                                  [J-31-2014]
                   IN THE SUPREME COURT OF PENNSYLVANIA
                               MIDDLE DISTRICT

   CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, STEVENS, JJ.


CELESTE SELLERS AND RICHARD K.  :             No. 97 MAP 2013
SELLERS, INDIVIDUALLY AND AS    :
ADMINISTRATORS OF THE ESTATE OF :             Appeal from the order of the
JOSHUA DAVID SELLERS, DECEASED, :             Commonwealth Court at No. 531 CD 2011
                                :             dated June 5, 2013 Affirming the order from
                Appellants      :             the Montgomery County Court of Common
                                :             Pleas, Civil Division, at No. 2007-14335
                                :             dated November 30, 2010.
           v.                   :
                                :             ARGUED: May 7, 2014
                                :
TOWNSHIP OF ABINGTON AND        :
OFFICER EDWARD HOWLEY,          :
INDIVIDUALLY AND AS AN EMPLOYEE :
OF TOWNSHIP OF ABINGTON AND LT. :
KARL KNOTT, INDIVIDUALLY AND AS :
AN EMPLOYEE OF TOWNSHIP OF      :
ABINGTON,                       :
                                :
                Appellees       :


                                        OPINION


MR. JUSTICE STEVENS                              DECIDED: December 29, 2014
       This is an appeal from a Commonwealth Court Opinion which affirmed the trial

court’s entry of summary judgment and dismissal of Appellants’ wrongful death and

survival action. The central issue presented is whether a local agency owes a common

law or statutory duty of care to a passenger of a fleeing vehicle, whose existence or

relationship to the fleeing driver is unknown to the pursuing police officer. We affirm.
                                      I. Background

        On the evening of December 23, 2006, Scott Simons (Simons), Matthew Senger

(Senger) and Joshua Sellers (decedent) met at the home of a mutual friend on

Jenkintown Road in Abington Township. Simons had been drinking all day prior to this

engagement, but testified that he did not drink at the Jenkintown Road residence.

Senger, however, testified that all three men drank beer while at the Jenkintown Road

residence.1

        In the early morning hours of December 24, 2006, Senger and decedent asked

Simons for a ride home, and it was agreed that Simons would drive Senger home and

decedent would spend the night at Simons’ residence. Senger rode in the front passenger

seat, while decedent sat in the back rear passenger seat. None of the men fastened

their seatbelts. Simons testified that he was, in fact, drunk when he left the party, and

admitted that this was not the first time he had driven his friends home drunk.

        According to Simons, while driving west on Jenkintown Road at between 40 and

45 mph in a 30 mph zone, he noticed a police car pass him travelling east. Simons

testified that the police car made a U-turn and began following Simons with its lights and

siren activated. Simons admitted that instead of pulling over, he fled, as he was “scared

of getting a DUI.” Deposition of Scott Simons, 9/10/2009 at 18. Senger testified that

when Simons initially “floored his car,” he was not aware that police were pursuing the

car. Deposition of Matthew Senger, 12/4/2009 at 28. Senger estimated that Simons

was driving “well over 100” miles per hour. Id. at 34. Simons then arrived at Senger’s

home, and as goodbyes were exchanged, Senger noticed reflections of police lights in

the windows of nearby homes. Before Senger could exit the vehicle, Simons again

floored it and shut off his headlights. Senger testified that both he and decedent then

1   All testimony contained herein was taken by deposition.



                                      [J-31-2014] - 2
asked Simons to slow down, as they were aware of a dip in the road ahead. Simons,

however, continued at a high rate of speed and ultimately hit the dip in the road. The car

was sent airborne and crashed into trees and a parked pickup truck. Simons and Senger

suffered minor injuries, while decedent was ejected from the vehicle and thrown 20 feet

therefrom, suffering a catastrophic brain injury, along with other injuries.

       Officer Edward Howley of the Abington Township Police Department testified that

on the night in question he was travelling westbound on Jenkintown Road, when he heard

the sound of a loud exhaust, and saw the taillights of a vehicle far in the distance

proceeding in the same direction as his patrol car. Officer Howley testified that he

attempted to gain ground on the vehicle, and when he himself accelerated to over the

posted speed limit of 30 mph, he activated his lights and siren, at which time the in-car

camera system automatically began to record.2

       The in-car camera recording corroborated Officer Howley’s account and

established that at approximately 3:49 a.m., Officer Howley first observed a vehicle in the

distance, travelling westbound, in the same direction as the officer. Approximately thirty

seconds later, Officer Howley activated his overhead lights and siren. The vehicle is

then seen turning onto Garfield Avenue, as Officer Howley radioed in that he was

pursuing a red Mustang travelling northbound on Garfield.3 This is the last time the

Mustang is seen on the video. Officer Howley made the turn onto Garfield and reported

that the car had been traveling at a high rate of speed, and he suspected the driver was

driving under the influence. Lt. Karl Knott, Officer Howley’s supervising officer, ordered

Officer Howley to stay with the Mustang. At approximately 3:50 a.m., Officer Howley


2 The in-car camera system automatically activates when the lights and siren are turned
on, and the previous thirty to forty-five seconds of footage is saved on the recording.
3 Officer Howley testified that he did not know the car was a Mustang until he saw the

vehicle make the turn onto Garfield.



                                      [J-31-2014] - 3
radioed that he had lost the car. At approximately 3:51 a.m., Officer Howley received a

radio call indicating that the Mustang had crashed into a house on Meyer Avenue.

Officer Howley arrived at the scene shortly thereafter and immediately radioed for EMS to

respond to the scene. The video established that seventy-four seconds passed between

the moment Officer Howley activated his lights until he deactivated the lights. Simons’

car, however, was only visible on the recording for sixteen seconds.

        Celeste and Richard Sellers, parents of decedent (Appellants) filed a wrongful

death and survival action against the Township of Abington, Officer Edward Howley, and

Lieutenant Karl Knott (Appellees) asserting claims for negligence and punitive damages.

Appellants alleged that Appellees caused the death of decedent when Officer Howley

negligently, recklessly, and willfully initiated and failed to terminate a high speed pursuit of

Simons’ vehicle.     After the completion of discovery, Appellees moved for summary

judgment based upon governmental immunity, citing to the Political Division Tort Claims

Act (Tort Claims Act), 42 Pa.C.S. § 8541, which states “[e]xcept as otherwise provided in

this subchapter, no local agency shall be liable for any damages on account of any injury

to a person or property caused by any act of the local agency or an employee thereof or

any person.” 42 Pa.C.S. § 8541.

        The trial court granted Appellees' motion, reasoning they enjoyed Section 8541

governmental immunity. The trial court found that Appellees did not fall under any of the

enumerated exceptions to immunity set forth in 42 Pa.C.S. § 8542, in which a local

agency may still be liable for injuries caused by a local agency or its employees.4 The


4   42 Pa.C.S. § 8542 states, in relevant part:

        § 8542. Exceptions to governmental immunity.

       (a) Liability imposed. --A local agency shall be liable for damages on
       account of an injury to a person or property within the limits set forth in this
(continuedK)

                                        [J-31-2014] - 4
trial court emphasized that 42 Pa.C.S. § 8542 specifically states that governmental

liability may not attach for official negligence occurring while plaintiff was in flight or fleeing

apprehension or resisting arrest by police.      Additionally, the court concluded, that Officer

Howley acted reasonably throughout the entire pursuit.

       Appellants appealed the trial court’s determination to the Commonwealth Court,

which affirmed the trial court’s order in a published opinion.                    The en banc

Commonwealth Court panel concluded that, while police owe a duty to innocent third

parties, see Jones v. Chieffo, 700 A.2d 417 (Pa. 1997), such a duty does not extend to

“unknown passengers”5 of a fleeing vehicle.         Sellers v. Twp. of Abington, 67 A.3d 863,



(Kcontinued)
     subchapter if both of the following conditions are satisfied and the injury
     occurs as a result of one of the acts set forth in subsection (b):
        (1) The damages would be recoverable under common law or a statute
     creating a cause of action if the injury were caused by a person not having
     available a defense under section 8541 (relating to governmental immunity
     generally) or section 8546 (relating to defense of official immunity); and
        (2) The injury was caused by the negligent acts of the local agency or an
     employee thereof acting within the scope of his office or duties with respect
     to one of the categories listed in subsection (b). As used in this paragraph,
     "negligent acts" shall not include acts or conduct which constitutes a crime,
     actual fraud, actual malice or willful misconduct.
     (b) Acts which may impose liability. --The following acts by a local agency
     or any of its employees may result in the imposition of liability on a local
     agency:
        (1) Vehicle liability. --The operation of any motor vehicle in the
     possession or control of the local agency, provided that the local agency
     shall not be liable to any plaintiff that claims liability under this subsection if
     the plaintiff was, during the course of the alleged negligence, in flight or
     fleeing apprehension or resisting arrest by a police officer or knowingly
     aided a group, one or more of whose members were in flight or fleeing
     apprehension or resisting arrest by a police officer.

42 Pa.C.S. § 8542(a)(b)(1).
5 The term “unknown passengers” will be used throughout this Opinion to describe

passengers whose presence in the vehicle or connection to the driver is unknown to the
pursuing officer.



                                         [J-31-2014] - 5
871 (Pa. Cmwlth. 2013). In reaching this conclusion, the Commonwealth Court applied

the factors informing the duty analysis set forth in Althaus ex rel. v. Cohen, 756 A.2d 1166

(Pa. 2000), which this Court applied in Lindstrom v. City of Corry, 763 A.2d 394 (Pa. 2000)

to conclude that police officers do not owe a duty of care to fleeing suspects. These

factors include:

       (1) the relationship between the parties; (2) the social utility of the actor’s
       conduct; (3) the nature of the risk imposed and foreseeability of the harm
       incurred; (4) the consequences of imposing a duty upon the actor; and (5)
       the overall public interest in the proposed solution.
Lindstrom, supra at 397, citing Althaus, supra at 1169. In analyzing these factors, this

Court stated in Lindstrom:

       As to the first factor, regarding the relationship between the parties, a law
       enforcement officer is a protector of all members of the public. The
       officer’s relationship to the fleeing suspect must be viewed in light of the
       broader relationship to the safety of the community he or she serves. Any
       duty of protection the officer has is lessened as soon as the driver flees
       rather than complying with a request to stop. The second factor weighs
       against imposing a duty, as the social utility of a police officer’s attempt to
       apprehend a person suspected of violating the law is beyond dispute.
       Turning to the third factor, it is evident that there is a risk of injury to the
       fleeing driver, and it is foreseeable that drivers who refuse to pull over when
       alerted to do so may be injured in their attempt to elude an officer. Fourth,
       the consequences of imposing a duty upon officers are burdensome, as
       that may prevent the apprehension of dangerous criminals and further
       encourage flight. Finally, the public has a preeminent interest in ensuring
       that roadways remain safe from dangerous drivers and criminals and that
       police officers are empowered to enforce the law.

Id.
        The Commonwealth Court applied these factors to the instant case and found that

they weighed against imposing a duty of care to unknown passengers in a fleeing vehicle.

Accordingly, the Commonwealth Court held that because Appellees owed no duty to




                                       [J-31-2014] - 6
decedent, negligence could not attach, and summary judgment was appropriate as a

matter of law.6

       Judge Leavitt authored an extensive dissenting opinion, expressing concern that

the majority’s holding improperly extended existing common law and the rationale of

Lindstrom. Sellers v. Township of Abington, 67 A.3d 863, 872 (Pa. Cmwlth. 2013)

(Leavitt, J., dissenting). Moreover, Judge Leavitt reasoned that summary judgment was

not appropriate even when applying the majority’s standard, as the standard requires

factual findings as to the officer’s awareness of the passengers. Id. at 880.

       Appellants filed a Petition for Allowance of Appeal with this Court, which was

limitedly granted on December 20, 2013. We accepted the following issues, as framed

by Appellants, for review:

          a) Whether the Pennsylvania Commonwealth Court should have
             properly reversed the trial court’s erroneous granting of summary
             judgment on the basis that police officers do not owe a duty of care to
             innocent bystanders in a fleeing vehicle which is in direct conflict with
             this Court’s decision in Jones v. Chieffo, [700 A.2d 417 (Pa. 1997)]
             and the Commonwealth Court’s decision in Aiken v. Borough of
             Blawnox, 747 A.2d 1282 (Pa. Cmwlth. 2000)?

          b) Whether the Pennsylvania Commonwealth Court should have
             properly reversed the trial court’s erroneous resolution of questions
             of fact whether the passenger in a fleeing vehicle was an innocent
             bystander to whom a duty of care was owed?

          c) Whether the Pennsylvania Commonwealth Court should have
             properly reversed the trial court’s erroneous granting of summary
             judgment on the basis that police officers do not owe a duty of care to
             innocent bystanders in a fleeing vehicle which is in direct conflict with
             Black v. Shrewsburgy Borough, 675 A.2d 381 (Pa. Cmwlth. 1996)?

6 The Commonwealth Court briefly noted that the trial court may have “improperly
conducted fact-finding” with respect to the reasonableness of Officer Howley’s conduct
based on the in-car camera footage. Sellers, supra at 872, n.11. The court set forth,
however, its prerogative to affirm on any ground. Id., citing Concord Township Appeal,
268 A.2d 765, 766 (1970).



                                      [J-31-2014] - 7
          d) Whether the Pennsylvania Commonwealth Court should have
             properly reversed the trial court’s erroneous extension to innocent
             bystander passengers of the limited immunity of 42 Pa.C.S. §
             8542(b)(1) which only applies to fleeing suspects and which is a
             matter of first impression unauthorized by existing law?

          e) Whether the Pennsylvania Commonwealth Court should have
             properly reversed the trial court’s erroneous blanket application of 42
             Pa.C.S. § 8542 without first requiring a jury determination whether
             plaintiff’s decedent, an innocent passenger, was aiding or abetting
             the fleeing driver?

          f) Whether the Pennsylvania Commonwealth Court should have
             reversed the trial court’s granting of summary judgment where the
             trial court improperly decided as a matter of law that no duty was
             owed without first requiring a jury determination of the disputed
             questions of fact whether the officer knew or should have known of
             the existence of innocent passengers in the vehicle and therefore
             whether the police pursuit was negligently initiated and maintained?

          g) Whether the Commonwealth Court should have reversed the trial
             court’s creation of a new rule of law which eliminates a police
             officer’s duty of care to the public, including passengers in a fleeing
             vehicle, regardless of the police officer’s intent, motive, or
             circumstances surrounding the police pursuit in violation of public
             policy which is an absurd and unreasonable result threatening the
             lives of the public, including all innocent bystanders/passengers?

Sellers v. Twp. of Abington & Howley, 82 A.3d 430 (Pa. 2013).
      In reviewing a grant of summary judgment, an appellate court may disturb the

decision only if there has been an error of law or a manifest abuse of discretion. Jones,

supra at 419, n.2. Summary judgment is appropriate “only in those cases where the

record clearly demonstrates that there is no genuine issue of material fact and that the

moving party is entitled to judgment as a matter of law." Summers v. Certainteed Corp.,

997 A.2d 1152, 1159 (Pa. 2010). The question of whether there are genuine issues of

material fact presents a question of law, and therefore, our standard of review on that

question is de novo. Id.

                                     II. Arguments


                                     [J-31-2014] - 8
       Appellants present a multi-faceted attack against the Commonwealth Court’s

decision and urge this Court to find that Appellees owed a duty of care to decedent.

Appellants first contend that Section 3105(e) of the Vehicle Code, commonly referred to

as the “emergency vehicle doctrine,” imposes upon officers a duty “to drive with due

regard for the safety of all persons,” and that the Commonwealth Court erred by creating

a question of duty. 75 Pa.C.S. § 3105(e).

       Appellants next maintain that the Commonwealth Court’s holding that officers do

not owe a duty of care to unknown passengers in a fleeing car is in direct conflict with this

Court’s holding in Jones v. Chieffo, 700 A.2d 417 (Pa. 1997) and the Commonwealth

Court’s holding in Aiken v. Borough of Blawnox, 747 A.2d 1282 (Pa. Cmwlth. 2000).

Appellants argue that the holdings in Jones and Aiken “show the preference of

Pennsylvania courts to protect the rights and safety of innocent bystanders by allowing

them to maintain an action against a municipality and its officers for negligentK high

speed pursuitsK” Appellants’ Brief at 26.

       In Jones, an innocent third party was injured when a car fleeing from police collided

with the car of the third party. This Court found that when an innocent third party is

injured as a result of a police pursuit, “a governmental party is not immune from liability

when its negligence, along with a [fleeing driver’s] negligence, causes harm.” Jones,

supra at 420. This Court further determined that the question of whether defendant

police officers were jointly liable with the driver and whether their negligence was a

substantial factor in causing the third party’s injuries, should be left to a jury. Id.

       Similarly, in Aiken, the Commonwealth Court held that an innocent bystander,

injured when his car was struck by a car fleeing from police, could maintain an action

against the government alleging that officers were negligent in maintaining a high-speed

pursuit. Aiken, supra at 1285. The Commonwealth Court further held in Aiken that “a




                                       [J-31-2014] - 9
jury must decide whether Appellees’ alleged negligence was a substantial factor causing

Appellant’s harm and whether the fleeing suspect’s actions were a superseding cause.”

Id.

       Appellants next contend that the Commonwealth Court’s holding eliminated two

genuine issues of material fact from jury determination. First, Appellants suggest that

the holding provides an incentive for police officers who engage in negligent and/or

reckless high-speed chases to lie and claim ignorance of the existence of passengers in a

vehicle, and therefore eliminate any culpability. Second, Appellants argue that the new

rule eliminates the prerequisite to a police officer’s immunity from liability in a high-speed

chase established in 42 Pa.C.S. § 8542(b)(1), that the passenger is aiding and abetting

the flight from police. Appellants contend that the record is devoid of any factual findings

that would suggest decedent was aiding or abetting flight, and at the very least, this

question should have been decided by a jury.

       Appellants further allege that the Commonwealth Court disregarded its own ruling

in Black v. Shrewsbury Borough, 675 A.2d 381 (Pa. Cmwlth. 1996), where the

Commonwealth Court found that a police officer owed a duty of care to passengers in a

vehicle involved in a police pursuit. In Black, officers began a pursuit of a vehicle driven

by Joseph Black, with probable cause to believe that Black had committed multiple

violations of the Vehicle Code. The police report in Black indicated that the officers knew

the identity of the driver and knew that there were passengers in the vehicle. The

Commonwealth Court ultimately decided that it was within the province of the jury to

decide if Black’s conduct was a superseding cause of the passenger’s injuries. Black v.

Shrewsbury Borough, 675 A.2d 381, 385 (Pa. Cmwlth. 1996).

       Appellants next contend that the Commonwealth Court erroneously relied on

Ferguson v. Commonwealth, 2009 U.S. Dist. LEXIS 20099 (W.D. Pa., Mar. 13, 2009),




                                      [J-31-2014] - 10
which Appellants argue is factually distinguishable from the case sub judice.        The

Commonwealth Court cited with approval to Ferguson in which it was determined that

officers did not owe a duty to the passenger of a fleeing vehicle who was injured as the

result of a police pursuit. Appellants assert that officers in Ferguson believed that both

the driver and the passenger were engaged in criminal activity, whereas instantly there is

no evidence to suggest that decedent was in any way involved in any criminal activity.

      Appellants argue that expanding the statutory framework of the Tort Claims Act to

include innocent passengers in Section 8542(b)(1) is inappropriate, as Pennsylvania’s

legislature and courts have only created two classes of individuals who could be injured

as a result of a police chase: innocent bystanders and fleeing suspects and their

accomplices.   Appellants argue that by making a finding of aiding and abetting a

prerequisite to granting immunity to defendants as a matter of law, the legislature has

made clear the intention that innocent passengers are to be protected.         Moreover,

Appellants cite to Judge Leavitt’s dissent for the contention that under the

Commonwealth Court’s holding, officers have no duty to innocent bystanders such as

kidnap victims present in fleeing vehicles.       Appellants further contend that the

Commonwealth Court’s holding “allows police officers to engage in reckless and

dangerous police pursuits throughout the entirety of PennsylvaniaK” Appellants’ Brief at

53.

      Finally, Appellants advocate adopting the approach of the Michigan Supreme

Court in Robinson v. City of Detroit, 613 N.W.2d 307 (Mich. 2000), which Judge Leavitt

cited to with approval in her dissenting opinion. Robinson placed the burden of proof on

the plaintiff to establish that the passenger of the fleeing vehicle was an innocent

passenger who was owed a duty by the pursuing police. Appellants ask that this Court




                                    [J-31-2014] - 11
hold that a police officer involved in a police pursuit should always assume that there are

at least two persons in the fleeing vehicle, one of whom is not aiding and abetting.

       Conversely, Appellees argue that the Commonwealth Court properly held that

Appellees owed no common law duty of care to decedent, and therefore contend that the

Commonwealth Court’s opinion should stand. First, Appellees outline the applicable

policies of the Tort Claims Act, which provides that “no local agency shall be liable for any

damages on account of any injury to a person or property caused by any act of the local

agency or an employee thereof or any other person.” 42 Pa.C.S. § 8541. Appellees

acknowledge 42 Pa.C.S. § 8542 provides, in part, that an injured party may recover in tort

from a local agency if:

       (1) The damages would be recoverable under common law or a statute
       creating a cause of action if the injury were caused by a person not having
       available a defense under section 8541 (relating to governmental immunity
       generally) or section 8546 (relating to defense of official immunity); and
       (2) The injury was caused by the negligent acts of the local agency or an
       employee thereof acting within the scope of his office or duties with respect
       to one of the categories listed in subsection.

42 Pa.C.S. § 8542(a). Appellees explain that this Court has instructed that “[t]hese

exceptions must be construed strictly because of the clear legislative intent to insulate

government from exposure to tort liability.” Lindstrom, supra at 397.

       Appellees next argue that Appellants’ contention that “a prerequisite to a police

officer’s immunity from liability in a high-speed chase is a determination that the

passenger is aiding and abetting the flight from police,” is a misapprehension of the Tort

Claims Act. Appellees’ Brief at 28, quoting Appellants’ Brief at 28. Appellees contend

that the vehicle liability exception may not even be invoked until a plaintiff establishes that

damages would be recoverable under common law.               See Lindstrom, supra at 397

(“Initially, we must determine if Appellees can meet the threshold requirement of 42


                                      [J-31-2014] - 12
Pa.C.S. § 8542(a)(1), namely, whether Appellants owed [decedent] a common law duty”).

Appellees argue that because Appellants did not meet the duty requirement, the vehicle

liability exception of the Torts Claim Act is not applicable.

       Appellees further contend that Appellants’ claim that a jury must determine

whether a police pursuit was negligent demonstrates a misunderstanding of basic

negligence law. Appellees maintain that where, as here, there is no duty of care, there

can be no negligence as a matter of law. T.A. v. Allen (Appeal of Allen), 669 A.2d 360,

362 (Pa. Super. 1995).

       Appellees further maintain that the Commonwealth Court’s reasoning that to

impose a duty of care to unknown passengers in a fleeing vehicle would be unworkable in

the field of law enforcement, is consistent with this Court’s rationale in Lindstrom, where

this Court found that officers do not owe a duty of care to fleeing drivers. Appellees

argue that Appellants largely ignored Lindstrom in their brief to this Court.

       Appellees next argue that the Commonwealth Court properly found that Jones and

Aiken are inapposite to the instant case. Appellees explain that while the injured parties

in each case were permitted to maintain an action against the government alleging

negligent high-speed pursuits, the plaintiffs of each case were occupants of vehicles

which were not involved in the pursuit. Appellees contend that decedent should not be

considered an innocent bystander, as he willingly accepted a ride home from an

intoxicated driver.

       Appellees further argue that Appellants’ reliance on Black is misplaced, as Black

involved an appeal from a trial court order sustaining preliminary objections and

dismissing plaintiff’s complaint without discovery, while the instant case involves an




                                      [J-31-2014] - 13
appeal from a summary judgment ruling on a developed record, with extensive discovery.

Additionally, Appellees contend that the Commonwealth Court did not decide the issue of

whether officers owe a duty to passengers of a fleeing vehicle, but rather the court only

addressed the issue of whether the conduct of the fleeing driver was the unforeseeable

and superseding cause of the accident.7

       Finally, Appellees contend that Appellants’ claim that “material issues in dispute

should have been placed in the hands of the jury” is misguided. Appellants argue that

evidence is “conflicting” as to whether police knew that there were passengers in the

vehicle, as Simons claims that Officer Howley passed the vehicle on the opposite side of

the road before pursuing the vehicle. Appellees argue, however, that Simons’ testimony

is blatantly contradicted by the in-car camera footage, which shows Officer Howley

travelling in the same direction as Simons at all relevant times. Appellees argue that

Scott v. Harris, 550 U.S. 372, 380 (2007) stands for the proposition that “witness accounts

seeking to contradict an unambiguous video recording do not create a triable issue of

fact.” Appellees’ Brief at 41.




                                       III. Analysis




7 In the reply brief, Appellants maintain that this argument is erroneous, as the Black
court need not decide whether a duty is owed to passengers in a fleeing vehicle, as that
duty had already been codified in 75 Pa.C.S. § 3105(e), and reinforced in Jones.



                                     [J-31-2014] - 14
      We granted allocatur on seven issues as framed by Appellants. These issues are

inter-related and will be treated as such infra. Local agencies of this Commonwealth are

immunized from liability “for damages on account of any injury to a person or property

caused by any act of the local agency or an employee thereof or any other person.” 42

Pa.C.S. § 8541. There are, however, exceptions to this statutory grant of immunity. 42

Pa.C.S. § 8542 states, in relevant part:

      (a) Liability imposed. --A local agency shall be liable for damages on
      account of an injury to a person or property within the limits set forth in this
      subchapter if both of the following conditions are satisfied and the injury
      occurs as a result of one of the acts set forth in subsection (b):
         (1) The damages would be recoverable under common law or a statute
      creating a cause of action if the injury were caused by a person not having
      available a defense under section 8541 (relating to governmental immunity
      generally) or section 8546 (relating to defense of official immunity); and
         (2) The injury was caused by the negligent acts of the local agency or an
      employee thereof acting within the scope of his office or duties with respect
      to one of the categories listed in subsection (b). As used in this paragraph,
      "negligent acts" shall not include acts or conduct which constitutes a crime,
      actual fraud, actual malice or willful misconduct.
      (b) Acts which may impose liability. --The following acts by a local agency
      or any of its employees may result in the imposition of liability on a local
      agency:
         (1) Vehicle liability. --The operation of any motor vehicle in the
      possession or control of the local agency, provided that the local agency
      shall not be liable to any plaintiff that claims liability under this subsection if
      the plaintiff was, during the course of the alleged negligence, in flight or
      fleeing apprehension or resisting arrest by a police officer or knowingly
      aided a group, one or more of whose members were in flight or fleeing
      apprehension or resisting arrest by a police officer. As used in this
      paragraph, "motor vehicle" means any vehicle which is self- propelled and
      any attachment thereto, including vehicles operated by rail, through water
      or in the air.
42 Pa.C.S. § 8542(a)(b)(1).

      We must first determine, therefore, whether Appellants have met the threshold

requirement of 42 Pa.C.S. § 8542(a)(1), specifically, whether Appellees owe a common

law or statutory duty of care to passengers in a fleeing vehicle whose existence, or whose

connection to the driver, is unknown to the officer at the time of the pursuit.             The


                                      [J-31-2014] - 15
assessment of whether a duty of care is owed to a particular individual or class of

individuals is a matter for the courts to decide, not juries. Seebold v. Prison Health Servs.,

57 A.3d 1232, 1247 (Pa. 2012).

       Appellants contend that Section 3105(e) of the Vehicle Code establishes an

actionable statutory duty on the part of the pursuing officer that satisfies the threshold

requirement of 42 Pa.C.S. § 8542(a)(1). This contention is misguided. Section 3105(e)

of the Vehicle Code states, in relevant part, “This section does not relieve the driver of an

emergency vehicle from the duty to drive with due regard for the safety of all persons.”

75 Pa.C.S. § 3105(e).        Mindful that when construing a statute, we presume the

legislature “intends to favor the public interest as against any private interest,” we find that

Section 3105(e) of the Vehicle Code does not create a statutory duty to unknown

passengers in a vehicle. 1 Pa.C.S. § 1922(5).           Section 3105(e) does not create a

separate statutory duty on emergency vehicle drivers, but rather recognizes that

emergency vehicle drivers still owe a common law duty to the public at large, i.e. innocent

bystanders.8

       Having determined that Section 3105(e) does not create a statutory duty to

unknown passengers in a fleeing vehicle, we must now determine whether such a

common law duty exists. This Court has explained that “[t]he legal concept of duty of

care is necessarily rooted in often amorphous public policy considerations, which may

include our perception of history, morals, justice and society.” Althaus, supra at 1169.

In Althaus, this Court established the following five factors which must be weighed to

determine if a duty of care exists:


8 Appellants have completely disregarded Commonwealth Court precedents which have
found, in accordance with Lindstrom, that Section 3105(e) “does not create a duty not
otherwise existing; rather it recognizes the residual duty of drivers of emergency
vehicles.” Frazier v. Commonwealth, 845 A.2d 253, 260 (Pa. Cmwlth. 2004).



                                       [J-31-2014] - 16
       (1) the relationship between the parties; (2) the social utility of the actor’s
       conduct; (3) the nature of the risk imposed and foreseeability of the harm
       incurred; (4) the consequences of imposing a duty upon the actor; and (5)
       the overall public interest in the proposed solution.
Althaus, supra at 1169. We will now utilize these factors to determine if police owe a

duty of care to unknown passengers in a fleeing vehicle.

       First, as we indicated in Lindstrom, “a law enforcement officer is a protector of all

members of the public.” Lindstrom, supra at 397. We must, therefore, view the first

factor, the relationship between the officers and passengers in a fleeing vehicle, in the

broader context of the relationship the officer has to the community he or she serves. Id.

An officer’s relationship to the community he or she serves hinges on the officer’s ability to

keep the members of the community safe from criminals, including dangerous drivers.

Accordingly, where, as here, the officer was unaware of the presence of a passenger in a

fleeing vehicle, this first factor weighs against imposing a duty.

       As we found in Lindstrom, the second factor weighs against imposing a duty, as

“the social utility of a police officer’s attempt to apprehend a person suspected of violating

the law is beyond dispute.” Id. This social utility is not curtailed by the addition of an

unknown passenger in a fleeing vehicle.

       As to the third factor, we acknowledge that we found in Lindstrom that it is

foreseeable that a fleeing driver may be injured in his attempt to elude an officer. Id.

Instantly, because injury to an unknown passenger is not foreseeable, we find that the

nature of the risk imposed and the foreseeability of the harm incurred to an unknown

passenger weighs against imposing a duty on pursuing officers.

       The fourth factor weighs heavily against imposing a duty on officers. Imposing a

duty on officers to unknown passengers in a fleeing vehicle would present an unworkable

burden on officers, essentially halting police pursuits. The decision to pursue a fleeing

vehicle is one that must be made in a matter of seconds. To require officers to not only


                                      [J-31-2014] - 17
establish the presence of passengers, but also discover the relationship of the

passengers to the fleeing driver, would be unmanageable in the necessarily fast-paced

environment of law enforcement. Moreover, officers, fearing the risk of civil liability,

would be less likely to initiate pursuit, which would likely encourage criminals to flee.

        Finally, as we found in Lindstrom, “the public has a preeminent interest in ensuring

that roadways remain safe from dangerous drivers and criminals and that police officers

are empowered to enforce the law.” Id. These factors, when weighed against one

another, militate heavily against imposing a duty on officers to unknown passengers in a

fleeing vehicle. Appellants fail to meet the threshold requirement of the Tort Claims Act,

and therefore, we need not determine whether this claim falls within the vehicle liability

exception found in 42 Pa.C.S. § 8542(b)(1). See, Lindstrom, supra at 398.

        As this case was decided on summary judgment, there have not been factual

determinations made by a judge or jury. As discussed supra, Appellants’ version of

events of the night in question differ greatly from Officer Howley’s version. Appellants

claim that Officer Howley was driving in the opposite direction as Simons, and therefore

Officer Howley likely saw decedent and Senger in the vehicle.           The in-car camera

recording, however, blatantly contradicts this assertion, revealing that Officer Howley was

driving behind Simons, travelling in the same direction, when he initiated the pursuit, and

therefore summary judgment was appropriate. 9         See, Scott v. Harris, supra at 380

(where the United States Supreme Court found that when video evidence blatantly

contradicts the opposing party’s version of events, a court should not adopt the opposing

party’s version of facts for purposes of ruling on a summary judgment).

        For the aforementioned reasons, we affirm the order of the Commonwealth Court.



9   There have been no allegations that the in-car camera recording was altered.



                                      [J-31-2014] - 18
Former Justice McCaffery did not participate in the decision of this case.

Mr. Chief Justice Castille and Messrs. Justice Eakin and Baer join the opinion.

Mr. Justice Saylor files a concurring opinion.

Madame Justice Todd files a concurring opinion.




                              [J-31-2014] - 19
