Negligence Per Se • Public Servants • Ordinary Negligence • Fleeing Arrest

Schemberg v. Smicherko, PICS Case No. 14-0264 (Pa. Super. Feb. 11, 2014) Strassburger, J. (11 pages).

Schemberg filed a complaint against Smicherko for negligence per se and negligence. After police officer Schemberg saw Smicherko urinating in public, Smicherko ran away and Schemberg chased and apprehended him. The area of the pursuit was not well lit and Schemberg fell from a height of 12-15 inches during the pursuit and injured his leg. Smicherko pled guilty to violating a borough ordinance by urinating in public. Schemberg alleges that Smicherko committed negligence per se by violating 18 Pa.C.S §5104. The trial court sustained Smicherko’s preliminary objections and this appeal followed. The trial court erred, its order is reversed and the case is remanded for further proceedings.

Schemberg’s complaint does not merely allege flight to avoid arrest. Rather, it alleges that Smicherko attempted to prevent Schemberg from doing his duty by fleeing, in the middle of the night, through poorly-lit, uneven terrain and thus creating a substantial risk of bodily injury to Schemberg. Thus, it is not free from doubt that Schemberg would be unable to prove that Smicherko violated 18 Pa.C.S §5104.

Defendant’s argument that the purpose of §5104 is not to protect officers specifically, but rather the public in general is unfounded here. The purpose of the statute is to protect the group of individuals, 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. The fact that the protected group includes bystanders as well as public servants does not make it so general that it prevents the application of §5104 in a negligence per se claim.

As to the ordinary negligence claim, applying the Lindstom analysis to the facts of the case leads to the conclusion that the factors favor the imposition of a duty of care. The utter lack of social utility in the defendant’s fleeing from the officer, the obvious risk and foreseeability of injury to the pursuing officer, the positive consequences of discouraging flight from police officers, and the public interest in empowering police to enforce the law all support the imposition of a duty of care.

A reasonable person could infer that the fracture to Schemberg’s leg while chasing Smicherko in the dark over uneven terrain was a foreseeable result of the defendant’s violation of §5104. Accordingly, the question of causation is for the finder of fact.

The trial court correctly held that mere flight does not create a substantial risk, and the complaint did not allege that Smicherko deliberately led police into an inherently dangerous situation. Additionally, Schemberg did not challenge the trial court order that sustained preliminary objections to his negligence cause of action and, thus, the issue is waived on appeal.