Civil Practice

Cop Can Sue Man for Fleeing Arrest, Superior Court Rules

, The Legal Intelligencer

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A police officer who broke his leg while chasing a man caught urinating on someone else's property may pursue personal injury claims against the man who fled, the state Superior Court has ruled.

The court, in a 2-1 vote, held that the fleeing man's decision to run from the officer "in the middle of the night and through a poorly lit area of uneven terrain" could substantiate the claims. The majority further held that 18 Pa. C.S.A. Section 5104, which makes it a second-degree misdemeanor to resist arrest in a way that creates a substantial risk of injury, is aimed at protecting public servants in particular, and, therefore, violation of the statute can substantiate the claims.

The Feb. 11 decision overruled a Berks County Court of Common Pleas holding to toss the case. The court had determined that merely fleeing an arresting officer did not create a substantial risk of bodily harm.

Writing for the majority in Schemberg v. Smicherko, Judge Eugene B. Strassburger III agreed with the plaintiff's arguments that the resisting arrest statute was intended to protect a specific group, as opposed to the general public.

"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," Strassburger said. "That the protected group includes bystanders as well as public servants does not make it so general as to prevent the application of Section 5104 in a negligence per se claim."

Judge Sallie Updyke Mundy joined Strassburger.

Judge Judith Ference Olson filed a dissenting opinion, arguing that plaintiff Karl Schemberg Jr. did not provide enough supporting evidence to show that the defendant created a substantial risk of injury.

"Substantial risk means a strong or real possibility, rather than a remote chance, that a certain result may occur," Olson said. "Here the trial court correctly held as a matter of law that Smicherko's mere flight did not create a substantial risk of injury."

According to Strassburger, Schemberg, an officer for the Borough of Kutztown Police Department, saw James Smicherko urinating against a home. The defendant began to run away and Schemberg chased him over an area that was not well lit. Schemberg fell from a height of approximately 12 to 15 inches, but he eventually apprehended Smicherko. The fall allegedly caused Schemberg to sustain a leg fracture.

Smicherko pleaded guilty to public urination, and Schemberg sued, alleging that Smicherko was negligent and negligent per se for violating Section 5104.

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