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FULKERSON v. CITY OF LANCASTER

August 24, 1992

THOMAS W. FULKERSON, et al. Plaintiffs,
v.
CITY OF LANCASTER, MANOR TOWNSHIP, ROSS A. DECK, and RANDY HERMAN



The opinion of the court was delivered by: BY THE COURT; FRANKLIN S. VAN ANTWERPEN

OPINION AND ORDER

 VAN ANTWERPEN, J.

 AUGUST 24, 1992

 This is a civil rights action arising out of a collision between a police car operated by Sergeant Ross A. Deck of the City of Lancaster Police Department and plaintiffs' car. Sergeant Deck and several other police officers, including defendant Randy Herman, were pursuing a fleeing motorcyclist when Deck's vehicle collided with the car in which the plaintiffs were traveling in the opposite direction. Plaintiffs suffered severe injuries in the accident, and subsequently filed this action under 42 U.S.C. §§ 1983 and 1988. *fn1"

 Plaintiffs allege that the conduct of the individual officers was so reckless that it amounted to a deprivation of the plaintiffs' constitutional right to life, liberty and property without due process of law. Plaintiffs also claim that the City of Lancaster and Manor Township, both Pennsylvania municipalities, violated the plaintiffs' constitutional rights by causing plaintiffs' injuries through the policies or customs of failing to train their officers properly, and permitting high speed chases without adequate provocation. Complaint P 24.

 Defendants have moved for summary judgment under Fed. R. Civ. P. 56.

 I. SUMMARY JUDGMENT STANDARD

 The Court shall grant summary judgment if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). The moving party bears the initial burden of identifying for the court those portions of the record which it believes demonstrate the absence of a material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 106 S. Ct. 2548, 2553, 91 L. Ed. 2d 265 (1986). An issue is "genuine" only if there is a sufficient evidentiary basis on which a reasonable jury could find for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S. Ct. 2505, 2511, 91 L. Ed. 2d 202 2 (1986) (hereinafter "Liberty Lobby"). "[A] non-moving party must adduce more than a mere scintilla of evidence in its favor, . . . and cannot simply reassert factually unsupported allegations contained in its pleadings." Williams v. Borough of West Chester, 891 F.2d 458, 460 (3d Cir. 1989) (citing Liberty Lobby, 477 U.S. at 249, 106 S. Ct. at 2510, and Celotex Corp. v. Catrett, 477 U.S. at 325, 106 S. Ct. at 2553.)

 A factual dispute is "material" only if it might affect the outcome of the suit under governing law. Liberty Lobby, 477 U.S. at 248, 106 S. Ct. at 2510. All inferences must be drawn and all doubts resolved in favor of the non-moving party. United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S. Ct. 993, 994, 8 L. Ed. 2d 176 (1962); Gans v. Mundy, 762 F.2d 338, 341 (3d Cir. 1985) cert. denied 474 U.S. 1010, 106 S. Ct. 537, 88 L. Ed. 2d 467 (1985).

 II. STATEMENT OF FACTS

 A. The Pursuit and Collision

 The following facts are essentially undisputed. Where there is some question as to the existence of a fact, we resolve the doubt in favor of plaintiffs, the non-moving party. *fn2" On April 27, 1990, in the evening, City of Lancaster Police Officer Sonia Hurdle observed a man on a motorcycle (later determined to be Wayne Richard Edwards) commit several traffic violations, including driving through a red stop light, failing to lower the visor on his helmet, and driving between lanes of traffic. Hurdle Dep. at 16-18. After Edwards nearly forced an automobile off the road, Officer Hurdle activated the emergency lights on her marked police car and began to pursue Edwards. The motorcyclist fled, driving in excess of the speed limit, weaving in and out of traffic, and driving through all red stop lights in his path. Officer Hurdle transmitted a description of the motorcyclist over the radio to her superior, Sergeant Ross Deck. She also informed Sergeant Deck that the motorcyclist had turned off his lights to avoid being seen. Deck Dep. at 62. She then lost contact with the motorcycle.

 Having monitored Officer Hurdle's radio transmissions, Sergeant Deck and Officer Peter Zipp, of the Lancaster Police Department, observed a motorcycle matching Hurdle's description traveling at a high rate of speed and they each pursued the motorcycle with their emergency lights activated. The motorcyclist continued to drive erratically, and at one point sped through a gas station, causing pedestrians to jump out of the way to avoid being run down. Deck Dep. at 83.

 Shortly after the motorcyclist sped through the gas station, Officer Randy Herman of the Manor Township Police Department joined in the pursuit, directly behind the motorcycle and in front of Sergeant Deck, with about a tenth of a mile separating Officer Herman's car from the motorcycle and Sergeant Deck's car. Deck Dep. at 84-85. Officer Herman was in a marked police car with emergency lights and sirens activated. Herman Dep. at 28. The order of travel was Edwards on the motorcycle, Officer Herman in his police cruiser, followed by Sergeant Deck, who was in turn followed by Officer Zipp.

 The pursuit proceeded through Manor Township, over mostly two-lane roads with moderate traffic. For the most part, the police officers maintained visual contact with the motorcycle, and occasionally they pulled to within two hundred feet of it, at busy intersections. Deck Dep. at 76-77, 93-95, 97. Sergeant Deck estimates that speeds in the chase varied from as slow as thirty-five to forty miles per hour to as fast as seventy to eighty miles per hour. Deck Dep. at 74-75, 99.

 Given the erratic driving of the fleeing suspect, Sergeant Deck concluded that the officers were likely to apprehend him. Deck Dep. at 82. The likelihood of apprehension, coupled with the danger to the public of allowing the suspect to continue his reckless driving, prompted Sergeant Deck to continue the pursuit outside of his primary jurisdiction. The last thing Deck remembers about the pursuit that day is following the motorcycle down the New Danville Pike toward the intersection with Long Lane, travelling at about sixty miles per hour in a 35-40 mile per hour zone.

 While Sergeant Deck does not recall the events immediately before and during the collision, other evidence indicates that his vehicle crossed the center line of the road a short distance beyond Long Lane, while negotiating an unmarked curve, and struck the plaintiffs' car in the opposing lane of traffic. Mowday Dep. at 60 and attached Police Accident Report. The accident took place in Pequea Township.

 Officer Herman first learned of the accident through a radio transmission from another police officer. Herman Dep. at 23. He did not see the accident take place, and does not know how far ahead of Deck's vehicle he was at the time. Id. at 37.

 The fleeing suspect, Wayne Edwards, was apprehended after the collision, and was charged with recklessly endangering another person, a second degree misdemeanor; reckless driving; fleeing a police officer; and several traffic offenses. See Hurdle Dep., Exhibit 1.

 B. Municipal Pursuit Policies

 The City of Lancaster had a written pursuit policy, promulgated by its chief of police, in effect at the time of the collision. The policy gave the individual officers of the department the discretion to commence or terminate a pursuit after weighing certain factors. See Lefever Dep., Exhibit 1. The street supervisor or officer in charge at the time also had the authority under the written policy to terminate a pursuit. The policy required officers to consider the following factors:

 1. The type of violation ...


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