Black v. Shrewsbury Borough

• Decision Date: 24 April 1996
• Citation: 675 A.2d 381
• Parties: Earl L. BLACK, as Administrator of the Estate of Dwaine Black, and Mickey Black, Individually, Appellant, v. SHREWSBURY BOROUGH, Shrewsbury Borough Police Department, James Boddington, New Freedom Borough, New Freedom Borough Police Department, Clarence Morris and Southern Police Department.
• Court: Pennsylvania Commonwealth Court

Page 381

675 A.2d 381

Earl L. BLACK, as Administrator of the Estate of Dwaine

Black, and Mickey Black, Individually, Appellant, v. SHREWSBURY BOROUGH, Shrewsbury Borough Police Department, James Boddington, New Freedom Borough, New Freedom

Borough Police Department, Clarence

Morris and Southern Police Department.

Commonwealth Court of Pennsylvania.

Argued Dec. 7, 1995.

Decided April 24, 1996.

Thomas P. Lang, for Appellants.

F. Lee Shipman, for Appellee James Boddington.

Timothy I. Mark, for Appellees, Shrewsbury Borough and Shrewsbury Borough Police Department.

Before SMITH and PELLEGRINI, JJ., and NARICK, Senior Judge.

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 corn 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 8541 and Section 8542, as amended, of the Judicial Code, 42 Pa.C.S. §§ 8541 and 8542. Shrewsbury Borough and its Police Department 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 car, 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, 653 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 plaintiff's 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...