Sellers, C, Aplts v. Twp. of Abington,et al

[J-31-2014] [MO: Stevens, J.]
IN THE SUPREME COURT OF PENNSYLVANIA
MIDDLE DISTRICT
CELESTE SELLERS AND RICHARD K. : No. 97 MAP 2013
SELLERS, INDIVIDUALLY AND AS :
ADMINISTRATORS OF THE ESTATE OF : Appeal from the order of the
JOSHUA DAVID SELLERS, DECEASED, : Commonwealth Court dated June 5, 2013
: at No. 531 CD 2011 affirming the order of
Appellants : the Court of Common Pleas of
: Montgomery County, Civil Division, dated
: November 30, 2010 at No. 2007-14335
v. :
: ARGUED: May 7, 2014
:
TOWNSHIP OF ABINGTON AND :
OFFICER EDWARD HOWLEY, :
INDIVIDUALLY AND AS AN EMPLOYEE :
OF TOWNSHIP OF ABINGTON AND LT. :
KARL KNOTT, INDIVIDUALLY AND AS :
AN EMPLOYEE OF TOWNSHIP OF :
ABINGTON, :
:
Appellees :
CONCURRING OPINION
MADAME JUSTICE TODD DECIDED: December 29, 2014
I concur with the majority that the Superior Court’s order must be affirmed, as I
agree that a balancing of the Althaus1 factors weighs against the imposition of a duty of
care to “unknown passengers” in a fleeing vehicle, where the term “unknown
passengers” includes both “passengers whose presence in the vehicle or connection to
the driver is unknown to the pursuing officer." See Majority Opinion at 5 n.5 (emphasis
added). I write separately, however, because I conclude the Althaus analysis is more
1
Althaus v. Cohen, 756 A.2d 1166 (Pa. 2000).
nuanced than that offered by the majority, which is, in some respects, erroneous on its
own terms.
As noted by the majority, a prerequisite to the determination of immunity for
damages resulting from alleged negligent acts by a local agency is the establishment of
a common law or statutory duty of care owed to the injured party. See Majority Opinion
at 15-16; 42 Pa.C.S.A. § 9542(a). Further, as this Court explained in Althaus, in
determining whether a common law duty exists in a particular case, a court must weigh
a number of factors, including: (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. 756 A.2d at 1169. The majority
concludes that these factors, “when weighed against one another, militate heavily
against imposing a duty on officers to unknown passengers in a fleeing vehicle.”
Majority Opinion at 18. Overall, I agree with this assessment.
I disagree, however, with the majority’s analysis of the first Althaus factor − the
relationship between the parties. In Lindstrom v. City of Corry, this Court explained:
[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. Any duty of
protection the officer has is lessened as soon as the driver
flees rather than complying with a request to stop.
763 A.2d 394, 397 (Pa. 2000).
After quoting Lindstrom, the majority reasons:
An officer’s relationship to the community he or she serves
hinges on the officer’s ability to keep the members of the
community safe from criminals, including dangerous drivers.
Accordingly, where, as here, the officer was unaware of the
[J-31-2014] [MO: Stevens, J.] - 2
presence of a passenger in a fleeing vehicle, this first factor
weighs against imposing a duty.
Majority Opinion at 17. However, this analysis does not fully account for the majority’s
own definition of “unknown passengers” as including both “passengers whose presence
in the vehicle or connection to the driver is unknown to the pursuing officer." See
Majority Opinion at 5 n.5. The majority expressly conditions its assessment of this
factor on the fact that “the officer was unaware of the presence of a passenger,” but
does not indicate whether it would reach the same conclusion if the presence of a
passenger was known, but the relationship of the passenger to the driver was not
known.
While it is reasonable to conclude, as the majority does, that the first Althaus
factor counsels against the imposition of a duty when a police officer is unaware that
there is a passenger in a fleeing vehicle, in my view, the balance does not weigh as
heavily against the imposition of a duty where the officer is aware of the presence of a
passenger, but does not know the passenger’s relationship to the driver. As noted
above, in Lindstrom, we held that police officers were protectors of all members of the
public, but concluded that an officer’s duty to a driver is lessened when the driver flees.
As a passenger is not in control of the fleeing vehicle, a police officer arguably has a
greater duty of protection to the passenger than to the driver. Yet, a police officer’s
relationship with a passenger whose presence in a fleeing vehicle is known to the
officer, but whose relationship to the driver is not, still must be considered in light of the
broader relationship to the safety of the community at large. In my view, where the
passenger’s relationship to the driver is unknown, and the officer has no reason to
believe the passenger’s presence in the car is not voluntary, an officer’s duty to protect
the members of the public and the community he serves predominates. For this reason,
I conclude the first Althaus factor weighs slightly against the imposition of a duty either
[J-31-2014] [MO: Stevens, J.] - 3
to passengers whose presence in the vehicle is unknown to police or to passengers
whose connection to the driver is unknown to police.
I also disagree with the majority’s analysis regarding the third Althaus factor − the
nature of the risk imposed and foreseeability of the harm incurred. The majority states:
[W]e acknowledge that we found in Lindstrom that it is
foreseeable that a fleeing driver may be injured in his
attempt to elude an officer. Id. Instantly, because injury to
an unknown passenger is not foreseeable, we find that the
nature of the risk imposed and the foreseeability of the harm
incurred to an unknown passenger weighs against imposing
a duty on pursuing officers.
Majority Opinion at 17.
Again, this analysis does not account for the majority’s definition of “unknown
passenger,” which includes passengers whose presence is known to police, but whose
relationship to the driver is not. Moreover, having recognized in Lindstrom that it is
foreseeable that a fleeing driver may be injured when attempting to evade a police
officer, in my view, it is no less foreseeable that any “unknown passengers” in the
vehicle, which, under the majority’s definition, includes both passengers whose
presence is unknown or whose connection to the driver is unknown, might also be
injured during the pursuit. Thus, I conclude the third factor weighs in favor of the
imposition of a duty.
Nevertheless, when balancing the third factor against the remaining factors, I
agree with the majority’s ultimate conclusion that police officers do not owe a duty to an
unknown passenger. See, e.g., Seebold v. Prison Health Services, 57 A.3d 1232, 1349
(Pa. 2012) (noting that, in certain instances, this Court has prioritized other policy
factors over foreseeability). Indeed, I place great weight on the fourth Althaus factor −
the consequences of imposing a duty on the police. As the majority aptly observes:
[J-31-2014] [MO: Stevens, J.] - 4
Imposing a duty on officers to unknown passengers in a
fleeing vehicle would present an unworkable burden on
officers, essentially halting police pursuits. The decision to
pursue a fleeing vehicle is one that must be made in a
matter of seconds. To require officers to not only establish
the presence of passengers, but also discover the
relationship of the passengers to the fleeing driver, would be
unmanageable in the necessarily fast-paced environment of
law enforcement. Moreover, officers, fearing the risk of civil
liability, would be less likely to initiate pursuit, which would
likely encourage criminals to flee.
Majority Opinion at 17-18.
As I agree that a balancing of the Althaus factors does not support the imposition
of a duty of care by police to passengers whose presence in a fleeing vehicle, or whose
relationship to the driver of the fleeing vehicle, is unknown to police, I find the majority’s
discussion as to whether the police vehicle camera recording suggests the officers
should have been aware of the presence of passengers in the vehicle to be
unnecessary. As there was no suggestion the officers knew the relationship of the
driver and passenger,2 I would simply hold that the Commonwealth Court’s affirmance
of the trial court’s grant of summary judgment was proper under the circumstances.
2
While Appellants repeatedly asserted in their Amended Complaint that the decedent
was an innocent passenger in the fleeing vehicle, see e.g., Amended Complaint,
12/11/08, at ¶ 8 (decedent “was an innocent rear seat passenger”); id. at ¶ 18 (decedent
“was at all relevant times an innocent passenger”), they did not allege that the officer
knew or should have known of the relationship between the decedent and the driver.
[J-31-2014] [MO: Stevens, J.] - 5