Sellers v. Township of Abington

DISSENTING OPINION BY

Judge LEAVITT.

Respectfully, I dissent. In granting summary judgment to the Township of Abington and its Police Department (Ap-pellees), the trial court erred by making its own findings of fact about whether the police officers breached their duty of care to Decedent, a passenger in the vehicle pursued by the police. The majority acknowledges this error of the trial court but dismisses it as harmless error by establishing a new common law principle. Under this new principle, police in pursuit of a fleeing vehicle have no duty of care to passengers in that vehicle, even innocent bystanders such as kidnap victims, unless the police know of the presence of these passengers. I do not believe this principle properly extends existing common law. In any case, it establishes a standard that requires findings of fact in this case because the evidence is conflicting on whether the police knew that there were passengers in the vehicle under pursuit. Because material facts are in dispute, I would reverse the trial court’s grant of summary judgment.

The Judicial Code immunizes local agencies from suit except for circumstances where the General Assembly has specifically waived their immunity. See 42 Pa. C.S. §§ 8541-8542 (Tort Claims Act). To invoke one of the waivers of immunity, a plaintiff must first establish:

(1) The damages would be recoverable under common law or a statute creating a cause of action if the injury were caused by a person not having available a defense under section 8541 (relating to governmental immunity generally) or section 8546 (relating to defense of official immunity); and
(2) The injury was caused by the negligent acts of the local agency or an employee thereof acting within the scope of his office or duties with respect to one of the categories listed in subsection (b).

42 Pa.C.S. § 8542(a). Once a plaintiff establishes a cause of action under common law, the plaintiff then must show that the local government can be held liable for damages under one of the exceptions to immunity enumerated in Section 8542 of the Tort Claims Act. Relevant to this case is the exception to immunity found at Section 8542(b)(1) of the Tort Claims Act, which states:

(b) Acts which may impose liability.— The following acts by a local agency or any of its employees may result in the imposition of liability on a local agency:
(1) Vehicle liability. — The operation of any motor vehicle in the possession or control of the local agency, provided that the local agency shall not be liable to any plaintiff that claims liability under this subsection if the plaintiff was, during the course of the alleged negligence, in flight or fleeing apprehension or resisting arrest by a police officer or knowingly aided a group, one or more of whose members were in flight or fleeing apprehension or resisting arrest by a police officer. As used in this paragraph, “motor vehicle” means any vehicle which is *873self-propelled and any attachment thereto, including vehicles operated by rail, through water or in the air.

42 Pa.C.S. § 8542(b)(1) (emphasis added).

Decedent’s representatives assert that he was neither in flight nor aiding a person in flight and, thus, his cause of action fits the exception set forth in Section 8542(b)(1). However, before considering the evidence relevant to this point, Decedent’s representatives must meet the threshold requirement under Section 8542(a), namely, that Appellees owed Decedent a common law or statutory duty of care.1 The majority concludes that Appel-lees owed no duty of care to Decedent, but this conclusion cannot be reconciled with our Supreme Court’s precedent on the question of a police officer’s duty of care in the situation of a police pursuit.

The majority states, correctly, that police officers owe no duty of care to the wrongdoers they pursue, Lindstrom v. City of Corry, 563 Pa. 579, 763 A.2d 394 (2000), but do owe a duty to “innocent bystanders.” Aiken v. Borough of Blawnox, 747 A.2d 1282, 1285 (Pa.Cmwlth.2000) (because fleeing criminals and those who aid them are excluded from Section 8542(b)(1), “innocent bystanders ... can maintain an action against the government alleging that police officers negligently maintained a high-speed pursuit.”). The majority concludes, relying upon Lind-strom, that an officer’s common law duty to innocent bystanders does not include passengers in a fleeing vehicle unless the officer knows of their presence. This reliance is misplaced because Lindstrom is inapposite.

In Lindstrom, a police officer decided to pull over Ramsey Lindstrom and activated his flashing lights. Lindstrom did not respond, and the officer began to follow him. During the ensuing pursuit, Lindstrom lost control of his vehicle, which struck several curbs and a tree and flipped over. Lind-strom died from the injuries he sustained in the accident. His parents sued the city, alleging its officer was negligent in initiating and continuing a high speed chase. The trial court granted the city’s motion for judgment on the pleadings asserting governmental immunity under the Tort Claims Act.

On appeal, the Supreme Court first considered whether Lindstrom’s parents (ap-pellees) met the threshold requirement of establishing that the city owed Lindstrom a duty of care under our common law. In deciding this question, the Court weighed several public policy factors:

(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.

Lindstrom, 563 Pa. at 585, 763 A.2d at 397 (citing Althaus v. Cohen, 562 Pa. 547, 553, 756 A.2d 1166, 1169 (2000)). After weighing each of these factors, the Court held that a local agency and its employees do not owe a common law duty to fleeing wrongdoers, preventing such wrongdoers from satisfying the first condition to qualify for the immunity exception set forth in Section 8542(a) of the Tort Claims Act. The Supreme Court cited with approval, inter alia, a decision of the Alaska Supreme Court that public policy is not served by imposing a duty upon police to protect fleeing offenders from their own *874actions. Id. (citing Estate of Day v. Willis, 897 P.2d 78 (Alaska 1995)).

The Court in Lindstrom specifically noted the inapplicability of its holding to innocent bystanders, stating that its decision in Jones v. Chieffo, 549 Pa. 46, 700 A.2d 417 (1997) (plurality)

is not relevant to the issue of whether a local agency owes a common law duty to a driver who flees from a police officer. Jones involved an innocent third party injured during the course of a police chase, which does not influence our analysis regarding the duty owed to a fleeing suspect himself.

Lindstrom, 563 Pa. at 586 n. 2, 763 A.2d at 397 n. 2. In Jones, the Supreme Court reconsidered its prior ruling in Dickens v. Homer, 531 Pa. 127, 611 A.2d 693 (1992), which had established that police could not be held liable for damages suffered by third parties injured in a collision with a vehicle under police pursuit. In Jones, the Supreme Court overruled Dickens. It held that the negligent or criminal acts of fleeing suspects do not, as a matter of law, constitute a superseding cause that prevents a trier of fact from finding that the negligent acts by police officers were a substantial factor in causing innocent bystanders harm. See also Aiken, 747 A.2d at 1285 (“A determination of whether an act is so extraordinary as to constitute a superseding cause is normally one to be made by the jury.”) (quoting Powell v. Drumheller, 539 Pa. 484, 495, 653 A.2d 619, 624 (1995)).

Yet, just as Jones was unhelpful in an analysis of whether a common law duty is owed to fleeing wrongdoers, an examination of the five Lindstrom public policy factors does not aid our analysis here2 because the common law of this Commonwealth has long held that every motorist owes a duty of care to everyone in the operation of his or her vehicle. The factors considered in Lindstrom are used when defining a novel concept of duty in a changing society not yet addressed by the General Assembly. See Sinn v. Burd, 486 Pa. 146, 164, 404 A.2d 672, 681 (1979).3 Here, the duty of care owed by the operator of an emergency vehicle, including a police car, is not novel and has been established by the legislature.

The motorist’s duty of care, long in existence at common law, was first incorporated into a comprehensive statutory scheme in this Commonwealth by the General Assembly in the beginning of the last century. See, e.g., Lewis v. Wood, 247 Pa. 545, 546-48, 93 A. 605, 606 (1915) (discussing the piecemeal legislation addressing motor *875vehicles in the early 1900s, a comprehensive scheme enacted in 1911, as well as the underlying common law duty of reasonable care owed by all motorists); Unangst v. Whitehouse, 2B5 Pa.Super. 458, 344 A.2d 695, 698 (1975) (discussing the incorporation of the common law principle of the “assured clear distance ahead” rule into prior versions of the Vehicle Code). The current iteration of the Vehicle Code has codified the common law rules of the road that are used to determine whether a driver has fulfilled his duty to another, has acted negligently, or must be found negligent per se due to violations of specific provisions of the Vehicle Code. Sodders v. Fry, 32 A.3d 882, 887 (Pa.Cmwlth.2011) (internal citations omitted). The Vehicle Code incorporates the reasonable person standard familiar from common law. See, e.g., 75 Pa.C.S. § 3361.4

Within the Vehicle Code, the General Assembly grants certain privileges to the drivers of emergency vehicles, including police officers.5 75 Pa.C.S. § 3105. The language of Section 3105 speaks in absolutes, such as the privilege to “park or stand, irrespective of the provisions of this part,” when responding to an emergency. 75 Pa.C.S. § 3105(b)(1). Nevertheless, Section 3105 conditions this absolute privilege on “the duty to drive with due regard for the safety of all persons.” 75 Pa.C.S. § 3105(e). Stated otherwise, Section 3105 of the Vehicle Code does not “relieve the driver” of the emergency vehicle of his common law duty to operate the emergency vehicle with due regard under the circumstances. Lahr v. City of York, 972 A.2d 41, 49-51 (Pa.Cmwlth.2009); Frazier v. Commonwealth, 845 A.2d 253, 259-60 (Pa.Cmwlth.2004). Police officers operating their vehicles during emergency situations, including pursuits of fleeing suspects, have a duty “to drive with due regard for the safety of all *876persons.” 75 Pa.C.S. § 3105(e) (emphasis added).

However, the Tort Claims Act limits a local government’s liability for breach of its common law duty to operate a vehicle with due care in an emergency situation. Specifically, a plaintiff who is the driver of a fleeing vehicle, or someone assisting that driver, may not impose liability upon police, even where the police have breached their common law duty “to drive with due regard for the safety of all persons.” The police enjoy immunity from such claims. 42 Pa.C.S. § 8542(b)(1). However, there is no immunity for claims brought against the government by innocent bystanders injured as a result of a police pursuit. Aiken, 747 A.2d at 1285 (“[W]e hold that innocent bystanders, like Appellant, can maintain an action against the government alleging that police officers negligently maintained a high-speed pursuit.”). In this respect, Pennsylvania stands with the overwhelming majority of states.6

In contrast to the near unanimity on the existence of a duty of care owed to innocent bystanders, the states are divided on how to define the duty of care owed by police officers to these innocent bystanders. Some states define this duty of care as a negligence standard and others as a reckless disregard standard.7 In Pennsyl*877vania, it is a negligence standard. However, as far as can be determined, no state has conditioned the duty of care owed to an innocent bystander on the defendant’s knowledge of the innocent bystander’s presence.

In Johnson v. City of Philadelphia, 808 A.2d 978, 981 (Pa.Cmwlth.2002), we reviewed the Vehicle Code, which, over time, has redefined the duty of care owed by a driver in an emergency situation. Originally, the standard of care for vehicle operators in an emergency situation was “reckless disregard.” It was replaced with “due regard for the safety of all persons.” 75 Pa.C.S. § 3105(e). Accordingly, the legislature has defined the standard of care owed to innocent bystanders as the reasonable person standard. To assist police in the actual application of this standard, the legislature requires municipalities to develop and implement policies “governing the procedures under which a police officer should initiate, continue and terminate a motor vehicle pursuit.” 75 Pa.C.S. § 6342(a). These provisions do not increase police liability, see 75 Pa.C.S. § 6345, or change the standard of care enunciated in Johnson, (i.e., negligence under emergency situations). However, the policies developed and implemented by a municipality can serve as one factor in making the factual finding of whether police operated their vehicles with due regard under the circumstances. Frazier, 845 A.2d at 260.

In summary, whether a police officer owes a duty of care to a passenger in a fleeing vehicle is not, as the majority believes, answered by implication in Lind-strom. Lindstrom distinguished fleeing wrongdoers from innocent bystanders and found no common law duty owed to the former. The duty owed to everyone else in the world, including innocent bystanders wherever they may be, remains “due regard for the safety of all persons,” ie., negligence under emergency situations. Johnson, 808 A.2d at 982.

I am also not persuaded by the majority’s reliance on the Western District of Pennsylvania’s non-binding decision in Ferguson v. Commonwealth, Civ. A. No. 05-280E, 2009 WL 723426 (W.D.Pa. March 13, 2009). In Ferguson, Jenny Gallagher was a passenger in a vehicle being pursued by state troopers during a high speed chase. She exited the vehicle when the driver slowed to navigate a T-intersection. Gallagher was standing on the side of the road when the pursuing trooper’s vehicle struck and injured her.

Gallagher filed a civil action against the State Police and the officer in his individual capacity. Count one of her complaint alleged violations of 42 U.S.C. § 1983 for federal constitutional claims. Count two alleged, alternatively, that defendants’ conduct constituted actionable negligence, and that the Commonwealth and State Police should be liable for the conduct of their employees under the theory of respondeat superior. The district court exercised supplemental jurisdiction over Gallagher’s state law claims.

The district court denied defendants’ motion for summary judgment on Gallagher’s constitutional claims, holding that there were genuine issues of material fact with respect to whether the officer intentionally struck Gallagher with his vehicle or was deliberately indifferent to her substantive due process right to bodily integrity. As for Gallagher’s negligence claim in count two, the district court granted defen*878dants’ motion for summary judgment. The court found that because it was not reasonably foreseeable, or remotely probable, that the fleeing driver’s passenger, Gallagher, would exit the vehicle in the middle of the chase, the police owed no duty of care to Gallagher.8 Crucial to the court’s analysis was the undisputed fact that the officer believed one, if not both, of the individuals in the vehicle was unlawfully possessing drugs since he had observed marijuana plants in the bed of the truck before initiating the pursuit. In the case at bar, there is a factual dispute about whether Officer Howley knew there were passengers in the fleeing vehicle, let alone whether the passengers were engaged in criminal activity. This is a crucial difference. The district court cautioned that its holding was limited to the circumstances present in Ferguson. The facts in Ferguson are so different from the facts presented here that the holding is not instructive.

For more applicable non-binding persuasive authority, I would follow the Supreme Court of Michigan’s analysis of a police officer’s duty of care to passengers in Robinson v. City of Detroit, 462 Mich. 439, 613 N.W.2d 307 (2000). Robinson involved two separate cases, which were consolidated, that involved passengers in fleeing vehicles who were injured in the course of a police chase. In both cases, the driver sped away from the police and crashed his car. In one case the passenger survived his injuries, and in the other the passenger was killed. In considering the plaintiffs’ threshold burden to establish a common law duty of care, the Michigan Supreme Court held that “the police owe a duty to innocent persons whether those persons are inside or outside the vehicle. Conversely, the police owe no duty to a wrongdoer, whether the wrongdoer is the fleeing driver or a passenger.” Id. at 314. The Court reasoned that this duty to all innocent persons is consistent with Michigan’s statutes governing operation of emergency vehicles. The Court continued:

We place on the plaintiff the burden of proving that a passenger was an innocent person and that the police therefore owed the passenger a duty. Where no genuine issue of material fact exists regarding the status of a passenger, summary disposition may be appropriate. However, when a genuine issue of material fact exists concerning whether a passenger is innocent or a wrongdoer, and thus whether the police owed a duty, the question is appropriately resolved by the trier of fact.

Id. 9

The case sub judice illustrates the wisdom of Michigan’s approach, which places the burden on the plaintiff to prove his innocence as a precondition to establishing liability for a police officer’s negligent con*879duct of a pursuit. Whether Decedent was an “innocent bystander” is a question of fact that requires making credibility determinations in order to resolve the conflicting evidence. Decedent’s representatives offered evidence that Decedent and the other passenger attempted to convince Si-mons, the “fleeing criminal,” to slow his vehicle down and pull over. If true, this would mean that Decedent did not aid Simons in his flight from apprehension. If Simons’ actions are found to be a superseding cause of the fatal accident, that finding will preclude Decedent’s claim against Appellees. Aiken, 747 A.2d at 1285. However the determination of “whether an act is so extraordinary as to constitute a superseding cause is normally one to be made by the jury.” Powell v. Drumheller, 539 Pa. 484, 495, 653 A.2d 619, 624 (1995). Resolution of these questions, which turns on whether Decedent’s evidence is credible, requires factual findings by a jury.

Also requiring factual findings and credibility determinations is the question of whether the Abington police officers acted reasonably under the circumstances. This requires consideration of the dashboard audio and video recording as well as witness testimony on the animosity between the Abington Police Department and members of the O’Neil family. The red Mustang driven by Simons had previously been owned by a member of the O’Neil family. Decedent’s representatives suggest this evidence shows that Officer Howle/s mistake about Simons’ identity is what prompted the high speed pursuit. A fact-finder could also consider the Abington Police Department’s pursuit policy and whether the officers had adhered to the policy on the evening in question.

The majority announces a new common law principle that I believe is inconsistent with Jones and inconsistent with 42 Pa. C.S. § 8542(b)(1). Specifically, the majority holds “that there is no duty of care to passengers whose existence, or whose connection to the driver and the conduct for which he is being pursued, is unknown to the officer.” Op. at 871. The whole point of holding officers liable for the conduct of their vehicle pursuits is that they do not know how, when or where an innocent bystander may be injured when a pursuit takes place. Aiken, 747 A.2d at 1283. The duty of care imposed on police is a social duty and necessarily one owed to an unknown group of persons. In this case, the pursuit took place in a residential neighborhood. Someone could have been injured by Simons’ vehicle or the police vehicle while taking the family dog out for a late night walk. Nothing in the language of 42 Pa.C.S. § 8542(b)(1) or our precedent in Aiken suggests that the police must know of the presence of the passenger to be held liable. Such a rule places kidnap victims at risk.

In any case, the majority’s newly limited duty of care invites factual determinations. Evidence is required about what a pursuing officer knows about the existence of a passenger in a fleeing vehicle and the passenger’s connection to the criminal conduct. Here, Decedent’s representatives presented evidence that Officer Howley passed Simons’ vehicle and did a U-turn to initiate the pursuit, creating a question as to whether the officer knew or should have known there were passengers in the vehicle. These questions about Officer How-ley’s knowledge make summary judgment inappropriate in this case.10

*880The majority acknowledges that the trial court made its own findings of fact and that this is error in any summary judgment case. Specifically, the trial court viewed the dashboard video and then found that the police acted “reasonably at all times.” Trial Court Opinion at 7.

Officer Howley stated that he heard the exhaust of the vehicle before he saw taillights far ahead and that upon attempting to gain on the vehicle, he accelerated beyond the speed limit. This led him to believe that the vehicle was speeding. The sound of the exhaust on Simons’ vehicle has not been identified in the dashboard video, nor does the video record the speed of either vehicle. The dashboard video does not make clear how Officer Howley was able to identify the vehicle he was pursuing as a red Mustang; the vehicle’s color is shown on the dashboard video only after it has crashed and is lit by the spotlight from Officer Howley’s vehicle. The dashboard video shows that Officer How-ley’s vehicle proceeded through multiple stop signs at intersections on residential streets. The video does not resolve whether the officer complied with the emergency vehicle doctrine in the Vehicle Code by slowing his high rate of speed and checking for vulnerable persons or property. Decedent offered expert opinion evidence that Officer Howley’s pursuit and Lieutenant Knott’s instructions repeatedly violated the pursuit policies of the Abing-ton Police Department. The parties take contradictory stances on the import of the time and duration of the pursuit, the condition of the streets and density of the neighborhood, and the type of threat posed to public safety by the pursued vehicle. All those relevant facts are intertwined and open to interpretation. The trial court resolved all these factual disputes in favor of the Appellees on the basis of the video, and this was error.

Summary judgment is appropriate only where there is no genuine issue of fact, and all doubts about the existence of a genuine issue of fact must be resolved against the moving party. “Only when the facts are so clear that reasonable minds could not differ can a trial court properly enter summary judgment.” Kvaerner Metals Divisions of Kvaerner U.S., Inc. v. Commercial Union Insurance Company, 589 Pa. 317, 329, 908 A.2d 888, 896 (2006). Because reasonable minds can differ about the facts material to the question of whether Appellees’ pursuit of Simons was negligent, summary judgment is not appropriate here. Even the majority’s newly announced duty of care requires findings of fact on whether Officer Howley had knowledge of the passengers in Simons’ vehicle because the evidence is conflicting on his knowledge.

I would reverse the trial court’s order and remand for further proceedings even under the majority’s newly restricted duty of care owed to those innocent bystanders who happen to be in a vehicle under pursuit. I believe, however, that the common law duty of care owed to an innocent bystander is not conditioned by the police officer’s knowledge of their presence in a vehicle under pursuit. Accordingly, on remand, I would allow Decedent’s representatives to present their evidence to a jury on whether Decedent was an innocent bystander and, if so, whether Appellees breached their duty of care to him.

. The majority does not discuss whether Ap-pellees owed a statutory duty of care to Decedent. As will be discussed later in this opinion, I believe the statutory duty of care imposed by the Vehicle Code is the same as that imposed at common law.

. In any case, the Lindstrom examination of the live factors does not answer the question posed here, which is the duty of care to an innocent bystander who happens to be a passenger in a vehicle under police pursuit.

. Examples of the types of novel legal questions that have required the Pennsylvania Supreme Court to weigh the factors identified in Lindstrom when analyzing whether or not to recognize the existence of a duty include: R.W. v. Manzek, 585 Pa. 335, 888 A.2d 740 (2005) (recognizing duty of private fundrais-ing entities to warn children and parents of the danger of using children as fundraisers in school fundraising activities and competition); Bilt-Rite Contractors, Inc. v. The Architectural Studio, 581 Pa. 454, 866 A.2d 270 (2005) (recognizing design professionals’ duty of reasonable care in supplying information relied upon by others); Sharpe v. St. Luke's Hospital, 573 Pa. 90, 821 A.2d 1215 (2003) (recognizing an employer's duty of reasonable care owed to an employee in the collection and handling of urine specimen for drug testing); Atcovitz v. Gulph Mills Tennis Club, Inc., 571 Pa. 580, 812 A.2d 1218 (2002) (declining to recognize a tennis club's duty to acquire and maintain an automated external defibrillator for use by unqualified and untrained individuals in emergency situations); Althaus, 562 Pa. 547, 756 A.2d 1166 (declining to recognize duty of care owed by therapist to non-patient parents of minor patient).

. Section 3361 states:

No person shall drive a vehicle at a speed greater than is reasonable and prudent under the conditions and having regard to the actual and potential hazards then existing, nor at a speed greater than will permit the driver to bring his vehicle to a stop within the assured clear distance ahead. Consistent with the foregoing, every person shall drive at a safe and appropriate speed when approaching and crossing an intersection or railroad grade crossing, when approaching and going around curve, when approaching a hill crest, when traveling upon any narrow or winding roadway and when special hazards exist with respect to pedestrians or other traffic or by reason of weather or highway conditions.

75 Pa.C.S. § 3361 (emphasis added).

. Drivers of Emergency Vehicles.

(a)General rule. — The driver of an emergency vehicle, when responding to an emergency call or when in the pursuit of an actual or suspected violator of the law ... may exercise the privileges set forth in this section, but subject to the conditions stated in this section.
(b) Exercise of special privileges. — The driver of an emergency vehicle may:
(1) Park or stand, irrespective of the provisions of this part.
(2) Proceed past a red signal indication or stop sign, but only after slowing down as may be necessary for safe operation ....
(3) Exceed the maximum speed limits so long as the driver does not endanger life or property....
(4) Disregard regulations governing direction of movement, overtaking vehicles or turning in specified directions.
(c) Audible and visual signals required.— The privileges granted in this section to an emergency vehicle shall apply only when the vehicle is making use of an audible signal and visual signals meeting the requirements and standards set forth in regulations adopted by the department.
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(e) Exercise of care. — This section does not relieve the driver of an emergency vehicle from the duty to drive with due regard for the safety of dll persons ....

75 Pa.C.S. § 3105 (emphasis added).

. See, e.g., Seals v. Columbia, 575 So.2d 1061 (Ala.1991); Hildebrandt v. City of Fairbanks, 863 P.2d 240 (Alaska 1993); Estate of Aten v. Tucson, 169 Ariz. 147, 817 P.2d 951 (Ct.App. 1991); City of Caddo Valley v. George, 340 Ark. 203, 9 S.W.3d 481 (2000); Cruz v. Briseno, 22 Cal.4th 568, 93 Cal.Rptr.2d 715, 994 P.2d 986 (2000) (citing Brummett v. County of Sacramento, 21 Cal.3d 880, 148 Cal.Rptr. 361, 582 P.2d 952 (1978)); Tidwell v. City & County of Denver, 83 P.3d 75 (Colo.2003); Tetro v. Stratford, 189 Conn. 601, 458 A.2d 5 (1983); Jones v. Crawford, 1 A.3d 299 (Del.2010); Pinellas Park v. Brown, 604 So.2d 1222 (Fla. 1992); Cameron v. Lang, 274 Ga. 122, 549 S.E.2d 341 (2001); Athay v. Stacey, 142 Idaho 360, 128 P.3d 897 (2005); Suwanski v. Village of Lombard, 342 Ill.App.3d 248, 276 Ill.Dec. 766, 794 N.E.2d 1016, appeal denied, 206 Ill.2d 645, 282 Ill.Dec. 485, 806 N.E.2d 1073 (2003); Patrick v. Miresso, 848 N.E.2d 1083 (Ind.2006); Morris v. Leaf, 534 N.W.2d 388 (Iowa 1995); Robbins v. City of Wichita, 285 Kan. 455, 172 P.3d 1187 (2007); Jones v. Lathram, 150 S.W.3d 50 (Ky.2004); Nelson v. State Department of Public Safety, 581 So.2d 344, cert. denied, 586 So.2d 561 (La.1991); Boyer v. State, 323 Md. 558, 594 A.2d 121 (1991); Harrison v. Town of Mattapoisett, 78 Mass.App.Ct. 367, 937 N.E.2d 514 (2010); Robinson v. City of Detroit, 462 Mich. 439, 613 N.W.2d 307 (2000); Thompson v. City of Minneapolis, 707 N.W.2d 669 (Minn.2006); City of Ellisville v. Richardson, 913 So.2d 973 (Miss.2005); Stanley v. City of Independence, 995 S.W.2d 485 (Mo.1999); Eklund v. Trost, 335 Mont. 112, 151 P.3d 870 (2006); Henery v. City of Omaha, 263 Neb. 700, 641 N.W.2d 644 (2002); Saarinen v. Kerr, 84 N.Y.2d 494, 620 N.Y.S.2d 297, 644 N.E.2d 988 (N.Y.1994); Parish v. Hill, 350 N.C. 231, 513 S.E.2d 547 (1999); Jones v. Ahlberg, 489 N.W.2d 576 (N.D.1992); Robertson v. Roberts, 2004-Ohio-7231, 2004 WL 3090216 (Ohio Ct. App.2004) (unreported), appeal denied, 105 Ohio St.3d 1562, 828 N.E.2d 117 (2005); State ex rel. Oklahoma Department of Public Safety v. Gurich, 238 P.3d 1 (Okla.2010); Lowrimore v. Dimmitt, 310 Or. 291, 797 P.2d 1027 (1990); Seide v. State, 875 A.2d 1259 (R.I.2005); Clark v. South Carolina Department of Public Safety, 362 S.C. 377, 608 S.E.2d 573 (2005); Hall v. City of Watertown, 636 N.W.2d 686 (S.D.2001); Haynes v. Hamilton County, 883 S.W.2d 606 (Tenn.1994); Travis v. City of Mesquite, 830 S.W.2d 94 (Tex.1992); Day v. State ex rel. Utah Department of Public Safety, 980 P.2d 1171 (Utah 1999); Rochon v. State, 177 Vt. 144, 862 A.2d 801 (2004); Colby v. Boyden, 241 Va. 125, 400 S.E.2d 184 (1991); Mason v. Bitton, 85 Wash.2d 321, 534 P.2d 1360 (1975); Peak v. Ratliff, 185 W.Va. 548, 408 S.E.2d 300 (1991); Estate of Cavanaugh by Cavanaugh v. Andrade, 202 Wis.2d 290, 550 N.W.2d 103 (1996); Board of County Commissioners of Teton County v. Bassett, 8 P.3d 1079 (Wyo. 2000); District of Columbia v. Hawkins, 782 A.2d 293 (D.C.2001).

. See, e.g., Fielder v. Stonack, 141 N.J. 101, 661 A.2d 231 (1995) (discussing willful misconduct standard applied in tort actions stemming from police pursuits, following the re*877jection of a negligence standard in Tice v. Cramer, 133 N.J. 347, 627 A.2d 1090 (1993), as a result of the absolute immunity for injuries that would not have occurred but for the negligence of police conferred by the New Jersey Tort Claims Act, N.J.S.A. 59:5-2b(2)).

. The district court also emphasized that Gallagher did not become an innocent bystander once she exited the vehicle. I believe the district court erred in rendering such a finding on summary judgment. Reasonable minds could differ about Gallagher's criminal culpability once she was no longer a passenger in the fleeing vehicle.

. The Michigan Supreme Court went on to hold that defendants were entitled to summary judgment because plaintiffs could not establish causation. Applying a narrow construction of Michigan’s vehicle exception to immunity, which waives immunity for damages "resulting from the negligent operation” of a police vehicle, the Court held that plaintiffs had to show that the officer actually hit the fleeing vehicle or physically forced it off the road or into another object. The Court also held that a police officer’s decision to pursue a fleeing motorist is distinct from the operation of the vehicle itself, and is not encompassed in the phrase "operation of a motor vehicle.” The Pennsylvania Supreme Court has expressly rejected that distinction. See Aiken, 747 A.2d at 1285.

. Under the majority’s new standard, summary judgment will be inappropriate except in the unusual case where the plaintiff presents no evidence of the police officer’s knowledge.