Timko v. City of Hazleton

• Citation: 665 F. Supp. 1130
• Decision Date: 12 August 1986
• Docket Number: Civ. No. 85-1121.
• Parties: George J. TIMKO, Personal Representative of the Estate of Daniel T. Timko, Plaintiff, v. CITY OF HAZLETON and Michael Conway, Defendants.
• Court: U.S. District Court — Middle District of Pennsylvania

665 F. Supp. 1130

George J. TIMKO, Personal Representative of the Estate of Daniel T. Timko, Plaintiff, v. CITY OF HAZLETON and Michael Conway, Defendants.

Civ. No. 85-1121.

United States District Court, M.D. Pennsylvania.

August 12, 1986.

Denis V. Brenan, Morgan, Lewis & Bockius, Philadelphia, Pa., James S. Palermo, Hazleton, Pa., for plaintiff.

John C. McNamara, Philadelphia, Pa., for defendants.

MEMORANDUM AND ORDER

NEALON, Chief Judge.

Plaintiff filed this complaint on August 5, 1985, invoking this court's jurisdiction under 28 U.S.C. §§ 1331 and 1343. Relief is sought pursuant to 42 U.S.C. § 1983 and the Fourteenth Amendment to the United States Constitution. Defendants, City of Hazleton ("City") and Michael Conway ("Conway"), filed a Motion to Dismiss or, in the Alternative, for Summary Judgment, a brief in support thereof and supporting documentation on April 29, 1986. Plaintiff opposed the motion on May 22, 1986 and June 13, 1986. Reply time having lapsed, the matter is ripe for disposition. For the reasons set forth below, defendants' Motion to Dismiss or, in the Alternative, for Summary Judgment will be granted.¹

STANDARD OF REVIEW

Summary judgment is appropriate only when there are no material issues of fact to be resolved and the moving party is entitled to judgment as a matter of law. Fed. R.Civ.P. 56. A court may not resolve conflicting factual contentions on a motion for summary judgment and the facts must be viewed in a light most favorable to the non-moving party. See e.g., Peterson v. Lehigh Valley District Council, 676 F.2d 81 (3d Cir.1982). While questions concerning the existence of genuine issues of fact must be resolved against the moving party, conflicts of fact do not preclude summary judgment unless they are material to the case. See e.g., Tarasi v. Pittsburgh National Bank, 555 F.2d 1152 (3d Cir.), cert. denied, 434 U.S. 965, 98 S.Ct. 504, 54 L.Ed.2d 451 (1977). As the United States Supreme Court recently held,

in our view, the plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery, and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case and on which that party will bear the burden of proof at trial.

Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Accordingly, there is no requirement that the moving party support its motion with material negating the opponent's claim. Id. Mindful that the parties in this case have been given ample opportunity to support their respective positions² and in light of this standard, the undisputed facts relevant to the instant motion are as follows.

FACTUAL BACKGROUND

Plaintiff brings this action as the personal representative of the estate of Daniel G. Timko ("Timko"). On August 5, 1983, at approximately 12:30 a.m., Conway, while on duty as a Hazleton City police officer, drove into the parking lot of the Hazleton Shopping Center on West Broad Street, Hazleton, Pennsylvania. See Complaint, Document 1 of the Record at ¶ 6 ("Complaint") and Answer, Document 6 of the Record at ¶ 6 ("Answer"). Upon entering the parking lot, Conway observed a yellow 1972 Cadillac stopped approximately sixty-five (65) feet in the rear of a Super Saver grocery store with its lights on and engine running. See Defendants' Statement of Facts Not in Dispute, Document 15 of the Record; Memorandum of Law in Support of Defendants' Motion to Dismiss at 2 (Defendants' Statement); Complaint at ¶ 7; Transcript of March 20, 1984 at 37. No stores in the shopping center were open at the time Conway observed this vehicle stopped behind the store. Transcript at 37. The driver and sole occupant of the vehicle was Steven A. Belusko (Belusko). As Conway drove behind the Cadillac, Belusko drove slowly away, whereby Conway signaled for Belusko to pull over. Belusko did not stop, and as the Cadillac accelerated, Conway turned on the overhead light of the police car and blew the horn. The Cadillac proceeded through the parking lot and traveled east on Broad Street at a high rate of speed. Belusko traveled up to sixty (60) miles per hour. Complaint and Answer at ¶ 13. Conway pursued Belusko, at some point turning on the police car's siren. Belusko ran a red light at the intersection of Broad and Laurel Streets and struck a 1979 Pontiac driven by Timko. Timko was thrown from his vehicle and subsequently pronounced dead at Hazleton State Hospital at approximately 12:50 A.M. At the time of the collision, Conway, who was following Belusko, was approximately two hundred fifty (250) feet away from the intersection.

Plaintiff avers that the City breached the duty of care owed Timko "by means of the negligent and reckless acts and omissions of its agencies, representatives and/or employees...." Complaint at ¶ 19. Specifically, plaintiff maintains that the City is liable for:

(a) failing to adopt and enforce appropriate and reasonable policies, customs, procedures and practices relative to the investigation and apprehension of suspected offenders; the initiation and conduct of high speed police pursuits; and the operation of emergency vehicles;

(b) failing to adequately train and supervise Conway in the proper procedures for the investigation and apprehension of suspected offenders; the initiation and conduct of high speed police pursuits; and the operation of emergency vehicles;

(c) implicitly or explicitly authorizing, approving, and/or knowingly acquiescing in the use of improper procedures for the investigation and apprehension of suspected offenders; the initiation and conduct of high speed police pursuits; and the operation of emergency vehicles.

Id.

Liability of Conway is based on Conway's alleged:

(a) reckless and negligent operation of his automobile;

(b) reckless and negligent initiation of a high speed pursuit under circumstances posing a grave risk of injury to persons and property;

(c) reckless and negligent attempt to apprehend and/or arrest Belusko without probable cause and without a reasonable belief that a crime had been committed;

(d) reckless and negligent failure to discontinue a high speed pursuit despite the presence of circumstances posing a grave risk of injury to persons and property;

(e) reckless and negligent failure to take less dangerous, but equally effective means of investigating the Belusko vehicle;

(f) violations of the motor vehicle laws of the Commonwealth of Pennsylvania;

(g) negligent and reckless disregard of proper procedures and standards pertaining to the initiation and conduct of high speed pursuits.

Id. at ¶ 20.

In sum, plaintiff contends that Timko's death resulted from "... the negligent, reckless, and deliberately indifferent conduct of Conway" and defective policies, customs, procedures and practices of the City manifesting "deliberate indifference to a known risk of injury." Id. at ¶ 22.

DISCUSSION

Initially, the court recognizes that plaintiff agrees that: (1) a municipality cannot be held liable based on the doctrine of respondeat superior; (2) the demand for reimbursement of medical, funeral and estate expenses of $5,500.00 has been secured by plaintiff and is unrecoverable in this action; (3) punitive damages may not be recovered from a municipality in a § 1983 action and there are no facts justifying an award of punitive damages against Conway. See Document 15 of the Record, Defendants' Motion to Dismiss at ¶¶ 7d, 7H and 7I; Document 16 of the Record, Plaintiff's Answer to Defendants' Motion at ¶¶ 7d, 7H and 7I.

In their motion, defendants raise several objections to plaintiff's claims. The court will examine each defendant's request for summary judgment.

A. Defendant Conway

The United States Supreme Court has rejected the premise that the Due Process Clause of the Fourteenth Amendment and section 1983 "make actionable many wrongs inflicted by government employees which had heretofore been thought to give rise only to state-law tort claims." Paul v. Davis, 424 U.S. 693, 699, 96 S.Ct. 1155, 1159, 47 L.Ed.2d 405 (1976). More recently the court stated:

To accept respondent's argument that the conduct of the state officials in this case constituted a violation of the Fourteenth Amendment would almost necessarily result in turning every alleged injury which may have been inflicted by a state official acting under `color of law' into a violation of the Fourteenth Amendment cognizable under § 1983. It is hard to perceive any logical stopping place to such a line of reasoning. Presumably, under this rationale any party who is involved in nothing more than an automobile accident with a state official could allege a constitutional violation under § 1983. Such reasoning `would make of the Fourteenth Amendment a font of tort law to be superimposed upon whatever systems may already be administered by the States.' (citation omitted). We do not think that the drafters of the Fourteenth Amendment intended the Amendment to play such a role in our society.

Parratt v. Taylor, 451 U.S. 527, 544, 101 S.Ct. 1908, 1917, 68 L.Ed.2d 420 (1981), overruled on other grounds, Daniels v. Williams, 474 U.S. 327, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986). After Daniels, one Court of Appeals held, "... that a person injured in an automobile accident caused by the negligent, or even grossly negligent, operation of a motor vehicle by a policeman acting in the line of duty has no section 1983 cause of action for violation of a federal right." Cannon v. Taylor, 782 F.2d 947, 950 (11th Cir.1986) (emphasis added). Accord Checki v. Webb, 785 F.2d 534 (5th Cir.1986) (where a citizen suffers physical injury due to a police officer's negligent use of his vehicle, no section 1983 claim is stated). Accordingly, plaintiff's claim against Officer Conway must fail.

At most, plaintiff avers Conway operated his police vehicle negligently and/or recklessly. In fact, the record fails to indicate that Defendant Conway...