Civil Practice

Cop Can Sue Man for Fleeing Arrest, Superior Court Rules

, The Legal Intelligencer

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Smicherko filed preliminary objections, arguing Schemberg was unable to prove negligence per se and negligence because the purpose of Section 5104 is not to protect officers specifically, but rather the general public.

The trial court rejected the negligence per se claim, saying that fleeing the scene of a summary arrest, without more, does not create a substantial risk of bodily harm, and further that Smicherko did not resist in a way that forced Schemberg to overcome the resistance with substantial force.

The trial court also determined that Smicherko did not owe Schemberg a duty because there was no special relationship between the parties, the defendant never touched the plaintiff and the defendant did not own the property where the injury occurred.

Schemberg appealed and contended that Section 5104 was intended to protect a specific group of individuals.

Strassburger noted the Superior Court's 1989 decision in Commonwealth v. Lyons, in which deputies followed a fleeing defendant into a cold stream with an uneven and rocky bed, creating a substantial risk of bodily injury, and he said Schemberg's allegations that he had to chase Smicherko "in the middle of the night, through a poorly lit area of uneven terrain" could lead a fact finder to conclude that Smicherko's flight created a substantial risk of bodily injury.

Strassburger also noted that although Section 5104 does include protections for the general public, it is primarily concerned with protecting public servants. He noted the state Supreme Court has held that violating the provision against underage drinking is negligence per se, despite the fact that the law comes from a legislative decision to protect both minors and the public at large.

Strassburger also utilized the five-factor test, outlined in the state Supreme Court's 2000 Lindstrom v. City of Corry, to establish whether a common-law duty of care applied.

According to Strassburger, an "utter dearth" of social utility in the defendant's conduct, an obvious risk and foreseeable possibility of injury, positive consequences of discouraging flight and encouraging apprehension of criminals, and a public interest in empowering police to enforce the law supported imposing a duty of care, despite there being no relationship between the parties.

Olson, however, said that the Lyons case was distinguishable and dealt with extreme circumstances. She also noted that the court distinguished Lyons from its 1992 decision, In Interest of Woodford, which involved an officer who was injured after he approached a suspect's residence and a struggle ensued.

"Taken together, Lyons and Woodford reveal that mere flight—by itself—will not generally constitute resisting arrest under Section 5104. Our decision in Lyons establishes only that flight may qualify as resisting arrest where a suspect's selected path of evasion includes inherently dangerous conditions that the suspect knows or should know will pose a substantial risk of injury to the pursuing officer," Olson said. "In sum, the complaint only alleged flight to avoid arrest, which traditionally falls outside the scope of conduct criminalized by Section 5104."

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