CITY OF PHILADELPHIA, Appellant, v. Kathleen MELENDEZ.
Commonwealth Court of Pennsylvania.
June 15, 1993.
627 A.2d 234
Argued May 10, 1993.
James McEldrew, for appellee.
Bеfore PALLADINO and FRIEDMAN, JJ., and SILVESTRI, Senior Judge.
PALLADINO, Judge.
The City of Philadelphia (City) appeals an order of the Court of Common Pleas of Philadelphia County (trial court) which denied its motion for summary judgment. We reverse.
This action was commenced on February 14, 1992 when Kathleen Melendez (Melendez) filеd a complaint against the City and Richard Klein (Klein). Melendez alleged that on September 25, 1991, she was operating an automobile entering Eighth Street from a private drive. She further alleged that a City-owned vehicle was unlawfully parked along the curb of Eighth Street, thereby blоcking her view of traffic. As Melendez was exiting the driveway, her automobile collided with an automobile driven by Klein. Melendez asserted that the City was negligent because its employee, acting within the scope of his employment, had parked the vehicle in an unlawful and unsаfe manner without due regard for the safety of others. The City filed an answer, specifically denying negligence and asserting as new matter the immunity protections of what is commonly referred to as the Political Subdivision Torts Claims Act.1
Following limited discovery, the City filed a motion for summary judgment, contending that it was immune from liability. Specifically, the City asserted that because the City vehicle was parked and, therefore, not in operation at the time of the collision, the motor vehicle exception to governmental immunity did not apply. The City further asserted that a parked vehicle on a City street did not trigger the streets exception. Accordingly, the City argued that it was entitled to judgment as a matter of law.
The issue presented on appeal to this court is whether the trial court erred as a matter of law in denying the City‘s motion for summary judgment.2 Summary judgment shall be entered whеre the pleadings, depositions, answers to interrogatories, and admissions together with affidavits, if any, demonstrate that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law.
Given the express legislative intent to insulate political subdivisions from tort liability, exceptions to the rule of governmental immunity must be narrowly interpreted. Snyder v. Harmon, 522 Pa. 424, 562 A.2d 307 (1989). The motor vehicle exception to governmental immunity provides that a local agency or its employees may be held liable for the operation оf any motor vehicle in the possession or control of the local agency.
The City argues that case law has clearly established that a parked vehicle is not in operation, and that claims involving a parked vehicle are not actionable under the vehicle exception to governmental immunity. We agree.
In Love v. City of Philadelphia, 518 Pa. 370, 543 A.2d 531 (1988), an elderly woman was injured while exiting from a City-owned van. The van was parked at the curb and a City
This court recently applied the supreme court‘s definition of operation in First National Bank of Pennsylvania v. Commonwealth, Department of Transportation, 148 Pa.Commonwealth Ct. 158, 609 A.2d 911 (1992). In First National the plaintiff brought a wrongful death and survival action against the Department of Transportation (DOT) after her car collided with a DOT vehicle which was parked on or near the right-hand berm of a road. The vehicle was temporarily parked with its lights flashing becausе DOT employees intended to place delineators on an adjacent road. The trial court granted DOT‘s motion for summary judgment and this court affirmed. Specifically, we concluded that the vehicle was not in operation because it was parked at the sidе of the road, rather than temporarily stopped in traffic. Therefore, we held that the motor vehicle exception to sovereign immunity did not apply.3
In the present action the trial court denied the City‘s motion for summary judgment based on the conclusion that the act of parking the vehicle was operation and, therefore, the motor vehicle exception to governmental immunity applied. However, Melendez has never asserted that the vehicle was being parked at the time of the collision. According tо the specific facts alleged in Melendez‘s complaint and those derived from discovery, the vehicle was already parked at the time of the collision. Therefore, the vehicle was no longer in operation and the motor vehicle exceрtion to governmental immunity does not apply.
(i) A dangerous condition of streets owned by the local agency, excеpt that the claimant to recover must establish that the dangerous condition created a reasonable foreseeable risk of the kind of injury which was incurred and that the local agency had actual notice or could reasonably be charged with notiсe under the circumstances of the dangerous condition at a sufficient time prior to the event to have taken measures to protect against the dangerous condition.
The above-cited language unambiguously states that the dangerous condition must be that of the street, not on thе street. The condition must derive, originate from or have as its source the City‘s realty. Snyder; First National. Accordingly, we conclude that even if the accident were caused by the presence of the City-owned vehicle parked on a City-owned street, as a matter of law, the strеets exception to governmental immunity would not apply.
Finally, Melendez, citing Crowell v. City of Philadelphia, 531 Pa. 400, 613 A.2d 1178 (1992), asserts that the trial court properly denied the City‘s motion for summary judgment because the City is liable for the alleged active negligence of its employees. In Crowell, the supreme court concluded that a governmental unit could be subjected to liability despite the presence of an additional tortfeasor if the governmental unit‘s actions would be sufficient to preclude it from obtaining indemnity from another for injuries rendered to a third person. However, this conclusion was bаsed on the specific requirement that the facts of the case fall squarely within one of the exceptions to governmental immunity. Id. As previously established, the facts of this case do not fall within any
Because this case fails to present a genuine issue of material fact and the City is immune from liability as a matter of law, we conclude that the trial court erred in denying the City‘s motion for summary judgment.
Accordingly, the order of the trial court is reversеd and the matter remanded to the trial court with instructions to enter summary judgment on behalf of the City.
ORDER
AND NOW, June 15, 1993, the order of the Court of Common Pleas of Philadelphia County in the above-captioned matter is reversed and the matter remanded to the trial court with instructions to entеr summary judgment on behalf of the City of Philadelphia.
FRIEDMAN, Judge, Dissenting.
The majority concludes that the facts of this case do not fall within any of the specifically enumerated exceptions to governmental immunity contained in
Kathleen Melendez was injured when she was attempting to exit frоm a parking lot onto a street in the City of Philadelphia (the City) and her car was struck by an automobile driven by Richard Klein. She sued both Klein and the City. She alleged that the City was negligent because one of its employees had parked a City owned vehicle on the street in such a manner as to block her view, thereby preventing her from safely exiting onto the public street.
The City filed a motion for summary judgment, arguing therein that it was immune from liability under the provisions of
The majority holds that the facts of this case do not fall within any of the exceptions to governmental immunity contained in
(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 the local agency:
(1) Vehicle liability.—The operation of a motor vehicle in the possession or control of the local agency....
As I believe that this exception is applicable to the present situation, I believe the trial court properly denied the City‘s motion for summary judgment.1
The majority rationalizes its reversal of the trial court‘s order denying summary judgment to the City as follows:
In the present action the trial court denied the City‘s motion for summary judgment on the conclusion that the act of parking the vehicle was operation and, therefore, the Tort Claims Act did not preclude governmental liability. However, Melendez has never asserted that the vehicle was being parked at the time of the collision. According the specific fact alleged in Melendez‘s complaint and those derived from discovery, the vehicle was already parked at the time of the collision. Therefore, the vehicle was no longer in operation and the motor vehicle exception to the Tort Claims Act does not apply.
(Majority opinion, 627 A.2d p. 236.) I do not believe that this reasoning can withstand critical scrutiny.
The majority also relies upon our decision in First National Bank of Pennsylvania v. Department of Transportation, 148 Pa.Commonwealth Ct. 158, 609 A.2d 911 (1992). In that case, a minor was killed when the car in which he was riding collided with a vehicle which was parked on or near the berm of the road; the vehicle was owned by the Department of Transportation. At the time of the accident, an employee of DOT was sitting in the driver‘s seat with the keys in the ignition and the motor running while other employees were preparing to delineators on a state highway. We nonetheless concluded that this fact pattern did not fall within section
With all due respect, I believe that both Robinson and First National Bank were incorrectly decided. As I have already stated, Love is distinguishable and does not support such a result. Furthermore, imagine for a moment that the driver of a government owned vehicle suddenly stopped the vehicle for no valid reason at the front of a line of traffic, thereby starting
For all of the reasons set forth above, I believe that Melendez may be entitled to recover under the vehicle liability exception of section