IGWE v. SKAGGS et al

Filing 154

MEMORANDUM OPINION re 69 MOTION for Summary Judgment filed by MUNICIPALITY OF MONROEVILLE, JEREMY SKAGGS, 64 MOTION for Summary Judgment filed by GLOBAL TRAFFIC TECHNOLOGIES, INC., GLOBAL TRAFFIC TECHNOLOGIES, LLC. Signed by Judge Mark A. Kearney on 6/28/2017. (jv)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
ANTHONY IGWE, as the Administrator
of the Estate of PRISCILLA L.
ROBINSON
v.
JEREMY SKAGGS, et al.

: CIVIL ACTION
:
:
:
: NO. 16-1403
:
:

KEARNEY, J.

June 28, 2017
MEMORANDUM

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

I.

Undisputed Facts1
Monroeville Police Officer Jeremy Skaggs drove his police vehicle at a high rate of speed

into a car driven by Priscilla Robinson at an intersection in the Municipality of Monroeville
(“Monroeville”) (“the intersection”).2 Ms. Robinson died the next day of injuries sustained in
the collision.3 Her husband, Anthony Igwe, seeks damages against Officer Skaggs for
negligence, his employer Monroeville for supervisory liability under federal civil rights laws,
and against Global on products liability and negligence theories as the company selling the
transmitter system bought by Monroeville.
A. December 8, 2014 midday collision between Officer Skaggs and Ms. Robinson.
Around noon on December 8, 2014, Monroeville police officer Jeremy Frisk called
dispatch to check a license plate on a car he followed while driving on State Route 22.4 After
being advised by dispatch the license plate’s registration did not match the car he followed,
Officer Frisk suspected a stolen vehicle.5 Around this time, Officer Skaggs heard over the radio
Officer Frisk’s plan to stop the vehicle.6 At approximately 12:01:20 p.m., Officer Frisk called out
“Unit 991 priority!” and dispatch gave a “991 go ahead” to Officer Frisk. 7 Officer Skaggs
testified a “priority” call means an emergency situation of high importance.8
After hearing Officer Frisk call “priority,” Officer Skaggs activated his emergency lights
and sirens and “elected” to travel to Officer Frisk’s location to provide back-up.9 Officer Skaggs
considered himself a back-up officer under Monroeville’s “Emergency Response mode”
provided in the Monroeville Police Department’s Policy and Procedures Manual (“Monroeville
Policy”).10
It is undisputed Officer Skaggs was not involved in a pursuit at the time of the collision.11
Instead, Officer Skaggs testified he believed an “Emergency Response” under the Monroeville

2

Policy applied because, when he heard Officer Frisk call “priority,” it meant Officer Frisk
engaged in a pursuit where there is a risk or potential for injury and a serious crime was in
progress.12 Monroeville police officer William Supancic also responded as a back-up to Officer
Frisk, activating the lights and siren on his police car.13
At approximately 12:02:34 p.m., Officer Frisk reported over the radio the suspect he
followed appeared to reach around in the vehicle and act awkwardly.14 An audio recording
reflects the radio transmissions.15 However, the time stamps reflected in the audio recordings are
not consistent with the time stamps in the video recording from Officer Skaggs's patrol car, a
discrepancy Monroeville attributes to the two systems’ link to different computer servers at the
Monroeville Police Department.16 According to the audio tape, at 12:02: 46 p.m. Officer Frisk
radioed the suspect “bailed out” of the vehicle and fled on foot.17 According to the audio tape, at
12:03:43 p.m. Monroeville dispatch asked Officer Skaggs to proceed to Officer Frisk’s
location.18 According to the audio tape, at 12:03:55 p.m. Officer Frisk reported the suspect had
something in his hand, possibly a firearm and requested police units.19 Officer Skaggs believed
this report indicated the suspect may have been reaching for a weapon or contraband.20
The video recording in Officer Skaggs’s vehicle shows his collision with Ms. Robinson’s
car occurred at 12:02:58 p.m.21 Officer Skaggs entered the intersection against a red traffic
signal.22 Monroeville admits the traffic light at the intersection did not change to green despite
evidence of a preemption request from the Opticom system because Officer Skaggs likely “over
ran” the signal, entering the intersection against a red traffic light.23 Officer Skaggs testified he
did not rely on the Opticom system as he approached the intersection.24
The video recording from Officer Skaggs’s vehicle shows he applied the brakes at
12:02:56.25 When he applied his brakes, Officer Skaggs estimated he was seven car lengths from

3

the intersection.26 Officer Skaggs operated his vehicle 57 miles per hour approximately 0.5
seconds before colliding into Ms. Robinson.27
B. Monroeville’s Opticom system.
Monroeville purchased an Opticom Emergency Vehicle Preemption System (“Opticom
system”) which, among other things, purports to assist police and emergency vehicles
approaching traffic signals. Global’s predecessor, 3M Company, manufactured the Opticom
system in use at the intersection.28
The Opticom system consists of three parts: an emitter placed in the emergency vehicle; a
detector located at the traffic signal; and a phase selector.29 The emitter is located in an
emergency vehicle and is activated by the switching on of emergency lights and siren. The emitter
sends out an infrared signal, or “pulse,” in front of the vehicle.30 The detector, located on the
traffic signal, detects the emitter’s signal once the vehicle comes within a detectable range, and
relays the signal to a phase selector located in the traffic controller cabinet at the intersection.31
The phase selector submits a “preemption request” to the traffic controller. 32 The traffic controller
is neither owned nor operated by Global.33
When it receives the preemption request from the Opticom system, the traffic controller
determines if and when the traffic signal will change.34 The Opticom system itself does not
change the traffic signal.35 It is possible to “over run” the Opticom system; that is, an emergency
vehicle may encounter a red traffic signal if it travels faster than the time it takes for the signal to
change to green.36
The possibility of “over running” or “out running” the Opticom system and whether
Global properly warned against it is the issue in Mr. Igwe’s products liability claim against
Global. Global provided a driving training package entitled the “3M Opticom Priority Control

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System, Driver Preparation Instructor Guide” (“Instructor Guide”) made available to all
purchasers and end users of the Opticom system.37 The Instructor Guide provides “Notes to
Instructors,” including a section on its purpose to “provide emergency vehicle drivers with a
logical, complete discussion of how to appropriately use the Opticom system”; “provide a
concise, self-contained resource for presenters and trainers”; “raise and answer frequently asked
questions”; “instill respect for the benefits and limits of the system”; and “identify, and thus
encourage safe, responsible emergency vehicle driving with the system.”38
The Instructor Guide contains sections on the “Fundamentals” of “traffic control” and
“911 support”; an explanation of the “priority signal control”; an explanation of the “system”
itself including the emitter, detector, and phase selector; and “System Variables.”39 The section
on “System Variables” explains the time delay limitations. This includes an explanation it may
take five, ten, or even fifteen seconds or more from the time the detector receives a single from
the emitter until the controller grants the green light “if it grants it at all.”40 “System Variables”
include time delay limitations, warning “having the emitter activated does not instantly give you
a green light,” and warning of “planned ‘delay’ times” depending on a variety of factors such as
“street width, number of lanes, presence of protected turning lanes with green arrows,
progression of traffic, synchronization with other signals – even the time of day,”41 “intersection
phasing,”42“installation pattern,”43 “multiple use” of the Opticom system used by several
agencies such as EMS, fire, and police,44 and “neighbor communities” that may not have the
Opticom system45 The Instructor Guide contains sections on “Performance Variables” including
“interacting agents” such as other drivers, public transportation, pedestrians, bicyclists, and
emergency responders all using the roadways and “system checks” regarding system
maintenance.46

5

Although all parties contend the Instructor Guide does not warn about the possibility of
over running the Opticom system, the “Frequently Asked Questions” section includes:
“Can I overdrive the system?” With the response:
Yes, because delay times are built-in to make the intersection safe for all civilian
traffic, you can come upon intersections before the controller cycles to the green
light. However, the system does react rapidly enough to provide much more efficient
and faster travel while maintaining the safest possible conditions for everyone
concerned.47
And the question: “Can I use the system for hot pursuit?” With the response:
There are communities where police have used their priority control systems to
“steer” runaways and help keep other traffic from getting in the way. However, it’s
likely that at higher speeds, both the officer and the felon being pursued would be
running red lights.48
The Instructor Guide advises drivers “should always drive green lights”; an “agency can
devise a pattern of flashes and steady lights to communicate what to expect at the intersection”
with “confirmation lights”; but other than confirmation lights, “there is no way of telling exactly
what the signal will do, no way of anticipating a green within a certain time frame.”49
Global’s witness Pat Cosgrove testified to a number of variables affecting the amount of
time between the traffic controller’s receipt of the preemption request to the actual signal change,
including the stage of the light cycle at the time the preemption signal is detected, the specific
sequence settings of the traffic light, and pedestrian crosswalks.50 There are various range
settings on the Opticom system, but the detection of the emitter’s signal does not and cannot
always occur within a specific and definite distance from the detector because of numerous
variables including, a potential obstruction between the detector and the emergency vehicle,
weather conditions, maintenance history of the Opticom system, and topography of the area. 51
Monroeville Police Chief Douglas Cole testified Monroeville’s Policy on the Opticom
system derived from a “manual” or “trial policy that they provided or came from 3M.”52 Although
6

he could not identify the actual policy, Chief Cole testified 3M “provided us with manuals” and “I
have a file that has 3M explaining the Opticom. So there are manuals.”53 Dominic LaGorga,
senior foreman of Monroeville’s public works and who is responsible for maintaining traffic
signals within the municipality, testified he has “installation manuals” from Global and 3M.54
A section of Monroeville’s Policy addresses the Opticom system, including a warning:
Opticom can be over run by increasing the speed of the emergency vehicle
using the device. No set speed has been determined, however you are
warned not to anticipate the light changing.55
There is no dispute Global provided a timing chart to Opticom installers identifying the
distance an emergency vehicle from a traffic signal and the speed at which the emergency
vehicle travels to ensure a green traffic signal at the time the emergency vehicle reaches the
intersection.56 Although Mr. Igwe admits Global provided a timing chart to installers of Opticom
systems, he asserts there is no evidence Monroeville, through Chief Cole or any other member of
the Monroeville Police Department, received the timing charts in an “installation manual.” Mr.
Igwe cites Chief Cole’s deposition testimony where he denied ever having seen Global’s “timing
chart”57 and Officer Skaggs’s deposition testimony where he denied having been provided with
an owners’ manual or operations manual.58
Mr. Igwe points to additional materials prepared by Global but which were not provided
to Monroeville: “Anticipate the Unexpected”; “Moving at the Speed of Life”; and “Traffic
Control Devices.”59 Chief Cole testified he does not recall seeing the “Anticipate the
Unexpected” brochure, including sections entitled “driving training program” and “customized
seminars” offered by Global.60 Chief Cole testified he was never aware of 3M offering to provide
customized seminars for training on the Opticom system, or periodic training updates, or audio
visual training.61 There is no dispute the additional materials are not included in Monroeville’s

7

Policy on the Opticom system.
C. Monroeville’s Policy and Procedures Manual.
Chapter 28 of Monroeville’s Policy pertains to “Vehicle Operations.” Section 28.1 is the
“Policy Statement” including “General Definitions” at Section 28.1.1 and provides in part:
For purposes of this policy: It is the policy of this Department to always
drive safely and comply with state and local laws. Officers shall have the
duty to drive with due regard for the safety of all persons. Furthermore, no
duty is so important and no call so urgent that officers cannot proceed with
caution and arrive safely.62
The term “Emergency Response” is defined as:
driving in a more expeditious but safe manner according to state law with
continuous use of emergency equipment when responding to a situation
that is believed to be either an immediate life-threatening or serious bodily
injury incident or when involved in a vehicular pursuit according to
department policy.63
Section 28.9 is the “Response Mode Classification” intended to be “illustrative and not
exclusive” including “Emergency Response” defined as:
Emergency Response is generally authorized in a situation that is believed to be
in-progress and either an immediate life threatening or serious bodily injury
incident, such as:
A. A request to a possible life threatening situation or one in which it appears that
there may be seriously injured persons in need of medical attention.
B. A serious crime in progress.
C. An unusual or serious incident that mandates an immediate response by staff
or other specialty personnel (i.e., command staff, hostage negotiators, etc.).
D. An emergency escort mandated by the totality of the circumstances (i.e.
critically injured persons, etc.)
Officers shall follow the Use of Emergency Warning Devices as defined in this
chapter when responding in an emergency response mode.64

8

Section 28.12 is the “Pursuit of Motor Vehicles” policy and includes a “Policy
Statement” referencing Pennsylvania statute governing drivers of emergency vehicles, 75
Pa.C.S.A. § 3105.65 Section 3015 allows drivers of emergency vehicles to, under certain
circumstances, disregard general traffic regulations but does not “relieve the driver of an
emergency vehicle from the duty to drive with due regard for the safety of all persons.” 66 The
“Pursuit of Motor Vehicles” section additionally contains a subsection outlining the conditions
under which pursuits must be terminated.67
II.

Analysis68
Ms. Robinson’s husband Anthony Igwe, as the administrator of her estate, alleges a

Monell claim against Monroeville for failure to train and supervise under 42 U.S.C. § 1983, as
well as state law claims of negligence and vicarious liability against Monroeville and a state law
claim for negligence against Officer Skaggs. Mr. Igwe brings strict products liability and
negligence claims against Global arguing the Opticom system can be outrun by emergency
vehicles depending on their speed and the stage of the light cycle at the time the system is
triggered; the Opticom system is inherently dangerous and unsafe for first responders such as
Officer Skaggs because emergency responders rely on the system to give green lights when the
system can be outrun which could cause injury; the Opticom system failed to indicate to the
control module in Officer Skaggs’s police vehicle the signal had not yet cycled and turned to
green for his direction of travel as he approached the intersection; the Opticom system did not
perform as intended; Global failed to warn Monroeville the system could be out run; and the
Opticom system lacked elements necessary to make it safe for its intended use.69
Officer Skaggs moves for partial summary judgment seeking to dismiss punitive damages
against him on the state law negligence claim.70 We deny his motion. Monroeville seeks

9

summary judgment on the state law vicarious liability claim on punitive damages only and on the
state law negligence claim. Mr. Igwe concedes the state law negligence claim against
Monroeville is barred by Pennsylvania’s Political Subdivision Tort Claims Act,71 and we grant
summary judgment on this issue. Monroeville seeks summary judgment on the § 1983 Monell
claim and we deny this motion finding genuine issues of material fact. Global moves for
summary judgment on Mr. Igwe’s strict products liability and negligence claims under
Pennsylvania law. We grant its motion as there are no disputed issues of fact concerning the
absence of a design defect or failure to warn.
A. Fact issues preclude summary judgment on Mr. Igwe’s demand for punitive
damages on the negligence claim against Officer Skaggs.
Under Pennsylvania law, punitive damages are permitted for “conduct that is outrageous,
because of the defendant’s evil motive or his reckless indifference to the rights of others.”72 “[A]
punitive damages claim must be supported by evidence sufficient to establish that (1) a defendant
had a subjective appreciation of the risk of harm to which the plaintiff was exposed and that (2)
he acted, or failed to act, as the case may be, in conscious disregard of that risk.”73 We find
questions of fact regarding Officer Skaggs’s response, including what and when he knew or
believed from the radio recordings immediately preceding the collision with Ms. Robinson’s car,
precluding summary judgment. The jury will evaluate his state of mind testimony.
B. We grant summary judgment dismissing the state law claims against
Monroeville.
1. Summary judgment is granted as to punitive damages on the state law
vicarious liability claim against Monroeville.
Our January 30, 2017 Order dismissed all claims for punitive damages against
Monroeville on Mr. Igwe’s concession he cannot state a claim for punitive damages against
Monroeville under § 1983. Monroeville seeks summary judgment as to punitive damages on Mr.
10

Igwe’s state law vicarious liability claim. Under the Pennsylvania Political Subdivision Tort
Claims Act (the “Tort Claims Act”), municipalities are not liable for punitive damages.74
Summary judgment is entered in favor of Monroeville on punitive damages in the state law
vicarious liability claim.
2. Summary judgment is granted in favor of Monroeville on the state law
negligence claim.
Mr. Igwe also brings a negligence claim against Monroeville for its failure to train,
supervise, direct, and control its police officers regarding safe driving techniques and on the
Opticom system. Local agencies are immune from tort liability under section 8541 of the Tort
Claims Act.75 Section 8542 identifies exceptions to governmental immunity. “Because of the
clear intent to insulate government from exposure to tort liability, the exceptions to immunity are
to be strictly construed.”76
Mr. Igwe concedes none of the exceptions, specifically the “vehicle liability” exception,77
applies to Monroeville. Based on the facts here, it is immune from liability under the Tort Claims
Act. We grant summary judgment in Monroeville’s favor on this claim.
C. Fact issues preclude summary judgment on Monell claim against Monroeville.
Monroeville moves for summary judgment arguing Mr. Igwe failed to adduce sufficient
evidence to raise a genuine issue of material fact based on any policy, custom or practice causing
a constitutional violation; any failure to train or failure to supervise theory; and any conscience
shocking behavior required to establish a constitutional right.
In Monell, the Supreme Court held a municipality may be liable under § 1983 when its
policy or custom causes the constitutional violation.78 To succeed on a Monell claim, Mr. Igwe
must establish Ms. Robinson: “(1) possessed a constitutional right of which she was deprived;
(2) the municipality had a policy [or custom]; (3) the policy [or custom] ‘amounted to deliberate
11

indifference’ to her constitutional right; and (4) the policy [or custom] was the ‘moving force’
behind the constitutional violation.”79
In this Circuit, a municipality may be independently liable even where none of its
employees are liable.80 Under Fagan, a municipality “can independently violate the Constitution
if it has a policy, practice, or custom of deliberate indifference that causes the deprivation of
some constitutional right through the actions of an officer, the ‘causal conduit.’”81
Mr. Igwe bases his Monell claim on a failure to train and failure to supervise based on
Officer Skaggs’s culpability as well as under a Fagan theory of liability. We find genuine issues
of material fact preclude summary judgment including Officer Skaggs’s subjective belief to
determine the culpability standard for conscience shocking behavior required to prove a Monell
claim and whether Monroeville failed to train its officers on how to operate their police vehicles
when responding in “Emergency Response mode” as distinguished from pursuit.
D. We grant Global’s motion for summary judgment.
Global moves for summary judgment on Mr. Igwe’s strict products liability claim under
a design defect and failure-to-warn theory. Mr. Igwe appears to advance both a defective design
and failure-to-warn theory to show the Opticom system is defective because it can be “out run.”
We find no genuine issue of material fact and grant Global’s motion.
1. We grant summary judgment to Global on the design defect theory.
In Tincher v. Omega Flex, Inc.,82 the Pennsylvania Supreme Court ruled strict products
liability claims are governed by the Restatement (Second) of Torts, § 402A. To prevail on a strict
liability claim, a plaintiff must prove “the product was defective, the defect existed when it left
the defendant’s hands, and the defect caused the harm.”83 A product may be defective based on a
manufacturing defect, design defect, or failure-to-warn defect.84

12

The Pennsylvania Supreme Court’s Tincher decision set out two standards to show a
product is in a “defective condition” in the design defect context: the consumer expectation
standard and the risk-utility standard.85 The question of “[w]hether a product is in a defective
condition is a question of fact ordinarily submitted for determination to the finder of fact; the
question is removed from the jury's consideration only where it is clear that reasonable minds
could not differ on the issue.”86
Under the consumer expectation standard, “the product is in a defective condition if the
danger is unknowable and unacceptable to the average or ordinary consumer.”87 In Tincher, the
Pennsylvania Supreme Court expressed the test “as reflecting the ‘surprise element of danger.’”88
A product “is not defective if the ordinary consumer would reasonably anticipate and appreciate
the dangerous condition of the product and the attendant risk of injury of which the plaintiff
complains . . ..”89 Considerations such as the nature of the product, the identity of the user, the
product’s intended use and intended user, and any express or implied representations by a
manufacturer or other seller are relevant to assessing the reasonable consumer’s expectations.90
Under the risk-utility standard, the “product is in a defective condition if a ‘reasonable
person’ would conclude that the probability and seriousness of the harm caused by the product
outweigh the burden or costs of taking precautions.”91 Factors to determine the risk-utility test
are: “(1) the usefulness and desirability of the product - its utility to the user and to the public as
a whole; (2) the safety aspects of the product - the likelihood that it will cause injury, and the
probable seriousness of the injury; (3) the availability of a substitute product which would meet
the same need and not be as unsafe; (4) the manufacturer's ability to eliminate the unsafe
character of the product without impairing its usefulness or making it too expensive to maintain
its utility; (5) the user's ability to avoid danger by the exercise of care in the use of the product;

13

(6) the user's anticipated awareness of the dangers inherent in the product and their availability,
because of general public knowledge of the obvious condition of the product, or of the existence
of suitable warnings or instructions; and (7) the feasibility, on the part of the manufacturer, of
spreading the loss by setting the price of the product or carrying liability insurance.” 92 Mr. Igwe
references the risk-utility standard, but offers us no evidence or analysis.
In opposition to summary judgment on a defective design theory, Mr. Igwe argues the
application of the consumer expectation standard and the considerations used to assess the
reasonable consumer’s expectations. Mr. Igwe points to Global’s marketing literature explaining
the Opticom system provides a “safe ‘green light’ corridor along the response route”; use of the
Opticom system “by placing temporary command of the intersection with the emergency vehicle
operator, will result in safer priority movement and accident reduction”; and other
representations made by Global’s literature regarding the safety provided by the Opticom
system.
Mr. Igwe offers no evidence of defective design under the consumer expectation standard
or the risk-utility standard. Under the consumer expectation standard, Mr. Igwe must show
defective condition from a danger that is “unknowable and unacceptable to the average or
ordinary consumer.” Mr. Igwe argues the Opticom system is defectively designed because it can
be “out run,” citing only to the marketing material referring to the system’s ability to provide a
“safe green light” along an emergency response route.
Global’s marketing material does not create an issue of material fact regarding design
defect. First, there is no dispute the Opticom system does not change the traffic signal. The
Opticom system consists of three component parts; an emitter, a detector, and a phase selector.93
A “traffic controller” device, which Mr. Igwe admits is owned and maintained by Monroeville

14

and not Global, determines if and when a traffic signal will change.94 Second, Mr. Igwe’s expert,
Mr. Ferrone, opined “[i]t has been verified that the Opticom system, at the collision intersection
was working properly at the time of the accident. A “preemption” was registered confirming its
function.”95 Mr. Ferrone attributed the defect to the ability to “out run” the system but at the
same time opined the defect “cannot be reasonably designed out based on the technology used at
the time of production.”96
Finally, Officer Skaggs testified he knew the Opticom system could be out run and was
aware of Monroeville’s Policy warning the Opticom system could be out run.97 Officer Skaggs
also testified he did not rely on the Opticom device to turn the light green the day of the
collision.98 There is no dispute Monroeville’s Policy contains a section on the Opticom system
warning: “Opticom can be over run by increasing the speed of the emergency vehicle using the
device. No set speed has been determined, however you are warned not to anticipate the light
changing.” Mr. Igwe admits Monroeville provided Officer Skaggs with Monroeville’s Policy,
including the section on Opticom and the warning it could be over run, and instructed Officer
Skaggs to read and review the Policy.99
The record notwithstanding, Mr. Igwe argues the Opticom system is defective because
Officer Skaggs did not have proper warning as to the dangers of over running the signal. To
show design defect under the consumer expectation standard, Mr. Igwe must show the danger of
over running is “unknowable and unacceptable to the average or ordinary consumer.” The record
shows Officer Skaggs knew the Opticom system could be over run. The record additionally
confirms Monroeville Police Officers Frisk100 and Supancic101; Police Chief Cole102; and
Dominick LaGorga, all knew the Opticom system could be over run. We find no issue of
material fact regarding a design defect as there is no dispute the danger of over running the

15

Opticom system is known to Monroeville’s Police Department and Public Works; there is no
“unknowable and unacceptable” danger. With no evidence to support a defective design claim,
we grant summary judgment in favor of Global on a defective design theory.
2. We grant summary judgment on a failure-to-warn defect claim.
We find the heart of Mr. Igwe’s argument to be a failure-to-warn claim. As our colleague
Judge Schiller found in Hatcher v. SCM Group North America, Inc.,103 we find Mr. Igwe
“conflates failure-to-warn defects with design defects.”104 As Judge Schiller found in Hatcher,
“[w]hile Pennsylvania courts in the past have treated failure-to-warn claims as a category of
defective design claims, this does not mean that every failure-to-warn claim automatically gives
rise to a supplemental design defect claim.”105
Under Pennsylvania law, “an otherwise properly designed product may still be
unreasonably dangerous (and therefore ‘defective’) for strict liability purposes . . . if the product
is distributed without sufficient warnings to apprise the ultimate user of the latent dangers in the
product.”106 “In a failure-to-warn case, the threshold determination is whether the product is
defective for lack of sufficient warnings.”107 Mr. Igwe must show Global sold the Opticom
system without sufficient warnings to “adequately notif[y] the intended user of the unobvious
dangers inherent in the product” and may recover only if “the lack of warning rendered the
product unreasonably dangerous.”108
Mr. Igwe must also show causation in a failure-to-warn claim by demonstrating “the user
of the product would have avoided the risk had he or she been warned of it by the seller.” 109 In
other words, Opticom may be liable on the failure-to-warn claim “only when there is sufficient
evidence that additional warnings or reminders may have made a difference.”110
Mr. Igwe argues there is an inherent delay in the Opticom system causing an over run

16

hazard which he argues Global is obligated to warn against and properly train the system’s users.
Mr. Igwe argues Global could have, but failed, to place warning stickers or placards inside
emergency vehicles equipped with the Opticom system to warn of the over run possibility;
Global’s “timing chart” is insufficient because it does not provide data for vehicles travelling in
excess of 70 miles per hour; and there is no evidence the Instructor Guide or any other Global
“training materials” were ever provided to Monroeville and, even if provided, do not amount to
an effective warning. Mr. Igwe contends the record “contains evidence from which a jury could
reasonably find” Monroeville, as a purchaser of the Opticom system, and its employees “were
not aware of the hazard to the full extent that an adequate warning might have provided” and a
jury “might find that if Officer Skaggs had received a proper warning as to the dangers of
overrunning the signal or if he had undergone the [Instructor Guide] or any other Driving
Training Programs, . . . he might have properly operated his vehicle on the date of this incident
and not ‘overrun’ the signal.”
Even construing these facts in favor of Mr. Igwe, there is no genuine issue of material
fact on his design defect or failure-to-warn defect claims. At bottom, the undisputed facts show:
(1) Monroeville’s Policy warned its officers the Opticom system can be over run as speed
increases; no set speed at which an over run can occur has been determined; and officers are not
to anticipate the light changing; (2) Officer Skaggs testified he knew the Opticom system could
be over run; (3) Two other police officers, the Police Chief, and senior foreman of public works
for Monroeville all knew the Opticom system could be over run; and (4) Officer Skaggs did not
rely on the Opticom system on the day of the incident. Although there are questions of whether
Monroeville received additional materials and training from Global, there is no question
Monroeville knew of the Opticom system over run possibility and included a warning about it in

17

the Monroeville Policy on which its officers were trained and directed to read and review. We
know of no authority, and Mr. Igwe does not point us to any, requiring a product seller to
provide of myriad of similar worded warnings when its issued warning, as understood by the
buyer, addresses the alleged defect. We decline to require redundant warnings when the
undisputed evidence confirms the purchaser knew and adopted the warning in its policies.
Summary judgment is entered in favor of Global on Mr. Igwe’s strict products liability claim
under a design defect or failure-to-warn theory.
3. We enter summary judgment for Global on the negligence claim.
Mr. Igwe seeks to hold Global liable in negligence for: negligently designing,
manufacturing, distributing, selling, maintaining, and/or delivering the Opticom system in a
defective condition; failing to act reasonably to eliminate or reduce the risks and hazards
associated with using the Opticom system; failing to act reasonably to advise Skaggs and
Monroeville of the risks and hazards associated with using the Opticom system; failing to act
reasonably to advise Skaggs and Monroeville “as to the steps to be taken to avoid injuring” Ms.
Robinson during the use, operation, and maintenance of the Opticom system; failing to properly
test and inspect the Opticom system to detect any safety hazards inherent in the Opticom system;
failing to train, instruct or otherwise direct users of the Opticom system with regard to safe
methods of operation; failing to properly maintain the Opticom system after its installation; and
the Opticom system “was not safe for its ordinary and intended use.”111
Global seeks summary judgment arguing Mr. Igwe failed to establish a design defect in
the Opticom system; failed to establish Global failed to sufficiently train, warn, or advise on the
proper use of the Opticom system; and failed to show Opticom caused the collision. In response,
Mr. Igwe argues the only difference in the issues of the negligence analysis versus the strict

18

liability analysis is whether Global owed a duty of care. 112 Mr. Igwe argues Global, as the
manufacturer, has a duty of care to provide adequate warnings and instructions on the proper use
of its product and this duty is established as a matter of law in Pennsylvania. Mr. Igwe does not
add new argument in support of his negligence claim, relying on his arguments in support of his
strict products liability claim.
To prevail on his negligence claim, Mr. Igwe must show (1) Global owed a duty of care;
(2) the breach of the duty; (3) causation; and (4) damages. 113 Under Pennsylvania law, strict
liability and negligence are distinct legal theories.114 Unlike strict liability, negligence “revolves
around an examination of the conduct of the defendant.”115 “[T]he standard for establishing
liability of a product manufacturer under a negligence theory would be more stringent and, thus,
more difficult to satisfy.”116 A claim for negligence on a failure-to-warn theory under
Pennsylvania law “requires a showing, unlike in a strict products liability claim, that the
manufacturer was at fault” . . . “[b]ut, as in the case with a strict products liability claim for
failure-to-warn, a plaintiff must also show that the absence or inadequacy of the warnings was
the factual or proximate cause of the injury.”117 “The initial determination of whether a warning
is adequate in Pennsylvania is a matter of law.”118
For the reasons above, Mr. Igwe failed to show evidence of a genuine issue of material
fact for trial on his design defect and failure-to-warn claims. Under the consumer expectation
standard, Mr. Igwe must show defective condition from a danger that is “unknowable and
unacceptable to the average or ordinary consumer.” In the failure-to-warn defect claim, Mr. Igwe
must show Global sold the Opticom system without sufficient warnings to notify Monroeville of
“unobvious dangers inherent” in the system rendering it “unreasonably dangerous.” As set out
above, the record shows Monroeville’s Policy contained a warning the Opticom system could be

19

over run “by increasing the speed of the emergency vehicle using the device. No set speed has
been determined, however you are warned not to anticipate the light changing” and Officer
Skaggs knew the Opticom system could be over run. Absent a genuine issue of material fact, we
enter summary judgment in Global’s favor on Mr. Igwe’s negligence claim.
III. Conclusion
In the accompanying Order, we grant Global’s motion for summary judgment in its
entirety and enter judgment in its favor on Counts VI and VII. We grant summary judgment in
favor of Monroeville as to punitive damages only on the state law vicarious liability claim
(Count II) and, as conceded by Mr. Igwe, on the state law negligence claim (Count III). We
deny summary judgment on the Monell claim against Monroeville in Count V and as to punitive
damages on the negligence claim against Officer Skaggs in Count I.

1

Our Policies require a Statement of Undisputed Material facts (“SUMF”) and an appendix in
support of summary judgment. Defendants Jeremy Skaggs and the Municipality of Monroeville
filed their SUMF (ECF Doc. No. 71) and appendix (ECF Doc. Nos. 72, 102). Plaintiff Anthony
Igwe responded to Skaggs/Monroeville’s SUMF, added additional facts he contends are material
to summary judgment, and supplemented the appendix with additional exhibits (ECF Doc. Nos.
92, 94). Defendants Global Traffic Technologies, Inc. and Global Traffic Technologies, LLC
(collectively “Global”) filed its SUMF (ECF Doc. No. 67) and appendix in support of summary
judgment (ECF Doc. Nos. 66, 97). Mr. Igwe responded to Global’s SUMF, added additional
facts he contends are material to summary judgment, and supplemented the appendix with
additional exhibits (ECF Doc. Nos. 89, 91). References to exhibits in the appendices shall be
referred to by Bates number, for example, “1a.”
2

Skaggs/Monroeville SUMF at ¶ 1 (ECF Doc. No. 71).

3

Second Amended Complaint at ¶ 54 (ECF Doc. No. 33).

4

Id.at ¶ 23.

5

Id. at ¶ 25.

6

Skaggs/Monroeville SUMF at ¶ 101.

20

7

Id. at ¶ 103.

8

Id. at ¶ 105.

9

Id. at ¶ 104.

10

Id. at ¶¶ 109-110.

11

Id. at ¶ 113.

12

Id. at ¶ 111.

13

Id. at ¶¶ 73, 121.

14

Id. at ¶ 118.

15

Id. at ¶ 78. There is no dispute the audio recording is “true and accurate of the audio or radio
transmissions from the incident of December 8, 2014.” Id.; audio recording at
Skaggs/Monroeville Appendix 48a.
16

Id. at ¶ 79. Mr. Igwe does not deny this fact. See Igwe’s Response to Skaggs/Monroeville
SUMF at ¶ 79 (ECF Doc. No. 92).
17

Skaggs/Monroeville SUMF at ¶¶ 119, 123.

18

Id. at ¶ 124.

19

Id. at ¶ 125.

20

Id. at ¶ 118.

21

Id. at ¶ 95.

22

Id. at ¶ 94.

23

Id. at ¶ 137.

24

Global Appendix at 544a-545a.

25

Skaggs/Monroeville SUMF at ¶ 82. There is no dispute a video recording from the in-car
camera located in Officer Skaggs’s patrol vehicle recorded the events of December 8, 2014 and
is “a true and accurate depiction of what occurred as can be viewed from his vehicle.” Id. at ¶ 77;
video recording at Skaggs/Monroeville Appendix 47a.
26

Skaggs/Monroeville SUMF at ¶¶ 84-85.

27

Global SUMF at ¶ 12.
21

28

Id. at ¶ 14.

29

Id. at ¶ 15.

30

Id. at ¶ 16.

31

Id. at ¶ 17.

32

Id. at ¶ 18.

33

Id. at ¶ 19. Mr. Igwe concedes the traffic controller us owned and maintained by Monroeville.
See Igwe’s response to Global’s SUMF at ¶ 19 (ECF Doc. No. 89).
34

Global SUMF at ¶ 20. Mr. Igwe concedes the traffic control signal sequence is determined by
PennDot. See Igwe’s response to Global’s SUMF at ¶ 20.
35

Global SUMF at ¶ 21.

36

Id. at ¶ 22.

37

Id. at ¶ 28.

38

Global Appendix at 329a.

39

Id. at 332a-346a; Global SUMF at ¶ 29.

40

Global Appendix at 347a.

41

Id.

42

Id. at 349a-350a.

43

Id. at 351a,

44

Id. at 353a.

45

Id. at 354a.

46

Id. at 355a-356a.

47

Id. at 363a.

48

Id.

49

Global SUMF at ¶ 30; Global Appendix at 350a.
22

50

Global SUMF at ¶ 23. Mr. Cosgrove is self-described as “semi-retired” from Global as of
October 2015, and continues to perform consulting work for it. Global Appendix at 685a-686a.
Mr. Cosgrove began his employment with 3M on the Opticom system in 1998. Id. at 687a.
51

Global SUMF at ¶ 24.

52

Global Appendix at 1007a.

53

Id.

54

Id. at 952a, 954a.

55

Skaggs/Monroeville Appendix at 28a.

56

Id. at ¶ 27.

57

Global Appendix at 855a.

58

Id. at 446a-447a. Mr. Igwe additionally cites the deposition testimony of Brian Vanderbosh,
Global’s Chief Financial Officer, for his contention Global only provided the Instructor Guide if
a customer requests it. See Igwe’s response to Global’s SUMF at ¶ 28. Upon review of the
testimony, however, Mr. Vanderbosh testified it is not Global’s practice to “actively go out and
train drivers unless we’re requested to do so by the city.” Global Appendix at 604a-605a. Mr.
Vanderbosh did not testify the Instructor Guide is only provided if a customer requests it; he
testified:
Q. What, if anything, does [Global] do to advise the EMS worker, the police officer, the
fireman, the municipality, by the way, even though this process is going on, we’re
not guaranteeing that the light will be green, if anything? And if they don’t do
anything, that’s fine too. I’m just trying to find out what, if anything, they do.
[Objection]
A. So our manuals and literature do describe the variables in whether or not a vehicle
will get a green light. We don’t – if a city asks us to explain to drivers what those
variables are that will lead to getting or not getting a green light, we will do that, but
we don’t, as a matter of practice, actively go out and train drivers unless we’re
requested to do so by the city.
Id.
59

Global Appendix at 858a-889a; 890a-894a; and 895a-900a.

60

Id.at 848a.

61

Id.at 849a-852a.
23

62

Skaggs/Monroeville Appendix at 1a.

63

Id.

64

Id. at 5a.

65

Id. at 6a.

66

75 Pa.C.S.A. § 3015(e).

67

Skaggs/Monroeville Appendix at 10a.

68

Summary judgment is proper when “the movant shows that there is no genuine issue as to any
material fact and that the moving party is entitled to a judgment as a matter of law.” Fed. R. Civ.
P. 56(a). A dispute as to a material fact is genuine if “the evidence is such that a reasonable jury
could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
255 (1986). On a motion for summary judgment, “we view the underlying facts and all
reasonable inferences therefrom in the light most favorable to the party opposing the motion.”
Mancini v. Northampton Cnty., 836 F.3d 308, 313 (3d Cir. 2016) (quoting Blunt v. Lower Merion
Sch. Dist., 767 F.3d 247, 265 (3d Cir. 2014)). “The party seeking summary judgment ‘has the
burden of demonstrating that the evidentiary record presents no genuine issue of material fact.’”
Parkell v. Danberg, 833 F.3d 313, 323 (3d Cir. 2016) (quoting Willis v. UPMC Children’s Hosp.
of Pittsburgh, 808 F.3d 638, 643 (3d Cir. 2015)). If the movant carries its burden, “the
nonmoving party must identify facts in the record that would enable them to make a sufficient
showing on essential elements of their care for which they have the burden of proof.” Willis, 808
F.3d at 643 (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). “If, after adequate time
for discovery, the nonmoving party has not met its burden, pursuant to Federal Rule of Civil
Procedure 56, the court must enter summary judgment against the nonmoving party.” Willis, 808
F.3d at 643 (citing Celotex Corp., 477 U.S. at 322-323).
69

Second Amended Complaint at ¶ 150.

70

On January 30, 2017, we dismissed Mr. Igwe’s § 1983 state-created danger claim against
Officer Skaggs (Count IV) under qualified immunity (ECF Doc. No. 49).
71

42 Pa. C.S.A. §8542.

72

Feld v. Merriam, 485 A.2d 742, 747 (Pa. 1984).

73

Hutchison ex rel. Hutchison v. Luddy, 870 A.2d 766, 772 (Pa. 2005) (citation omitted).

74

42 Pa. C.S.A. § 8553, The Choice is Yours, Inc. v. The Choice is Yours, No. 14-1804, 2015
WL 5584302, at * 8 (E.D. Pa. Sept. 22, 2015).
75

42 Pa.C.S.A. § 8541.
24

76

Lockwood v. City of Pittsburgh, 751 A.2d 1136, 1139 (Pa. 2000).

77

42 Pa.C.S.A. § 8542(b)(1).

78

Monell v. Dep't of Soc. Servs. of City of N.Y., 436 U.S. 658, 694 (1978); see also City of
Canton, Ohio v. Harris, 489 U.S. 378, 385 (1989).
79

Vargas v. City of Philadelphia, 783 F.3d 962, 974 (3d Cir. 2015) (quoting City of Canton, 489
U.S. at 389–91)).
80

Fagan v. City of Vineland, 22 F.3d 1283(3d Cir. 1994) (“Fagan I”); Fagan v. City of
Vineland, 22 F.3d 1296 (3d Cir. 1994) (“Fagan II”).
81

Washington-Pope v. City of Phila., 979 F.Supp. 2d 544, 576 (E.D. Pa. 2013); see also Cook v.
West Homestead Police Dept., No. 16-1292, 2017 WL 1550190 (*4-*7) (W.D. Pa. May 1, 2017)
(applying Fagan to deny motion to dismiss Monell claim against borough for failing to properly
implement, enforce, or maintain a policy for traffic stops and high speed pursuits and/or failing
to train officers in any such policy to avoid high speed pursuit through populated thoroughfares).
82

104 A.3d 328 (Pa. 2014).

83

High v. Pennsy Supply, Inc., 154 A.3d 341, 345-46 (Pa. Super. 2017) (quoting Barton v.
Lowe’s Home Centers, Inc., 124 A.3d 349, 354-55 (Pa. Super. 2015)); Punch v. Dollar Tree
Stores, Inc., No. 12-154, 2017 WL 752396, * 7 (W.D. Pa. Feb. 17, 2017) (citing Wright v. Ryobi
Techs., Inc., No. 15-1100, 2016 WL 1241860, at *5 (E.D. Pa. Mar. 30, 2016)).
84

High, 154 A.2d at 346 (citing Weiner America Honda Motor Co., 718 A.2d 305, 307 (Pa.
Super. 1998)).
85

Tincher, 104 A.3d at 387.

86

Id., at 335.

87

Id. at 387.

88

Id. (citations omitted).

89

Id. (citations omitted).

90

Id. (citations omitted).

91

Id. at 389 (citations omitted).

92

Id. at 389–90.

93

Igwe response to Global SUMF at ¶ 15.
25

94

Id. at ¶ 20.

95

Global Appendix at 119a.

96

Id. at 121a-122a.

97

Id. at 445a-446a; 453a.

98

Id. at 544a-545a.

99

Skaggs/Monroeville SUMF at ¶ 49; Igwe’s response to Skaggs/Monroeville SUMF at ¶ 49.

100

Global Appendix at 942a.

101

Id. at 979a.

102

Id. at 1014a, 1036a.

103

167 F.Supp.3d 719 (E.D. Pa. 2016).

104

Id., at 724.

105

Id., at 725.

106

Pavlik v. Lane Ltd., 135 F.3d 876, 881 (3d Cir. 1998); Punch, 2017 WL 752396, at *14
(citing Pavlik).
107

Hatcher, 167 F.Supp. 3d at 725.

108

Id. (citing Mackowick v. Westinghouse Elec. Corp., 575 A.2d 100, 102 (Pa. 1990) and Barton
v. Lowe’s Homer Ctrs., Inc., 124 A.3d 349, 355 (Pa. Super. 2015)); see also Phillips v. A-Best
Prod. Co., 665 A.2d 1167, 1171 (Pa. 1995) (to establish a product is defective under a failure-towarn claim, plaintiff must show “a warning of a particular danger was either inadequate or
altogether lacking, and that this deficiency in warning made the product ‘unreasonably
dangerous’”).
109

Phillips, 665 A.2d at 1171.

110

Flanagan v. martFIVE, LLC, No. 16-1237, 2017 WL 1316370, at *4 (W.D. Pa. Apr. 10,
2017) (citing Conti v. Ford Motor Co., 743 F.2d 195, 199 (3d Cir. 1984)). Mr. Igwe argues he is
entitled to a “heeding presumption.” Under Pennsylvania law, a “heeding presumption” is
applied to presume “[w]here a warning is given, the seller may reasonably assume that it will be
read and heeded.” Flanagan, at * 4 (quoting Davis v. Berwind Corp., 690 A.2d 186, 190 (Pa.
1997); see also Pavlik, 135 F.3d at 883 (quoting comment to the Restatement (Second) of Torts §
402A). In its 1998 Pavlik decision, our Court of Appeals predicted the Pennsylvania Supreme
26

Court would adopt a rebuttable heeding presumption “as a logical corollary to comment j.” Id. at
883. The presumption “assists the failure to warn plaintiff in satisfying his burden of showing
proximate cause,” however “it does not change the fact that he still bears the burden of
persuasion on the causation prong of his § 402A claim.” Pavlik, 135 F.3d at 883.
111

Second Amended Complaint at ¶ 157.

112

Mr. Igwe cites Barton v. Lowe’s Home Centers, Inc., 124 A.3d 349 (Pa. Super. 2015) in
support of his argument manufacturers owe a duty to include instructions on the proper use and
maintenance of its product. Several factors render Barton not relevant here. First, the case was
decided on preliminary objections for failure to state a claim under Pennsylvania law and not
decided at the summary judgment stage. Second, Global does not seek summary judgment based
on a lack of duty; it seeks summary judgment because there is no evidence the Opticom system
is defectively designed or Global failed to warn or train on the proper use of the system.
113

Kline v. Zimmer Holdings, Inc., 662 F.App’x 121, 123 (3d Cir. 2016) (citing Phillips v.
Cricket Lighters, 841 A.2d 1000, 1008 (Pa. 2003)); Wright, 175 F.Supp. 3d at 454 (citing Berrier
v. Simplicity Mfg., Inc., 563 F.3d 38, 61 (3d Cir. 2009)).
114

Phillips, 841 A.2d at 1008.

115

Id.

116

Schwartz v. Abex Corp., 106 F.Supp. 3d 626, 654 (E.D. Pa. 2015) (citing Tincher, 104 A.3d at
364, 401); Punch, 2017 WL 752396, at * 13.
117

Wright, 175 F.Supp. 3d at 455 (citations omitted).

118

Id. (citing Pavlik, 135 F.3d at 886).

27