A woman will not be able to recover damages from the city of Philadelphia because the police cruiser that rear-ended her was not driven by a police officer, but instead by a handcuffed man in police custody.
A three-judge Commonwealth Court panel unanimously ruled March 4 that the plaintiff in Gale v. City of Philadelphia will not be able to recover from the city because the action does not fall within the vehicle exception to governmental immunity.
According to Senior Judge James Gardner Colins, who wrote the majority’s precedential opinion, the issue of whether the vehicle exception applies comes down to whether an employee of a local agency put the vehicle in motion, and not whether the local agency had any control over the vehicle or the operator.
“The language of the statute and our cases makes clear … that where an employee of a local agency has not acted by putting a vehicle in motion, liability under the vehicle exception to governmental immunity will not attach,” Colins said.
The decision upholds a Philadelphia Court of Common Pleas finding that dismissed the plaintiff’s complaint as to the city of Philadelphia.
Colins was joined by Judges Renee Cohn Jubelirer and Patricia A. McCullough.
According to the opinion, in March 2008, Jose Garriya, who was also a defendant in the case, was arrested by Philadelphia police, handcuffed and placed in the back of a police cruiser. “Inexplicably,” Colins said, Garriya managed to take control of the cruiser and drive it onto the Benjamin Franklin Bridge. Plaintiff Rebecca Gale was driving eastbound on the bridge at the time, and the police vehicle crashed into the rear of her vehicle. She allegedly sustained a serious injury as a result of the accident.
Gale sued Garriya, the city of Philadelphia and the Philadelphia Police Department, alleging, in part, that her injuries arose from the police officers’ failure to prevent Garriya from operating the vehicle. Gale contended that the action fell within the vehicle exception to governmental immunity, and therefore the city was not immune from suit.
Both Garriya and the vehicle, Gale argued, were in the police’s custody and control at the time of the collision, and the actions of the police were part of a chain of events that led to Garriya operating the vehicle.
The city, however, contended that the vehicle exception to governmental immunity only applies when the vehicle is operated by a local agency employee authorized to operate the vehicle. The city argued that control over the vehicle or operator is insufficient to trigger liability because the statutory language of the Tort Claims Act, which outlines the governmental immunity provisions, clearly limits the vehicle exception to employees operating a vehicle that is owned by or under the control of a local agency.
Although Colins did not mention any cases involving a person causing an accident while in police custody, he pointed to several cases involving local agency vehicles that have limited governmental immunity’s vehicle exception to the issue of whether a local agency employee was actually operating the vehicle.
Citing the state Supreme Court’s 1988 ruling in Love v. Philadelphia, Colins said that under the vehicle exception, the word “operation” means to “actually put in motion” as opposed to “preparing to operate a vehicle, or acts taken at the cessation of operating a vehicle.”
He also noted the Commonwealth Court’s 1995 holding in Pana v. Southeastern Pennsylvania Transportation Authority, in which a person boarded a parked, open and running SEPTA bus, and drove it through several counties, injuring people along the way. The court held that because the bus was not being operated by a SEPTA employee and the negligence was not in the operation of the vehicle, but rather in leaving it unattended, the vehicle exception did not apply.
The Commonwealth Court’s 1986 decision in Davies v. Barnes also illustrated the narrow scope of the vehicle exception, Colins said. In Davies, two students took a car from their high school for a joy ride that ended in a fatal collision. While the parents argued that the school had constructive control of the vehicle and was therefore liable under the Tort Claims Act, the court held that the vehicle needed to be operated by a school official to fit the exception.
Colins also noted the court’s 1989 decision in Burnatoski v. Butler Ambulance Service, in which the court found that while a local agency had significant control over an ambulance, including obtaining a grant to buy the vehicle, injuries caused by its operation did not fall under the exception because the driver was employed by a private ambulance company and not the local agency.
“Appellant argues that each of these cases turn on the question of an agency relationship. … This argument overlooks the fact that in each of these cases cited by the city and appellant, liability depended upon operation and not control,” Colins said. “From the face of appellant’s complaint, it is clear that, like the plaintiff in Pana, she is alleging that her injuries arose from the police officers’ failure to prevent Mr. Garriya from operating the vehicle and not from their own operation of her vehicle.”
Gale’s attorney, James R. Radmore, said his client should have been allowed to continue discovery against the city. He noted Colins’ use of the word “inexplicably” in the opinion, and said his client was entitled to find out exactly what happened that allowed Garriya to take control of the vehicle.
“The city very well could be right, or it could be wrong, but Ms. Gale deserved the right to have discovery done,” Radmore said, adding that the police placing Garriya in the vehicle made the case distinguishable from the cases mentioned in the opinion.
The court, he said, “took a very restrictive definition of the term operation to mean driving, and I take operation to mean more than just driving.”
Attorney Alan Ostrow, who represented the city of Philadelphia, declined to comment.
(Copies of the eight-page opinion in Gale v. City of Philadelphia, PICS No. 14-0340, are available from Pennsylvania Law Weekly. Please call the Pennsylvania Instant Case Service at 800-276-PICS to order or for information.) •