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IN RE CITY OF PHILADELPHIA LITIG.

June 12, 1989

IN RE: CITY OF PHILADELPHIA LITIGATION


The opinion of the court was delivered by: POLLAK

 LOUIS H. POLLAK, UNITED STATES DISTRICT JUDGE

 I.

 Presently before the court is third-party defendant Alphonso Robbins Africa's Motion to Dismiss, or, in the alternative, Motion for Summary Judgment. In his motion, Africa contends that the City defendants' intentional "dropping [of] a bomb from a helicopter in a crowded urban environment" broke the chain of causation linking him to plaintiffs' injuries thus precluding a finding of liability against him. Africa Motion, at 6. Africa also contends that the City defendants have failed to allege any ground on which to connect him to a civil conspiracy with the City.

 I referred the motion to Magistrate William F. Hall, Jr., for the preparation of a Report and Recommendation. Magistrate Hall, finding that the City defendants' third-party complaint failed to state a claim either for contribution or indemnity, recommended that Africa's motion be granted. The City defendants subsequently filed objections to the Report.

 II.

 Plaintiffs, residents and owners of properties that were damaged or destroyed in the MOVE confrontation on May 13, 1985, brought suit against several City defendants for their role in the confrontation. On February 26, 1986, the City defendants filed a Third-Party Complaint against several MOVE members, including Alphonso Robbins Africa, seeking indemnity and/or contribution. *fn1" The City defendants' third-party complaint against Alphonso Africa rests in large part on statements Africa made in the course of his criminal trial in the Court of Common Pleas of Philadelphia County on May 7, 1985, six days prior to the MOVE confrontation. *fn2"

 III.

 The legal standards governing Africa's motion require this court to read the City's third-party complaint generously and to resolve doubts regarding the factual record in favor of the nonmoving party. See, e.g., Labov v. Lalley, 809 F.2d 220 (3d Cir. 1987) (pleadings afforded all reasonable inferences in motion to dismiss); Lang v. New York Life Insurance Co., 721 F.2d 118, 119 (3d Cir. 1983) (on motion for summary judgment, evidence should be viewed in light most favorable to nonmoving party).

 Africa's first argument in his present motion -- that his liability, if any, is superseded by the City's actions -- rests on Restatement (Second) of Torts, section 448. Section 448 provides:

 
Intentionally Tortious or Criminal Acts Done Under Opportunity Afforded by Actor's Negligence
 
The act of a third person in committing an intentional tort or crime is a superseding cause of harm to another resulting therefrom, although the actor's negligent conduct created a situation which afforded an opportunity to the third person to commit such a tort or crime, unless the actor at the time of his negligent conduct realized or should have realized the likelihood that such a situation might be created, and that a third person might avail himself of the opportunity to commit such a tort or crime.

 According to Africa, the City's decision to drop an explosive device on the MOVE residence, and the City's subsequent failure to contain the fire, constituted intentional torts or crimes. Moreover, he argues that those actions cannot plausibly be viewed as reasonably foreseeable consequences of his own actions. Thus, Africa contends that ...


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