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CHARLES S. EVERETTE v. CITY NEW KENSINGTON (12/28/78)

decided: December 28, 1978.

CHARLES S. EVERETTE, SR., ADMINISTRATOR OF THE ESTATE OF CHARLES S. EVERETTE, JR., DECEASED
v.
CITY OF NEW KENSINGTON, A MUNICIPAL CORPORATION, APPELLANT



No. 129 April Term, 1978, Appeal from the Judgment of the Court of Common Pleas, Civil Action, Law, of Westmoreland County, at No. 2502 of 1974.

COUNSEL

Chester S. Fossee, Pittsburgh, for appellant.

Daniel M. Berger, Pittsburgh, for appellee.

Jacobs, President Judge, and Hoffman, Cercone, Price, Van der Voort, Spaeth and Hester, JJ. Spaeth, J., files an opinion in support of affirmance in which Jacobs, President Judge, and Cercone, J., join. Price, J., files an opinion in support of reversal in which Van der Voort and Hester, JJ., join. Hoffman, J., did not participate in the consideration or decision of this case.

Author: Per Curiam

[ 262 Pa. Super. Page 30]

The six Judges who decided this appeal being equally divided the judgment is affirmed.

Opinion IN SUPPORT OF AFFIRMANCE

SPAETH, Judge:

The opinion in support of reversal is unwarranted both in law and on the facts.

-1-

In defining the legal issue presented by this case the opinion in support of reversal supposes that there are two standards of care: that of "reasonable care", and that of "extraordinary care". So supposing, the opinion asks, "By which of these two standards should the police officer's conduct here be judged?" And it answers, "By the standard of reasonable care." But there are not two standards. There is only one -- that of "reasonable care." And of course the police officer's conduct is to be judged by that standard. The question is, What does "reasonable care" mean ?

By itself, "reasonable care" is so abstract, so absolute, a term as to be meaningless. It must therefore always

[ 262 Pa. Super. Page 31]

    be defined in light of the particular circumstances. See Restatement of Torts (Second) ยง 283 (1965). When the circumstances include possession of a loaded firearm, the person in possession of the firearm must exercise extraordinary care not to injure or kill someone with it. In other words: In deciding whether a person in possession of a loaded firearm has exercised "reasonable care", we must ask whether the person exercised "extraordinary care"; for someone in possession of a loaded firearm, "extraordinary care" is "reasonable care."

That this is the law has long been settled. An early statement by the Supreme Court appears in Fredericks v. Atlantic Ref. Co., 282 Pa. 8, 127 A. 615 (1925):

Negligence is absence or want of care under the circumstances. A higher degree of care is required in dealing with a dangerous agency than in the ordinary affairs of life, which involve little or no risk. No absolute standard can be fixed by the law, but every reasonable precaution suggested by experience and the known danger ought to be taken: Koelsch v. Philadelphia Company, 152 Pa. 355, 362, 25 A. 522. See Shirey v. Consumers' Gas Co., 215 Pa. 399, 64 A. 541, as to the application of the rule, and Gudfelder v. Pittsburgh, Cincinnati, Chicago and St. Louis Ry. Co., 207 Pa. 629, 57 A. 70, as applying to the facts in the present case.

Id., 282 Pa. at 13-14, 127 A. at 616.

An even earlier statement, by this court, appears in Knasiak v. Rambo, 57 Pa. Super. 8, 12 (1914):

Argument is not necessary to show that loaded firearms are dangerous and that a rifle having the capacity to inflict injury at a distance of a mile or a mile and a half from the place where it is discharged is more than ordinarily dangerous. The person using such a weapon is bound to a high degree of care to prevent injuries to others. All the cases hold a strict rule of accountability for the want of extraordinary care in the use of ...


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