The opinion of the court was delivered by: James F. McClure, Jr. United States District Judge
Plaintiffs Grace Jiminez, administratrix of the estate of Salvador Peter Serrano, and Brooke E. Morgan, Serrano's fiancée, initiated this action by filing a complaint on August 25, 2004. An amended complaint was filed on October 4, 2004. Plaintiffs filed a second amended complaint on August 11, 2005. The second amended complaint added defendant Associated Property Management Inc., d/b/a Associated Realty Property Management ("ARPM") to the previously named defendants.
On September 27, 2005, we granted plaintiffs' motion to dismiss defendant Bluebird Entertainment Enterprise, d/b/a The Dark Horse, and dismissed all claims and cross-claims against Bluebird Entertainment Enterprise.
On May 2, 2006, we granted plaintiffs' unopposed motion for settlement and dismissed all claims against defendants Phyllis H. Gentzel, d/b/a The Gentzel Corporation and Associated Property Management, d/b/a Associated Realty Property Management.
Now before the court is defendant Borough of State College ("State College") d/b/a State College Police Department's ("SCPD's") motion for summary judgment. For the following reasons we will grant State College's motion and enter judgment in favor of defendant Borough of State College and against the plaintiffs as to counts I, II, and XI.
It is appropriate for a court to grant a motion for 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). "If the nonmoving party has the burden of persuasion at trial, 'the party moving for summary judgment may meet its burden by showing that the evidentiary materials of record, if reduced to admissible evidence, would be insufficient to carry the non-movant's burden of proof at trial.'" Jalil v. Avdel Corp., 873 F.2d 701, 706 (3d Cir. 1989) (quoting Chippolini v. Spencer Gifts, Inc., 814 F.2d 893, 896 (3d. Cir. 1987)); see also Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
In evaluating a motion for summary judgment the court will draw all reasonable inferences from the evidence in the record in favor of the nonmoving party. Am. Flint Glass Workers Union v. Beaumont Glass Co., 62 F.3d 574, 578 (3d Cir. 1995). The nonmoving party, however, cannot defeat a motion for summary judgment by merely offering general denials, vague allegations, or conclusory statements; rather the party must point to specific evidence in the record that creates a genuine issue as to a material fact. See Celotex, 477 U.S. at 32; Ridgewood Bd. of Educ. v. N.E. ex rel. M.E., 172 F.3d 238, 252 (3d Cir. 1999).
This suit arises out of the death of Salvador Peter Serrano on the early morning of October 26, 2003. Serrano died after an altercation with security for the Rathskeller Bar. At the time of his death, Serrano was a student at Pennsylvania State University. On October 26, 2003, Serrano along with plaintiff Morgan, Timothy Padalino, and Alison Bresnahan were walking down Calder Way, an alleyway near the Rathskeller. At around 1:30 a.m., Padalino stopped in a parking lot near the rear of the Rathskeller to publicly urinate.
The plaintiffs claim that the incident was ignited when an unidentified Rathskeller employee patrolling the parking lot and Calder Way area behind the Rathskeller observed Padalino urinating and violently took him to the ground. The deposition testimony of defendants Jason and Chris Rosengrant indicate that they believe a subcontracted sound technician named Ben Hagan informed them that there was a fight occurring behind the bar. (Rec. Doc. No. 106-2, at 33 & Rec Doc. No. 106-2, at 33.) As a result, several employees of the Rathskeller confronted a group of people, among them, Serrano, Morgan, Padalino and Bresnahan. The plaintiffs claim that these additional employees, led by Chris Rosengrant, confronted the group and detained and restrained them. After verbal and physical exchanges, Chris Rosengrant made physical contact with Serrano and pulled him to the ground.*fn1
Although the exact nature of how Serrano was restrained are in dispute, at some point in time Jason Rosengrant turned his attention to Serrano. Jason Rosengrant under deposition stated that he placed Serrano's right hand behind his back, while Serrano was on the ground and restrained him. This is inconsistent with the plaintiffs' version of events. In their version, Serrano is immediately thrown to the ground by two security employees (Jason and Chris Rosengrant) and held on the ground with Jason's knee on his back while both men conitnued to restrain him on the ground.
Officer Winkelbach of the SCPD arrived at the scene when Jason Rosengrant was on top of Serrano. He surveyed the scene and according to his deposition testimony observed that Rosengrant appeared to need help. In a matter of seconds, and without speaking to Jason, Winkelbach began to handcuff Serrano. He quickly realized that Serrano was not in any condition to resist and was essentially lifeless.
Serrano was pronounced dead by officials of Centre County. The parties do not dispute that Serrano died of asphyxia, but they do contest the cause of that asphyxia. Plaintiff's expert Dr. Michael Baden found that Serrano died of positional asphyxia under the weight of the two Rosengrant brothers. (Rec. Doc. No. 112, Ex. L, at 4.) Dr. Gordon Carl Handte, a board certified pathologist, performed an autopsy on Serrano and testified at a related criminal trial that Serrano's death was asphyxia by aspiration of vomitus.*fn2 (Rec. Doc. No. 106-5, at 121.)
Duke Gastiger, the owner of the Rathskeller, admits that his employees restrained individuals for defensive purposes, but not for "making that person unable to leave the area so that the police could determine whether any laws have been broken." (Rec. Doc. No. 106-6, at 10.) Gastiger established the Rathskeller's policy of defensive restraint and communicated it to the staff orally. (Id. at 20, 89, 153.) Gastiger admits that individuals restrained by Rathskeller employees have both been arrested by the SCPD and also have not been arrested upon the arrival of the SCPD to the scene.*fn3 Gastiger did not consult with anybody at the SCPD in connection with his restraint policy.*fn4 Gastiger testified at his deposition that Thomas King, Chief of the SCPD, did not offer any training to the tavern owners' association on the issue of self-defense or restraint.
Defendant Jason Rosengrant stated at his deposition that he was not permitted to restrain someone while waiting for the police to arrive and that he was only permitted to restrain someone to prevent the person from causing someone bodily harm. Jason Rosengrant also stated that while the SCPD had arrested individuals who had been restrained by the employees of the Rathskeller, the SCPD never offered any training to Jason or Chris Rosengrant on how to restrain people who were intoxicated.
None of the police officers deposed, including Chief King, could identify any policy, custom, or practice whereby the employees of liquor licensees were to restrain or detain an individual for purposes of permitting the SCPD to arrive on the scene and effect an arrest. The SCPD did not have a written or official policy sanctioned by Chief King to have liquor licensees hold or restrain people in order for the police to make an arrest. (Rec. Doc. No. 106-7, King's Dep., at 32.) And testimony from the depositions consistently indicated that the SCPD never instructed Rathskeller employees or liquor licensees to hold or restrain individuals.*fn5
(Rec. Doc. No. 106-7, King's Dep., at 35-36 & 39; Rec. Doc. No. 106-8, Robb's Dep., at 8; Rec. Doc. No. 106-9, Fishel's Dep., at 14.) The deposition testimony of the police officers indicated that they informed bar employees to consult with the owner of the establishment, an attorney, or the district attorney on when or how to restrain someone. (Rec. Doc. No. 106-7, King's Dep., at 13 ("Our practice has always been, before this and after, is that they seek the advice of their corporate attorney since we aren't in a position to give legal advice. . . . I would refer people to the corporate attorney or the district attorney who, in some cases, might be able to answer questions for them."); Rec. Doc. No. 106-8, Robb's Dep., at 3-4 ("I would tell them to refer it to their owners and their attorneys, that we can't give that advice."); Rec. Doc. No. 106-9, Fishel's Dep., at 14, 21 ("[C]onsult their attorney.")) The ...