defendant violated the statute.

We next consider Plaintiffs ordinary negligence claim. “Negligence is the absence of ordinary care that a reasonably prudent person would exercise in the same or similar circumstances.” Merlini ex rel. Merlini v. Gallitzin Water Authority, 602 Pa. 346, 980 A.2d 502, 506 (2009) (quoting Martin v. Evans, 551 Pa. 496, 711 A.2d 458, 461 (1998)). “The primary element in any negligence cause of action is that the defendant owes a duty of care to the plaintiff.” Althaus ex rel. Althaus v. Cohen, 562 Pa. 547, 756 A.2d 1166, 1168 (2000).

The trial court concluded that Defendant owed no duty to Plaintiff because “[t]here was no special relationship” between the parties, Defendant never touched Plaintiff, and Defendant “did not own the property on which the injury occurred.” Trial Court Opinion, 2/21/2013, at 5-6. Again, we disagree.

The determination of whether a duty exists in a particular case involves the weighing of several discrete factors which include: (1) the relationship between the parties; (2) the social utility of the actor’s conduct; (3) the nature of the risk imposed and foreseeability of the harm incurred; (4) the consequences of imposing a duty upon the actor; and (5) the overall public interest in the proposed solution.

Id. at 1169.

The case of Lindstrom v. City of Corry, 563 Pa. 579, 763 A.2d 394 (2000), is instructive in the application of the duty factors to the case at hand. Lindstrom is essentially the opposite of the instant case: therein it was the fleeing criminal suspect who was injured while police chased him. Our Supreme Court applied the five factors to determine “whether to impose a common law duty of care upon governmental agencies and their agents when a police officer pursues fleeing drivers.” Id. at 397. On the first factor, the relationship between the parties, the Court noted that police officers are protectors of members of the public, but any duty of protection is lessened when an individual flees rather than comply with a request to stop. Id. Regarding the second factor, “[t]he social utility of a police officer’s attempt to apprehend a person suspected of violating the law is beyond dispute.” Id. As for the third factor, the Court acknowledged the risk and foreseeability of injury to a fleeing driver. Id. Fourth, the Court noted that “the consequences of imposing a duty upon officers are burdensome, as that may prevent the apprehension of dangerous criminals and further encourage flight.” Id. Finally, the Court cited the public’s interest in ensuring safe streets and empowering police officers to enforce the law. Id. Our Supreme Court concluded that the factors on balance did not call for imposing a duty of care under the circumstances. Id.

Applying the Lindstrom analysis to the converse facts of the instant case, we conclude that the factors favor imposition of a duty of care. The first factor does not support the imposition of a duty, as Defendant had no relationship with Plaintiff. However, (2) the utter dearth of social utility of Defendant’s conduct in fleeing from an officer; (3) the obvious risk and foreseeability of possible injury to the pursuing officer; (4) the positive consequences of discouraging flight and encouraging apprehension of criminals; and (5) the public interest in empowering police to enforce the law and keep the communities safe all support the imposition of a duty of care upon Defendant in these circumstances. Accordingly, we conclude that the trial court erred in concluding, accepting the allegations of Plaintiffs complaint as true, that Defendant is entitled to judgment as a matter of law on Plaintiffs negligence claim.

The only remaining question is whether Plaintiff can show causation. “To determine whether any breach of duty proximately caused a plaintiffs damages, this Court looks to whether a reasonable person would infer that the injury was the natural and probable result of defendant’s breach of duty.” Kirschner v. K & L Gates LLP, 46 A.3d 737, 754 (Pa.Super.2012).

The trial court concluded as a matter of law that Plaintiffs injury “was not a foreseen natural and probable cause of [D]e-fendant’s acts.” Trial Court Opinion, 2/21/2013, at 5. “This was not a high speed chase, but pursuit on foot after an unarmed defendant. Defendant did not create a substantial risk of bodily injury; [P]laintiff fell on a pre-existing fault.... [Plaintiff] cannot prove that [Defendant was the proximate cause of his injury.” Id.

Again, we disagree. A reasonable person could infer that the fracture to Schem-berg’s leg sustained upon an unexpected one-foot drop while chasing Defendant, in the dark, over uneven and poorly-lit terrain, was a foreseeable result of Defendant’s act of violating Section 5104. Compare Zanine v. Gallagher, 345 Pa.Super. 119, 497 A.2d 1332, 1334 (1985) (holding that police officer’s suffering a heart attack after engaging in a high-speed car chase with the fleeing defendant was not a foreseeable risk of the defendant’s flight) with Levandoski v. Cone, 267 Conn. 651, 841 A.2d 208, 216 (2004) (“[Cjommon sense suggests that one who takes off running into the dark to flee from a police officer, who had ordered him to stop, ought to know that the pursuing officer could be injured scrambling through obstacles and over unlit terrain.”). Accordingly, the question of causation must go to the fact-finder. Kirschner, 46 A.3d at 753 (“Unless the evidence is such that reasonable people cannot disagree, the question of whether a defendant’s conduct is the cause of the plaintiffs injury or loss is for the jury.”).

Because Plaintiffs complaint alleges facts which satisfy the requirements for a claim of negligence per se, see Mahan, 841 A.2d at 1058-1059, the trial court erred as a matter of law in granting Defendant’s preliminary objections in the nature of a demurrer.

Order reversed. Case remanded for further proceedings consistent with this opinion. Jurisdiction relinquished.

Judge OLSON files a Dissenting Opinion.

1 . While a conviction of an offense is not required, the certified record confirms that Smicherko’s resisting arrest charge was nolle prossed.