Occupant In a Fleeing Vehicle Is Not an Innocent Bystander…Or Is He?

By Kimberly A. Boyer-Cohen, Esq.*

Under the law in Pennsylvania, police officers owe no duty of care to the driver of a fleeing vehicle, Lindstrom v. City of Corry, 763 A.2d 394 (Pa. 2000), but they do owe a duty of care to innocent third parties, Jones v. Chieffo, 700 A.2d 417 (Pa. 1997), who are bystanders unconnected with the wrongdoer or the vehicle being pursued. Recently, however, the question of whether to extend a duty to unknown passengers in a fleeing vehicle was addressed by the Pennsylvania Commonwealth Court in Sellers v. Township of Abington, 67 A.3d 863 (Pa.Cmwlth. 2013).

The Sellers case arose when Scott Simons, who was admittedly intoxicated, agreed to give Matthew Senger and Joshua Sellers a ride home. When a police officer attempted to stop Simons for speeding, Simons refused to pull over and, instead, accelerated, at which time the police officer pursued the vehicle. During the high-speed pursuit, Simons lost control of the vehicle, and Sellers, who was not wearing a seat belt, was ejected from the car and died.

The administrators of Sellers’ estate brought a wrongful death action against the officers and Abington Township, arguing that Sellers was an innocent bystander to whom the officers owed a duty of care, because there was no evidence that Sellers was fleeing apprehension or attempting to aid the fleeing driver. To the contrary, the plaintiffs asserted that there was evidence that Sellers urged Simons to pull over prior to the fatal crash and, therefore, the trial court erred in determining that Sellers was akin to the fleeing suspect to whom no duty was owed. The Commonwealth Court disagreed and limited the officers’ duty of care.

According to the Commonwealth Court, the public’s interest in ensuring that roadways remain safe from dangerous drivers and that police officers are empowered to enforce the law is preeminent, and that interest is as chilled by imposing a duty to passengers. The Commonwealth Court also acknowledged that an officer could not make a distinction during the chase regarding whether the occupants were willingly in the fleeing vehicle or whether they knew about whatever evidence of criminality was in the vehicle, and such a requirement would be unworkable in the field of law enforcement. As a result, the Sellers court held that there was no duty of care to passengers whose existence, or whose connection to the driver and the conduct for which he was being pursued, was unknown to the officer. In short, the Commonwealth Court established that police in pursuit of a fleeing vehicle have no duty of care to passengers in that vehicle, even innocent bystanders, unless the police know of the presence of these passengers.

Unfortunately, this is not the final word on this issue. The Pennsylvania Supreme Court has granted allowance of appeal in Sellers to determine whether the Commonwealth Court properly held that police officers do not owe a duty of care to innocent bystanders in a fleeing vehicle. Aside from questioning this newly created standard, it appears that the Pennsylvania Supreme Court, like the dissent in the Commonwealth Court, is also concerned that the majority opinion in Sellers established a standard that requires findings of fact as to whether the police knew there were passengers in the vehicle being pursued and improperly granted judgment without first requiring a jury determination of disputed questions of fact.

This grant of allocatur by the Pennsylvania Supreme Court leaves us to speculate whether the Commonwealth Court’s decision would have been examined if there was no doubt that Sellers was aiding or abetting Simons, or if there was no doubt that the officers did not know that Sellers was in the vehicle. In the meantime, there is no question that police officers should proceed with caution and keep in mind the safety of the community they serve. Nevertheless, as it now stands, even if there is a passenger in a fleeing vehicle, for purposes of civil liability, that passenger is not considered an innocent bystander unless the officer knows of his or her existence.

*Kimberly is Special Counsel in the Philadelphia, Pennsylvania, office and is a member of the Appellate Practice and Post-Trial Advocacy Group. She can be reached at 215.575.2707 or kaboyer-cohen@mdwcg.com.

Defense Digest, Vol. 20, No. 1, March 2014

Defense Digest is prepared by Marshall Dennehey Warner Coleman & Goggin to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. Copyright © 2014 Marshall Dennehey Warner Coleman & Goggin, all rights reserved. This article may not be reprinted without the express written permission of our firm.