The opinion of the court was delivered by: Stengel, J.
On January 2, 2007, Sheriff Deputy Aaron Ogden and Sheriff Deputy Thomas Trotter attempted to arrest Jorge Luis Santini. While Mr. Santini was attempting to evade arrest, he hit Deputy Ogden with his car and Deputy Ogden landed on the hood of Mr. Santini's car. Mr. Santini refused to stop the car and Deputy Ogden fired his gun, killing Mr. Santini. Mr. Santini's fourteen-year-old nephew and two-year-old son were in the car at the time.
County of Berks, former Sheriff Barry Jozwiak, and Deputy Ogden filed a motion for summary judgment. I will grant the motion in part and deny it in part.
On January 2, 2007, Sheriff Deputy Aaron Ogden and Sheriff Deputy Thomas Trotter were charged with executing two warrants that had been issued against Jorge Luis Santini.*fn1 Mr. Santini was on probation and parole for a conviction involving the possession of firearms without a license. See Statement of Undisputed Facts at ¶ 6; Plaintiff's Response to Undisputed Facts at ¶ 6. In November, 2006, new charges were filed against him for terroristic threats, recklessly endangering another person, and disorderly conduct. Id. at ¶ 7. An arrest warrant was issued for the new charges. Id. On November 15, 2006, the Common Pleas Court issued a bench warrant. Id. at ¶ 8.
On January 2, 2007, Deputy Ogden received a telephone call from a confidential informant stating she was Mr. Santini's former girlfriend. See Statement of Undisputed Facts at ¶ 14; Plaintiff's Response to Undisputed Facts at ¶ 14. The former girlfriend advised that Mr. Santini was staying at 1142 Franklin Street, Reading, Pennsylvania and drove a green Ford vehicle. Id. at ¶ 15. The former girlfriend told Deputy Ogden that Mr. Santini may be carrying a gun. Id. at ¶ 16.
On January 2, 2007, Deputy Ogden and Deputy Trotter intended to arrest Mr. Santini on the bench warrant and arrest warrant. Id. at ¶ 17. They informed Sheriff Deputy Frederick Smith and Sheriff Deputy Michael Perotto, the other team from the sheriffs' office on duty that day, that they would need back up. Id. at ¶¶ 18, 20. The deputies' clothing was marked in lettering that identified them as law enforcement personnel. Id. at ¶ 19.
Deputy Ogden and Deputy Trotter went to the 1100 block of Franklin Street, where they observed a vehicle matching the description provided by Mr. Santini's former girlfriend. See Statement of Undisputed Facts at ¶ 24; Plaintiff's Response to Undisputed Facts at ¶ 24. The deputies parked on the 1100 block of Franklin Street and observed the house located at 1142 Franklin Street. Id. at ¶ 25. A male exited 1142 Franklin Street, smoked a cigarette, and went back inside. Id. at ¶ 26. Two males and a child then exited the residence and crossed the street, walking toward the suspect vehicle. In a report prepared following the incident, Deputy Trotter stated "he saw Santini exit the house along with another male and a child." See Plaintiff's Response at Ex. B at Ex. 2. At his deposition, however, Deputy Trotter stated he did not see the child when the three exited the home. See Plaintiff's Response at Exh. B at 12:18-24. He and Deputy Ogden now claim they did not know a child was present until after Deputy Ogden shot Mr. Santini.
The deputies drove down the street. See Statement of Undisputed Facts at ¶ 32; Plaintiff's Response to Undisputed Facts at ¶ 32. After passing the vehicle, the deputies pulled over and approached the vehicle on foot. Id. Deputy Trotter approached the driver's side, and Deputy Ogden approached the passenger's side, positioning himself off of the passenger front side of Mr. Santini's vehicle and behind the vehicle parked in front of Mr. Santini's. Id. at ¶ 35, 38. In his statement following the incident, Deputy Trotter stated "he positively identified Santini using binoculars and a J-net photo ID." See Plaintiff's Response at Exh. B at Exh. 2. At his deposition, however, Deputy Trotter stated he did not identify Mr. Santini until after Mr. Santini entered the vehicle and the deputies approached. See Plaintiff's Response at Exh. B at 21:8-13.
As the deputies approached the vehicle, Mr. Santini looked at Deputy Trotter, locked the door, and accelerated the vehicle directly at Deputy Ogden. See Statement of Undisputed Facts at ¶ 41; Plaintiff's Response to Undisputed Facts at ¶ 41. Deputy Ogden landed on the hood of Mr. Santini's car. Id. at ¶ 44. Deputy Ogden held onto the windshield wiper blade as Mr. Santini drove the vehicle up Franklin Street toward Perkiomen Avenue. Id. at ¶45. Deputy Ogden believed Mr. Santini was going to continue driving and that he would fall from the vehicle. Id. at ¶ 50. Deputy Ogden, fearing for his life, screamed three times for Mr. Santini to stop the vehicle. Id. at ¶ 47. Mr. Santini did not stop the vehicle. Id. at ¶ 48. Deputy Ogden fired his gun one time through the windshield, striking and killing Mr. Santini. Id. at ¶ 51.
The vehicle continued for another one-half block, and stopped on the sidewalk. Deputies Trotter, Smith, and Perotto approached the vehicle. See Statement of Undisputed Facts at ¶ 53; Plaintiff's Response to Undisputed Facts at ¶ 53. Deputy Trotter and a Reading Police Officer removed Mr. Santini from the vehicle and Deputy Trotter started CPR. Id. at 54. Deputy Perotto and Deputy Smith removed the front passenger seat, id. at ¶ 55, and Reading Police Officers removed Justice Santini, Mr. Santini's two-year-old son, from the back seat, id. at ¶ 58. Shamir Rodriguez, the fourteen-year-old front-seat passenger, was taken to the Reading Police Department. Id. at ¶ 59. After his mother arrived, he was interviewed. Id. at ¶¶ 60-61. The City of Reading Police Department conducted an investigation into the incident and found Deputy Ogden's use of force was justified. Id. at ¶ 65.
Sonia Pagan, administratrix of the estate of Jorge Luis Santini, initiated an action in the Berks County Court of Common Pleas, and filed a complaint on January 12, 2008. Ms. Pagan commenced a second action in the United States District Court for the Eastern District of Pennsylvania on January 2, 2009. This action was docketed at 09-00002. On February 2, 2009, the state court action was removed to the Eastern District of Pennsylvania and docketed at 09-00445. The actions were consolidated on March 12, 2009. On September 15, 2009, Jasmine Cambrelen filed an action in the Eastern District of Pennsylvania on behalf of her son, Justice Santini. This action was docketed at 09-4177. On October 20, 2009, the actions were consolidated.
Ms. Pagan alleged a Fourth Amendment claim and a Fourteenth Amendment claim against Deputy Ogden, Fourteenth Amendment claims against former Sheriff Barry Jozwiak and the County of Berks, a negligence claim against Deputy Ogden, a reckless disregard claim against Deputy Ogden, a wrongful death claim and survival action against Deputy Ogden, and wrongful death claims and survival actions against former Sheriff Jozwiak and the County of Berks.
Ms. Cambrelen alleged a Fourth Amendment claim and a Fourteenth Amendment claim against Deputy Ogden, Fourteenth Amendment claims against Sheriff Jozwiak and the County of Berks, an assault claim against Deputy Ogden, a reckless disregard claim against Deputy Ogden, a battery claim against Deputy Ogden, and an intentional infliction of emotional distress claim against Deputy Ogden.
Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with 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). An issue is "genuine" when a reasonable jury could return a verdict for the non-moving party based on the evidence in the record. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A factual dispute is "material" when it could affect the outcome of the case under the governing law. Id.
A party seeking summary judgment initially bears responsibility for informing the court of the basis for its motion and identifying those portions of the record that it believes demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Where the non-moving party bears the burden of proof on a particular issue at trial, the moving party's initial Celotex burden can be met simply by demonstrating "to the district court that there is an absence of evidence to support the non-moving party's case." Celotex, 477 U.S. at 325. After the moving party has met its initial burden, "the adverse party's response, by affidavits or otherwise as provided in this rule, must set forth specific facts showing that there is a genuine issue for trial." FED. R. CIV. P. 56(e). Summary judgment is therefore appropriate when the non-moving party fails to rebut by making a factual showing that is "sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322.
Under Rule 56 of the Federal Rules of Civil Procedure, the court must view the evidence in the record in the light most favorable to the non-moving party and draw all reasonable inferences in favor of that party. Anderson, 477 U.S. at 255. The court must decide not whether the evidence unmistakably favors one side or the other, but whether a fair-minded jury could return a verdict for the plaintiff on the evidence presented. Id. at 252. If the non-moving party has produced more than a "mere scintilla of evidence" demonstrating a genuine issue of material fact, then the court may not credit the moving party's version of events against the opponent, even if the quantity of the moving party's evidence far outweighs that of its opponent. Big Apple BMW, Inc. v. BMW of N. Am., Inc., 974 F.2d 1358, 1363 (3d Cir. 1992).
A. Fourth Amendment Claim
1. Excessive Force Against Mr. Santini
Ms. Pagan alleges a Fourth Amendment claim on behalf of the estate of Jorge Luis Santini. The Fourth Amendment is applied to the states through the Fourteenth Amendment. See O'Connor v. Ortega, 480 U.S. 709, 714 (1987). To state a Fourth Amendment excessive force claim, the plaintiff must establish "a 'seizure' occurred and that it was unreasonable." Kopec v. Tate, 361 F.3d 772, 776 (3d Cir. 2004) (citing Estate of Smith v. Marasco, 318 F.3d 497, 515 (3d Cir. 2003)). Defendants do not contest a seizure occurred; they maintain the seizure was reasonable.
"The test for reasonableness under the Fourth Amendment is whether, under the totality of the circumstances, 'the officers' actions are objectively reasonable in light of the facts and circumstances confronting them, without regard to their underlying intent or motivations.'" Kopec, 361 F.3d at 776 (quoting Graham v. Connor, 490 U.S. 386, 397 (1989)). The following are among the factors considered to determine reasonableness:
The severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, . . . whether he actively is resisting arrest or attempting to evade arrest by flight[,] . . . the possibility that the persons subject to the police action are violent or dangerous, the duration of the action, whether the action takes place in the context of effecting an arrest, the possibility that ...