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decided: July 12, 1978.


No. 577 October Term, 1977, Appeal from the Order Entered November 10, 1976, by the Court of Common Pleas of Northampton County, Civil Action-Law, at No. 228 January Term, 1975


William G. Ross, Bethlehem, with him Sigmon, Littner & Ross, Bethlehem, for appellants.

No appearance entered nor brief submitted for appellee, Conway W. Gift.

Robertson B. Taylor, Bethlehem, for appellee, City of Bethlehem.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Van der Voort, J., dissents. Watkins, former President Judge, did not participate in the consideration or decision of this case.

Author: Jacobs

[ 256 Pa. Super. Page 36]

This appeal is taken from an order of the court en banc denying appellants' motion to remove a compulsory non-suit

[ 256 Pa. Super. Page 37]

    entered in favor of the City of Bethlehem. The sole issue for our consideration is whether the court erred in refusing to take off the non-suit. For the following reasons, we hold that it did, and consequently reverse the order of the court below and remand for trial.

Our review of the propriety of the lower court's decision is governed by the standard that a non-suit is proper only if the jury, viewing the evidence and all reasonable inferences arising from it in the light most favorable to the plaintiff, could not reasonably conclude that the elements of the cause of action have been established. Ford v. Jeffries, 474 Pa. 588, 379 A.2d 111 (1977). A compulsory non-suit may be entered only in a clear case where the facts and circumstances lead unerringly to but one conclusion. Paul v. Hess Brothers, Inc., 226 Pa. Super. 92, 312 A.2d 65 (1973). Plaintiff must be given the benefit of every fact and every reasonable inference of fact arising from the evidence, whether direct or circumstantial, and all conflicts must be resolved in the plaintiff's favor. Jurich v. United Parcel Service of New York, Inc., 239 Pa. Super. 306, 361 A.2d 650 (1976). Viewing the evidence in this light, the following facts may be adduced.

Shortly before midnight on February 17, 1974, two police officers of the City of Bethlehem seated in their patrol car observed a vehicle driven by Manuel Santiago enter an intersection they were patrolling. After deciding that the driver of the vehicle was exceeding the speed limit, the officer initiated pursuit with flashing lights and siren. The pursued vehicle increased its speed and proceeded through the next intersection on a green light, with the police car approximately fifty feet behind. The chase continued another block through a red traffic signal, where both cars turned right, and through a stop sign after the light. Pursuit proceeded several more blocks through intersections controlled by traffic lights, some red and some green, with both vehicles travelling in the oncoming lane of traffic to pass the normal flow of traffic. Both vehicles reached

[ 256 Pa. Super. Page 38]

    speeds in excess of sixty miles per hour. At a point approximately two miles from where the chase originated, the pursued vehicle ran one final red light, and collided with a vehicle entering an intersection from the Bethlehem Steel factory. At the time of the collision, the police vehicle was approximately fifty to seventy-five feet behind the pursued vehicle.

Appellant Joseph Kuzmics, a passenger in the vehicle lawfully in the intersection, sustained personal injuries from the collision, and instituted an action in trespass against the host driver, the driver of the pursued vehicle, and the City of Bethlehem. At the close of plaintiffs' case, the trial judge granted the City's motion for a compulsory non-suit. The court en banc denied appellant's motion to remove the non-suit, and this appeal followed.

Our review of the evidence leads us to the conclusion that the jury could reasonably have concluded that the City of Bethlehem, through its agents, violated the standard of care owed appellants. We note at the outset that the emergency doctrine,*fn1 which exempts certain vehicles from

[ 256 Pa. Super. Page 39]

    speed limits and other Vehicle Code restrictions, may not protect the city in this case.*fn2 Regardless of this fact, plaintiffs have alleged reckless disregard for the safety of others, and are entitled to have their evidence submitted to a jury.*fn3

Both appellee and the lower court cite cases from other jurisdictions in support of the proposition that a municipality cannot be held liable for injuries caused by a pursued vehicle.*fn4 We do not find these authorities persuasive for several reasons. First, the leading cases denying municipal liability as a matter of law ground their holdings in conceptions of the duty of policemen to arrest lawbreakers.*fn5 We

[ 256 Pa. Super. Page 40]

    do not perceive the issue in terms of the duty of police to pursue and apprehend summary violators regardless of risk or cost, nor do we see the question posed in terms of tying the hands of the police and permitting "leisurely escapes." Rather, we address the problem mindful of the fact that

Exceptional circumstances may make it reasonable to adopt a course of conduct which involves a high degree of risk or serious harm to others. However, conduct which creates so grave a risk cannot be justified as reasonable unless the end, which cannot be gained except by pursuing it, is itself of very great social value.

Reilly v. Philadelphia, 328 Pa. 563, 569, 195 A. 897 (1938), quoting Restatement, Torts ยง 500, comment (a) (1938).

However, available statistics indicate the existence of a very grave risk, but a very questionable social value:

More than 500 Americans die and over 1,000 sustain major injuries each year as a result of rapid police pursuit of lawbreakers, most of whom are guilty of only minor traffic offenses . . . one pursuit in five leads to a traffic fatality (and) in only one percent of the cases was someone in the car wanted for violent crimes. . . . Twenty percent of the pursued cars had been stolen.*fn6

Under these circumstances, where negligence or recklessness has been alleged, and evidence of such conduct has been introduced, it is illogical and inconsistent with existing Pennsylvania law to deny liability as a matter of law on the sole basis that the pursued vehicle, and not the police pursuer, was physically involved in the collision. In fact, as previously indicated, the legislature has apparently increased the applicable standard of care for drivers of emergency vehicles by providing that they shall operate their vehicles with "due regard for the safety of all persons," and eliminating reference to the reckless disregard standard.

[ 256 Pa. Super. Page 41]

The policy argument that we might unduly restrict legitimate law enforcement performance unless we hold non-liability as a matter of law has little support. Our appellate courts have consistently held that where similar questions are raised in cases arising from direct collisions between emergency vehicles and third parties, those questions must be resolved by the fact-finder. See e. g., Feruzza v. Pittsburgh, 394 Pa. 70, 145 A.2d 706 (1958); Roadman v. Bellone, 379 Pa. 483, 108 A.2d 754 (1954); Cavey v. Bethlehem, 331 Pa. 556, 1 A.2d 653 (1938); LaMarra v. Adam, 164 Pa. Super. 268, 63 A.2d 497 (1949). Furthermore, better-reasoned cases from other jurisdictions hold that in situations similar to the one here, negligence or recklessness and proximate causation are jury questions. See Myers v. Town of Harrison, 438 F.2d 293 (2d Cir. 1971); Schatz v. Cutler, 395 F.Supp. 271 (D.Vt.1975); Mason v. Bitton, 85 Wash.2d 321, 534 P.2d 1360 (1975).*fn7

In this case, we feel that the jury must determine whether the municipality, through the acts of the police officers, breached the standard of care owed to appellant. Moreover, although the relevant facts here were not disputed by the parties, we cannot say that the remoteness of the causal connection between the defendant's acts and plaintiffs'

[ 256 Pa. Super. Page 42]

    injury clearly appears, so as to pass on the question of proximate cause as a matter of law. See Clevenstine v. Rizzuto, 439 Pa. 397, 266 A.2d 623 (1970). Factors to be considered by the factfinder include speed of pursuit, the area of pursuit, and the presence or absence of audible and visual warnings. Where, as here, evidence has been presented that the pursuing officers continued their chase into an area that they knew was highly congested with both pedestrian and vehicular traffic, that evidence must be assessed by the jury. Additionally, where one party alleges the existence of an emergency, he must plead that emergency to justify his violation of the rules of the road. Mashinsky v. Philadelphia, 333 Pa. 97, 3 A.2d 790 (1939).

After examining the testimony of both police officers in the court below, we find that although the lights and siren were used during the pursuit, the policemen testified that they were both familiar with the area where the collision occurred, and well aware of the fact that a shift change occurs at midnight. In fact, Officer Miller, the passenger in the police vehicle testified that he was employed by Bethlehem Steel for more than six years, and was aware of the existence of additional pedestrian and vehicular traffic around the plant during shift changes. Given this evidence, we hold that the questions of whether the officers acted improperly in continuing their high-speed pursuit into the area of the plant at the time of a shift change and whether this action proximately concurred in causing plaintiffs' injury, were for the jury.

Accordingly, the order of the court en banc refusing to take off the compulsory non-suit is reversed, and the case is remanded for trial.

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