Schemberg v. SmicherkoSchemberg v. Smicherko
Lead Opinion
OPINION BY
Kаrl Schemberg, Jr. (Plaintiff) appeals from the November 8, 2012 order which sustained the preliminary objections of James Smicherko (Defendant) and dismissed Plaintiffs complaint with prejudice. We reverse and remand for further proceedings consistent with this opinion.
The trial court summarized the facts and procedural history of this case as follows:
Plaintiff ... filed a complaint against [Defendant] for negligence per se and negligence. Plaintiff is a police officer for the Borough of Kutztown Police Department. Around midnight on February 17, 2012, while on duty, [P]laintiff observed [Defendant urinating in public against the side of a private residence which [P]laintiff believed was not [D]e-fendant’s private residence in violation of municipal ordinances and state laws. Defendant ran away to avoid [P]laintiffs investigation. [Plaintiff] pursued [Defendant and eventually apprehended him not far from the area where he first saw [Defendant urinating. The area of the pursuit was not well lit, and [P]laintiff fell from a height between twelve inches to fifteen inches while pursuing [Defendant. Plaintiff sustained injuries to his right leg which required, inter alia, surgery. Defendant pled guilty to violating the Borough of Kutztown ordinance prohibiting urination in public. Plaintiff contends in his сomplaint that [Defendant committed negligence per se because he violated the ordinance of Kutz-town Borough and 18 Pa.C.S.A. § 5104 which reads as follows:
A person commits a misdemeanor of the second degree if, with the intent of preventing a public servant from effecting a lawful arrest or discharging any other duty, the person creates a substantial risk of bodily injury to the public servant or anyone else, or employs means justifying or requiring substantial force to overcome the resistance.
Defendant filed preliminary objections to the complaint contending that [Plaintiff was not able to prove claims of negligence per se and negligence. [The trial court] agreed with [Defendant and sustained the preliminary objections.
Trial Court Opinion, 2/21/2013, at 1-2.
Plaintiff filed a timely notice of appeal, and both Plaintiff and the trial court complied with Pa.R.A.P. 1925. Plaintiff presents the following questions for our review:
A. DID THE TRIAL JUDGE ERR IN CONCLUDING THAT [PLAINTIFF] COULD NOT ESTABLISH A CLAIM FOR NEGLIGENCE OR NEGLIGENCE PER SE BECAUSE THE STATUTE VIOLATED BY [DEFENDANT] WAS NOT INTENDED TO PROTECT A SPECIFIC GROUP OF INDIVIDUALS AS OPPOSED TO THE GENERAL PUBLIC?
B. DID THE TRIAL JUDGE ERR IN CONCLUDING THAT [PLAINTIFF] COULD NOT ESTABLISH A CLAIM FOR NEGLIGENCE PER SE OR NEGLIGENCE BECAUSE THE ACTIONS OF [DEFENDANT] WERE NOT THE PROXIMATE CAUSE OF THE INJURIES SUFFERED BY [PLAINTIFF]?
Plaintiffs Brief at 4 (trial court and suggested answers omitted; italics added).
We examine Plaintiffs questions mindful of the following standards.
Our standard of review of an order of the trial court overruling or granting preliminary objections is to determine whether the trial court committed an error of law. When considеring the appropriateness of a ruling on preliminary objections, the appellate court must apply the same standard as the trial court. Preliminary objections in the nature of a demurrer test the legal sufficiency of the complaint. When considering preliminary objections, all material facts set forth in the challenged pleadings are admitted as true, as well as all inferences reasonably deducible therefrom. Preliminary objections which seek the dismissal of a cause of action should be sustained only in cases in which it is clear and free from doubt that the pleader will be unable to prove facts legally sufficient to establish the right to relief. If any doubt exists as to whether a demurrer should be sustained, it should be resolved in favor of overruling the preliminary objections.
Joyce v. Erie Ins. Exchange,
This Court has summarized the applicable principles of law as follows.
Generally, to prevail in a negligence case, a plaintiff must demonstrate the following elements: (1) the defendant owed a duty to the plaintiff; (2) the defendant breached that duty; (3) acausal relationship between the breach and the resulting injury suffered by the plaintiff; and (4) actual loss suffеred by the plaintiff....
The concept of negligence per se establishes the elements of duty and breach of duty where an individual violates an applicable statute, ordinance, or regulation designed to prevent a public harm. However, a plaintiff, having proven negligence per se cannot recover unless it can be proven that such negligence was the proximate cause of the injury suffered.
We have defined negligence per se in the following fashion:
[Negligence per se is] conduct, whether of action or omission, which may be declared and treated as negligence without any argument or proof as to the particular surrounding circumstances. Pennsylvania recognizes thаt a violation of a statute or ordinance may serve as the basis for negligence per se. However, a court will not use a statute or regulation as the basis of negligence per se where the purpose of the statute is to secure to individuals the enjoyment of rights or privileges to which they are entitled only as members of the public.
In order to prove a claim based on negligence per se, the following four requirements must be met:
(1) The purpose of the statute must be, at least in part, to protect the interest of a group of individuals, as opposed to the public generally;
(2) The statute or regulation must clearly apply to the conduct оf the defendant;
(3) The defendant must violate the statute or regulation;
(4) The violation of the statute or regulation must be the proximate cause of the plaintiffs injuries.
Mahan v. Am-Gard, Inc.,
The statute Plaintiff claims that Defendant violated provides as follows.
A person commits a misdemeanor of the second degree if, with the intent of preventing a public servant from effecting a lawful arrest or discharging any other duty, the person creates a substantial risk of bodily injury to the public servant or anyone else, or employs means justifying or requiring substantial force to overcome the resistance.
The trial court rejected Plaintiffs negligence per se clаim based upon violation of this statute upon the following analysis: “[f]leeing the scene of a summary arrest, without more, does not create a substantial risk of bodily harm to a police officer. Moreover, [Defendant] did not employ any resistance which forced [Plaintiff] to overcome the resistance with substantial force.” Trial Court Opinion, 2/21/2013, at 4. We disagree.
Plaintiffs complaint does not allege merely flight to avoid arrest. Plaintiff alleged that Defendant attempted to prevent Plaintiff from performing his duty by fleeing, in the middle of the night, through a poorly-lit area of uneven terrain. Complaint, 7/13/2012, at ¶¶ 4, 6, 9. Accepting these averments as true, and giving Plaintiff the benefit of all reasonable inferences therefrom, the fact finder could reasonably conclude that Defendant’s flight created a substantial risk of bodily injury. See, e.g., Commonwealth v. Lyons,
Defendant argues his preliminary objections were nonetheless properly granted because the purpose of
Clearly the purpose of the statute is to protect the group of individuals, specifically including public servants, who find themselves in the zone of danger created by the individual preventing the public servant from discharging his or her duty. That the protected group includes bystanders as well as public servants does not make it so general as to prevent the application of
For example, although the criminal code provision against underage drinking “represents an obvious legislative decision to protect both minors and the public at large from the perceived deleterious effects of serving alcohol to persons under twenty-one years of age[,]” our Supreme Court held that violation of that statute constituted negligence per se. Congini by Congini v. Portersville Valve Co.,
In contrast, statutes which this Court has held were too general to support a negligence per se claim involve statutes that less clearly indicate an intention to protect specific groups from specific types of harm. See, e.g., Wagner v. Anzon, Inc.,
Thus, we conclude that the purpose of
We next consider Plaintiffs ordinary negligence claim. “Negligence is the absence of ordinary care that a reasonably prudent person would exercise in the same or similar circumstances.” Merlini ex rel. Merlini v. Gallitzin Water Authority,
The trial court concluded that Defendant owed no duty to Plaintiff because “[t]here was no special relationship” between the parties, Defendant never touched Plaintiff, and Defendant “did not own the property on which the injury occurred.” Trial Court Opinion, 2/21/2013, at 5-6. Again, we disagree.
The determination of whether a duty exists in a particular case involves theweighing of several discrete factors which 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.
Id. at 1169.
The case of Lindstrom v. City of Corry,
Applying the Lindstrom analysis to the converse facts of the instant case, we conclude that the factors favor imposition of a duty of care. The first factor does not support the imposition of a duty, as Defendant had no relationship with Plaintiff. However, (2) the utter dearth of social utility of Defendant’s conduct in fleeing from an officer; (3) the obvious risk and foreseeability of possible injury to the pursuing officer; (4) the positive consequences of discouraging flight and encouraging apprehension of criminals; and (5) the public interest in empowering police to enforce the law and keep the communities safe all support the imposition of a duty of care uрon Defendant in these circumstances. Accordingly, we conclude that the trial court erred in concluding, accepting the allegations of Plaintiffs complaint as true, that Defendant is entitled to judgment as a matter of law on Plaintiffs negligence claim.
The only remaining question is whether Plaintiff can show causation. “To determine whether any breach of duty proximately caused a plaintiffs damages, this Court looks to whether a reasonable person would infer that the injury was the natural and probable result of defendant’s breach of duty.” Kirschner v. K & L Gates LLP,
The trial court concluded аs a matter of law that Plaintiffs injury “was not a foreseen natural and probable cause of [D]e-fendant’s acts.” Trial Court Opinion, 2/21/2013, at 5. “This was not a high speed chase, but pursuit on foot after an unarmed defendant. Defendant did not create a substantial risk of bodily injury; [P]laintiff fell on a pre-existing fault.... [Plaintiff] cannot prove that [Defendant was the proximate cause of his injury.” Id.
Because Plaintiffs complaint alleges facts which satisfy the requirements for a claim of negligence per se, see Mahan,
Order reversed. Case remanded for further proceedings consistent with this opinion. Jurisdiction relinquished.
Judge OLSON files a Dissenting Opinion.
Notes
. While a conviction of an offense is not required, the certified record confirms that Smicherko’s resisting arrest charge was nolle prossed.
Dissenting Opinion
DISSENTING OPINION BY
I respectfully dissent. Karl Schem-berg’s complaint did not allege sufficient facts to establish a violation of the resisting arrest statute, 18 Pa.C.S.A.
Schemberg alleged negligence per se, and as the majority аccurately notes, the following four requirements must be met:
(1) The purpose of the statute must be, at least in part, to protect the interest of a group of individuals, as opposed to the public generally;
(2) The statute or regulation must clearly apply to the conduct of the defendant;
(3) The defendant must violate the statute or regulation;
(4) The violation of the statute or regulation must be the proximate cause of the plaintiffs injuries.
Mahan v. Am-Gard, Inc.,
At issue herein, 18 Pa.C.S.A.
A person commits a misdemeanor of the second degree if, with the intent of preventing a public servant from effecting a lawful arrest or discharging any other duty, the person creates a substantial risk of bodily injury to the public servant or anyone else, or employs means justifying or requiring substantial force to overcome the resistance.
18 Pa.C.S.A.
Schemberg asks this Court to examine the purpose of
This presents a matter of statutory interpretation, and as this is a purely legal question, our standard of review is denovo and scope of review is plenary. The objective of all interpretation and construction of statutes is to ascertain and effectuate the intention of the legislature. Generally, the best indication of the General Assembly’s intent is the plain language of the statute. When the words of a statute аre clear and free from all ambiguity, they are presumed to be the best indication of legislative intent.
Allstate Life Ins. Co. v. Commonwealth of Pennsylvania,
As a matter of law, Schemberg has failed to allege James Smicherko violated
5. After observing [James Smicherko (Smicherko) ] urinating in public, [Schemberg] approached [Smicherko] to further investigate [Smicherko’s] actions.
6. In response to [Schemberg’s] approach, [Smicherko] ran from the scene and away from [Schemberg] in an attempt to avoid [Schemberg’s] investigation.
7. [Schemberg] pursued [Smicherko] as [Smicherko] ran away and eventually apprеhended [Smicherko] not far from the area where [Smicherko] was observed urinating in public.
8. In pursuing and apprehending [Smicherko], [Schemberg] suffered significant injury including a comminuted, depressed fracture of the lateral tibia plateau of his right leg which required surgery and other substantial medical care, and will continue to require such medical care and treatment into the future.
9. [Schemberg’s] injury occurred when he was suddenly caused to drop from a height between twelve (12) to fifteen (15) inches while chasing [Smi-cherko] in an area that was not well lit.
10. [Schemberg] believes, and therefоre avers, that [Smicherko] knew, or should have known, that his actions in running away from [Schemberg] could cause serious injury to [Schemberg].
Complaint, 7/13/2012, at 2.
“[E]vidence of violation of a statute ... may constitute negligence per se, irrespective of the criminal penalties contained therein or whether there has been a conviction thereunder.”
The intent of [S]ection [5104] is to confine the offense to forcible resistance that involves some substantial danger to the person. As a general rule, therefore, it is not criminal merely to flee arrest. However, where the circumstances оf the flight expose the pursuing officers to substantial danger a [finding of a violation of] resisting arrest is proper. A person resists arrest by conduct which creates a substantial risk of bodily injury to the arresting officer or by conduct which justifies or requires substantial force to overcome the resistance.
Commonwealth v. Miller,
Fleeing the scene of a summary arrest, without more, does not create a substantial risk of bodily harm to a pоlice officer. Moreover, [Smicherko] did not employ any resistance which forced [Schemberg] to overcome the resistance with substantial force.
Trial Court Opinion, 2/21/2013, at 4. I agree.
The plain language of
Moreover, I take issue with the majority’s reliance on Commonwealth v. Lyons,
When the local deputy sheriffs arrived to arrest appellant, he ran into the middle of Lycoming Creek and attempted to swim downstream with the current. The water level of the creek was waist deep and, because it was early spring, the water temperature was frigid. The creek had a slippery streambed and a swift current. Two of the deputy sheriffs went into the creek after аppellant. One officer, after three unsuccessful attempts, managed to get a grip of appellant who was kicking and struggling to get away. When the other officer then managed to grab appellant’s arm, appellant went limp, pulled his feet underneath him, refused to walk, and became rigid. As a result, the two officers literally had to carry him to the bank, losing their balance a few times along the way. The two officers asked appellant to walk, but he refused. When they were within four to five feet of the bank, the two officers who were waiting on the shore, jumped in and together the four officеrs carried appellant up to the bank where appellant was then handcuffed.
Appellant argues that there was no evidence presented that he, at any time, assaulted or attempted to assault the officers or that he had a weapon. Appellant claims that he was simply fleeing from arrest and that no evidence was introduced which demonstrated that he created a substantial risk of bodily injury to the deputy sheriffs. His arguable claim is inapposite.
[Section 5104 ] does not require serious bodily injury. Nor does it require actual injury to the arresting officer. Rather, sufficient resistance is established if the arrestee’s actions created a substantial risk of bodily injury to the arresting officer. Appellant’s struggle with the two deputies in the middle of a frigid stream with a rocky uneven bed was sufficient to meet that requirement.
Moreover, the statute includes the disjunctive phrase “or employs means justifying or requiring substantial force to overcome resistance.” Appellant’s actions unquestionably fall within the ambit of this portion of the statute. It took four deputy sheriffs to finally subdue appellant. Substantial force was thus required to overcome appеllant’s resistance to the arrest.
In a later decision, this Court clarified Lyons, noting that “under the rather extreme circumstances of that case, appellant’s flight had created a substantial risk that, considering the omnipresent danger presented by a creek’s uneven, slippery bottom and rapid current, one or more of the officers needed to capture appellant could have incurred bodily injury as a result of being led into the freezing waters.” In Interest of Woodford,
Taken together, Lyons and Woodford reveal that mere flight — by itself — will not generally constitute resisting arrest under
Thus, I believe that even accepting as true Schemberg’s averments that Smicher-ko fled “in the middle of the night, through a poorly-lit area of uneven terrain”, a fact-finder could not reasonably conclude the flight created a substantial risk of bodily injury. See Majority Opinion, at 1074-75, citing Complaint, 7/13/2012, at ¶¶4, 6, 9. Schemberg’s complaint does not allege that Smicherko deliberately led him into an inherently dangerous situation, or created a substantial risk, in an effort to resist arrest. This case is in stark contrast to Lyons wherein the defendant struggled with police, led them into a frozen creek, went limp, and required four police officers to drag him up an embankment. In my view, based upon my plain reading of
Moreover, this Court has been called upon numerous times to determine the types of acts that require substantial force by police to overcome resistance pursuant to
Accordingly, reliance on Lyons is misplaced and the facts in this case required the dismissal of Schemberg’s1 complaint. Here, as set forth in his complaint, Schem-berg observed Smicherko urinating in public and approached him. Smicherko fled to avoid investigation and/or apprehension. Schemberg pursued and eventually apprehended him. In sum, the complaint only alleged flight to avoid arrest, which traditionally falls outside the scope of conduct criminalized by
Finally, I take issue with the majority’s consideration of Schemberg’s ordinary negligence claim. See Majority Opinion, at 1074-77. In his brief to this Court, Schemberg does not challenge the trial court’s order that sustained preliminary objections to his negligence cause of action and, hence, I find the issue waived. On appeal, although Schemberg sporadically references his claim for negligence in his appellate brief, he does not provide any argument or citations to either authority or the record in defense of this claim. See Pa.R.A.P. 2119; Bombar v. West American Ins. Co.,