Fulkerson v. City of Lancaster, Civ. A. No. 91-2058.

• Decision Date: 24 August 1992
• Docket Number: Civ. A. No. 91-2058.
• Citation: 801 F. Supp. 1476
• Parties: Thomas W. FULKERSON, et al., Plaintiffs, v. CITY OF LANCASTER, Manor Township, Ross A. Deck, and Randy Herman.
• Court: U.S. District Court — Eastern District of Pennsylvania

801 F. Supp. 1476

Thomas W. FULKERSON, et al., Plaintiffs, v. CITY OF LANCASTER, Manor Township, Ross A. Deck, and Randy Herman.

Civ. A. No. 91-2058.

United States District Court, E.D. Pennsylvania.

August 24, 1992.

Richard C. Low, Lancaster, Pa., for plaintiffs.

George C. Werner, Lancaster, Pa., Robert G. Hanna, Jr., Daniel P. Carter, Philadelphia, Pa., for defendants.

OPINION AND ORDER

VAN ANTWERPEN, District Judge.

This is a civil rights action arising out of a collision between a police car operated by Sergeant Ross A. Deck of the City of Lancaster Police Department and plaintiffs' car. Sergeant Deck and several other police officers, including defendant Randy Herman, were pursuing a fleeing motorcyclist when Deck's vehicle collided with the car in which the plaintiffs were traveling in the opposite direction. Plaintiffs suffered severe injuries in the accident, and subsequently filed this action under 42 U.S.C. §§ 1983 and 1988.¹

Plaintiffs allege that the conduct of the individual officers was so reckless that it amounted to a deprivation of the plaintiffs' constitutional right to life, liberty and property without due process of law. Plaintiffs also claim that the City of Lancaster and Manor Township, both Pennsylvania municipalities, violated the plaintiffs' constitutional rights by causing plaintiffs' injuries through the policies or customs of failing to train their officers properly and permitting high speed chases without adequate provocation. Complaint ¶ 24.

Defendants have moved for summary judgment under Fed.R.Civ.P. 56.

I. SUMMARY JUDGMENT STANDARD

The Court shall grant summary judgment if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). The moving party bears the initial burden of identifying for the court those portions of the record which it believes demonstrate the absence of a material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323-25, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986). An issue is "genuine" only if there is a sufficient evidentiary basis on which a reasonable jury could find for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986) (hereinafter "Liberty Lobby"). "A non-moving party must adduce more than a mere scintilla of evidence in its favor, . . . and cannot simply reassert factually unsupported allegations contained in its pleadings." Williams v. Borough of West Chester, 891 F.2d 458, 460 (3d Cir. 1989) (citing Liberty Lobby, 477 U.S. at 249, 106 S.Ct. at 2510, and Celotex Corp. v. Catrett, 477 U.S. at 325, 106 S.Ct. at 2553.)

A factual dispute is "material" only if it might affect the outcome of the suit under governing law. Liberty Lobby, 477 U.S. at 248, 106 S.Ct. at 2510. All inferences must be drawn and all doubts resolved in favor of the non-moving party. United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176 (1962); Gans v. Mundy, 762 F.2d 338, 341 (3d Cir.1985) cert. denied 474 U.S. 1010, 106 S.Ct. 537, 88 L.Ed.2d 467 (1985).

II. STATEMENT OF FACTS

A. The Pursuit and Collision

The following facts are essentially undisputed. Where there is some question as to the existence of a fact, we resolve the doubt in favor of plaintiffs, the non-moving party.² On April 27, 1990, in the evening, City of Lancaster Police Officer Sonia Hurdle observed a man on a motorcycle (later determined to be Wayne Richard Edwards) commit several traffic violations, including driving through a red stop light, failing to lower the visor on his helmet, and driving between lanes of traffic. Hurdle Dep. at 16-18. After Edwards nearly forced an automobile off the road, Officer Hurdle activated the emergency lights on her marked police car and began to pursue Edwards. The motorcyclist fled, driving in excess of the speed limit, weaving in and out of traffic, and driving through all red stop lights in his path. Officer Hurdle transmitted a description of the motorcyclist over the radio to her superior, Sergeant Ross Deck. She also informed Sergeant Deck that the motorcyclist had turned off his lights to avoid being seen. Deck Dep. at 62. She then lost contact with the motorcycle.

Having monitored Officer Hurdle's radio transmissions, Sergeant Deck and Officer Peter Zipp, of the Lancaster Police Department, observed a motorcycle matching Hurdle's description traveling at a high rate of speed and they each pursued the motorcycle with their emergency lights activated. The motorcyclist continued to drive erratically, and at one point sped through a gas station, causing pedestrians to jump out of the way to avoid being run down. Deck Dep. at 83.

Shortly after the motorcyclist sped through the gas station, Officer Randy Herman of the Manor Township Police Department joined in the pursuit, directly behind the motorcycle and in front of Sergeant Deck, with about a tenth of a mile separating Officer Herman's car from the motorcycle and Sergeant Deck's car. Deck Dep. at 84-85. Officer Herman was in a marked police car with emergency lights and sirens activated. Herman Dep. at 28. The order of travel was Edwards on the motorcycle, Officer Herman in his police cruiser, followed by Sergeant Deck, who was in turn followed by Officer Zipp.

The pursuit proceeded through Manor Township, over mostly two-lane roads with moderate traffic. For the most part, the police officers maintained visual contact with the motorcycle, and occasionally they pulled to within two hundred feet of it, at busy intersections. Deck Dep. at 76-77, 93-95, 97. Sergeant Deck estimates that speeds in the chase varied from as slow as thirty-five to forty miles per hour to as fast as seventy to eighty miles per hour. Deck Dep. at 74-75, 99.

Based on his experience with the type of motorcycle the fleeing suspect was riding, and knowing the acceleration and cornering capabilities of that type of motorcycle, Sergeant Deck concluded from the way that the fleeing suspect was driving that he was either inexperienced or intoxicated, and that the motorcycle might have been stolen. He based that conclusion on the suspect's failure to take advantage of the motorcycle's capacity for rapid acceleration to outrun the pursuing officers. Instead of speeding around the automobiles which he overtook, the suspect repeatedly slowed down behind the automobiles, using erratic braking patterns, until the police cars closed the distance, and then the suspect would pass the car blocking its escape path. Deck Dep. at 78-82.

Given the erratic driving of the fleeing suspect, Sergeant Deck concluded that the officers were likely to apprehend him. Deck Dep. at 82. The likelihood of apprehension, coupled with the danger to the public of allowing the suspect to continue his reckless driving, prompted Sergeant Deck to continue the pursuit outside of his primary jurisdiction. The last thing Deck remembers about the pursuit that day is following the motorcycle down the New Danville Pike toward the intersection with Long Lane, travelling at about sixty miles per hour in a 35-40 mile per hour zone.

While Sergeant Deck does not recall the events immediately before and during the collision, other evidence indicates that his vehicle crossed the center line of the road a short distance beyond Long Lane, while negotiating an unmarked curve, and struck the plaintiffs' car in the opposing lane of traffic. Mowday Dep. at 60 and attached Police Accident Report. The accident took place in Pequea Township.

Officer Herman first learned of the accident through a radio transmission from another police officer. Herman Dep. at 23. He did not see the accident take place, and does not know how far ahead of Deck's vehicle he was at the time. Id. at 37.

The fleeing suspect, Wayne Edwards, was apprehended after the collision, and was charged with recklessly endangering another person, a second degree misdemeanor; reckless driving; fleeing a police officer; and several traffic offenses. See Hurdle Dep., Exhibit 1.

B. Municipal Pursuit Policies

The City of Lancaster had a written pursuit policy, promulgated by its chief of police, in effect at the time of the collision. The policy gave the individual officers of the department the discretion to commence or terminate a pursuit after weighing certain factors. See Lefever Dep., Exhibit 1. The street supervisor or officer in charge at the time also had the authority under the written policy to terminate a pursuit. The policy required officers to consider the following factors:

1. The type of violation committed;

2. Weather and road conditions;

3. Visibility;

4. Traffic conditions (time of day, location);

5. Dangers to motorists and pedestrians if the vehicle is not pursued;

6. Availability of assistance;

7. The probability of apprehension in light of these risk factors.

In addition, the policy specified certain procedures to be followed in all pursuits, such as use of emergency lights and siren, maintaining control of one's vehicle and adjusting to traffic and road conditions, and not ramming or bumping the fleeing vehicle except in the most extreme cases. Officers in the department were required to familiarize themselves with this policy, and received roll call training in carrying it out. Goeke Dep. at 52; Hurdle Dep. at 7-9; Deck Dep. at 15-21; Barley Dep. at 7; Lefever Dep. at 7-8.

Manor Township had a written pursuit policy, promulgated by its chief of police, which set out the requirements of Section 3105 of the Pennsylvania Vehicle Code for drivers of emergency vehicles, and also specified procedures to be followed in pursuits. See Herman Dep. Exhibit 3; Sheeler Dep. at 19. Officers involved in pursuits are required under the policy to keep in contact with the county radio dispatcher, broadcasting the...