Black v. Shrewsbury Borough ( 1996 )

SMITH, Judge.

Earl L. Black, as Administrator of the Estate of his deceased minor son Dwaine, and Dwaine’s brother Mickey Black (the Blacks) appeal from an order of the Court of Common Pleas of York County that sustained certain preliminary objections filed by various defendants in the Blacks’ action against individual police officers, police departments and municipalities for claims arising from a police pursuit of an automobile driven by Joseph Black, cousin of Dwaine and Mickey. The pursuit ended with the car crashing into a utility pole, killing Dwaine Black and injuring the driver and Mickey Black.

The trial court partially sustained demurrers and dismissed all claims in Counts I through IV of the complaint except those based upon allegations of willful misconduct by the police officers.¹ The Blacks state the question involved as whether the allegations of Counts I through IV of their second amended complaint, exclusive of willful misconduct allegations, state a valid cause of action against the objecting defendants.²

I.

The Blacks’ second amended complaint alleges that on September 8, 1990, at approximately 1:45 a.m., Officer James Boddington of the Shrewsbury Borough Police Department commenced a pursuit of a car operated by Joseph Black in which Dwaine Black and Mickey Black were passengers. The pursuit was joined by Officer Clarence Morris of the New Freedom Borough Police Department. During the pursuit the officers had probable cause to believe that Joseph Black, the driver, committed violations of sections of the Vehicle Code relating to stop signs and yield signs and to fleeing or attempting to elude police officers and also of a section of the Crimes Code relating to disorderly conduct. The officers had no probable cause to believe that Joseph Black had committed any felonies or to believe that either of the passengers had committed any offense.

The complaint further alleges that one or both of the pursuing officers were aware of the identity of the driver and the license number of the fleeing vehicle, that they knew that there were passengers in it and that they had had previous encounters with one or more of the occupants of the car in the course and scope of their police work. The pursuit continued along roads in or near the two Boroughs, along a dirt road, through a com field, back on to a paved road and into Maryland, before the fleeing vehicle left the traveled portion of the road and collided with the utility pole.

The complaint alleges negligence, recklessness, willful misconduct and outrageous conduct on the part of the officers on various grounds, including: engaging in an unnecessary pursuit, in part over unfamiliar roads, at an unsafe speed for the existing circumstances and conditions, after the identity of the vehicle and driver had been ascertained and it was known that passengers were present; violating various provisions of the Vehicle Code; continuing the pursuit after one or both officers became angry and emotional; failing to request sufficient backup; engaging in willful misconduct by pursuing across state lines under these circumstances; and engaging in conduct constituting actual malice by continuing the pursuit of individuals with whom the officers had previous encounters, after the officers demonstrated anger toward the occupants. Counts I and II of the complaint are on behalf of Dwaine Black’s Estate for wrongful death and survival; Count III is on behalf of Mickey Black for personal injury, and Count IV is on behalf of both Dwaine Black’s Estate and Mickey Black against the municipalities claiming vicarious liability.

New Freedom Borough and its Police Department filed preliminary objections to the second amended complaint, demurring to Counts I through IV and essentially stating that the complaint failed to state claims against them because of their immunity under Section 8641 and Section 8542, as amended, of the Judicial Code, 42 Pa.C.S. §§ 8641 and 8542. Shrewsbury Borough and its Police Departihent asked to join those objections, with the names changed appropriately. Officer Boddington incorporated the others’ objections and added that the complaint failed to plead sufficient facts to support the claims of willful misconduct. In ruling on the preliminary objections to the Blacks’ second amended complaint, the trial court reaffirmed its ruling on objections to the first amended complaint, where the court reviewed the defendants’ demurrers based upon Dickens v. Horner, 531 Pa. 127, 611 A.2d 693 (1992), in which the Supreme Court held, inter alia, that the vehicle exception to immunity does not apply where injuries are caused by the criminal acts of others.

In reviewing a ruling on preliminary objections, the appellate court must accept as true all material facts set forth in the complaint and all inferences reasonably deducible therefrom. A demurrer presents the question of whether, on the facts averred, the law says with certainty that no recovery is possible; where any doubt exists, it should be resolved in favor of overruling the demurrer. Powell v. Drumheller, 539 Pa. 484, 653 A.2d 619 (1995).

II.

At the outset, the Blacks acknowledge the immunity granted to municipalities pursuant to Section 8541 of the Judicial Code. Section 8542(a) establishes as threshold requirements for exceptions to immunity that the damages would be recoverable against a person not having the defense of immunity and that the injury was caused by the negligent act of a local agency or its employee acting within the scope of employment. Section 8542(b) imposes liability as to certain enumerated actions, including “(1) Vehicle liability. — The operation of any motor vehicle in the possession or control of the local agency.... ” They argue that an overly rigid application of Dickens is not warranted in view of other developments.

In Crowell v. City of Philadelphia, 531 Pa. 400, 613 A.2d 1178 (1992), a municipal employee mistakenly placed a traffic directional sign pointing left instead of right, and one night a driver under the influence of alcohol followed the sign and hit an oncoming car. The Supreme Court, interpreting the traffic control exception to governmental immunity, Section 8542(b)(4) of the Judicial Code, 42 Pa.C.S. § 8542(b)(4), held that a governmental unit may be subjected to liability despite the presence of an additional tortfeasor if the governmental unit actively contributes to the injury, that is, if its actions would be sufficient to preclude it from obtaining indemnity from another for injuries caused to a third person. Because the jury unequivocally found that the active negligence of the City’s employee in wrongly placing the traffic sign was a substantial contributing factor to the accident, even though the driver’s being under the influence may have been a concurrent cause, the Supreme Court reversed the trial court’s grant of judgment to the City non obstante veredicto.

The Blacks also rely upon the recent holding of the Supreme Court in Powell. There a driver under the influence of alcohol, without a valid driver’s license, attempted to pass another vehicle and collided with an oncoming ear, fatally injuring the driver. The administrator of the decedent’s estate named the Pennsylvania Department of Transportation (DOT) as a defendant, alleging negligent design of the highway. As the Blacks emphasize, the Supreme Court rejected DOT’s assertion that Dickens held that an intervening force is a per se superseding cause whenever the intervening force is a criminal act:

Far from adopting any per se rule, in Dickens, we simply held that the undisputed facts showed that the conduct of the driver was so “extraordinary” as to constitute a superseding cause as a matter of law....

In summation, we do not agree that any violation of a criminal statute constitutes a superseding cause. Instead, the proper focus is not on the criminal nature of the negligent act, but instead on whether the act was so extraordinary as not to be reasonably foreseeable....

A determination of whether an act is so extraordinary as to constitute a superseding cause is normally one to be made by the jury.

Powell, 539 Pa. at 494-495, 658 A.2d at 624.

The Blacks assert that the fleeing driver’s conduct here, especially his speeding in flight over rural roads as opposed to the residential streets involved in Dickens, was not so extraordinary and unforeseeable as to constitute a superseding cause as a matter of law. Rather, under Powell, that determination should be for the jury. The Blacks note that this Court recently held that the question of whether another driver’s crossing into a plaintiffs lane of traffic and causing her to leave the roadway was so extraordinary as to be unforeseeable by DOT must be decided by a jury; if the jury determines the other driver’s conduct to be extraordinary and unforeseeable by DOT, then it would not be held liable to the plaintiff. Fidanza v. Department of Transportation, 655 A.2d 1076 (Pa.Cmwlth.), appeal denied, 542 Pa. 677, 668 A.2d 1138 (1995).

Shrewsbury Borough, its Police Department and Officer Boddington (Shrewsbury Appellees) contend that the Blacks can not meet the threshold requirement of Section 8542(a) of stating a claim against them cognizable at common law because, under Dickens, the proximate cause of this accident was solely the criminal and negligent conduct of the driver Joseph Black. They assert that, as in Dickens, the driver here always had control of the situation and could have prevented the accident simply by obeying the law and stopping for the police. His failing to stop, traveling at high speed, entering a cornfield and traveling into Maryland to avoid apprehension permit only one inference: the driver’s criminal conduct superseded any possible negligent conduct by the police.

In addition, the Shrewsbury Appellees assert that the complaint fails to state a claim falling within the ambit of the vehicle exception to governmental immunity in Section 8542(b)(1), citing Southeastern Pennsylvania Transportation Authority v. Hussey, 138 Pa.Cmwlth. 436, 588 A.2d 110 (1991), appeal denied, 530 Pa. 649, 607 A.2d 258 (1992). There this Court held that a claim against a transportation authority based on allegations of failure of a train operator to respond appropriately when a confrontation on a platform became violent did not fall within the vehicle exception, where the injuries were caused by the criminal and tortious acts of third persons, even if those acts were facilitated by the authority’s operation of a vehicle.

New Freedom Borough, its Police Department and Officer Morris (New Freedom Appellees) also cite Dickens and Hussey. Further, they refer to Chevalier v. City of Philadelphia, 516 Pa. 316, 532 A.2d 411 (1987), where the Supreme Court held that criminal acts of a third party who attacked a plaintiff in a City-owned parking lot insulated the City from all liability for the harm caused by such party. In addition, the New Freedom Appellees note several decisions of this Court relying upon Dickens that were decided before Powell.

First, the Court rejects the arguments based on Hussey and Chevalier, which in essence assume the desired conclusion. In the present case there is no question that the criminal conduct of Joseph Black was part of the cause of the injuries that occurred. The issue, however, is whether under the particular circumstances alleged the law says with certainty that Joseph Black’s conduct was the sole legal cause, or stated another way, whether his conduct was so extraordinary as to amount to a superseding cause of the accident. Results in cases with very different circumstances are not helpful in deciding that issue.

This Court recently examined the question of the effect of Crowell and Powell on Dickens in the case of Jones v. Chieffo, 664 A.2d 1091 (Pa.Cmwlth.1995) (en banc). In Jones a police officer commenced pursuit when he observed three vehicles engaged in a chase and gun battle. The siren on the patrol car did not work, and it was stipulated that if the siren had been working, then an innocent motorist would not have entered an intersection where his car was struck by one of the pursued vehicles. The trial court granted summary judgment to the municipality on the rationale that the criminal conduct of the fleeing party was a superseding cause precluding liability based on any negligence by the police. This Court noted the holding of Crowell and the express limitation of Dickens by Powell and concluded:

[I]t is clear that municipal defendants are neither afforded blanket immunity nor entitled to judgment as a matter of law in each and every tort claim where the victim’s injuries were caused in part by intervening criminal conduct of third parties or where the criminal acts of a third party merely form a link in the chain of causation. Rather, it is for the jury to determine whether the municipal defendants’ conduct was a substantial contributing factor in causing the victims’ injuries and if so, whether intervening criminal conduct of third parties was so extraordinary as not to be reasonably foreseeable by the municipal defendants.

Jones, 664 A.2d at 1095.

Although a fleeing motorist may, as in Dickens, engage in conduct so extraordinary as to be unforeseeable and a superseding cause as a matter of law if it results in injury, there can be no dispute that in some instances a fleeing motorist’s conduct, although illegal, may not be “extraordinary” and is “foreseeable” within the meaning of Powell. The teaching of Powell and Jones is that the criminal act of flight is not in and of itself conduct so extraordinary as to constitute a superseding cause as a matter of law. In this Court’s view, the facts in the case sub judiee do not rise to the level of conduct so extraordinary and unforeseeable as to constitute a superseding cause as a matter of law sufficient to sustain a demurrer based on application of the immunity statute. Therefore, the determination of whether Joseph Black’s conduct was extraordinary and unforeseeable must be left to the jury.³ Accordingly, the trial court’s order is reversed, and this matter is remanded for further proceedings.

ORDER

AND NOW, this 24th day of April, 1996, the order of the Court of Common Pleas of York County is reversed, and this matter is remanded for further proceedings consistent with the foregoing opinion.

Jurisdiction is relinquished.

1 . The order appealed from is the trial court’s ruling, dated March 27, 1995, on preliminary objections to the Blacks' second amended complaint. In its ruling on preliminary objections to the first amended complaint, dated May 18, 1994, the trial court denied objections to Count VI, which states a claim under 42 U.S.C. § 1983 for violations of the Blacks’ civil rights. The defendants have not filed a cross-appeal as to that ruling at this time.

2 . Following a petition by Earl Black and Mickey Black, the trial court timely amended its original order regarding the second amended complaint to include Em express determination that an immediate appeal would facilitate resolution of the entire case. Pursuant to Pa.R.A.P. 341(c), as amended by the Supreme Court in 1992, an order dismissing fewer than all claims or parties, if accompanied by such an express determination or amended within 30 days of entry to include it, is appealable when entered.

3 . Contrast the facts in Beck v. Zabrowski, 168 Pa.Cmwlth. 385, 650 A.2d 1152 (1994), where the highly intoxicated driver fled from police and drove at high speed even after the pursuing officer stopped active pursuit and followed only at the speed limit, and the driver lost control in a turn and hit a utility pole with such force that it split his car in two pieces, which came to rest hundreds of feet apart. In that case there was no question that the accident was caused by the criminal acts of the fleeing driver, and this Court upheld the trial court's grant of summary judgment to the municipal defendants based on Sections 8541 and 8542 of the Judicial Code.