In Sellers v. Township of Abington, __ A.3d __ (No. 97 MAP 2013, filed December 29, 2014), the Pennsylvania Supreme Court held that a local agency does not owe a common-law or statutory duty of care to passengers in a fleeing vehicle whose presence in the vehicle or connection to the fleeing driver is unknown to the pursuing police officer. The trial court granted summary judgment in favor of the municipal defendants, reasoning that they were immune from suit because none of the enumerated exceptions to governmental immunity in the Political Subdivision Tort Claims Act were applicable. The Commonwealth Court affirmed, holding that the police owed no duty to the decedent because he was a passenger in a fleeing vehicle who was unknown to the pursuing officer.
The Supreme Court affirmed, first holding that the police owed no statutory duty of care to the decedent under the so-called “emergency vehicle doctrine” in Section 3105(e) of the Vehicle Code, 75 Pa. C.S. §3105(e). To determine whether a common law duty was owed to the decedent, the Supreme Court weighed the five factors identified in Althaus ex rel. v. Cohen, 756 A.2d 1166 (Pa. 2000): (1) the relationship between the parties; (2) the social utility of the actor’s conduct; (3) the nature of the risk imposed and foreseeability of the harm incurred; (4) the consequences of imposing a duty upon the actor; and (5) the overall public interest in the proposed solution. The Court found all five factors weighed against imposing a duty of care. Because appellants failed to meet the threshold duty requirement of the Tort Claims Act it was unnecessary for the Court to decide whether the vehicle liability exception was applicable.
Justice Saylor authored a concurring opinion expressing his view that, where the Court is called upon to impose a new affirmative duty of care, the litigants should present record-based advocacy and a comprehensive discussion of competing public policy concerns. Because the litigants in this case failed to do so, Justice Saylor would have rejected appellants’ position on that basis. In her concurring opinion, Justice Todd opined that the majority’s analysis of the first and third Althaus factors did not sufficiently account for an unknown passenger whose presence is known to the pursuing officer but whose relationship to the fleeing driver is not.