537 A.2d 112 | Pa. Commw. Ct. | 1988
Opinion by
Charles A. Butler (Butler)
With the foregoing in mind, the following is a summary of the evidence. Butler was employed by a contractor hired by the City to demolish a residence which the City had condemned at 2153 Webster Avenue. That structure was a three-story frame dwelling situated between two other residences, with 2155 Webster, another three-story frame house, being located to the right of 2153 as viewed from the street. Because of the proximity of the houses and water damage to 2153, 2153 was demolished using hand tools only. While the walls of 2153 and 2155 were very close together, they did not share a party wall. During the demolition of 2153, no tools or equipment used to raze 2153 came into contact with 2155. The house at 2155 was occupied at the time of demolition by Freda Morgan, whose complaints to the City had prompted the demolition of 2153.
On October 8, 1981, after the house at 2153 had been demolished and the debris removed, Butler and several co-workers were working to level the site. While the foreman operated a highlift nearby, Butler was raking and spreading topsoil approximately three to five feet from the left wall of 2155 when he was struck by falling bricks. Although no one saw the bricks fall from the chimney at 2155, there were bricks missing therefrom after the accident and it is not disputed that the bricks which injured Butler fell from that chimney. Freda Morgan, who was in her home at 2155 on that morning, testified that vibrations from the highlift shook her residence.
We have carefully examined the record, the theories advanced by Butler and the authorities he cites and must agree with the trial court that he failed to establish a duty on the part of the City. Butler argues first that §§341A and 343 of the Restatement (Second) of Torts (1982) (Restatement) subject a “possessor of land”
The first facet of Butler’s argument, that the City may be liable as a “possessor of land,” overlooks the obvious fact that the dangerous condition did not exist on the land possessed, 2153 Webster. Butler has cited no authority which would hold a possessor of land liable for injuries resulting from a dangerous condition upon adjoining land, and there was no evidence presented that the City was in possession of 2155 Webster. Further, Butler presented no evidence that the City was carrying on its activities, through its contractor, without exercis
Butler also argues that the “peculiar risk” doctrine embodied in §416 (work dangerous in absence of special precautions) and §427 (negligence as to danger inherent in the work) of the Restatement should apply. Suffice it to say that this argument is flawed in the same manner as the preceding ones: there was no evidence presented at trial to establish that the City knew or should have known of the danger posed by the chimney located upon adjoining property.
Butlers evidence regarding the existence of a dangerous condition consisted of a pre-demolition photograph (showing three properties on Webster Avenue, 2153 being in the middle, in which the subject chimney and its close proximity to 2153 Webster could be seen) and three post-accident photographs taken from ground level with a telescopic lens (showing the chimney with missing bricks). He argues that this evidence, coupled with the testimony of his expert witness, should have been sufficient to allow the jury to infer that a danger
To accomplish that end, Butler attempted to elicit certain opinions from his expert witness, portions of which were excluded by the trial judge. From our' review of the record, and based upon the general rule that an experts opinions must be based upon facts in evidence, see e.g., Abbott v. Onopiuk, 437 Pa. 412, 263
For the foregoing reasons,
And Now, this 12th day of February, 1988, the order of the Court of Common Pleas of Allegheny County in the above-captioned matter is affirmed.
Despite the fact that Butlers wife’s name appéars in the case caption, the record reveals that she took a voluntary non-suit before the start of the trial.
Although the non-suit was entered with respect to all remaining defendants, Butler has appealed only the non-suit granted to the City.
We will assume, for purposes of this discussion, that the City may be said to be a possessor of 2153 Webster.
The Code sections cited are: §1007.01 (general duties and authority of Bureau of Building Inspection); §1007.13(d) (circumstances under which special inspector is required); §1007.16 (description of characteristics of unsafe buildings); §1007.17 (declaring unsafe buildings to be public nuisances, and providing for demolition in certain cases); and §1009.09 (regarding permits for razing buildings and providing authorization for Superintendent to require barricades or other safeguards he deems necessary).
See e.g., Schaff v. Meltzer, 382 Pa. 43, 114 A.2d 167 (1955). Butler, in his brief, distinguishes cases in which evidence regarding post-accident conditions was not admissible, arguing that he was able to relate the condition of the chimney in the photos back to the day of the accident, through the contractors foremans testimony. This, of course, is irrelevant. First of all, the trial court did admit the photos into evidence. Secondly, the precise issue here was not whether the condition of the chimney changed between the day of the accident and the day the photos were taken, but, rather, what its condition was prior to the accident.
The City, in its brief, also raises the issue of governmental immunity under 42 Pa. C. S. §8541. This defense was properly pleaded in the City’s new matter and Butler denied same based on the so-called “real property exception” found in 42 Pa. C. S. §8542(b)(3). Our Supreme Court in Mascaro v. Youth Study Center, 514 Pa. 351, 523 A.2d 1118 (1987) discussed the two conditions which must be satisfied to recover against a party having immunity: (1) that damages would be recoverable under common law or a statute creating a cause of action against one not having immunity, and (2) that the injury must be caused by the negligent acts of the local agency or its employee acting within the scope of its office or duties, excepting therefrom acts of crime, fraud, malice or willful misconduct. The initial inquiry is to determine whether a plaintiff has a cause of action if immunity is not an issue. (In Mascaro, a case disposed of via a judgment on the pleadings, the question was whether the appellees had stated a cause of action. Because our case was procedurally more advanced, the appellant having already had the opportunity to present his case, we look at whether he has made out a prima facie case sufficient to go to the jury against a defendant not having the benefit of immunity). In light of our holding that Butler did not establish that the City owed him a duty, we need not proceed further with the second step of the immunity analysis. See Mascaro.