Sellers v. Township of Abington

67 A.3d 863, 2013 WL 2420420, 2013 Pa. Commw. LEXIS 180

• Court: Commonwealth Court of Pennsylvania
• Decided: June 5, 2013
• Status: Published

Opinions

OPINION BY

Judge LEADBETTER.

Celeste Sellers and Richard K. Sellers, individually and as administrators of the estate of Joshua David Sellers, decedent (Appellants), appeal from the order of the Court of Common Pleas of Montgomery County, which granted the Motion for Summary Judgment of Abington Township, Officer Edward Howley, and Lieutenant Karl Knott (collectively Appellees) and dismissed Appellants’ action with prejudice. For the reasons that follow, we affirm.

The following is a summary of the evidence of record. On the evening of December 23, 2006, Scott Simons (Simons), Matthew Senger (Senger), and Joshua Sellers (decedent), met at the house of a mutual friend in the area of Jenkintown Road, Abington Township. Deposition of Scott Simons (Simons Dep.) at 33; Reproduced Record (R.R.) at 477a and Deposition of Matthew Senger (Senger Dep.) at 16; R.R. at 508a. Simons testified that they were getting together one last time before their friends who lived at the house were evicted as a result of an incident at the residence in November 2006.¹ Simons admitted that he had been drinking all day, first at his aunt’s home and then at his father’s apartment, but that he did not drink at the Jenkintown Road residence because they had no beer or alcohol.² Senger, however, testified that he drank beer while at the Jenkintown Road residence and that both Simons and decedent also drank beer while there. Senger Dep. at 16-17; R.R. at 508a-509a.

At some point in the early morning hours of December 24, 2006, both Senger and decedent asked Simons for a ride home. Simons agreed to drive Senger home because Senger lived only a few doors away from his apartment, and it was agreed that decedent would sleep at Si-mons’ apartment, since decedent lived too far away. Simons Dep. at 40; R.R. at 479a; Senger Dep. at 18; R.R. at 510a. Simons testified this was not the first time he had gotten behind the wheel of his car and drove drunk with his friends following a night out drinking.³ Simons Dep. at 39-40; R.R. at 479a. Senger was in the front passenger seat and decedent climbed into the back rear passenger seat. Simons stated that he did not fasten his seatbelt and that neither Senger nor decedent fastened their seatbelts either. Id. at 44; R.R. at 480a.

Simons testified that he was driving west on Jenkintown Road at between 40 and 45 mph in a 30 mph zone when he saw a police car approach going east and pass him.⁴ Simons saw the police vehicle’s lights activate and in his rearview mirror he saw the vehicle make a U-turn in a parking lot and proceed to follow him westbound on Jenkintown Avenue. Id. at 18-19, 26, 44-45; R.R. at 474a, 476a, and 480a. Simons admitted that at that point, instead of pulling over, he floored it, because he was “[sjcared of getting a DUI.” Id. at 18; R.R. at 474a.⁵ Senger testified that when Simons floored it, he was shoved back into his seat, and at the time, he did not know why Simons floored it, because he (Senger) did not see any police vehicle. Senger estimated Simons’ speed at “[w]ell over a hundred” as they “flew down Jen-kintown Road” before turning right onto Garfield and up to his house. Id. at 29, 34; R.R. at 521a, 526a. Senger explained that as he was saying good bye and trying to get out, Simons said something^ that made him look behind him, where he saw the reflection of police lights on the houses. Senger stated that Simons “floored it again” and he remembered “flying down the street, and ... [Simons] shutting his lights off....” Id. at 29, 31; R.R. at 521a, 523a. Senger testified he asked Simons to slow down and that he smacked or backhanded Simons to get his attention, and that decedent asked Simons to pull over, but Simons did not respond to either of them. Id. at 32-33; R.R. at 524a-525a.

As Simons continued fleeing on Garfield Avenue, he approached the T-intersection of Garfield and Meyer Avenue, where the road dips slightly. Simons testified that as he accelerated the mustang, he hit the “big dip [in the road] and the car, she got airborne, and I remember the car coming down and hitting....” Simons Dep. at 47; R.R. at 481a. The vehicle ultimately crashed into trees and a parked pickup truck on the property located at 2943 Meyer Avenue. Simons and Senger were injured in the crash, while decedent was ejected from the car upon impact and thrown twenty feet. All three men were transported to Abington Hospital, where decedent subsequently died from his injuries. Simons Dep. at 49, 54; R.R. at 481a, 483a; Senger Dep. at 36; R.R. 528a.

Officer Howley testified by deposition⁶ that on the night in question, he was on routine patrol in his police vehicle traveling westbound on Jenkintown Avenue, when he heard the exhaust mode “wide open and loud,” and saw the taillights of a vehicle far in the distance proceeding in the same westbound direction. Howley Dep. at 88; R.R. at 196a. Officer Howley “attempted] to gain ground safely on that vehicle to initiate a traffic stop” and that when he himself accelerated beyond the posted speed limit of thirty-five mph, he activated the lights and sirens on his police vehicle. Id. at 94; R.R. at 198a. As soon as he activated his light-bar, the in-car camera system automatically began to record. Id. at 39; R.R. at 184a.⁷

As Officer Howley proceeded to follow the vehicle, he reported on his radio that the vehicle had turned north on Penn Avenue, then later corrected that transmission to north on Garfield Avenue. Officer Howley testified that he was unable to identify the color or make of the vehicle until it turned right off of Jenkintown Road, and at that point, he was “relatively certain that it was a red Mustang.” Id. at 104; R.R. at 200a. Officer Howley then transmitted the information that the vehicle was traveling at a high rate of speed and he believed the driver was driving under the influence. Id. at 227; R.R. at 231a. Officer Howley, who was then traveling north on Garfield, reported that he believed the speeding vehicle had “blacked out,” or turned off his lights and he had lost the vehicle. Id. at 140; R.R. at 209a. Officer Howley testified that after the vehicle eluded him at Jenkintown and Garfield, he continued to proceed in the same direction and because he knew from patrolling the area that a red Mustang was frequently at a house on Jefferson Avenue, he headed to that location.⁸ Id. at 156; R.R. at 213a. When Officer Howley arrived on Jefferson Avenue, he testified he did not see the vehicle he had been pursuing and that at that point, he turned his sirens off. Id. at 228, 232; R.R. at 231a, 232a. Officer Howley then reported that he was going to go back towards Meyer Avenue and proceeded to turn around. Officer Howley testified that at this point, he heard a report from police dispatch that a car had hit a house on Meyer Avenue and that he immediately went to the scene. Id. at 235; R.R. at 233a. Officer Howley then pointed his vehicle’s spotlight onto the crashed vehicle and requested expedited EMS to the scene. Id. at 237; R.R. 234a.

Appellants filed a wrongful death and survival action against Appellees, asserting claims for negligence as well as punitive damages against Abington Township, Officer Howley, and Lieutenant Knott.⁹ Appellants alleged that Appellees negligently, recklessly, and willfully initiated and failed to terminate a high speed pursuit of the vehicle being operated by Simons, causing the death of decedent Sellers who was an innocent bystander. After discovery was completed, Appellees filed a motion for summary judgment which was granted by the trial court following oral argument. This appeal followed.

In considering a motion for summary judgment, we must examine the evidence of record in a light most favorable to the non-moving party, accepting as true all well-pled facts and reasonable inferences to be drawn from those facts. Kuniskas v. Pa. State Police, 977 A.2d 602, 604 n. 3 (Pa.Cmwlth.2009). Summary judgment is proper where there are no genuine issues of material fact as to a necessary element of a cause of action. Wenger v. W. Penns-boro Twp., 868 A.2d 638, 641 (Pa.Cmwlth. 2005). Where the non-moving party fails to adduce sufficient evidence on an issue which is not only essential to its case but on which it bears the burden of proof such that a jury could return a verdict in its favor, the moving party is entitled to judgment as a matter of law. Young v. Dep’t of Transp., 560 Pa. 373, 376, 744 A.2d 1276, 1277 (2000). A jury “can not be allowed to reach a verdict merely on the basis of speculation and conjecture.” Id. With these principles in mind, we turn now to the matter before this court. As these questions implicate issues of law, our review is plenary.

Appellants argue that the trial court erred in granting summary judgment in favor of Appellees when genuine issues of material fact exist as to: 1) whether Ap-pellees owed a duty of care to decedent, an innocent bystander; 2) whether Appellees’ actions in initiating and continuing the pursuit of Simons were a substantial factor contributing to decedent’s death; and 3) whether the conscious and/or reckless disregard of the dangers of the high-speed pursuit by Appellees rose to the level of intentional misconduct such that punitive damages are warranted.

First, Appellants argue that like the plaintiffs in Jones v. Chieffo, 549 Pa. 46, 700 A.2d 417 (1997), and Aiken v. Borough of Blawnox, 747 A.2d 1282 (Pa.Cmwlth.2000), decedent Sellers was an innocent bystander to whom Officer Howley and Lieutenant Knott owed a duty of care. Appellants insist that there was no evidence that decedent was fleeing apprehension or attempting to aid the fleeing driver (Simons), and therefore the trial court erred in relying on Lindstrom v. City of Corry, 563 Pa. 579, 763 A.2d 394 (2000) and Ferguson v. Commonwealth, 2009 WL 723426 (W.D.Pa. No. Civil Action 05-280E, filed March 13, 2009), in which it was determined that neither the fleeing driver (Lindstrom) nor a passenger in the fleeing vehicle (Ferguson) was owed a duty of care by law enforcement officers who pursued them. Appellants strenuously assert that unlike in those cases, there was evidence that decedent urged Simons to pull over prior to the fatal crash and that, therefore, the trial court erred in determining that decedent was akin to the fleeing suspect to whom no duty was owed. Appellants further assert that Officer Howley negligently initiated his pursuit of Simons’ vehicle for the purpose of harassing a driver whom he believed to be Dan O’Neil Jr., under the pretext that he had committed a relatively minor traffic offense — speeding, and that Lieutenant Knott negligently failed to terminate the pursuit once it became obvious that it was “fruitless” and that “Howley would not be capable of catching the vehicle.” Appellants’ Brief at 13. Appellants argue that it was the actions of Officer Howley in initiating the pursuit and continuing it, without evidence that Simons was driving while intoxicated or doing anything other than speeding, which caused Simons to flee and crash.

Appellees counter that Officer Howley owed no duty of care to decedent Sellers, “a willing but unknown occupant of a speeding and fleeing motor vehicle,” and that both Officer Howley’s and Lieutenant Knott’s actions were reasonable under the circumstances.' Appellees’ Brief at 13. Appellees also argue that the emergency vehicle doctrine in Section 3105 of the Vehicle Code, as amended, 75 Pa.C.S. § 3105, does not create a statutory duty of care on the part of the pursuing police toward those who flee apprehension, citing Frazier v. Pennsylvania State Police, 845 A.2d 253 (Pa.Cmwlth.2004). Appellees argue that it is the clear intent of the legislature to insulate the police from liability where a person is injured while “in flight or fleeing apprehension or resisting arrest by a police officer or knowingly aided a group, one or more of whose members were in flight of fleeing apprehension or resisting arrest by a police officer.” Section 8542(b)(1) of the Judicial Code, 42 Pa.C.S. § 8542(b)(1). Finally, Appellees contend that many of the facts which Appellants insist are genuine issues of material fact, such as their theory that Officer Howley and Lieutenant Knott pursued Si-mons under the guise of a vendetta against the O’Neil family, are purely speculative and conjecture only. Because Appellants were unable to establish, as a threshold matter, that Officer Howley owed a duty of care to decedent Sellers, Appellees cannot be held liable for the accident caused by the intoxicated Simons’ high speed driving.

Section 8541 of the Judicial Code, 42 Pa.C.S. § 8541, provides:

Except as otherwise provided in this subchapter, no local agency shall be liable for any damages on account of any injury to a person or property caused by any act of the local agency or an employee thereof or any other person.

There are however, several exceptions to this grant of immunity, which allows an injured party to recover in tort from a local agency provided that: (1) the damages would be otherwise recoverable under common law or statute creating a cause of action if the injury were caused by a person not having available a defense under Section 8541; (2) the injury was caused by the negligent acts of the local agency or an employee thereof acting within the scope of his official duties; and (3) the negligent act of the local agency falls within one or more of the eight enumerated categories of exceptions to immunity found in subsection (b). 42 Pa.C.S. § 8542(a)(1) and (2). This court is constrained to narrowly construe this provision and all other provisions of this Act since the legislature has expressed a clear intent to insulate political subdivisions from tort liability. Lindstrom, 563 Pa. at 584, 763 A.2d at 397; Love v. City of Philadelphia, 518 Pa. 370, 374, 543 A.2d 531, 532 (1988).

We must initially determine whether Appellants have met the threshold requirement of establishing that Officer Howley and Lieutenant Knott owed a duty of care to Appellants’ decedent, Sellers. The primary element in any negligence cause of action is that “the defendant owes a duty of care to the plaintiff.” Althaus v. Cohen, 562 Pa. 547, 552, 756 A.2d 1166, 1168 (2000). Noting that the “legal concept of duty of care is necessarily rooted in often amorphous public policy considerations, which may include our perception of history, morals, justice and society[,]” the court delineated several “discrete” factors which must be weighed in order to determine if such a duty exists: (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 553, 756 A.2d at 1169.

In Lindstrom, our Supreme Court applied those factors in order to determine whether to impose a duty of care upon the City of Corry and its agent, Police Officer Beebe, after Officer Beebe attempted to pull over plaintiffs’ son, who ignored the officer’s flashing lights and fled. During the high speed pursuit, the son lost control of his vehicle, hit several curbs and a tree and flipped over, and subsequently died from his injuries. In analyzing these factors, the court stated:

As to the first factor, regarding the relationship between the parties, a law enforcement officer is a protector of all members of the public. The officer’s relationship to the fleeing suspect must be viewed in light of the broader relationship to the safety of the community he or she serves. A ny duty of protection the officer has is lessened as soon as the driver flees rather than complying with a request to stop. 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. Turning to the third factor, it is evident that there is a risk of injury to the fleeing driver, and it is foreseeable that drivers who refuse to pull over when alerted to do so may be injured in their attempt to elude an officer. Fourth, the consequences of imposing a duty upon officers are burdensome, as that may prevent the apprehension of dangerous criminals and further encourage flight. Finally, the public has a preeminent interest in ensuring that roadways remain safe from dangerous drivers and criminals and that police officers are empowered to enforce the law.

Lindstrom, 563 Pa. at 585, 763 A.2d at 397. The court therefore concluded that no duty of care was owed by the police officers to the fleeing suspect.

Thus, there is no question that officers in this situation owe no duty of care to the wrongdoers they pursue, Lindstrom, 563 Pa. at 586, 763 A.2d at 398 n. 3 (2000), but owe a duty of care only to innocent third parties, Jones v. Chieffo, 549 Pa. at 52, 700 A.2d at 420 (1997). To date, however, the innocent third parties to whom a duty of care is owed were found to have been bystanders unconnected with the wrongdoer or the vehicle being pursued. Jones; Aiken. We believe that to extend this duty to unknown passengers (such as decedent) in the fleeing vehicle would be contrary to the analysis of factors set out by our Supreme Court in Lindstrom. While we have not addressed this issue directly, other recent cases, as well as the analysis in Lindstrom, support this conclusion.

In Kuniskas v. Pennsylvania State Police, 977 A.2d 602 (Pa.Cmwlth.2009), plaintiff Kuniskas was operating an ATV on a state road when Corporal Walsh of the Pennsylvania State Police attempted to apprehend him for traffic violations. Similar to Simons’ actions herein, Kuniskas turned and fled, figuring he was not allowed on the road and fearing that the vehicle would be impounded. Kuniskas argued that the trooper “engaged in reckless and dangerous behavior by repeatedly and purposefully ramming the ATV” while pursuing him, which ultimately caused him to lose control and flip over. Id. at 604. The trial court granted summary judgment in favor of the State Police, relying on Frazier v. Pennsylvania State Police, 845 A.2d 253 (Pa.Cmwlth.2004). Kuniskas argued that Frazier was distinguishable because it involved a fleeing motorist involved in a high speed chase with police in which the fleeing motorist later collided with a tree and was killed, whereas “here the police cruiser and Corporal Walsh were the instru-mentalities that caused the fleeing ATV to crash,” and that he was “more in the nature of a pedestrian vis-a-vis the patrol car and, under the circumstances, Corporal Walsh was the aggressor and [Kuniskas] was not a ‘fleeing motorist’ within the holding of FrazierKuniskas, 977 A.2d at 604, 605.

We rejected Kuniskas’ arguments, citing with approval Ferguson. In Ferguson, plaintiff Jenny Gallagher and her then-boyfriend (now husband) Richard Gallagher, were observed getting into a pickup truck owned and registered to Ms. Ferguson, which was parked at the side of a road, unoccupied. After the trooper noticed marijuana plants protruding from beneath a tarp in the bed of the vehicle, he returned to his marked cruiser to observe the pickup. The Gallaghers walked out of the woods and got into the vehicle and drove off, with the trooper following with his lights off. After the trooper turned on his headlights, the Gallaghers sped off and the trooper pursued in an attempt to get the truck to pull over. Although the trooper testified he immediately activated his overhead lights and siren, Jenny Gallagher testified she did not see lights or hear any siren until later. The high speed pursuit was eventually joined by another trooper and at some point, Jenny Gallagher testified that she asked Richard to pull over and let her out of the vehicle. ■When she exited the vehicle, she stood at the side of the road while Richard again sped off in the truck. As she was standing on the side of the road, the trooper’s ear approached and struck Ms. Gallagher. In her federal lawsuit filed against the Commonwealth, the State Police and the state trooper, Ms. Gallagher asserted claims of excessive force under the United States and Pennsylvania Constitutions, as well as negligence.

Defendants, citing Frazier, which in turn cited Lindstrom, argued that the trooper owed no duty of care to Ms. Gallagher as the courts of Pennsylvania have held that no common law or statutory duty is owed to a fleeing motorist. Ms. Gallagher attempted to distinguish both Frazier and Lindstrom on the ground that those cases involved police efforts to stop a motorist already in transit whereas she and her husband had been parked on the side of the road and pursuit was avoidable, and they both involved injuries or death as a result of the driver’s own actions, not direct contact with the police vehicle itself as she incurred. Finally, Ms. Gallagher argued neither Frazier nor Lindstrom involved claims from a passenger in a vehicle, let alone a pedestrian standing at the side of the road such as herself. Ms. Gallagher alleged that the trooper could have avoided the pursuit and arrested them before they got into the truck, but he decided he “wanted a car chase that night.” Ferguson, slip op. at 7. In applying the factors to determine whether any duty was owing, the court found that, with respect to the fourth factor:

[T]he consequences of imposing a duty upon officers would be quite burdensome; should [the officer] know how to distinguish between people in the fleeing vehicle to whom he owed a duty and those to whom he did not? Such a requirement would be unworkable in the field of law enforcement. An officer could not make a distinction during the chase whether the occupants are willingly in the fleeing vehicle or whether they knew about whatever evidence of criminality is in the vehicle.

Id. The court concluded that the trooper owed no duty of care either to the fleeing driver or the passenger. We find this analysis persuasive. As in Lindstrom, the public’s “interest in ensuring that roadways remain safe from dangerous drivers and criminals and that police officers are empowered to enforce the law,”¹⁰ is preeminent, and that interest is equally chilled by imposing a duty to passengers as to drivers. Accordingly, we hold that there is no duty, of care to passengers whose existence, or whose connection to the driver and the conduct for which he is being pursued, is unknown to the officer. Because there was no duty of care, summary judgment was appropriate as a matter of law.¹¹

We therefore affirm.

ORDER

AND NOW, this 5th day of June, 2013, the order of the Court of Common Pleas of Montgomery County in the above-captioned matter is hereby AFFIRMED.

1 . According to Simons, on one evening in or around early November 2006, Abington Police came to the house following up on reports of either the presence of a 16-year-old female drinking alcohol at the house or reports of 15 people fighting out front with weapons. After an unknown police officer attempted to gain access to the residence but was denied, Simons, who was present inside, said an officer called him on his cell phone for permission to enter the residence. Si-mons refused to grant permission for the police to enter telling them he was only a guest. The police then rammed down the front door, ran in and kicked open all the doors. Simons stated that one individual was restrained by the police and that he heard that another individual, Ed O’Neil, was kicked in the face by one of the officers. Finally, Simons stated that he was told that the next day, someone from the Abington Police Department went to the residence and negotiated an agreement with the individuals who resided there and that they signed a waiver of liability in exchange for the police department’s promise to pay for the cost and repair of any damage to the house. No convictions resulted from this incident. Officer Howley was not present at the Jenkintown residence that night. Simons Dep. at 71-75; R.R. at 487a-488a; Howley Dep. at 69; R.R. at 192a.

2 .Simons estimated that he drank roughly six beers and had six shots of either Jack Daniels or Jim Beam whiskey between 12 and 1 p.m., when he arrived at his aunt’s home, and 6 p.m. that night. Simons Dep. at 29-30; R.R. at 476a-477a. He also admitted having one beer at his dad’s apartment, and that he had taken prescription pain medication while at his aunt’s home. Id. at 30, 42; R.R. 477a, 480a.

3 . Simons admitted that, ”[h]onestly, I drove drunk a lot more than that night so, you know — I drove home from bars. I drive home [drunk] from all over the place.” Id.

4 . The car Simons was driving was a red 1990 Mustang GT previously owned by Ed O’Neil. Simons had put a lot of work into the car, including modifications that allowed the car to reach a high rate of speed very quickly. Simons’ friend and brother of Ed O’Neil, Dan O'Neil Jr., owned a similar car, a red 1985 Mustang GT. O’Neil Jr. was known for his speeding and reckless driving by his neighbors and some members of the Abington Police Department, according to Officer Howley, who himself once pulled over O’Neil Jr. for speeding and careless driving. Simons’ red Mustang was parked outside of the Jenkin-town residence the night the police responded to the disturbance calls, but Officer Howley was not one of the responding officers. Si-mons Dep. at 58-60; R.R. at 484a; Howley Dep. at 69, 74, 77; R.R. at 192a, 193a, 194a. In addition, Simons testified that he had no prior encounters with Officer Howley, which Officer Howley confirmed. Simons Dep. at 17, 65; R.R. at 473a, 485a; Howley Dep. at 71; R.R. at 192a.

5 . Simons admitted he had a DUI conviction in either 1998 or 1999. Simons Dep. at 24-25; R.R. at 475a.

6 . Certain references to Officer Howley’s testimony relate to the video of the incident which was recorded on the in-car camera system in his patrol vehicle which Officer Howley viewed and was questioned about during his deposition.

7 .Both Officer Howley and Lieutenant Knott explained that once the light bar is activated, the in-car camera system begins recording, but it is programmed to preserve approximately 30 to 45 seconds prior to the light bar’s activation. Howley Dep. at 144-145; R.R. at 210a-211 a; Knott Dep. at 37-39, 97; R.R. at 311 a-313a, 372a.

8 . Officer Howley explained that he was aware of only one red Mustang in that area, owned by Dan O’Neil Jr., and that it was frequently parked outside of the senior O’Neil’s residence on Jefferson Avenue. Id. at 75; R.R. at 193a.

9 . Appellants’ original complaint was filed against Abington Township Police Department and Abington Township only. The trial court sustained in part and overruled in part the defendants’ preliminary objections and dismissed Abington Township Police Department from the case. Thereafter, Appellants filed an amended complaint naming Officer Howley and Lieutenant Knott as parties to the action. The court sustained in part defendants’ preliminary objections to the amended complaint, and dismissed the punitive damages claims against Abington Township. Trial Court’s Opinion of May 5, 2011, at 1-2.

10 . Lindstrom, 563 Pa. at 585, 763 A.2d at 397.

11 . We note that it appears that the trial court may have improperly conducted fact-finding with respect to the video taken of the pursuit when it "found, after reviewing all of the uncontroverted evidence of record, that Officer Howley did in fact act reasonably at all times relevant.” Trial Court’s Opinion at 7. However, it is within the province of this court to affirm the action of the trial court, "even if that action was based on an erroneous procedure, if there are independent grounds for affirmance.” Concord Township Appeal, 439 Pa. 466, 469, 268 A.2d 765, 766 (1970).