The opinion of the court was delivered by: Surrick, J.
Presently before the Court is Defendants Ridley Township, Police Officer Michael A. Bongiorno and Police Officer Gerald Scanlan's Motion for Summary Judgment. (Defs.' Mot. Summ. J., ECF No. 65.) For the following reasons, the Motion is granted.
Plaintiff Steven Jewell filed this lawsuit to recover for permanent
injuries that he sustained as a result of an automobile accident that
took place on the evening of April 29, 2009 in Ridley Township,
Delaware County, Pennsylvania. (Am. Compl. ¶ 21, ECF No. 38.)
Plaintiff was a passenger in a car that collided with another car
driven by Robert M. Smith, Jr. (Id. at ¶¶ 43-44.) Smith, whose license
had been suspended, was driving under the influence of alcohol, and
was being pursued by two Ridley Township police officers, Defendants
Gerald Scanlan and Michael Bongiorno, after he refused to stop his car
for the officers. (Smith Dep. Ex. 2.) Smith had a blood alcohol level
of .228, well above the legal limit. (Am. Compl. ¶ 22.)*fn1
Smith was later charged with and entered pleas of guilty to driving under the
influence, aggravated assault by vehicle while driving under the
influence, fleeing or attempting to elude a police officer, failure to
stop at a red signal, driving without lights to avoid identification
or arrest, and reckless driving. (Am. Compl. ¶ 46.) He is presently
serving a prison sentence of not less than three years and eight
months nor more than fourteen and a half years. (Smith Dep. 11:4-11 &
Ex. 3; Defs.' Mem. Ex. I, ECF No. 65.)
That evening at around 10:45 p.m., the Ridley Township Police Department received a tip from Smith's neighbor that Smith had thrown a beer bottle into his neighbor's yard, appeared to be "highly intoxicated," and had left his home driving a light blue-colored Hyundai Santa Fe. (Am. Compl. ¶ 27; Bongiorno Dep. 82:12-21, 90:5-14; Scanlan Dep. 32:16-33:16; Smith Dep. Ex. 2.) Bongiorno and Scanlan drove in separate vehicles to the street where Smith lived to investigate the tip. (Bongiorno Dep. 82:7-21; Scanlan Dep. 34:8-20, 38:21-39:5.) The officers knew Smith and were aware of the fact that Smith's driving privileges had been suspended. (Am. Compl. ¶ 24; Bongiorno Dep. 91:10-23; Scanlan Dep. 13:21-24, 32:1-12.) Bongiorno was the Corporal in charge of the streets that evening because Sergeant Crooks had the evening off. (Howley Dep. 30:14-19.) After confirming that Smith was not home, Scanlan and Bongiorno parked their vehicles next to each other at the bottom of Smith's street, Ridley Avenue, when they saw a car turn onto Ridley Avenue with only the parking lights turned on. (Bongiorno Dep. 93:19-94:1; Scanlan Dep. 38:21-39:5, 42:3-12.) When the car approached the two officers, the driver turned off the parking lights and proceeded past the officers. (Bongiorno Dep. 97:7-21, 100:18-102:8; Scanlan Dep. 42:3-22.) At that moment, Bongiorno recognized that the driver of the vehicle was Smith and that he was driving a light blue-colored Hyundai Santa Fe. (Bongiorno Dep. 70:20-71:8, 98:6-11.)
Bongiorno activated the emergency lights on his vehicle and followed behind Smith in an attempt to pull him over.*fn2 (Bongiorno Dep. 98:12-21; Scanlan Dep. 44:9-14; Smith Dep. 65:19 25.) Scanlan followed behind Bongiorno. (Scanlan Dep. 46:5-8.) Smith testified that when he saw the emergency lights, he was aware that a police officer was trying to pull him over, and proceeded to drive faster. (Smith Dep. 66:3-7.) Bongiorno called the Delaware County radio room and reported their location and that Smith would not stop his vehicle. (Bongiorno Dep. 122:1-23, 125:13-126:8; Scanlan Dep. 45:17-22.)
Bongiorno continued to pursue Smith, with Scanlan traveling behind Bongiorno. (Bongiorno Dep. 99:3-6, 100:12-17.) During the pursuit, Smith's vehicle was swerving from side to side. (Id. at 112:7-14.) The entire pursuit covered approximately one and one-half miles. (Pl.'s Mem. Ex. D at 6, ECF No. 6.) It included 21 intersections, six turns, 13 stop signs and one traffic signal. (Id.) Smith did not stop at the stop signs. (Bongiorno Dep. 103:9-16, 104:10 105:19, 108:6-13, 109:14-22.) Bongiorno and Scanlan also did not stop at the stop signs. (Scanlan Dep. 50:21-51:4.) During the pursuit, Bongiorno had his emergency lights and siren activated. (Id. at 46:20-47:4, 52:6-19; Bongiorno Dep. 107:1-3.) Until Smith reached the intersection where the collision occurred, he was traveling at speeds ranging from approximately 15-20 mph to 30-35 mph. (Bongiorno Dep. 100:12-17,102:1-8, 105:2-11, 106:21-24.) Contrary to Plaintiff's contention, there is no evidence in the record indicating that the police officers were exceeding the maximum speed limit. The roads taken during the pursuit were predominantly residential. (Bongiorno Dep. 103:17-20, 106:14-16.) There were no other cars or pedestrians on the road during the course of the pursuit. (Pl.'s Mem. Ex. G at 3 & Ex. H at 8.) The weather was clear and the roadway was dry. (Pl.'s Mem. Ex. D at 1.) Bongiorno testified that he did not believe that he was increasing the risk of harm to others during the pursuit. (Bongiorno Dep. 117:11-18.) Bongiorno further testified that the reason he was trying to stop Smith was because he had a "reasonable suspicion that [Smith] was drunk driving," and because he was a "suspended operator." (Id. at 116:6-20.)*fn3 Smith testified that he had no recollection of the events in between the time when the pursuit commenced and the next morning when he woke up in the hospital, and that he had "lost consciousness" during this time. (Smith Dep. 64:13-65:5, 66:12-17, 68:16-19, 72:25-73:16.)
While Smith, Bongiorno and Scanlan were driving west on Swarthmore Avenue, approximately 75 yards from the intersection of Swarthmore and Morton Avenues, Bongiorno noticed that Smith began to speed up. (Bongiorno Dep. 112:21-113:14; Scanlan Dep. 57:12-20 (explaining that Smith "kind of gunned it").) Smith proceeded into the intersection of Morton and Swarthmore and collided with a vehicle driven by Luigi DiSpigno, who was traveling north on Morton Ave. (DiSpigno Dep. 16:18-18:3, 19:14-20:7.) When Smith entered the intersection, his traffic light was red. (Bongiorno Dep. 114:4-12.) Schorr calculated that Smith entered the intersection at an approximate speed of 42 to 46 mph. (Pl.'s Mem. Ex. D at 6.) Plaintiff was a passenger in DiSpigno's vehicle, and as a result of the accident, suffered permanent injuries including multiple fractures, spinal cord injuries and paralysis. (Am. Compl. ¶ 44.)
Article VIII, Section 17, of the Ridley Township Police Department Policy & Procedure Manual (the "Manual") sets forth Ridley Township's policy with respect to police pursuits (the "Ridley Pursuit Policy"), and provides:
a. Notify Police radio immediately when initiating a pursuit. (State the reason)
b. When notifying radio, state "EmergencyPursuit." When acknowledged byradio, continue as follows:
1. Pursuit of the vehicle.
2. Route taken by fleeing vehicle.
3. Description of vehicle and occupants.
4. Pursuing Police vehicle shall give radio its location periodically to assist other units in the apprehension.
c. Onlythe Police vehicle initiating the pursuit mayuse siren when in visible pursuit of the fleeing vehicle.
d. If the Police vehicle in pursuit has lost visible contact with the fleeing vehicle, the operator shall notifyradio of the last known location and direction of travel. Police vehicle shall discontinue the use of siren and reduce speed.
e. If another Police vehicle resumes visible contact with fleeing vehicle, operator shall notify radio and may take up pursuit using lights and siren.
f. All pursuits shall be terminated when the violation leadingto the pursuit is of such a minor nature as to make a high risk of a pursuit unreasonable.
g. The Commanding Officer on shift will evaluate and may terminate a pursuit at their discretion.
h. Police vehicles are not to be used as ROAD BLOCKS. (Defs.' Mem. Ex. M. at 58.) Ridley has had a pursuit policy in place for at least 25 years. (Howley Dep. 41:3-9.) The policy was updated in 2006 along with the rest of the Manual, and was in effect on the night of April 29, 2009. (Id. at 40:10-18.) Every officer in the Ridley Township Police Department received a copy of the updated Manual. (Bongiorno Dep. 34:1-20.) Before the updated Manual took effect, Captain Charles Howley, who authored the updated Manual, presented it to the attorneys for the Delaware County Fraternal Order of Police for their review. (Howley Dep. 31:14-32:4.)
All officers applying to the Ridley Township Police Department must first complete the state-mandated Act 120 police training, which includes topics addressing police pursuits and pursuit driving. (Id. at 69:15-70:17; Pl.'s Mem. Ex. H at 10.) Bongiorno has been a police officer with Ridley Township for almost 20 years, and has been ranked Corporal since August 2005. (Bongiorno Dep. 6:17-24, 36:18-22.) In the early 1990s, Bongiorno underwent 480 hours of police training, including training related to police pursuits and the operation of police vehicles. (Id. at 24:1-25:19.) Bongiorno does not recall the specifics of that training and no longer possesses the written course materials. (Id. at 27:8-23.) In November 2007, when Bongiorno became a training officer, he studied materials relating to police pursuits. (Id. at 39:15-21-42:19, 44:11-21.) This training was a "refresher" regarding the circumstances on which officers should or should not continue to pursue a vehicle. (Id. at 44:11-21.) Bongiorno understood those circumstances to be that officers may attempt to stop ...