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Police Pursuits: Claims Against the City of Philadelphia

Alan Schnoll, Esq. on 7/21/2010

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            In the typical year, there are between 350 and 400 vehicle pursuits conducted by the Philadelphia Police Department.  Police are permitted to pursue suspects for violent felonies and, until recently, for property offenses, such as stolen cars, and traffic violations.[1]  Approximately one in four pursuits results in an accident, with injuries occurring more than 60% of the time.  Almost 43% of those injured are civilians, i.e., innocent bystanders.  In the nine years from 2000 through 2008, 15 people died as a result of vehicle pursuits by the Philadelphia Police Department.  Six of those deaths were civilians.[2]

            The police acknowledge that many of their pursuits violated Directive 45.  Even when not acknowledged by the police, a close examination of the actions of the police suggest one or more violations of this Directive.  When police violate the applicable Directive and the fleeing car causes an accident, the City of Philadelphia can be held liable for injuries to innocent parties.[3]

            Determining whether a pursuit violates police department directives is very fact specific and there is a wealth of information available for this purpose.  A Pursuit Memorandum is prepared following each chase.  This Memorandum sets forth, in summary fashion, the details of a pursuit, including its beginning and ending points, its duration, the distance covered and reasons for the pursuit.  Serious accidents are often investigated by AID.  If the fleeing party is apprehended and arrested, these arrest records can also be obtained.        

             All pursuits must be monitored while in progress by a supervisor who has the power to approve, continue or discontinue the pursuit.  The police radio transmission of the pursuit often highlights issues that don’t appear in the Pursuit Memorandum and provides fertile grounds for cross-examination of the police officers and the supervisor involved.  Obtaining the recording of this transmission , however, is difficult.  Counsel must serve  a Court Order on the Philadelphia Police Department within the thirty days of the pursuit in order to preserve the recording.  When faced with life threatening or even serious injuries, it is the rare plaintiff who contacts an attorney in time to obtain this recording.  While the recording is important, it is not essential to make out your case.

            An expert in police procedures should review all discovery responses including documents obtained, radio transmissions and deposition transcripts to determine if  departmental policies were violated.

            Any claim for personal injuries against the City is subject to the provisions of the Political Subdivision Tort Claims Act[4].  A claim must fall within one of the enumerated categories of claims where sovereign immunity is waived.  In Aiken v. Blawnox, 747 A.2d 1282; 2000 Pa. Commw. LEXIS 140 (Commw. 2000), the municipality claimed an immunity defense, asserting that the plaintiff’s claim did not fall within the Motor Vehicle Exception of the Tort Claims Act[5].  Aiken, an innocent bystander, was injured by a car fleeing a police pursuit.  He claimed that the police were negligent in failing to follow pursuit procedures and in maintaining a high-speed chase.  The municipal defendant filed a motion for summary judgment arguing that the plaintiff was injured by the fleeing vehicle, not the police, and that any alleged negligence by the police was the decision to initiate and maintain a high-speed pursuit and not the operation of the officers’ motor vehicle.

            In denying the defendant’s motion, the Commonwealth Court found that such negligence does fall within in the Motor Vehicle Exception:

There is no legal distinction between the police officers’ decision to continue the pursuit and the operation of the vehicles continuing the pursuit.  At least, no such distinction can be read into the plain meaning of Section 8542(b)(1) of the Act.  Appellant’s action alleges that the police officers negligently maintained the high-speed pursuit.  The fact that the police officers decided to continue the pursuit does not change the fact that the alleged negligent conduct is the operation of the police vehicles that caused his injury and that is what the plain language of Section 8542(b)(1) states is an exception to governmental immunity.

 

747 A.2d, at 1285.

            In Jones v. Chieffo, 549 Pa. 46; 700 A.2d 417; 1997 Pa LEXIS 1699 (Pa. 1997), Jones was a passenger in a car injured by a car fleeing the pursuing police.  Jones alleged that the police were negligent for initiating and continuing a vehicular pursuit.  The City of Philadelphia argued that the Political Subdivision Tort Claims Act conferred immunity on the City for the criminal acts of a third party.  The Supreme Court decided otherwise, holding that “a governmental party is not immune from liability when its negligence, along with a third party’s negligence, causes harm.”  549 Pa., at 52.

            Recoveries under the Tort Claims Act are limited to $500,000 in the aggregate under 42 Pa.C.S.A. § 8552(b).  This leads some practitioners to include a count in their complaint for a civil rights violation under 42 U.S.C. § 1983 where damages are not capped and there is the potential to recover attorney’s fees.  The inclusion of a 1983 claim may enable the defendant to seek removal to Federal Court.  Moreover, the plaintiff has a higher legal burden in order to prevail on these claims.  In Thomas, et al. v. City Philadelphia, et al., 804 A.2d 97; 2002 Pa. Commw.; LEXIS 522; appeal denied, 814 A.2d 679; 2002 Pa. LEXIS 2641; cert. denied 538 U.S. 1057; 123 S.Ct. 2219; 2003 U.S. LEXIS 4084, the Commonwealth Court discusses the various standards of culpability used to measure police conduct in a police pursuit.  Following the holding in County of Sacramento v. Lewis, 253 U.S. 833 (1998), the Court held that the actions of the police must “shock the conscience” in order to support a claim under 1983.  This is  significantly more difficult than the simple negligence standard enunciated in Jones.

            With intensive discovery and careful preparation, the plaintiff can prevail against the City for injuries to innocent parties in state court actions.



[1].         Directive 45 has been in existence since at least 1956 and revised periodically, the last time on 2/25/94.  Directive 45 was replaced by Directive 41:  Vehicle Pursuits (effective 12/31/08).  Directive 45 permitted pursuits of stolen vehicles and for Motor Vehicle Code Violations, “if the actions of a driver of a motor vehicle are so callous as to present a ‘continuing danger’ to the public,...”  Directive 41 specifically prohibits pursuits for stolen vehicles and traffic violations, including DUI offenses.

 

[2].         The Accident Prevention Unit of the Philadelphia Police Department keeps statistical records on police pursuits.  The above figures were extrapolated from records for the years 2000 through 2008.

[3].         The Political Subdivision Tort Claims Act specifically excludes claims by persons fleeing the police.  See footnote 5 below.

[4].         42 Pa. C.S.A. § 8541, et seq.

[5].         The Motor Vehicle Exception reads as follows:

 

   (b)  Acts which may impose liability.—The following acts by a local agency or any of its employees may result in the imposition of liability on a local agency:

 

            (1)  Vehicle liability.—The operation of any motor vehicle in the possession or control of the local agency, provided that the local agency shall not be liable to any plaintiff that claims liability under this subsection if the plaintiff was, during the course of the alleged negligence, in flight or fleeing apprehension or resisting arrest by a police officer or knowingly aided a group, one or more of whose members were in flight or fleeing apprehension or resisting arrest by a police officer. As used in this paragraph, “motor vehicle” means any vehicle which is self-propelled and any attachment thereto, including vehicles operated by rail, through water or in the air.

42 Pa. C.S.A. § 8542(b)(1).

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