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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.

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.”

Lamb McErlane attorney John J. Stanzione, who represented Schemberg, did not return a call for comment.

Smicherko’s attorney, Christine Munion of William J. Ferren & Associates in Blue Bell, Pa., declined to comment.

Max Mitchell can be contacted at 215-557-2354 or mmitchell@alm.com. Follow him on Twitter @MMitchellTLI.

(Copies of the 22-page opinion in Schemberg v. Smicherko, PICS No. 14-0264, are available from Pennsylvania Law Weekly. Please call the Pennsylvania Instant Case Service at 800-276-PICS to order or for information.) •