Frazier v. COM. PA STATE, POLICE

• Decision Date: 24 March 2004
• Citation: 845 A.2d 253
• Parties: Frances FRAZIER and Larry Frazier, Administrators of the Estate of Cory R. Frazier, Deceased and Frances Frazier and Larry Frazier, Individually, v. COMMONWEALTH of Pennsylvania, Pennsylvania State Police, Jenner Township, Conemaugh Township and Trooper David Holtzman. Appeal of Commonwealth of Pennsylvania, Pennsylvania State Police and Trooper David Holtzman.
• Court: Pennsylvania Commonwealth Court

845 A.2d 253

Frances FRAZIER and Larry Frazier, Administrators of the Estate of Cory R. Frazier, Deceased and Frances Frazier and Larry Frazier, Individually, v. COMMONWEALTH of Pennsylvania, Pennsylvania State Police, Jenner Township, Conemaugh Township and Trooper David Holtzman.

Appeal of Commonwealth of Pennsylvania, Pennsylvania State Police and Trooper David Holtzman.

Commonwealth Court of Pennsylvania.

Argued February 3, 2004.

Decided March 24, 2004.

John G. Knorr, II, Pittsburgh, for appellant.

Robert P. Ging, Jr., Confluence, for appellee.

BEFORE: COLINS, President Judge, and SIMPSON, J. (P), and McCLOSKEY, Senior Judge.

OPINION BY Judge SIMPSON.

The Pennsylvania State Police (PSP) appeal an interlocutory order of the Court of Common Pleas of Somerset County (trial court) denying its motion for judgment on the pleadings. We are asked whether the PSP and an individual state trooper owe a duty of care to a driver who flees. We hold they do not.

On the evening of September 3, 1999, Cory Frazier (Frazier) was driving his vehicle along State Route 985 in Somerset County. State Trooper David Holtzman (Trooper Holtzman) observed Frazier's vehicle commit a traffic violation. Trooper Holtzman began to pursue Frazier's vehicle. At some point during the pursuit, Frazier lost control of his vehicle and collided with a tree. Frazier did not survive the collision.

Frazier's parents, Frances and Larry Frazier (Parents), filed a wrongful death and survival action against the PSP and Trooper Holtzman.¹ In their Amended Complaint, Parents averred:

19. The injuries to and death of [Frazier] were caused solely and proximately by the willfulness, wantonness, recklessness and negligence of Defendants, jointly and severally generally and as hereinafter set forth:

DEFENDANTS COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA STATE POLICE and TROOPER DAVID HOLTZMAN.

A. In pursuing [Frazier's] vehicle at such a high rate and excessive rate of speed so as to make it impossible for [Frazier] to safely stop;

B. In continuing such a dangerous pursuit;

C. In pursuing [Frazier's] vehicle in such close proximity so as to cause and allow contact between the vehicles;

D. In pursuing [Frazier's] vehicle in such a manner and at such a speed to [not] permit the safe operation of either vehicle, and without due regard for the safety of all persons and regulations promulgated pursuant thereto and endangering the life of another;

E. In violating the Motor Vehicle Code;

F. In violating the rules, regulations and policies of the Pennsylvania State Police applicable to such circumstances;

G. In otherwise violating the rules of the road based upon the conditions then and there existing.

Pls.' Am. Compl. at ¶ 19; Reproduced Record (R.R.) at 5. The PSP filed an Answer and New Matter raising, among other things, the defense of immunity pursuant to the Sovereign Immunity Act.² It subsequently moved for judgment on the pleadings.

Before the trial court, the PSP asserted it was entitled to judgment as a matter of law under our Supreme Court's decision in Lindstrom v. City of Corry, 563 Pa. 579, 763 A.2d 394 (2000), which holds that a local agency and its police officer owe no common law duty of care to a fleeing driver. The trial court disagreed.

First, the trial court considered whether Trooper Holtzman owed Frazier a common law duty. Distinguishing the Sovereign Immunity Act from the Political Subdivision Tort Claims Act (Tort Claims Act),³ the trial court noted the 1995 amendment to the vehicle liability exception in the Tort Claims Act, which expressly retains immunity from suit brought by persons injured while being pursued by police. The trial court noted no similar provision was added to the Sovereign Immunity Act. The trial court declined to extend the holding in Lindstrom to PSP officers, reasoning that different provisions for vehicle liability in the two immunity statutes supported different treatment of local police officers and state police troopers.

Next, the trial court determined Parents adequately raised a statutory duty. Specifically, the trial court stated:

In the instant case, [Parents] have raised the Trooper's statutory duty of care set forth in the Vehicle Code, 75 Pa.C.S.A. § 101 et seq. .... [U]nder 75 Pa.C.S.A. § 3105(e), police officers, as drivers of emergency vehicles have a statutory duty of care for "all persons"—not just innocent bystanders....

By its enactment of § 3105, the legislature has established a duty upon drivers of emergency vehicles to drive with due regard for the safety of all persons. Courts have held that a police officer in pursuit of a fleeing person must adhere to the duty of due regard set forth in § 3105.... While our legislature has abrogated this duty with regard to municipal police officers ... to date, it has not amended the Sovereign Immunity Act to include a provision to so specifically limit the liability of Commonwealth police officers. Accordingly, we are constrained to permit [Parents] cause of action to go forward....

Slip Op. at 7 (citations omitted) (emphasis in original). As a result, the trial court denied the PSP's motion for judgment on the pleadings. Thereafter, the trial court certified its order for permissive interlocutory appeal. We granted permission.⁴

On appeal, the PSP asserts the trial court erred in: (1) limiting the holding in Lindstrom to local agency police officers; and (2) determining that Section 3105(e) of the Vehicle Code creates a statutory duty of care to a fleeing motorist.

The Commonwealth and its agencies are immune from suit except where the General Assembly specifically waives immunity. 1 Pa.C.S. § 2310; 42 Pa.C.S. § 8521. A commonwealth party is not liable unless (1) the alleged act of the commonwealth party is a negligent act for which damages would be recoverable under the common law or by statute, 42 Pa.C.S. § 8522(a); and (2) the act of the commonwealth party falls within one of the exceptions listed in 42 Pa.C.S. § 8522(b). Brown v. Blaine, 833 A.2d 1166 (Pa. Cmwlth.2003). Exceptions to sovereign immunity must be strictly construed as to uphold legislative intent and insulate the Commonwealth from tort liability. Southeastern Pennsylvania Transp. Auth. v. Holmes, 835 A.2d 851 (Pa.Cmwlth.2003).

At the outset, we must determine if Parents can meet the threshold requirement under 42 Pa.C.S. § 8522(a), namely, whether the PSP and Trooper Holtzman owed Frazier a common law or statutory duty.

I. Common Law Duty

The PSP first asserts the trial court erred in limiting our Supreme Court's holding in Lindstrom to local agency police officers. It argues the Supreme Court decided Lindstrom based on broad public policy considerations which apply equally to local and state police. Parents respond that Lindstrom is distinguishable because the Legislature amended the vehicle liability exception in the Tort Claims Act to explicitly bar recovery to persons evading the police, but it did not similarly amend the Sovereign Immunity Act.

In Lindstrom, a city police officer, who was in a patrol car, observed a motorist and decided to pull him over. When the motorist failed to pull over, the officer began to follow him. During the ensuing pursuit, the motorist lost control of his vehicle and was killed. The parents of the motorist sued the city, alleging its officer was negligent in initiating and continuing a high speed chase. The city moved for judgment on the pleadings raising a governmental immunity defense under the Tort Claims Act.

In considering whether the city and its officer owed the fleeing driver a common law duty, the Court examined five public policy factors. Specifically, the Court considered: (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. Id. (citing Althaus v. Cohen, 562 Pa. 547, 756 A.2d 1166 (2000)). Applying these factors to determine whether to impose a common law duty upon "governmental agencies and their agents when a police officer pursues fleeing drivers,"⁵ the Court, speaking through Justice (now Chief Justice) Cappy, stated:

As to the first factor, regarding the relationship between the parties, 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. The second factor weighs against imposing a duty, as the social utility of a police officer's attempt to apprehend a person suspected of violating the law is beyond dispute. Turning to the third factor, it is evident that there is a risk of injury to the fleeing driver, and it is foreseeable that drivers who refuse to pull over when alerted to do so may be injured in their attempt to elude an officer. Fourth, the consequences of imposing a duty upon officers are burdensome, as that may prevent the apprehension of dangerous criminals and further encourage flight. Finally, the public has a preeminent interest in ensuring that roadways remain safe from dangerous drivers and criminals and that police officers are empowered to enforce the law....

Id. at 585-86, 763 A.2d at 397. The Court held, "[o]n balance, these factors do not call for imposing a common law duty of care in these circumstances." Id. (citing Estate of Day v. Willis, 897 P.2d 78 (Alaska 1995)) (public policy does not support imposing a legal duty on officers to protect fleeing offenders from their own actions); Robinson v. City of Detroit, 462 Mich. 439, 613 N.W.2d 307 (2000) (police owe no duty to a wrongdoer, including fleeing driver).⁶ As the plaintiffs did not meet the threshold requirement under ...