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Igwe v. Skaggs

United States District Court, W.D. Pennsylvania

June 28, 2017

ANTHONY IGWE, as the Administrator of the Estate of PRISCILLA L. ROBINSON
v.
JEREMY SKAGGS,

          MEMORANDUM

          KEARNEY, J.

         Police officers driving through intersections in response to an emergency must be alert to the presence of innocent drivers possibly unaware of the officer's perceived need to speed through a red traffic signal. Police departments may purchase equipment to transmit a signal to the traffic controller device requesting a change in the color of approaching traffic lights. Our society faces difficult liability questions when the officer's response leads to an intersection collision causing the death of an innocent driver who just happened to be lawfully crossing the intersection when the officer sped through a red light. After review of extensive appendices in support of summary judgment motions filed by the officer, his public employer, and the equipment seller, we find no genuine issue of material fact on the equipment seller's liability for design defect or duty to warn or the public employer's liability for negligence or punitive damages and dismiss the equipment seller and common law claims against the public employer. But disputed material facts require a jury's review of the officer's potential liability for punitive damages for negligence and the public employer's civil rights supervisory liability for the officer's possible conscience shocking conduct or for failing to train officers on how to operate their vehicles when responding in "Emergency Response mode" as distinguished from pursuit.

         I. Undisputed Facts[1]

         Monroeville Police Officer Jeremy Skaggs drove his police vehicle at a high rate of speed into a car driven by Priscilla Robinson at an intersection in the Municipality of Monroeville ("Monroeville") ("the intersection").[2] Ms. Robinson died the next day of injuries sustained in the collision.[3] Her husband, Anthony Igwe, seeks damages against Officer Skaggs for negligence, his employer Monroeville for supervisory liability under federal civil rights laws, and against Global on products liability and negligence theories as the company selling the transmitter system bought by Monroeville.

         A. December 8, 2014 midday collision between Officer Skaggs and Ms. Robinson.

         Around noon on December 8, 2014, Monroeville police officer Jeremy Frisk called dispatch to check a license plate on a car he followed while driving on State Route 22.[4] After being advised by dispatch the license plate's registration did not match the car he followed, Officer Frisk suspected a stolen vehicle.[5] Around this time, Officer Skaggs heard over the radio Officer Frisk's plan to stop the vehicle.[6] At approximately 12:01:20 p.m., Officer Frisk called out "Unit 991 priority!" and dispatch gave a "991 go ahead" to Officer Frisk.[7] Officer Skaggs testified a "priority" call means an emergency situation of high importance.[8]

         After hearing Officer Frisk call "priority, " Officer Skaggs activated his emergency lights and sirens and "elected" to travel to Officer Frisk's location to provide back-up.[9] Officer Skaggs considered himself a back-up officer under Monroeville's "Emergency Response mode" provided in the Monroeville Police Department's Policy and Procedures Manual ("Monroeville Policy").[10]

         It is undisputed Officer Skaggs was not involved in a pursuit at the time of the collision.[11]Instead, Officer Skaggs testified he believed an "Emergency Response" under the Monroeville Policy applied because, when he heard Officer Frisk call "priority, " it meant Officer Frisk engaged in a pursuit where there is a risk or potential for injury and a serious crime was in progress.[12] Monroeville police officer William Supancic also responded as a back-up to Officer Frisk, activating the lights and siren on his police car.[13]

         At approximately 12:02:34 p.m., Officer Frisk reported over the radio the suspect he followed appeared to reach around in the vehicle and act awkwardly.[14] An audio recording reflects the radio transmissions.[15] However, the time stamps reflected in the audio recordings are not consistent with the time stamps in the video recording from Officer Skaggs's patrol car, a discrepancy Monroeville attributes to the two systems' link to different computer servers at the Monroeville Police Department.[16] According to the audio tape, at 12:02: 46 p.m. Officer Frisk radioed the suspect "bailed out" of the vehicle and fled on foot.[17] According to the audio tape, at 12:03:43 p.m. Monroeville dispatch asked Officer Skaggs to proceed to Officer Frisk's location.[18] According to the audio tape, at 12:03:55 p.m. Officer Frisk reported the suspect had something in his hand, possibly a firearm and requested police units.[19] Officer Skaggs believed this report indicated the suspect may have been reaching for a weapon or contraband.[20]

         The video recording in Officer Skaggs's vehicle shows his collision with Ms. Robinson's car occurred at 12:02:58 p.m.[21] Officer Skaggs entered the intersection against a red traffic signal.[22] Monroeville admits the traffic light at the intersection did not change to green despite evidence of a preemption request from the Opticom system because Officer Skaggs likely "over ran" the signal, entering the intersection against a red traffic light.[23] Officer Skaggs testified he did not rely on the Opticom system as he approached the intersection.[24]

         The video recording from Officer Skaggs's vehicle shows he applied the brakes at 12:02:56.[25] When he applied his brakes, Officer Skaggs estimated he was seven car lengths from the intersection.[26] Officer Skaggs operated his vehicle 57 miles per hour approximately 0.5 seconds before colliding into Ms. Robinson.[27]

         B. Monroeville's Opticom system.

         Monroeville purchased an Opticom Emergency Vehicle Preemption System ("Opticom system") which, among other things, purports to assist police and emergency vehicles approaching traffic signals. Global's predecessor, 3M Company, manufactured the Opticom system in use at the intersection.[28]

         The Opticom system consists of three parts: an emitter placed in the emergency vehicle; a detector located at the traffic signal; and a phase selector.[29] The emitter is located in an emergency vehicle and is activated by the switching on of emergency lights and siren. The emitter sends out an infrared signal, or "pulse, " in front of the vehicle.[30] The detector, located on the traffic signal, detects the emitter's signal once the vehicle comes within a detectable range, and relays the signal to a phase selector located in the traffic controller cabinet at the intersection.[31] The phase selector submits a "preemption request" to the traffic controller.[32] The traffic controller is neither owned nor operated by Global.[33]

         When it receives the preemption request from the Opticom system, the traffic controller determines if and when the traffic signal will change.[34] The Opticom system itself does not change the traffic signal.[35] It is possible to "over run" the Opticom system; that is, an emergency vehicle may encounter a red traffic signal if it travels faster than the time it takes for the signal to change to green.[36]

         The possibility of "over running" or "out running" the Opticom system and whether Global properly warned against it is the issue in Mr. Igwe's products liability claim against Global. Global provided a driving training package entitled the "3M Opticom Priority Control System, Driver Preparation Instructor Guide" ("Instructor Guide") made available to all purchasers and end users of the Opticom system.[37] The Instructor Guide provides "Notes to Instructors, " including a section on its purpose to "provide emergency vehicle drivers with a logical, complete discussion of how to appropriately use the Opticom system"; "provide a concise, self-contained resource for presenters and trainers"; "raise and answer frequently asked questions"; "instill respect for the benefits and limits of the system"; and "identify, and thus encourage safe, responsible emergency vehicle driving with the system."[38]

         The Instructor Guide contains sections on the "Fundamentals" of "traffic control" and "911 support"; an explanation of the "priority signal control"; an explanation of the "system" itself including the emitter, detector, and phase selector; and "System Variables."[39] The section on "System Variables" explains the time delay limitations. This includes an explanation it may take five, ten, or even fifteen seconds or more from the time the detector receives a single from the emitter until the controller grants the green light "if it grants it at all."[40] "System Variables" include time delay limitations, warning "having the emitter activated does not instantly give you a green light, " and warning of "planned 'delay' times" depending on a variety of factors such as "street width, number of lanes, presence of protected turning lanes with green arrows, progression of traffic, synchronization with other signals - even the time of day, "[41] "intersection phasing, "[42]"installation pattern, "[43] "multiple use" of the Opticom system used by several agencies such as EMS, fire, and police, [44] and "neighbor communities" that may not have the Opticom system[45] The Instructor Guide contains sections on "Performance Variables" including "interacting agents" such as other drivers, public transportation, pedestrians, bicyclists, and emergency responders all using the roadways and "system checks" regarding system maintenance.[46]

         Although all parties contend the Instructor Guide does not warn about the possibility of over running the Opticom system, the "Frequently Asked Questions" section includes:

         "Can I overdrive the system?" With the response:

Yes, because delay times are built-in to make the intersection safe for all civilian traffic, you can come upon intersections before the controller cycles to the green light. However, the system does react rapidly enough to provide much more efficient and faster travel while maintaining the safest possible conditions for everyone concerned.[47]

         And the question: "Can I use the system for hot pursuit?" With the response:

There are communities where police have used their priority control systems to "steer" runaways and help keep other traffic from getting in the way. However, it's likely that at higher speeds, both the officer and the felon being pursued would be running red lights.[48]

         The Instructor Guide advises drivers "should always drive green lights"; an "agency can devise a pattern of flashes and steady lights to communicate what to expect at the intersection" with "confirmation lights"; but other than confirmation lights, "there is no way of telling exactly what the signal will do, no way of anticipating a green within a certain time frame."[49]

         Global's witness Pat Cosgrove testified to a number of variables affecting the amount of time between the traffic controller's receipt of the preemption request to the actual signal change, including the stage of the light cycle at the time the preemption signal is detected, the specific sequence settings of the traffic light, and pedestrian crosswalks.[50] There are various range settings on the Opticom system, but the detection of the emitter's signal does not and cannot always occur within a specific and definite distance from the detector because of numerous variables including, a potential obstruction between the detector and the emergency vehicle, weather conditions, maintenance history of the Opticom system, and topography of the area.[51]

         Monroeville Police Chief Douglas Cole testified Monroeville's Policy on the Opticom system derived from a "manual" or "trial policy that they provided or came from 3M."[52] Although he could not identify the actual policy, Chief Cole testified 3M "provided us with manuals" and "I have a file that has 3M explaining the Opticom. So there are manuals."[53] Dominic LaGorga, senior foreman of Monroeville's public works and who is responsible for maintaining traffic signals within the municipality, testified he has "installation manuals" from Global and 3M.[54]

         A section of Monroeville's Policy addresses the Opticom system, including a warning:

Opticom can be over run by increasing the speed of the emergency vehicle using the device. No set speed has been determined, however you are warned not to anticipate the light changing.[55]

         There is no dispute Global provided a timing chart to Opticom installers identifying the distance an emergency vehicle from a traffic signal and the speed at which the emergency vehicle travels to ensure a green traffic signal at the time the emergency vehicle reaches the intersection.[56] Although Mr. Igwe admits Global provided a timing chart to installers of Opticom systems, he asserts there is no evidence Monroeville, through Chief Cole or any other member of the Monroeville Police Department, received the timing charts in an "installation manual." Mr. Igwe cites Chief Cole's deposition testimony where he denied ever having seen Global's "timing chart"[57] and Officer Skaggs's deposition testimony where he denied having been provided with an owners' manual or operations manual.[58]

         Mr. Igwe points to additional materials prepared by Global but which were not provided to Monroeville: "Anticipate the Unexpected"; "Moving at the Speed of Life"; and "Traffic Control Devices."[59] Chief Cole testified he does not recall seeing the "Anticipate the Unexpected" brochure, including sections entitled "driving training program" and "customized seminars" offered by Global.[60] Chief Cole testified he was never aware of 3M offering to provide customized seminars for training on the Opticom system, or periodic training updates, or audio visual training.[61] There is no dispute the additional materials are not included in Monroeville's Policy on the Opticom system.

         C. Monroeville's Policy and Procedures Manual.

         Chapter 28 of Monroeville's Policy pertains to "Vehicle Operations." Section 28.1 is the "Policy Statement" including "General Definitions" at Section 28.1.1 and provides in part:

For purposes of this policy: It is the policy of this Department to always drive safely and comply with state and local laws. Officers shall have the duty to drive with due regard for the safety of all persons. Furthermore, no duty is so important and no call so urgent that officers cannot proceed with caution and arrive safely.[62]

         The term "Emergency Response" is defined as:

driving in a more expeditious but safe manner according to state law with continuous use of emergency equipment when responding to a situation that is believed to be either an immediate life-threatening or serious bodily injury incident or when involved in a vehicular pursuit according to department policy.[63]

         Section 28.9 is the "Response Mode Classification" intended to be "illustrative and not exclusive" including "Emergency Response" defined as:

Emergency Response is generally authorized in a situation that is believed to be in-progress and either an immediate life threatening or serious bodily injury incident, such as:
A. A request to a possible life threatening situation or one in which it appears that there may be seriously injured persons in need of medical attention.
B. A serious crime in progress.
C. An unusual or serious incident that mandates an immediate response by staff or other specialty personnel (i.e., command staff, hostage negotiators, etc.).
D. An emergency escort mandated by the totality of the circumstances (i.e. critically injured persons, etc.)
Officers shall follow the Use of Emergency Warning Devices as defined in this chapter when responding in an emergency response mode.[64]

         Section 28.12 is the "Pursuit of Motor Vehicles" policy and includes a "Policy Statement" referencing Pennsylvania statute governing drivers of emergency vehicles, 75 Pa.C.S.A. § 3105.[65] Section 3015 allows drivers of emergency vehicles to, under certain circumstances, disregard general traffic regulations but does not "relieve the driver of an emergency vehicle from the duty to drive with due regard for the safety of all persons."[66] The "Pursuit of Motor Vehicles" section additionally contains a subsection outlining the conditions under which pursuits must be terminated.[67]

         II. Analysis[68]

         Ms. Robinson's husband Anthony Igwe, as the administrator of her estate, alleges a Monell claim against Monroeville for failure to train and supervise under 42 U.S.C. § 1983, as well as state law claims of negligence and vicarious liability against Monroeville and a state law claim for negligence against Officer Skaggs. Mr. Igwe brings strict products liability and negligence claims against Global arguing the Opticom system can be outrun by emergency vehicles depending on their speed and the stage of the light cycle at the time the system is triggered; the Opticom system is inherently dangerous and unsafe for first responders such as Officer Skaggs because emergency responders rely on the system to give green lights when the system can be outrun which could cause injury; the Opticom system failed to indicate to the control module in Officer Skaggs's police vehicle the signal had not yet cycled and turned to green for his direction of travel as he approached the intersection; the Opticom system did not perform as intended; Global failed to warn Monroeville the system could be out run; and the Opticom system lacked elements necessary to make it safe for its intended use.[69]

         Officer Skaggs moves for partial summary judgment seeking to dismiss punitive damages against him on the state law negligence claim.[70] We deny his motion. Monroeville seeks summary judgment on the state law vicarious liability claim on punitive damages only and on the state law negligence claim. Mr. Igwe concedes the state law negligence claim against Monroeville is barred by Pennsylvania's Political Subdivision Tort Claims Act, [71] and we grant summary judgment on this issue. Monroeville seeks summary judgment on the § 1983 Monell claim and we deny this motion finding genuine issues of material fact. Global moves for summary judgment on Mr. Igwe's strict products liability and negligence claims under Pennsylvania law. We grant its motion as there are no disputed issues of fact concerning the absence of a design defect or failure to warn.

         A. Fact issues preclude summary judgment on Mr. Igwe's demand for punitive damages on the negligence claim against Officer Skaggs.

         Under Pennsylvania law, punitive damages are permitted for "conduct that is outrageous, because of the defendant's evil motive or his reckless indifference to the rights of others."[72] "[A] punitive damages claim must be supported by evidence sufficient to establish that (1) a defendant had a subjective appreciation of the risk of harm to which the plaintiff was exposed and that (2) he acted, or failed to act, as the case may be, in conscious disregard of that risk."[73] We find questions of fact regarding Officer Skaggs's response, including what and when he knew or believed from the radio recordings immediately preceding the collision with Ms. Robinson's car, precluding summary judgment. The jury will evaluate his state of mind testimony.

         B. We grant summary judgment dismissing the state law claims against Monroeville.

         1. Summary judgment is granted as to punitive damages on the state law vicarious liability claim against Monroeville.

         Our January 30, 2017 Order dismissed all claims for punitive damages against Monroeville on Mr. Igwe's concession he cannot state a claim for punitive damages against Monroeville under § 1983. Monroeville seeks summary judgment as to punitive damages on Mr. Igwe's state law vicarious liability claim. Under the Pennsylvania Political Subdivision Tort Claims Act (the "Tort Claims Act"), municipalities are not liable for punitive damages.[74] Summary judgment is entered in favor of Monroeville on punitive damages in the state law vicarious liability claim.

         2. Summary judgment is granted in favor of Monroeville on the state law negligence claim.

         Mr. Igwe also brings a negligence claim against Monroeville for its failure to train, supervise, direct, and control its police officers regarding safe driving techniques and on the Opticom system. Local agencies are immune from tort liability under section 8541 of the Tort Claims Act.[75] Section 8542 identifies exceptions to governmental immunity. "Because of the clear intent to insulate government from exposure to tort liability, the exceptions to immunity are to be strictly construed."[76]

         Mr. Igwe concedes none of the exceptions, [77] specifically the "vehicle liability" exception, applies to Monroeville. Based on the facts here, it is immune from liability under the Tort Claims Act. We grant summary judgment in Monroeville's favor on this claim.

         C. Fact issues preclude summary judgment on Monell claim against Monroeville.

         Monroeville moves for summary judgment arguing Mr. Igwe failed to adduce sufficient evidence to raise a genuine issue of material fact based on any policy, custom or practice causing a constitutional violation; any failure to train or failure to supervise theory; and any conscience shocking behavior required to establish a constitutional right.

         In Monell, the Supreme Court held a municipality may be liable under § 1983 when its policy or custom causes the constitutional violation.[78] To succeed on a Monell claim, Mr. Igwe must establish Ms. Robinson: "(1) possessed a constitutional right of which she was deprived; (2) the municipality had a policy [or custom]; (3) the policy [or custom] 'amounted to deliberate indifference' to her constitutional right; and (4) the policy [or custom] was the 'moving force' behind the constitutional violation."[79]

         In this Circuit, a municipality may be independently liable even where none of its employees are liable.[80] Under Fagan, a municipality "can independently violate the Constitution if it has a policy, practice, or custom of deliberate indifference that causes the deprivation of some constitutional right through the actions of an officer, the 'causal conduit.'"[81]

         Mr. Igwe bases his Monell claim on a failure to train and failure to supervise based on Officer Skaggs's culpability as well as under a Fagan theory of liability. We find genuine issues of material fact preclude summary judgment including Officer Skaggs's subjective belief to determine the culpability standard for conscience shocking behavior required to prove a Monell claim and whether Monroeville failed to train its officers on how to operate their police vehicles when responding in "Emergency Response mode" as distinguished from pursuit.

         D. We grant Global's motion for summary judgment.

         Global moves for summary judgment on Mr. Igwe's strict products liability claim under a design defect and failure-to-warn theory. Mr. Igwe appears to advance both a defective design and failure-to-warn theory to show the Opticom system is defective because it can be "out run." We find no genuine issue of material fact and grant Global's motion.

         1. We grant summary judgment to Global on the design defect theory.

         In Tincher v. Omega Flex, Inc.,[82]the Pennsylvania Supreme Court ruled strict products liability claims are governed by the Restatement (Second) of Torts, § 402A. To prevail on a strict liability claim, a plaintiff must prove "the product was defective, the defect existed when it left the defendant's hands, and the defect caused the harm."[83] A product may ...


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