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GLADYS CALDWELL v. CITY PHILADELPHIA. GLADYS CALDWELL V. CITY PHILADELPHIA (10/03/86)

filed: October 3, 1986.

GLADYS CALDWELL, APPELLANT,
v.
CITY OF PHILADELPHIA. GLADYS CALDWELL V. CITY OF PHILADELPHIA, APPELLANT



Appeal from the Order entered March 4, 1985 in the Court of Common Pleas of Philadelphia County, Civil Division, at No. 756 February 1977.

COUNSEL

Barbara Axelrod, Deputy City Solicitor, Philadelphia, for appellant in No. 924 and for appellee in No. 923.

Cary L. Sandler, Philadelphia, for appellant in No. 923 and for appellee in No. 924.

Cavanaugh, Wickersham and Hoffman, JJ. Hoffman, J., files a dissenting opinion.

Author: Cavanaugh

[ 358 Pa. Super. Page 409]

The trial of this case resulted in a $175,000.00 verdict for the plaintiff, Gladys Caldwell (hereinafter, "Caldwell"). Caldwell alleged that the City, acting through its police officers, was liable on a theory which stemmed from the failure by the police to obtain the identity of a driver who struck her while crossing a street. Following the jury verdict, the City moved for judgment notwithstanding the verdict and for a new trial. The trial court denied the City's motion for judgment n.o.v. and granted its motion for a new trial. Both Caldwell and the City were dissatisfied with the lower court's decision and have appealed to this court. Caldwell appeals the grant of a new trial. The City's appeal argues that the trial court erred in denying its motion for judgment n.o.v. Following careful study of this matter, we vacate the award of a new trial, reverse the lower court's denial of judgment n.o.v. and enter judgment in favor of the City of Philadelphia.

We first examine the appeal from the denial of the City's claim of entitlement to judgment n.o.v. Our standard of review is clear. When reviewing whether a judgment n.o.v. should have been entered, we are bound to review all the evidence, together with all reasonable inferences, in the light most favorable to the verdict winner. Dawejko v. Jorgensen Steel Co., 290 Pa. Super. 15, 434 A.2d 106 (1981); Fahringer v. Rinehimer, 283 Pa. Super. 93, 423 A.2d 731 (1980). Viewed in this light, the evidence may be stated as follows:

On February 17, 1975 Gladys Caldwell and her friend, Charles Wiley, were struck by an automobile as they were walking across an intersection. Appellant was knocked to the ground and sustained various injuries. Wiley, who was not seriously injured, directed traffic to prevent any further injury to appellant who was lying in the street. Shortly after the accident, two police vehicles, a cruiser and a van, arrived at the scene. The two officers in the van and the sergeant who arrived in the cruiser placed appellant on a stretcher and began to lift her into the van. As they were

[ 358 Pa. Super. Page 410]

    placing her in the van, a man approached them and identified himself as the driver of the car that struck appellant. One of the police officers told the driver to "stand by" until they could get appellant on her way to the hospital. Wiley testified that he then attempted to approach the man and obtain identification from him, but was stopped by the police who told him they would take care of it. Wiley also testified that the driver had been hostile to him before the arrival of the police. The police then directed Wiley to get inside the van and accompany his companion to the hospital. By the time the van had left for the hospital, the driver had disappeared from the scene. Wiley testified that approximately fifteen to twenty minutes transpired between the time of the accident and the time the driver left the scene of the accident. He also testified that the man who said he was the driver was at the scene of the accident while the police were there for at least ten minutes.

Caldwell initiated this law suit alleging that the City, through its employees, the police officers, negligently failed to obtain the identity of the driver who struck her. She further alleged that as a result of the City's failure to properly investigate her case, she was deprived of her right to attempt to recover damages from the driver.*fn1

After Caldwell filed this action, the City filed motions for judgment on the pleadings (February 9, 1980) and a motion for summary judgment (March 9, 1982). In those motions, which the lower court denied, the City argued that there was no legally cognizable duty owed to Caldwell under

[ 358 Pa. Super. Page 411]

    which the City could be held liable in damages for her injuries. At trial, in its post-trial motions, and in this appeal, the City likewise argues that it had no duty to Caldwell.*fn2

Having reviewed the evidence, together with all reasonable inferences, in the light most favorable to the verdict winner, we must now inquire whether these facts support a cause of action. The question for us, then, is whether the trial court should have found as a matter of law that the City, acting through its police officers, had no duty to Caldwell to conduct and to exercise reasonable care in its investigation and, therefore, could not be liable in damages for Caldwell's injuries. If this be the case, then the post-trial motion court should have granted the City's motion for judgment n.o.v.

First, we note that the City has not claimed immunity from liability. The facts that give rise to the this cause of action occurred in 1975. The judicial doctrine of governmental immunity was abrogated by our supreme court in 1973. See Ayala v. Philadelphia Board of Public Education, 453 Pa. 584, 305 A.2d 877 (1973). It was partially reinstated by our legislature in the Political Subdivision

[ 358 Pa. Super. Page 412]

Tort Claims Act (Act), but not until 1978. See 42 Pa.C.S.A. §§ 8541-8564 (originally enacted as Act of 1978, November 26, 53 P.S. §§ 5311.101-803). As the accident in this case occurred in 1975, the Act is inapplicable.

Whether a municipality may be held liable for the failure of its police officers to obtain the identification of a motorist involved in an accident for the benefit of a victim is an issue of first impression in this Commonwealth. The City argues that it did not owe appellant a duty to exercise reasonable care in obtaining the driver's identification. Whether a police officer owes an individual a duty to exercise reasonable care depends, initially, on whether he is exercising a duty owed to the public at large or to an individual. Our courts have held that there is a distinction between duties that the police owe to the public at large and those to an individual. "Public" duties are usually redressed by "public" prosecutions.

[I]f the duty which the official authority imposes upon an officer is a duty to the public, then, a failure to perform it, or an inadequate or erroneous performance, must be a public not an individual injury and must be redressed, if at all, in some form of public prosecution.

Berlin v. Drexel University, 10 D & C 3rd 319, 326 (C.P.Phila Co. 1979) quoting 2 Cooley on Torts, § 300 at 385-86 (4th Ed.1932). It is clear that the police were exercising public duties in their protection and care of appellant at the accident scene.

[ 358 Pa. Super. Page 413]

In some limited instances, however, the duty to the public may become a duty to the individual if the police have a "special relationship" to the complainant that differs from that of the police to the general public. This "special relationship" may allow the police to be liable for negligent performance of their duty where otherwise liability would not exist. For example, police protection of citizens may become a private duty under special circumstances. See Melendez v. City of Philadelphia, 320 Pa. Super. 59, 64, 466 A.2d 1060, 1063 (1983); Chapman v. City of Philadelphia, 290 Pa. Super. 281, 283, 434 A.2d 753, 754 (1981); Berlin v. Page 413} Drexel University, supra at 328. See also Miller v. United States, 561 F.Supp. 1129, 1134 (E.D.Pa.1983), aff'd. sub nom appeal of Miller, 729 F.2d 1448 (3rd Cir.1984).

In Berlin the court held that a special relationship exists when "a member of the public has been exposed to a special danger . . . and the authorities have undertaken the responsibility to provide adequate protection." Berlin v. Drexel University, Id. (Emphasis added.) See also Miller v. United States, supra, at 1134; Chapman v. City of Philadelphia, supra, 290 Pa. Super. at 283, 434 A.2d at 754. In Melendez v. City of Philadelphia, supra, this court further defined a special relationship to include the following three elements: 1) police awareness of the individual's particular situation; 2) knowledge by the police of the potential for the particular harm suffered; and, 3) a voluntary assumption by the police of the protection of the individual from the precise harm. Id. 320 Pa. Super. at 64, 466 A.2d at 1063-64. Examples of such special relationships include that of the police to a prosecution witness, a police informant, and an undercover agent. Berlin v. Drexel University, Id. In Melendez, this court held that a special relationship did not exist between appellant and the police department to support his claim for damages against the City. Appellant was injured during a racial confrontation between residents of his neighborhood. He argued that, as the police department and the human relations commission had been apprised of the neighborhood's racial problems, the City owed him a special duty of protection.

We do not believe a special relationship arose between Caldwell and the police under the circumstances of this case. At no time did the police officer's activities with respect to Caldwell take on the character of a "special relationship" to enable appellant to sue in a private action. Cases using the "special relationship" analysis to impose liability have involved police protection of individuals. Not only do we believe that police protection differs significantly from police investigations, but we do not believe that the police ever voluntarily assumed to accord appellant particular

[ 358 Pa. Super. Page 414]

    benefits not accorded to the public at large. See Berlin, Id. The police adequately performed their duties toward Caldwell when they encountered her for the first time at the scene of the accident. Accordingly, we agree with the appellee that no special relationship existed between these two parties and, therefore, the police had no duty to appellant to obtain the driver's identification.

Furthermore, the police never dealt directly with Caldwell at the scene of the accident with respect to the accident's investigation. The police dealt only in a limited respect with her companion regarding the investigation when they told him they would take care of obtaining the driver's identification. The police, arriving at the scene of the accident, responded promptly and efficiently in securing Caldwell's removal to the hospital. Caldwell would have us hold that a special relationship arose for purposes of investigating her claim. We decline to so rule.

While there is no precise authority on this issue in our jurisdiction, our Supreme Court in Stupka v. Peoples Cab Company, 437 Pa. 509, 264 A.2d 373 (1970) enunciated principles which give support to our decision. In Stupka, the plaintiff passenger sued the defendant cab company for failing to obtain the identity of a driver who struck the cab causing injuries to the plaintiff. Her theory was that the cab driver owed her a duty to secure the hit-and-run driver's identification. Accordingly, she asserted that his failure to perform the duty was negligence so as to permit her to recover. Our supreme court held against plaintiff stating that the defendant had no duty to obtain sufficient information about individuals involved in traffic accidents to enable plaintiff to bring suit. The court noted that the only legal duty the defendant had to plaintiff was regarding her physical well-being: offering her assistance after she suffered injury. The court concluded its opinion stating that "An individual's financial interests can be so complex and varied that we should not require the carrier to be cognizant of them and responsible for furthering and protecting them." Id. 437 Pa. at 513, 264 A.2d at 374.

[ 358 Pa. Super. Page 415]

We believe the case under review to be similar because we hold that the police had no duty to protect the financial interests of the plaintiff under these circumstances. We further believe that the police's only duty to the plaintiff were public duties to ensure her physical well-being in expediting her trip to the hospital. Accordingly, we hold that the police had no duty to plaintiff to secure identification from the driver for purposes of plaintiff's civil claim.

Other jurisdictions have held that police are not liable for alleged negligent investigations. In Warren v. District of Columbia, 444 A.2d 1 (D.C.1981) the plaintiff was assaulted by occupants of a car that stopped behind him at a traffic light. A policeman arrived at the scene and directed the plaintiff's companion to cease his efforts to obtain the assailants' identification in order to break up the fight. The officer left the scene without obtaining identification. The plaintiff sued the District of Columbia and the police officer for failing to obtain the assailants' identification. The court held that any duty that the officer had to obtain the identification was related to his duty to the public and that there was no additional element that created a special relationship between the plaintiff and the police officer. Id. at 3-4.

In Jackson v. Heymann, 126 N.J.Super. 281, 314 A.2d 82 (Law Div.1973), the plaintiff sued the city because a police investigation failed to discover the identity of a hit and run driver who had injured her child. Id. at 282-83, 314 A.2d at 83. The New Jersey Superior Court held that the municipality did not owe the plaintiff a duty to conduct a motor vehicle accident investigation even though New Jersey law required local governments to file accident reports in connection with criminal prosecutions. Id. at 287, 314 A.2d at 85-86. The court there stated:

In compliance with the statute, police officers file their reports with the director of motor vehicles. They are utilized by the prosecutor's office in cases requiring criminal and ...


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