HAWTHORNE, K.A. et al v. MUNICIPALITY OF NORRISTOWN et al

Filing 42

MEMORANDUM SIGNED BY HONORABLE GERALD J. PAPPERT ON 2/5/16. 2/5/16 ENTERED AND COPIES MAILED TO UNREP AND E-MAILED. (va, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
SALIMA HAWTHORNE, K.A., et al.,
Plaintiffs,

CIVIL ACTION
No. 15-01572

v.
MUNICIPALITY OF NORRISTOWN, et al.,
Defendants.

MEMORANDUM
PAPPERT, J.

February 5, 2016

This is a very disappointing case which concludes today with this Opinion, one the Court
is discouraged to have to write. The lawsuit concerns a police pursuit of a stolen car whose
occupants were injured when the car crashed. Plaintiffs tell the story of police officers racing
through the streets of a local municipality recklessly endangering the citizenry and then
maliciously ramming the car, causing the “catastrophic collision” and the resulting injuries. The
municipality is accused of having a pursuit policy which caused this unconscionable conduct and
for failing to train the officers not to engage in it.
The story is pure fiction. Video from a dashboard camera in one of the officer’s cars
reveals the Plaintiffs’ allegations to be patently false. The video was of course produced to the
Plaintiffs’ counsel in discovery. Undeterred, counsel continued to subject the officers and the
municipality to his charade. Indeed, just weeks ago during oral argument on the municipality’s
motion for summary judgment, counsel described the video (which the Court at that time had yet
to see) as “very grainy,” of “not terribly high quality” and said that it “would raise questions.”
1

The Court has now watched the video and the only question it raises is why the Plaintiffs and
their lawyer continued to pursue this case.
I.
On November 7, 2013, William H. Ball (“Ball”) reported to the Norristown Police
Department (“Department”) that his car, a black Nissan Altima, had been stolen. (Defendant’s
Statement of Material Facts (“DSMF”) ¶¶ 5–6, ECF No. 24 at Ex. 1; Incident Report Forms,
ECF No. 24 at Exs. E–F.)1 At approximately 11:00 p.m. on November 8, K.A., a minor, and
Ameer Johnson (“Johnson”) left their house to walk approximately four blocks to the Pub Deli in
Norristown. Daquan Bailey (“Bailey”), driving Ball’s car, offered them a ride. (Plaintiffs’
Statement of Material Facts (“PSMF”) ¶¶ 6–11, ECF No. 28 at Ex. 1; DSMF ¶¶ 9, 19–22; K.A.
Dep. 29:18–23, 30:1–2, ECF No. 24 at Ex. I; Johnson Dep. 19:22–23, 28:2–29:20, ECF No. 24
at Ex. K.) K.A. and Johnson were purportedly unaware that the car had been stolen. (PSMF ¶
22; K.A. Dep. 38:1–13; Johnson Dep. 62:14–17.)
Just before midnight, Norristown Police Corporal Bishop2 (“Bishop”) while off duty,
reported seeing the stolen car and followed it until on duty Corporal David Brooke (“Brooke”),
and then later Officer Carl D. Robinson, Jr. (“Robinson”), could respond. (DSMF ¶¶ 7, 8, 28;
Incident Report Form, ECF No. 24 at Ex. F; Brooke Dep. 22:7–21, ECF No. 24 at Ex. G.)
Brooke activated his lights and siren and pulled alongside Bailey. With K.A. and Johnson still in
the car, Bailey sped away and Brooke began to pursue him. (PSMF ¶ 5; DSMF ¶¶ 10, 13–14;
Brooke Dep. 22:22–23:8.) Soon after, Robinson began to follow Brooke. (DSMF ¶ 11;
Robinson Dep. 8:14–23, ECF No. 24 at Ex. H.) K.A. testified that Bailey fled from Brooke’s car
1

Plaintiffs’ Statement of Material Facts fails to conform with this Court’s Policies and Procedures, § II.D.4. The
Court accordingly often relies on Norristown’s Statement of Material Facts for citation purposes, even though all
facts are undisputed.
2

Corporal Bishop’s first name is absent from the record.

2

at a speed of fifty miles per hour and reached a high speed of sixty miles per hour during the
pursuit. (DSMF ¶ 17; K.A. Dep. 45:16–20, 60:16–22.) K.A. also testified that there was at least
one time that Bailey did not stop at a stop sign. (K.A. Dep. 51:11–22.)
Robinson’s car was equipped with a dashboard camera or “dash cam.” (PSMF ¶¶ 16–18;
DSMF ¶ 38; Robinson Dep. 8:6–12; Pursuit Video, ECF No. 24 at Ex. J; Benson Dep. 33:17–24,
ECF No. 24 at Ex. L.) Both Brooke and Robinson drove their police cars at around thirty-five
miles per hour with lights and sirens activated during the pursuit. (DSMF ¶¶ 12, 15; Robinson
Dep. 8:8–23, 10:14–15.) There was little traffic and few to no pedestrians in the area. (DSMF
¶¶ 33–34; Brooke Dep.19:19–20:6; Robinson Dep. 18:6–7; Pursuit Video.) Corporal Joseph
Benson (“Benson”) monitored the pursuit from the Department. (DSMF ¶ 35; Benson Dep.
48:6–49:17.)
Robinson’s dash cam captures the entire pursuit and ends with the aftermath of Bailey’s
crash. The pursuit begins in earnest at around the 2:25 mark,3 at which time Robinson spots
Brooke’s car with its lights and siren activated. Robinson turns on his own lights and siren and
proceeds to follow Brooke’s car. Robinson follows Brooke down a curving road and makes a
right at a three-way intersection. Both cars travel a block and make another right at a three-way
intersection. One officer indicates that Bailey is traveling the “wrong way” down the street.
Brooke and Robinson proceed straight two blocks and take a slight left. At the 2:54 mark,
another officer asks for Robinson’s speed, which he states is “thirty-five [miles per hour].”
Brooke goes straight through the next intersection, while Robinson takes a left. Robinson
goes straight for one block and then turns right. Robinson continues straight for two blocks and
slows down at an intersection at the 3:10 mark. A second or two later, Bailey speeds through the

3

The video begins at time “0:00.” Robinson takes roughly two minutes and twenty-five seconds to arrive at the
Pub Deli.

3

intersection from right to left. Robinson turns left and falls in behind him. At all relevant times,
Robinson’s car is well behind the car Bailey is driving and never comes close to making contact
with it. At the 3:18 mark, Bailey’s car hits what K.A. and Johnson testified to as the “bump.”
Because Bailey is driving too fast, the “bump” sends sparks flying from the underside of the car
and then sends the car out of control. When the car crashes, neither Robinson nor Brooke’s car is
anywhere near it. Robinson’s car comes to a stop at the 3:33 mark. Bailey’s car, now
significantly damaged and stationery, is clearly visible. Robinson can be heard yelling “don’t
move . . . stop moving.” Other officers arrive on the scene at the 4:20 mark, and instruct the
car’s passengers to, among other things, put their hands up.4 The rest of the video records the
lengthy process necessary to remove the occupants from the car.
K.A. and Johnson testified that police car(s) hit their car during the pursuit, which caused
it to lose control and eventually crash. (PSMF ¶¶ 19–21; DSMF ¶ 29; K.A. Dep. 58:2–60:2;
Johnson Dep. 33:8–11.) K.A. testified that Brooke drove a marked squad car, while Robinson
drove an unmarked “Crown Vic”5 car. (K.A. Dep. 48:10–49:6.) K.A. also testified that,
although he did not see it, the Crown Vic hit Bailey’s car, which caused Bailey to lose control, hit
a “big bump” in the road and crash. (K.A. Dep. 59:5–60:13.) Johnson testified that a police car
“bumped” Bailey’s car “real hard,” but did not clarify if it was Brooke’s car, Robinson’s car, or
both. (Johnson Dep. 33:5–11.) According to Johnson, Bailey’s car then hit a “little bump” and
he was “done, like [presumably in reference to Johnson being knocked unconscious].” (Johnson

4

K.A., who is African-American, also testified that after the crash three of the officers used a vile racial epithet
when referring to him. (K.A. Dep. 64:4–66:2.) While some of the officers curse, primarily when approaching the
car, with guns drawn, to get Bailey, K.A. and Johnson to stop moving, none of the officers are heard to refer to any
of the car’s occupants in racist or derogatory terms.
5

“Crown Vic” is shorthand for “Crown Victoria,” a Ford sedan commonly used by police officers.

4

Dep. 33:12–22.) Johnson later testified that police cars hit Bailey’s car “like three times” after it
hit the bump. (Johnson Dep. 34:12–22, 40:10–16.)
Bailey was later charged with several violations of the Pennsylvania Crimes Code. He
pled guilty to aggravated assault by vehicle and fleeing or attempting to elude an officer, both
third-degree felonies, and unauthorized use of a motor vehicle, a second-degree misdemeanor.
(DSMF ¶ 36; Criminal Docket Sheet, ECF No. 24 at Ex. M.)
Norristown police officers are trained in vehicle operations at the police academy.
(DSMF ¶ 39; Brooke Dep. 11:8–12:10; Robinson Dep. 26:15–19; Benson Dep. 22:23–23:20.)
The municipality maintains a police pursuit policy as required by Pennsylvania law. (75 Pa.
Cons. Stat. § 6342.) The policy permits pursuit after the commission of a felony or serious
misdemeanor. (PSMF ¶ 23; DSMF ¶¶ 40, 42; ECF No. 24 at Ex. O.) Stealing a car is a felony
under Pennsylvania law. (DSMF ¶ 43; 18 Pa. Cons. Stat. § 3903.) After each pursuit, the
Department issues a written report and determines if there were any violations of policy and
whether a review of the policy and/or discipline is necessary. (DSMF ¶¶ 44–46; Benson Dep.
27:14–28:1; Pursuit Report, ECF No. 24 at Ex. P.) The Department submits these reports to the
Pennsylvania State Police. (DSMF ¶ 47; Dillon Dep. 27:3–28:3, ECF No. 24 at Ex. N.) Benson
reviewed the pursuit in question and found no policy violation. (DSMF ¶¶ 48–49; Benson Dep.
36:2–38:10; Pursuit Report.) Additionally, Benson concluded that the pursuit was short in
duration and not at a high rate of speed. (DSMF ¶ 49; Benson Dep. 36:2–38:10, 62:5–15.)
II.
Salima Hawthorne, on behalf of her minor son K.A., and Johnson (collectively
“Plaintiffs”), filed a complaint in the Montgomery County Court of Common Pleas against the

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Municipality of Norristown (“Norristown”), Ball6 and Bailey. (Compl. ¶¶ 4–6, ECF No. 1.)
Norristown removed the complaint to this Court on March 27, 2015. (Notice of Removal, ECF
No. 1.) The complaint alleges that the police chased the stolen car at a “high and dangerous rate
of speed” endangering the community at large. (Compl. ¶¶ 10–13.) The complaint’s most
specific factual allegation is that:
Ultimately, a Norristown police vehicle struck the back of the vehicle driven
by Bailey causing that vehicle to strike another vehicle and roll over in a
catastrophic collision. Plaintiffs Ameer Johnson and K.A. suffered serious
injuries including but not limited to head, brain, neck, back, arm, leg and other
injuries, resulting in a lengthy hospitalizations, rehabilitation and surgeries, some
or all of which may be permanent.
(Compl. ¶ 14) (emphasis added.) Plaintiffs assert the following claims against Norristown: (1)
failure to train under 42 U.S.C. Section 1983; (2) substantive due process violation under the
Fourteenth Amendment; (3) state-created danger under the Fourteenth Amendment; and (4) state
law negligence.7 (Compl. ¶¶ 16–31.)
On November 12, 2015, Norristown filed a motion for summary judgment (Def.’s Mot.,
ECF No. 24) to which the Plaintiffs responded (Pls.’ Resp., ECF No. 28). The Court heard oral
argument on January 20, 2016 and has carefully reviewed the record, including the dash cam
video. (Oral Arg., ECF No. 38.) Stated legally, there is no evidence in the record which could
enable a reasonable factfinder to conclude that Norristown deprived the Plaintiffs of any
constitutional rights or that the municipality was negligent in any way. Put another way, the dash
cam video conclusively shows that the Plaintiffs’ allegations are untrue.

6

Plaintiffs stipulated to Ball’s dismissal on April 30, 2015. (ECF Nos. 9–10.)

7

Plaintiffs also asserted a fifth count, “consortium,” against Norristown, Ball and Bailey. (Compl. ¶¶ 32–35.)
Plaintiffs conceded this claim in their response to Norristown’s summary judgment motion. (Pls.’ Resp. at 2 n.1,
ECF No. 28.) Since the consortium claim was the only one alleged against him, Bailey is no longer a defendant.

6

Summary judgment is appropriate “if the movant shows that there is no genuine dispute
as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). A dispute is genuine if the
evidence is such that a reasonable factfinder could return a verdict for the nonmoving party. See
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 254 (1986). Summary judgment is granted where
there is insufficient record evidence for a reasonable factfinder to find for the plaintiff. Id. at
252. “The mere existence of a scintilla of evidence in support of the plaintiff’s position will be
insufficient; there must be evidence on which the jury could reasonably find for the plaintiff.”
Id.
When ruling on a motion for summary judgment, the Court may only rely on admissible
evidence. See, e.g., Blackburn v. United Parcel Serv., Inc., 179 F.3d 81, 95 (3d Cir. 1999). A
Court must view the facts and draw all reasonable inferences in favor of the nonmoving party.
See In re Flat Glass Antitrust Litig., 385 F.3d 350, 357 (3d Cir. 2004). However, “an inference
based upon a speculation or conjecture does not create a material factual dispute sufficient to
defeat entry of summary judgment.” Robertson v. Allied Signal, Inc., 914 F.2d 360, 382 n.12 (3d
Cir. 1990).
III.
Generally, facts must be viewed in the light most favorable to the nonmoving party at
summary judgment. See United States v. Diebold, Inc., 369 U.S. 654, 655 (1962). However, the
United States Supreme Court in Scott v. Harris, 550 U.S. 372 (2007) held that where there is
video evidence that contradicts the testimony of an opposing party, the court should not adopt the
nonmoving party’s facts over the clear video evidence to the contrary. Scott, 550 U.S. at 380.

7

At issue in Scott was whether a law enforcement official can, consistent with the Fourth
Amendment, “attempt to stop a fleeing motorist from continuing his public-endangering flight by
ramming the motorist’s car from behind.” Id. at 374. Victor Harris (“Harris”) initiated a highspeed car chase by fleeing a police officer who was attempting to pull him over for speeding. Id.
at 374–75. Deputy Timothy Scott (“Scott”) tried to end the chase by ramming Harris’s car with
his police cruiser. Id. at 375. Harris crashed and was rendered a quadriplegic. Id. He sued,
alleging that Scott violated his Fourth Amendment rights by using excessive force. Id. at 375–
76. Scott claimed qualified immunity as a government official acting in his official capacity, but
the district court rejected his claim. Id. at 376.
The Eleventh Circuit Court of Appeals affirmed. The court stated that in order to show
that a government official is not entitled to qualified immunity, a plaintiff is required to prove
that the official violated a clearly established constitutional right. Id. The court reasoned that
because there was no imminent threat—Harris remained in control of his car and the roads were
relatively empty—Scott’s use of deadly force was unconstitutional. Id. Although no appeals
court had ruled on the specific question of the use of deadly force in a high-speed chase, the
court ruled that such limits on deadly force were “clearly established.” Id.
The Supreme Court reversed, holding that Scott’s actions were reasonable under the
Fourth Amendment. Id. at 386. The Court relied heavily on a videotape of the car chase, which
it said contradicted Harris’s claim that he was driving responsibly even while being pursued by
the police. Id. at 378–81. The majority noted the absence of any “allegations or indications that
[the] videotape was doctored or altered in any way” or “any contention that what it depicts
differs from what actually happened.” Id. at 378. The Court held that “it is clear from the
videotape that [Harris] posed an actual and imminent threat to the lives of any pedestrians who

8

might have been present, to other civilian motorists, and to the officers involved in the chase.”
Id. at 384. The Court also took into account Harris’s culpability for starting the chase in the first
place. Id.
The Third Circuit Court of Appeals, consistent with Scott, has repeatedly held that courts
should not adopt the nonmoving party’s allegations over clear video evidence to the contrary.
See, e.g., Smith v. Price, 610 F. App’x 113, 115 (3d Cir. 2015) (affirming the district court in not
accepting the nonmovant’s recitation of the facts of the first incident as they blatantly
contradicted the video evidence); Fennell v. Cambria County Prison, 607 F. App’x 145, 148 (3d
Cir. 2015) (finding the district court properly relied on the videotape of alleged excessive force
by an officer against a state prisoner in resolving any factual disputes); McDowell v. Sheerer,
374 F. App’x 288, 291 (3d Cir. 2010) (stating that where there are video recordings of the
incident in question, the court need not adopt the nonmovant’s version of the facts if the
recording blatantly contradicts the nonmovant’s story); Tindell v. Beard, 351 F. App’x 591, 595
(3d Cir. 2009) (depending on a videotape in assessing summary judgment evidence); Green v.
N.J. State Police, 246 F. App’x 158, 159 n.1 (3d Cir. 2007) (relying on videotapes, where
possible, to state the facts of the case).
There are no allegations or indications that the dash cam video from Robinson’s car was
doctored or altered in any way, “nor any contention that what it depicts differs from what
actually happened.” Scott, 550 U.S. at 378. The video clearly contradicts the complaint’s
allegations—and K.A. and Johnson’s deposition testimony. The video confirms, conclusively,
that neither police car caused the stolen car to crash. Contrary to K.A. and Johnson’s testimony
and the complaint’s specific allegation, no police car struck Bailey’s car, before or after the car
hit the bump. (Compl. ¶ 14; Pursuit Video; K.A. Dep. 58:2–60:2; Johnson Dep. 33:8–22, 34:12–

9

22, 40:10–16.) The stolen car lost control and crashed after hitting the bump in the road while
traveling at an excessive speed.
IV.
Plaintiffs’ failure to train claim under 42 U.S.C. Section 1983 evolved over the course of
the litigation. However the Plaintiffs may frame their claim under Monell v. New York City Dep’t
of Soc. Serv., 436 U.S. 658 (1978), it cannot survive summary judgment. Plaintiffs cite 75 Pa.
Cons. Stat. § 6342, which states that “[e]ach police department shall develop and implement a
written emergency vehicle response policy governing the procedures under which a police
officer should initiate, continue, and terminate a motor vehicle pursuit.” (Compl. ¶ 17.)
Plaintiffs allege that “Norristown failed to create such a policy.” (Compl. ¶ 18.)
Without amending its complaint, Plaintiffs came to acknowledge that Norristown in fact
had such a policy, but in an effort to stave off summary judgment disputed “whether or not the
policy and the training provided thereunder are sufficient and whether Norristown Police
followed the policy in the first place.” (Pls.’ Resp. at 14.)
Plaintiffs altered their claim one last time during oral argument on Norristown’s motion.
Plaintiffs there argued that Norristown’s policy is unconstitutional because it allows the pursuit
of stolen vehicles. (Oral Arg. 71:18–21.) Plaintiffs also maintain a failure to train claim for
allowing police officers to ram vehicles, which violates the policy. (Oral Arg. 53:10–15.)
A.
To establish a Monell claim, a plaintiff must point to a local government’s “policy or
custom” that caused a deprivation of the plaintiff’s constitutional rights. Monell, 436 U.S. at
694. A “policy” is a “statement, ordinance, regulation or decision officially adopted and
promulgated by those whose edicts or acts may fairly be said to represent official policy.” Id. at

10

690; see also Simmons v. City of Philadelphia, 947 F.2d 1042, 1059 (3d Cir. 1991). A “custom”
is not “authorized by written law,” but is so “permanent and well settled” that it constitutes a
custom or usage “with the force of law.” Monell, 436 U.S. at 690; see also Simmons, 947 F.2d at
1059. The plaintiff must: “[I]dentify the constitutional right at issue, identify the policy or
custom at issue, identify the policymaker, demonstrate deliberate indifference or evidence of
knowledge and acquiescence by the policymaker and demonstrate causation.” Glass v. City of
Philadelphia, 455 F. Supp. 2d 302, 342 (E.D. Pa. 2006). Negligence on the part of local
government officials is not enough to impute liability under Section 1983. See Andrews v. City
of Philadelphia, 895 F.2d 1469, 1481 (3d Cir. 1990).
There is no record evidence that Norristown violated any of the Plaintiffs’ constitutional
rights. Norristown has a pursuit policy as required by Pennsylvania law. 75 Pa. Cons. Stat.
§ 6342. That policy allows officers to pursue cars after the commission of a felony or serious
misdemeanor. The act of stealing a car is a felony under the Pennsylvania Crime Code. 18 Pa.
Cons. Stat. § 3903. There is no evidence that any police officers violated that policy or that the
policy itself caused a constitutional injury. The dash cam video of course confirms all of this.
Municipal liability may only be based on a failure to train when it amounts to deliberate
indifference to the rights of the municipality’s residents and actually causes a constitutional
injury. See City of Canton v. Harris, 489 U.S. 378, 389 (1989); see also Woloszyn v. County of
Lawrence, 396 F.3d 314, 324 (3d Cir. 2005). Failure to adequately train municipal employees
can ordinarily be considered deliberate indifference only where the failure has caused a pattern
of violations. See Bd. of County Comm’rs of Bryan County v. Brown, 520 U.S. 397, 407–09
(1997). Without a pattern of past violations, Plaintiffs must show “both contemporaneous
knowledge of the offending incident . . . and circumstances under which [a municipal]

11

supervisor’s actions or inaction could be found to have communicated a message of approval to
the offending subordinate.” Montgomery v. De Simone, 159 F.3d 120, 127 (3d Cir. 1998).
The only evidence Plaintiffs proffer of a “pattern of past violations” is an email from a
Norristown employee that lists the number of police pursuits from 2010 to 2015. (Pursuit
Statistics, ECF No. 28 at Ex. A.) The email falls well short of establishing any kind of a pattern
of constitutional violations. (Id.) The only testimony on this document is that of Norristown’s
Rule 30(b)(6) designee Lieutenant Todd Dillon (“Dillon”). (Dillon Dep. 27:7–17.) Dillon
testified that the email contains pursuit statistics from 2010 to 2015, in addition to how many of
those pursuits “involved some type of collision.” (Id.) His testimony provides no evidence of a
pattern of violations.
Plaintiffs’ second count alleges a substantive due process violation under the Fourteenth
Amendment. They contend that “[i]n pursuing the [stolen car] in the manner [Norristown] did,
[it] acted with reckless and callous disregard to the Plaintiffs’ [Fourteenth] Amendment
substantive due process rights.” (Compl. ¶ 21.) Plaintiffs’ substantive due process claim fails for
the same reason as their prior Monell claims fail.
B.
In Count III of their complaint, Plaintiffs seek to hold Norristown liable under the statecreated danger theory, which evolved out of the Supreme Court of the United States’s decision in
Deshaney v. Winnebago County Dep’t of Soc. Serv., 489 U.S. 189 (1989). In Deshaney, the
Court recognized that “the Due Process Clauses generally confer no affirmative right to
governmental aid, even where such aid may be necessary to secure life, liberty, or property
interests of which the government itself may not deprive the individual.” Id. at 196. The Court,
however, acknowledged a “special relationship” exception to this general rule where “the State

12

takes a person into its custody and holds him there against his will.” Id. at 199–200. Under the
facts before it, the majority concluded, “[w]hile the State may have been aware of the dangers
that [plaintiff] faced in the free world, it played no part in their creation, nor did it do anything to
render him any more vulnerable to them.” Id. at 201.
Several courts, including the Third Circuit Court of Appeals, seized on this statement to
formulate a second exception to the general rule that the state has no affirmative duty to protect
citizens from private injury: the state-created danger theory. See M.U. v. Downingtown High
Sch. E., 103 F. Supp. 3d 612, 620 (E.D. Pa. 2015). The Third Circuit adopted this theory as a
“viable mechanism for establishing a constitutional violation under 42 U.S.C. § 1983” in Kneipp
v. Tedder, 95 F.3d 1199, 1201 (3d Cir. 1996).
As currently applied in the Third Circuit, plaintiffs are required to satisfy four elements to
state a viable claim under the state-created danger theory: (1) the harm ultimately caused was
foreseeable and fairly direct; (2) a state actor acted with a degree of culpability that shocks the
conscience; (3) a relationship between the state and the plaintiff existed such that the plaintiff
was a foreseeable victim of the defendant’s acts or a member of a discrete class of persons
subjected to the potential harm brought about by the state’s actions as opposed to a member of
the public in general; and (4) a state actor affirmatively used his or her authority in a way that
created a danger to the citizen or that rendered the citizen more vulnerable to danger than had the
state not acted at all. See Bright v. Westmoreland County, 443 F.3d 276, 281 (3d Cir. 2006)
(citations omitted) (internal quotation marks omitted).
Plaintiffs’ counsel asserted that the officers’ “ramming” of the car in which his clients
were riding was the disputed issue of material fact precluding summary judgment on the statecreated danger claim. (Oral Arg. 88:14–19.) Since the dash cam video establishes that neither

13

police car came close to touching, much less “ramming” the car driven by Bailey, this claim is
easily dismissed. Even without the video, the state-created danger theory does not apply to the
facts of this case. The Court need not address the Plaintiffs’ obvious failure to meet the elements
of the claim except to say that there do not seem to be any judicial decisions allowing a claim to
proceed under the state-created danger theory in the context of a police pursuit. In any event, the
Court would certainly not expand the state-created danger theory to provide an avenue of
recovery for the driver of a stolen car who, by disobeying a lawful command from a police
officer, necessitates a pursuit.
C.
Pursuant to 28 U.S.C. Section 1367(c), the Court has the discretion to decline to exercise
supplemental jurisdiction over state law claims once all claims over which the Court has original
jurisdiction have been dismissed. In such a situation, it is appropriate to refrain from exercising
jurisdiction over the state law claims “in the absence of extraordinary circumstances.” Tully v.
Mott Supermarkets, Inc., 540 F.2d 187, 196 (3d Cir. 1967). Here, the meritless claims against
Norristown constitute extraordinary circumstances which make it appropriate for the Court to
address—and dismiss with prejudice—the state law claims so that Norristown does not have to
endure them in any other forum.
In Count IV of the complaint, Plaintiffs assert that Norristown is liable for the alleged
negligence of its officers. The Pennsylvania Political Subdivision Tort Claims Act (“the Act”)
provides municipalities with general immunity from tort liability. 42 Pa. Cons. Stat. § 8541, et
seq. Pursuant to the Act, an injured party may recover in tort from a local agency if: (1) the
damages would be otherwise recoverable under common law or statute creating a cause of action
if the injury were caused by a person not having available a defense under 42 Pa. Cons. Stat. §

14

8541; (2) the injury was caused by the negligent act of the local agency or an employee acting
within the scope of his official duties; and (3) the negligent act of the local agency falls within
one or more of the eight enumerated categories of exceptions to immunity. 42 Pa. Cons. Stat. §
8542(a); see also Lindstrom v. City of Corry, 763 A.2d 394, 397 (Pa. 2000); Lockwood v. City of
Pittsburgh, 751 A.2d 1136, 1139 (Pa. 2000) (citing Kiley v. City of Philadelphia, 645 A.2d 184,
185–86 (Pa. 1994)).
The eight exceptions are for: (1) vehicle liability; (2) care, custody or control of personal
property; (3) real property; (4) trees, traffic controls and street lighting; (5) utility service
facilities; (6) streets; (7) sidewalks; and (8) care, custody or control of animals. 42 Pa. Cons.
Stat. § 8542. These exceptions must be narrowly construed, given the legislative intent to
insulate local governments from tort liability. See, e.g., Lockwood, 751 A.2d at 1140; Snyder v.
Harmon, 562 A.2d 307, 312 (Pa. 1989); Love v. City of Philadelphia, 543 A.2d 531, 532 (Pa.
1988). Plaintiffs seek to invoke the vehicle liability exception, which states:
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. Cons. Stat. § 8542(b)(1) (emphasis added). At oral argument, Plantiffs’ counsel
contended that the exception applies because K.A. and Johnson were not “in flight or fleeing
apprehension or resisting arrest,” as they were neither “arrested” nor were they “found to have
violated any laws.” (Oral Arg. 81:11–17.) Since the video confirms that none of the officers
were negligent, the Court need not address whether or not this exception applies.

15

V.
The Plaintiffs filed their complaint in Montgomery County on January 27, 2015. For the
past year, Norristown has been defending itself. Police officers have been taken away from
performing their duties to answer discovery requests and prepare for and sit in depositions
“explaining” their actions, all the while knowing the allegations against them were bogus. The
Court has expended significant time and judicial resources which otherwise could have and
should have been devoted to legitimate cases. This case has sullied the civil justice system for
long enough. Norristown’s motion is granted and the case is dismissed.

BY THE COURT:

/s/ Gerald J. Pappert
GERALD J. PAPPERT, J.

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