The opinion of the court was delivered by: Golden, J.
MEMORANDUM OPINION AND ORDER
On May 30, 2007, two patrol cars from the Allentown, Pennsylvania Police Department collided with each other in an intersection in Allentown while responding to an emergency call. As a result of the collision, a four year old pedestrian bystander was killed and an adult pedestrian bystander was seriously injured.
On October 17, 2007, Plaintiff Crystal LeGrand ("LeGrand") filed a civil rights action in her own behalf and as Administratrix of the Estate of Davaiay LeGrand, and as parent and natural guardian of Shianti LeGrand and Nijaire LeGrand, minors, against the Allentown Police Department (the "Police Department"), the City of Allentown (the "City"), Police Officer Brett M. Guth ("Guth"), the driver of one of the patrol cars, and Police Officer John C. Buckwalter ("Buckwalter"), the driver of the other patrol car. In Counts One and Two, LeGrand, individually and as Administratrix of the Estate of Davaiay Legrand, claims Guth and Buckwalter, respectively, violated her substantive due process rights under the Fourteenth Amendment. Count Three asserts a Monell*fn1 claim against the City and the Police Department. Counts Four and Five assert state law negligence claims against Guth and Buckwalter, respectively. Count Seven*fn2 asserts a claim for negligent infliction of emotional distress against all defendants. In Counts Eight and Nine, Minor-Plaintiffs Shianti LeGrand and Nijaire LeGrand assert claims for negligent infliction of emotional distress against all defendants. On November 15, 2007, the Police Department, the City and Buckwalter filed a Joint Motion to Dismiss the Complaint in its entirety. Guth filed a separate Motion to Dismiss on November 28, 2007.
On March 19, 2008, the Court entered an Order granting in part and denying in part the Motions to Dismiss. Specifically, the Court dismissed the claims against the Police Department in Count III, and the claims against Buckwalter and Guth in their official capacities in Counts I, II, IV, V, VII, VIII and IX. The Court denied the remainder of the Motions with leave to renew in the form of a motion for summary judgment after discovery was completed.
Meanwhile, Plaintiff Jason Marcelle ("Marcelle") filed a separate civil rights suit on October 18, 2007, against the Police Department, the City, Guth and Buckwalter. In Counts One and Two, Marcelle claims that Guth and Buckwalter, respectively violated his substantive due process rights under the Fourteenth Amendment. Count Three asserts a Monell claim against the City and the Police Department. Counts Four and Five assert state law negligence claims against Guth and Buckwalter, respectively. On November 15, 2007, the Police Department, the City and Buckwalter filed a Joint Motion to Dismiss Marcelle's Complaint in its entirety. On December 18, 2007, Guth filed a separate Motion to Dismiss.
On March 19, 2008, the Court entered an Order granting in part and denying in part the Motion to Dismiss of the Police Department, the City and Buckwalter. Specifically, the Court dismissed the claims against the Police Department in Count III, dismissed all claims for punitive damages against the municipal Defendants, and dismissed the claims against Buckwalter and Guth in their official capacities in Counts I, II, IV and V. The Court denied the remainder of the Motions with leave to renew in the form of a motion for summary judgment after discovery is completed.
On April 29, 2008, by Stipulation and Order, the LeGrand and Marcelle actions were consolidated under the caption of Jason Marcelle, et al. v. City of Allentown, et al., No. 07-4376, for purposes of discovery and trial. Presently before the Court is the Joint Motion of the City and Buckwalter for Summary Judgment and a Motion for Summary Judgment by Guth. For the reasons that follow, Guth's Motion is granted and the City and Buckwalter's Motion is granted in part and denied in part.
Summary judgment is proper when "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 judgment as a matter of law." Fed.R.Civ.P. 56(c); see also Daldan v.Kmart Corp., 260 F.3d 228, 231-32 (3d Cir. 2001)(quoting Armbruster v. Unisus Corp., 32 F.3d 768, 777 (3d Cir. 1994) (Internal quotation omitted)). A factual dispute is "material" if it might affect the outcome of the suit under the applicable law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A factual dispute is "genuine" only if there is a sufficient evidentiary basis which would allow a reasonable fact-finder to return a verdict for the non-moving party. Id. at 249. The Court must resolve all doubts as to the existence of a genuine issue of material fact in favor of the non-moving party. Gans v. Mundy, 762 F.2d 338, 341 (3d Cir. 1985).
Once the moving party has shown that there is an absence of evidence to support the claims of the non-moving party, the non-moving party may not simply sit back and rest on the allegations in the complaint. See Celotex Corp.v. Catrett, 477 U.S. 317, 324 (1986). Instead, they must "go beyond the pleadings and by their own affidavits, or by the depositions, answers to interrogatories, and admissions on file, and designate specific facts showing that there is a genuine issue for trial." Id. (Internal quotations omitted). Summary judgment should be granted where a party "fails to make a showing sufficient to establish the existence of an element essential to that party's case and on which that party will bear the burden at trial." Celotex, 477 U.S. at 322-23.
The May 30, 2007 Accident
On May 30, 2007, at approximately 8:30 p.m., Guth was in his patrol car patrolling north on Jute Street in Allentown. See Preliminary Expert Report of Plaintiff's expert on Police policies, customs and practices, Geoffrey P. Alpert ("Alpert"). At 8:35 p.m., Guth heard an alarm tone over his police radio alerting him to an emergency call of a man with a gun who was reportedly threatening people in the parking lot at the Grand Hotel located at Tenth and Linden Streets. Alpert Rep. at 5; Guth Dep. at 107, 112, 114. Guth and four other Allentown police officers were dispatched to handle the call. Alpert Rep. at 5; Guth Dep. at 108-110, 114. Although they were not expressly dispatched, additional officers, including Buckwalter, responded to the call due to its urgent nature. Alpert Rep. at 5; Buckwalter Dep. at 10.
After receiving the call, Guth activated the emergency lights and siren on his patrol car. Guth Dep. at 115. He then proceeded west onto Gordon Street and turned south on Seventh Street because it was a large artery containing three lanes. Alpert Rep. at 5; Guth Dep. at 115. In making the turn from Gordon onto Seventh Street, Guth slowed down and went through a red light. Guth Dep. at 136, 285.
When Guth turned onto Seventh Street, there were no impediments for him to see the light at the intersection one block ahead at Chew Street. Guth Dep. at 288. Guth was also aware that: 1) other vehicles, including police vehicles, could be crossing the intersection at Seventh and Chew Streets as he approached: 2) the area of the collision was highly populated with significant pedestrian traffic; and 3) there was a specific risk of injuries or death to pedestrians posed by responding to this call. Guth Dep. at 288-89, 292-93, 340-41.
As Guth was driving southbound on Seventh Street, approaching the intersection with Chew Street, he momentarily looked down at his mobile data terminal (MDT) to verify whether the address of the call was 046 Linden Street or 406 Linden Street, and also to make sure he was going in the right direction. Alpert Rep, at 5-6; Guth Dep. at 116, 119. The MDT in Guth's patrol car that day was a fixed screen with a separate keyboard. Guth Dep, at 319. When he looked back up, he saw that the light which controlled his travel at the intersection of Seventh and Chew Streets was red. Alpert Rep. at 6; Guth Dep. at 116.
At that instant, he observed another car proceeding westbound on Chew Street, which was driven by Buckwalter, with emergency lights and siren activated, crossing his path. Id. The light which controlled Buckwalter's travel was green. Id. Guth tried to brake and swerve, but it was too late and he crashed into Buckwalter's patrol car. Id. Guth's speed at impact was estimated at between 31 and 34 mph. Alpert Rep. at 6 (speed estimate of between 31 and 32 mph); Report of Steven Schorr ("Schorr"), Plaintiffs' accident reconstructionist (speed estimate of 34 mph); Guth Dep. at 117-118 (31 mph at impact); State Police Investigation Report,1 para. 4 (Unit 1, Guth vehicle traveling at approximately 31 mph at impact). The speed limit on Seventh Street is 30 mph. Schorr Rep. at 1.
The crash caused Buckwalter's car to spin through the intersection and onto the sidewalk where it struck Marcelle and LeGrand's decedent. Schorr Rep. at 4. Neither the air bag in Guth's squad car nor the air bag in Buckwalter's squad car deployed. Guth Dep. at 428; Buckwalter Dep. at 76.
The subject of the emergency call was not apprehended at the scene, but was arrested several days later. However, officers responding to the call did recover a Remington 12 Gauge Shot wrapped in a sheet and abandoned behind a garbage can near 10th and Linden Streets.
The City determined that Guth was at fault for the collision. Guth was subsequently dismissed from the Allentown Police Force. Exhibit 8 to LeGrand's Response in Opposition to the City and Buckwalter's Motion for Summary Judgment. In confirming the decision to fire Guth, the Allentown City Council made the following finding:
Guth should have been acutely aware of the inherent dangers involved in driving on 7th Street, a major thoroughfare in a densely populated neighborhood, with traffic lights governing the flow of traffic at each intersection. Nevertheless, Guth chose to look down at his MDT mid block, taking his eyes of [sic] the roadway and the upcoming intersection long enough to miss the steady red light at the intersection of 7th and Chew Streets. Guth failed to ascertain the status of the traffic signal until immediately before the intersection, giving him insufficient time to stop his patrol vehicle in order to avoid hitting Buckwalter's patrol vehicle, which was lawfully within the intersection.
It is undisputed that as of May 30, 2007, the Mayor of the City was authorized to set or adopt policies for all departments, and the Chief of Police, Roger MacLean ("MacLean"), was responsible for implementing these policies within the Police Department. Apart from the Mayor, the Chief of Police was the only person authorized to set or adopt policies for the Allentown Police Department. Further, a majority of the Allentown City Council, acting in their legislative capacity, could adopt ordinances or other legislative enactments which could set or adopt policies for the City, including the Police Department.
On May 30, 2007, the City had in place a Policy Manual which had been adopted on or about January 19, 2005. Affidavit of Assistant Police Chief David Howells, Jr. at ¶ 4. The Policy Manual includes General Order 5-1, which provides policies and procedures for responding in a police vehicle to routine and emergency calls and provides rules for driving a police vehicle, and also includes rules for police vehicle pursuits. Howells Affidavit at ¶ 14.
Section 5.1.02 of General Order 5-1 requires all Department personnel to exercise due regard for the safety of all persons while operating Department vehicles. While Section 3105 of the Pennsylvania Vehicle Code does not require a stop at a red light under emergency circumstances, General Order 5-1 provided that officers were supposed to stop, and Allentown police officers were supposed to follow the more restrictive General Order. Deposition of Assistant Police Chief David Howells, Jr. at 71, 73; Deposition of Assistant Police Chief Ronald Manescu at 9-10.
Guth testified that during an emergency situation, he believed he was allowed to go through a red light only when proceeding with caution and slowing down. Guth Dep. at 131, 136. Buckwalter testified that during an emergency call, in order to proceed "through any kind of stop sign or any kind of traffic signal [an officer has to] either slow or come to a complete stop to make sure that there are no pedestrians or oncoming vehicle traffic." Buckwalter Dep. at 50.
The Hiring of Officer Guth
In 2005, the City offered early retirement to its senior officers because the City wanted to replace more costly senior officers with less costly junior officers. Howells Dep. at 10. A larger than anticipated group of between 40 and 50 senior police officers resigned from the force. Howells Dep. at 12. In addition, the Police Department lost some field training officers ("FTO") who trained new hires and recruits coming from the police academy. Howells Dep. at 15. As a result, it was "probably true" that the ...