Appeal from Commonwealth Court Order No. 2664 C.D. 1994 entered September 8, 1995, reversing Philadelphia County Court of Common Pleas Order No. 2145 of 1994 entered September 16, 1994.
Before: Flaherty, C.j., And Zappala, Cappy, Castille And Nigro, JJ. Madame Justice Newman did not participate in the consideration or decision of this case. Mr. Justice Cappy files a Concurring opinion. Mr. Justice Castille files a Dissenting opinion in which Mr. Justice Zappala joins.
The opinion of the court was delivered by: Nigro
OPINION ANNOUNCING JUDGMENT OF THE COURT
Kent Jones was injured and his wife was killed when a car being pursued by the police collided with his car. Jones sued the City of Philadelphia, Officer Charles Chieffo, Commissioner Willie Williams and Philadelphia Mayor Wilson Goode (Appellants) to recover wrongful death and survival damages and damages for his own injuries.
The trial court granted Appellants' motion for summary judgment and held that the fleeing driver's criminal acts relieved them of liability as a matter of law. The Commonwealth Court reversed in a 4-3 decision and held that a jury must decide Appellants' liability. We affirm.
On November 12, 1989 at about 2:00 a.m., Officer Chieffo saw three cars in a row disregard a stop sign and then a red light. Officer Chieffo began to follow them. He heard a gunshot and saw the flash of a shot fired from the second car towards the first car. Officer Chieffo activated his dome lights. He tried to activate his siren but it did not work. Officer Chieffo alerted his supervisor of a pursuit and chased the cars for about 13 blocks. He saw the flash of a second shot. Officer Chieffo lost sight of the first car but followed the second and third cars. When the cars ran another red light, the third car collided with Kent Jones' car. Officer Chieffo, with the help of another police officer, chased the third car's driver on foot and apprehended him.
Jones testified at his deposition that as he entered the intersection, he saw a car without headlights and then saw a police car about 15 to 20 feet behind it with flashing lights. Jones estimated that the cars were travelling 70 to 80 miles per hour. Jones applied his brakes but could not avoid the car. The driver did not try to slow down and struck Jones' car.
A Philadelphia Police Department directive requires that officers report pursuits to a supervisor by radio. Upon receipt of a report, the supervisor evaluates the circumstances, determines if the pursuit should continue, and radios a decision to the pursuing officer. The directive requires that officers in pursuit operate their emergency equipment at all times. Police Captain Thomas Doyle testified at his deposition that Officer Chieffo should not have pursued the car because his car did not have a working siren. He believed that a supervisor should have terminated the pursuit.
The parties dispute whether Officer Chieffo terminated the pursuit before the accident. They stipulated for the purpose of summary judgment, however, that if the police car had a working siren, Jones would have heard it and avoided the accident. They also stipulated that the Police Department knew that a number of cars that could be involved in pursuits did not have working sirens. Appellants moved for summary judgment based upon governmental immunity. They claimed that the Political Subdivision Tort Claims Act, 42 Pa. Cons. Stat. § 8541 (1982), precludes holding them liable for the criminal or negligent acts of the fleeing driver. *fn1
Relying upon our decision in Dickens v. Horner, 531 Pa. 127, 611 A.2d 693 (1992), the trial court held that Appellants are not liable for the fleeing driver's acts. The Commonwealth Court, however, found our decisions in Crowell v. City of Philadelphia, 531 Pa. 400, 613 A.2d 1178 (1992), and Powell v. Drumheller, 539 Pa. 484, 653 A.2d 619 (1995), controlling. The Commonwealth Court held that a jury must decide whether Appellants' negligence was a substantial factor causing Jones' harm and whether the driver's act was a superseding cause precluding governmental liability. Having granted Appellants' Petition for Allowance of Appeal, we conclude that the Commonwealth Court properly held that Appellants are not immune from liability. *fn2
In Crowell v. City of Philadelphia, 531 Pa. 400, 613 A.2d 1178 (1992), a drunk driver followed a sign with an arrow that directed traffic to turn. The arrow was wrongly placed and the driver crossed into another lane of traffic and struck a family's car. The family sued the driver and the municipality for negligence. A jury found them both negligent. Although the municipality claimed on appeal that it was immune from liability under section 8541 of the Political Subdivision Tort Claims Act, this Court disagreed. 531 Pa. at 410-13, 613 A.2d at 1183-85. It explained that a municipality cannot be vicariously liable for a third party's harmful acts under section 8541 of the Act. Id. However, a municipality can be liable despite the presence of a third party if it is jointly negligent. Id. Thus, the municipality was liable for its own negligent act of misplacing the sign.
Here, Jones alleges in part that Officer Chieffo negligently pursued the car without a working siren and that his supervisor negligently failed to terminate the pursuit. He also contends that the municipality negligently failed to maintain the vehicles. Like in Crowell, a jury could find that Appellants are jointly liable with the driver and that their own negligence was a substantial factor causing Jones' injuries.
The Conclusion that Appellants are not immune from liability is further supported by Powell v. Drumheller, 539 Pa. 484, 653 A.2d 619 (1995). In Powell, a decedent's estate sued a drunk driver and the Commonwealth following a car accident. The estate alleged that the Commonwealth negligently designed the road where the accident occurred. Relying upon Crowell, the Court held that the Commonwealth was not immune from liability. 539 Pa. at 492-93, 653 A.2d at 622-23. Because a jury could find that the Commonwealth's actions were a substantial factor causing the harm, the fact that the drunk driver was also a cause, did not relieve the Commonwealth of liability. Id. The Court rejected the Commonwealth's argument that the driver's criminal negligence was a superseding cause ...