Cahill ex rel. Cahill v. Live Nation

• Decision Date: 27 June 2011
• Docket Number: No. 2:08–cv–1552.,2:08–cv–1552.
• Citation: 866 F.Supp.2d 503
• Parties: Gene CAHILL on Behalf of Lindsay CAHILL, a minor, Plaintiff, v. LIVE NATION, Hanover Township, Washington County, Pennsylvania, Chief Geho and Officer Zoller, Defendants.
• Court: U.S. District Court — Western District of Pennsylvania

866 F.Supp.2d 503

Gene CAHILL on Behalf of Lindsay CAHILL, a minor, Plaintiff,

v.LIVE NATION, Hanover Township, Washington County, Pennsylvania, Chief Geho and Officer Zoller, Defendants.

No. 2:08–cv–1552.

United States District Court, W.D. Pennsylvania.

June 27, 2011.

Timothy P. O'Brien, Pittsburgh, PA, for Plaintiff.

Jeffrey J. Ludwikowski, Brian J. Headley, Picadio Sneath Miller & Norton, P.C., Pittsburgh, PA, for Defendants.

MEMORANDUM OPINION AND ORDER OF COURT

TERRENCE F. McVERRY, District Judge.

Pending before the Court are the MOTION FOR SUMMARY JUDGMENT (Document No. 72) filed by Defendant Live Nation Worldwide, Inc. (“Live Nation”) and the MOTION FOR SUMMARY JUDGMENT (Doc. No. 76) filed by Defendants Hanover Township and Chief Geho. Defendant Police Officer Julius Zoller has not moved for summary judgment. Defendants have filed Concise Statements of Material Facts, exhibits, and memoranda of law in support of their respective motions (Doc. Nos. 73–75, 77–79). Plaintiff Gene Cahill, on behalf of his minor daughter Lindsay Cahill, has filed various responses in opposition (Doc. Nos. 84–87 & 89). Reply briefs were filed by Defendants Hanover Township and Chief Geho and Defendant Live Nation at Doc. Nos. 98 and 101–102. Plaintiff filed a sur-reply brief with appendix and supplement at Doc. Nos. 103–105, to which Defendants Hanover Township and Chief Geho filed a sur-sur reply at Doc. No. 106. Clearly, the issues have been fully briefed by both parties. The motions are now ripe for disposition.

Factual Background

Live Nation is a private corporation that operates the Post–Gazette Pavilion. Live Nation's predecessor-in-interest and Hanover Township entered into a contract under which the Township agreed to provide part-time police officers for traffic and crowd control for events at the Post–Gazette Pavilion. The contract specifies that the police officers are “independent contractors” and shall not be deemed to be employees of Live Nation. This case arose from the events of July 29, 2008. On that day, Lindsay Cahill attended a “Warped Tour” concert at the Post–Gazette Pavilion, an event after which the Defendant police officers were directing traffic. Plaintiff alleges that she was subjected to excessive force and cited for disorderly conduct as she attempted to meet her ride home. The police officers contend that Ms. Cahill was creating a traffic jam by blocking traffic, ignored Officer Zoller's directives and responded with defiant obscenities. While neither of the two motions for summary judgment currently before the Court was filed by either of the two individual officers, the specifics of the interaction between the officers and Ms. Cahill, from which the allegation of excessive force stems against Officer Zoller, warrants summary here.

As a threshold matter, the Court notes that Defendant police officer Jesse Haschak, one of the two police officers involved in the incident with Plaintiff Lindsay Cahill on the night in question, was voluntarily dismissed from the case by stipulation of the parties. See Doc. Nos. 70 & 71. Further, the Court notes that the parties disagree with respect to the specific actions and conduct of Lindsay Cahill and Defendant police officer Zoller during the incident. What is not in dispute, however, is that no Defendant other than Zoller and Haschak were active in the incident itself. After the concert, Lindsay Cahill was waiting for a ride home. Police officers Zoller and Haschak were directing the traffic out of the Post–Gazette Pavilion parking areas. One particular single lane not being used by traffic exiting the parking area, referred to by the parties as a “fire lane”, is where the incident between Lindsay Cahill and the officers occurred. From this point, the versions of what happened diverge.

According to Plaintiff, Lindsay Cahill was standing in the vicinity of the fire lane and waiting for a vehicle which had previously left the parking area to return to the parking area to pick her up. As the vehicle approached, Lindsay moved into the “fire lane” so that she could meet it. No other traffic was in the fire lane at that point, nor was any other vehicle approaching other than the vehicle approaching to retrieve her. She heard a command not to be in the fire lane, or words to that effect, in response to which, she entered the vehicle in the seat directly behind the driver. At that point, according to Lindsay, Officer Zoller approached, pounded on the windows, and forcibly removed her from the vehicle before she had a chance to exit on her own.

Not surprisingly, Defendant Zoller's description of what occurred differs. According him, the lane in question was not the “fire lane”, but a lane next to the fire lane that was specially designated for the use of parents and other drivers to enter the parking area in order to pick up underage guests and other attendees who did not drive. See Doc. No. 79 at exhibit 3. When Officer Zoller noticed Lindsay Cahill, she was talking on her cell phone and standing alongside a vehicle stopped in this special lane, which happened to be the vehicle that was there to pick her up. According to Officer Zoller, the stopped vehicle was causing the other traffic that was attempting to enter the parking area to pick up other passengers to come to a standstill, which, in turn, caused the outbound traffic to stop because it was blocked by the inbound traffic stopped behind the vehicle stopped next to Lindsay Cahill. Id. After seeing the traffic “piling up”, Officer Zoller blew his whistle in the direction of Lindsay Cahill, in an attempt to get her to move out of the way. Id. She did not move, although it is not clear with this record whether she heard the whistle or not. He blew his whistle a second time, to which, Lindsay Cahill looked in his direction, saw that he was motioning for her to move to the side, responded with vulgar language and yet otherwise ignored the signal to move out of the way. Id. Officer Zoller blew his whistle a third time, to which Cahill once again responded with similar behavior. At this point, officer Zoller approached the vehicle, saw that the driver's head was protruding through the open driver's side window, and ordered the driver the move the vehicle to the side. He also observed that Lindsay Cahill was still not moving away from the vehicle, and informed her that she was going to be cited for disorderly conduct. Lindsay then entered the vehicle, and the driver closed all windows and locked the doors. Officer Zoller twice ordered the driver to unlock the doors, which the driver did. Officer Zoller opened the back door and ordered Lindsay Cahill out of the back. She refused, and “was kicking, throwing her arms, screaming, throwing fists, just acting up.” Id. at Tr. p. 84. Officer Haschak also had approached the vehicle at this point. Next, Lindsay was removed from the back of the vehicle, with varying descriptions of Lindsay's level of resistance, the amount of force used, and other such details not germane to the motions for summary judgment at hand. What resulted from this exchange was the issuance of a non-traffic citation to Lindsay for disorderly conduct.

To be clear, the Court does not mean to imply that the facts of the incident as described are not in dispute, as they clearly are. The different accounts are included here, however, because in either case, there are facts not in dispute which bear upon the pending motions. Particularly, this incident involved a finite group of individuals, Lindsay Cahill and Officer Zoller, Officer Haschak and the occupants of the vehicle. Further, both Lindsay Cahill and Officer Zoller's respective versions of what occurred include Lindsay Cahill traversing a lane of traffic to enter a vehicle that was returning to the Post–Gazette Pavilion, at least one oral command from Officer Zoller for her not to be in the lane, and her entry into and subsequent removal from the vehicle. More germane to the motions for summary judgment, however, is the fact that no private employees of Defendant Live Nation or any other employee of Chief Geho or Hanover Township were actively involved with the incident itself.

Standard of Review

Summary judgment under Federal Rule of Civil Procedure 56(c) is appropriate “if the pleadings, the discovery and disclosure of material on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). In deciding a summary judgment motion, the court must “ ‘view the evidence ... through the prism of the substantive evidentiary burden’ to determine ‘whether a jury could reasonably find either that the plaintiff proved [their] case by the quality and quantity of evidence required by the governing law or that [they] did not.’ ” Anderson v. Consolidated Rail Corp., 297 F.3d 242, 247 (3d Cir.2002) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 254, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). When the non-moving party will bear the burden of proof at trial, the moving party's burden can be “discharged by ‘showing’ ... that there is an absence of evidence to support the non-moving party's case.” Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). If the moving party has carried this burden, then the burden shifts to the non-moving party who cannot rest on the allegations of the pleadings and must “do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); Petruzzi's IGA Supermarkets, Inc. v. Darling–Delaware Co., 998 F.2d 1224, 1230 (3d Cir.1993). Thus, the non-moving party cannot rest on the pleadings, but instead must go beyond the pleadings and present “specific facts showing that there is a genuine issue of fact for trial.” Simpson v. Kay Jewelers, Div. of Sterling,...