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KING v. WARE

October 6, 1981

Mildred B. KING, Administratrix of the Estate of John L. Walsh, Jr., Plaintiff,
v.
Thomas R. WARE, an individual, and The City of Pittsburgh, a municipal corporation, Defendants



The opinion of the court was delivered by: DIAMOND

MEMORANDUM OPINION

The plaintiff brought this action to recover damages for the fatal shooting of John L. Walsh, Jr., by defendant, Thomas R. Ware. The complaint alleges that Ware was acting under color of state law and pursuant to the custom and/or official policy of the police department of the defendant City in violation of Walsh's civil rights under 42 U.S.C. § 1983 *fn1" when the fatal shooting occurred.

 Presently before the court are motions for summary judgment filed by the City and Ware asserting that there is no genuine issue as to any material fact and that each is entitled to judgment as a matter of law. For the reasons set forth below, the motion of the City will be granted and the motion of Ware will be denied.

 BACKGROUND

 The material facts as to which there is no genuine issue which give rise to this action, viewed favorably to the non-moving plaintiff, are as follows.

 In the early morning hours of August 31, 1978, the decedent and several others, all of the white race, were passengers in an automobile driven by one Don Medgus, also white. They were driving through the so-called Hill District of the City of Pittsburgh and were proceeding on Wylie Avenue toward the downtown area. At approximately 2:00 a.m. they stopped at a car parked along Wylie Avenue to ask the occupant, the defendant Thomas R. Ware, for directions. Ware, an acting sergeant of the City of Pittsburgh police, had gone to the Wylie Avenue area when he went off duty sometime after 5:00 p.m. the previous evening.

 As decedent's auto pulled along side Ware's car, someone in the Walsh vehicle asked where beer could be purchased. Ware said something to the effect "What are you doing up here in the Hill District; what are you whities doing up here." He then drew a gun and fired one shot which struck Walsh in the head, causing his death.

 At no time during the incident in question did Ware identify himself as a city policeman. He was not on duty although he was on twenty-four hour supervisory call. He was not in uniform and did not display a badge, but he was not required to be in a uniform even when on duty. The service revolver from which he fired the fatal shot was issued to him by the City. The vehicle which he occupied, although unmarked, was owned by the City, however, he did not have to sign for the car or give an account for mileage or use. When he confronted Walsh and his companions, Ware's appearance was not that of a police officer but rather of a private citizen, and it was not until after the shooting that decedent's companions learned of Ware's occupation.

 DISCUSSION

 A. The Motion of the City

 In considering the City's motion for summary judgment, we look to the case of Monell v. Department of Social Services, 436 U.S. 658, 98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978). In Monell, it was held that a municipal governmental entity cannot be held responsible on the basis of respondeat superior under § 1983 solely because it employs a tortfeasor. It is only where the injury complained of results from the implementation or execution of the policy or custom of the governmental body that it is subject to § 1983 liability. Id.

 In the present case, the plaintiff asserts two theories of an official policy or custom of the City of Pittsburgh as foundation for her claim of municipal liability for the death of Walsh. First, she claims that the City was negligent in promoting, training and supervising Ware. Under this theory, municipal liability is not based upon respondeat superior. Instead, the City, as a municipal body, is allegedly "directly" liable under § 1983. The plaintiff asserts that since a municipality can only act directly through its supervisory officials the negligent execution of the responsibilities of those officials constitutes an official custom or de facto policy actionable under § 1983. See Popow v. City of Margate, 476 F. Supp. 1237, 1246-1247 (D.N.J.1979); see also, Bell v. City of Philadelphia, 511 F. Supp. 1156 (E.D.Pa.1981).

 The questions of whether a municipal governmental entity can be directly liable under § 1983 for negligent supervision and the degree of negligence sufficient to establish such liability have been considered by several federal courts with varying results. See Leite v. City of Providence, 463 F. Supp. 585, 589 n. 3 (D.R.I.1978). To date, the United States Supreme Court has not resolved the question of whether negligence can be a predicate for such § 1983 liability. See Parrett v. Taylor, 451 U.S. 527, 101 S. Ct. 1908, 68 L. Ed. 2d 420 (1981); Procunier v. Navarette, 434 U.S. 555, 566 n. 14, 98 S. Ct. 855, 862 n. 14, 55 L. Ed. 2d 24 (1978). However, the Third Circuit has held that an allegation of ...


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