Mary FINN, Appellant, v. CITY OF PHILADELPHIA, Appellee.
Supreme Court of Pennsylvania.
Argued April 25, 1995. Decided Sept. 22, 1995.
664 A.2d 1342
Richard Stanko, Michael Paul, Media, for amicus.
Alan C. Ostrow, Philadelphia, for City of Phila.
Before NIX, C.J., and FLAHERTY, ZAPPALA, CAPPY, CASTILLE and MONTEMURO, JJ.
OPINION OF THE COURT
FLAHERTY, Justice.
Appellant, Mary Finn, was awarded a judgment in the amount of $203,500 against appellee, City of Philadelphia, after appellant was injured when she fell on a grease-covered city sidewalk. The Commonwealth Court reversed the judgment due to governmental immunity under the Political Subdivision Tort Claims Act,
This case arises from the following background. After dark on the evening of December 24, 1987, appellant was walking on the sidewalk adjacent to city-owned property on Vine
On appeal, the Commonwealth Court reversed, holding that an accumulation of grease on a sidewalk is not “a dangerous condition of sidewalks,”
The gist of appellant‘s argument is that the greasy condition of the sidewalk which caused her injury is embraced within the statutory exception to the governmental immunity created by the Political Subdivision Tort Claims Act; she argues that in the language of the act, the grease constituted a dangerous condition of the sidewalk. It would be erroneous, in this view, to focus on the word “of,” in contradistinction to the word “on“; rather, the emphasis should be on “dangerous condition” and an analysis of what the legislature meant by that term. She relies heavily on Bendas v. Township of White Deer, 531 Pa. 180, 611 A.2d 1184 (1992).
Appellee‘s argument emphasizes the principle that exceptions to governmental immunity must be strictly construed. The city stresses this court‘s holding in Snyder v. Harmon, 522 Pa. 424, 562 A.2d 307 (1989), to the effect that claims involving government property must establish an artificial condition or defect of the property itself, and that an actionable dangerous condition of government property must derive, originate from, or have as its source the property in question and may not arise from a source outside the property. The city argues that because grease does not derive or originate from the sidewalk, it is not a defect of the sidewalk itself; therefore, as a matter of law, grease cannot be considered a dangerous condition of the sidewalk. Hence it does not satisfy the statutory sidewalk exception to the doctrine of governmen-
It is evident that this case turns on the meaning of the sidewalk exception to the tort claims act.
(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:
....
(7) Sidewalks.—A dangerous condition of sidewalks within the rights-of-way of streets owned by the local agency, except that the claimant to recover must establish that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred and that the local agency had actual notice or could reasonably be charged with notice 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. When a local agency is liable for damages under this paragraph by reason of its power and authority to require installation and repair of sidewalks under the care, custody and control of other persons, the local agency shall be secondarily liable only and such other persons shall be primarily liable.
To apply this language to this case, we think it helpful to review the precedents which guide our decision.
In Mascaro v. Youth Study Center, 514 Pa. 351, 523 A.2d 1118 (1987), and Snyder v. Harmon, supra, at 424, 562 A.2d 307, we reviewed the origin of the legislation and the principles governing its interpretation. Mascaro provides the following history: In response to our abrogation of the judicially-created doctrine of governmental immunity in Ayala v. Philadelphia Bd. of Public Education, 453 Pa. 584, 305 A.2d 877 (1973), the legislature enacted the Political Subdivision Tort Claims Act,
Because the legislature‘s intent was to provide immunities, we have held that the exceptions to immunity must be strictly construed. Id. at 433, 434, 562 A.2d at 311, 312; Mascaro, 514 Pa. at 361, 523 A.2d at 1123; Kiley by Kiley v. City of Philadelphia, 537 Pa. 502, 506, 645 A.2d 184, 185-86 (1994). Moreover, this court has held that the two statutes dealing with governmental and sovereign immunities, viz., the Political Subdivision Tort Claims Act and the Sovereign Immunity Act, are to be interpreted consistently, as they deal with indistinguishable subject matter. Id. at 507, 645 A.2d at 186; Crowell v. City of Philadelphia, 531 Pa. 400, 410 n. 8, 613 A.2d 1178, 1182 n. 8 (1992); Snyder, 522 Pa. at 435 n. 7, 562 A.2d at 312 n. 7.
Within those very general guidelines, this court has decided cases involving the real estate and sidewalk exceptions which provide more specific guidance for the question presented in this case, that is, whether an accumulation of grease on a sidewalk is a dangerous condition of the sidewalk. In Snyder v. Harmon, supra, at 424, 562 A.2d 307, we construed the words “[a] dangerous condition of Commonwealth agency real estate” as follows: “These key words indicate that a dangerous condition must derive, originate from or have as its source the Commonwealth realty.” Snyder, 522 Pa. at 433, 562 A.2d at 311. “[T]here must be negligence which makes the real property itself unsafe for activities for which it is used.” Id. at 434, 562 A.2d at 312. Mascaro, supra, at 351, 523 A.2d 1118, reiterated this rule: “We ... hold that the real estate exception can be applied only to those cases where it is alleged
This interpretation is supported by the context of the “dangerous condition of sidewalks” requirement. The next sentence in the statute sheds light on what the legislature meant by “dangerous condition of sidewalks.” In distinguishing situations creating either primary or secondary liability of a governmental agency, the negligence of the agency relates to “installation and repair of sidewalks.” Installation and repair refer to the physical condition of the sidewalks themselves; by contrast, objects and substances upon sidewalks are not part of the physical condition of the sidewalks themselves. The language used in this section of the statute thus affords no basis to assert that foreign matter on sidewalks might result in governmental liability.
This much-litigated legislation has spawned other opinions which are less closely related to the present case but have nevertheless been cited. Appellant argues that Bendas v. Township of White Deer, supra, at 531 Pa. 180, 611 A.2d 1184, would permit the city to be held liable in tort. Moreover, the Commonwealth Court noted apparent inconsistency between Bendas and Mascaro, supra, at 514 Pa. 351, 523 A.2d 1118 and Snyder, supra, at 522 Pa. 424, 562 A.2d 307. We therefore review those decisions to clarify their holdings and their application to this case.
In Bendas, the court considered two issues: the first was “whether the Department [of Transportation] has a duty to make its highways safe for their intended purpose;” the second was “whether the failure of the Department to exercise
Mascaro involved a detainee at the defendant youth detention center who had a history of violent criminal assaults, then escaped and terrorized the Mascaro family, with tragic results. The Mascaros sued the political subdivision under the real estate exception to the governmental immunity act,
Snyder was a case in which travellers’ falls from the berm of a Commonwealth highway into a mine resulted in injuries and death, allegedly due to the Commonwealth agency‘s negligent failure to maintain a safe roadway and to provide ade-
In Ambacher v. Penrose, 92 Pa.Cmwlth. 401, 403-04, 499 A.2d 716, 717 (1985), and Ziccardi v. School District of Philadelphia, 91 Pa.Cmwlth. 595, 599, 498 A.2d 452, 454 (1985), the Commonwealth Court correctly applied this rule in determining that neither a wire fence which fell on a sidewalk nor a criminal assault on a city sidewalk was a dangerous condition “of the sidewalk.” Recent decisions of the Commonwealth Court indicate that that tribunal now consistently applies the rule in this way. In DeLuca v. School District of Philadelphia, 654 A.2d 29 (Pa.Cmwlth.1994), the court reviewed the claim of a student injured in a fall on a school sidewalk. The fall was caused by milk which had seeped from a trash bag placed next to the sidewalk by school employees and then frozen. The court held: “Because milk that has leaked onto a concrete pavement does not constitute a defect of the pavement itself, ... the School District was not liable under [
The common theme of all these cases is that liability depends, first, on the legal determination that an injury was caused by a condition of government realty itself, deriving, originating from, or having the realty as its source, and, only then, the factual determination that the condition was dangerous.
What is necessary, therefore, to pierce the Commonwealth agency‘s immunity is proof of a defect of the sidewalk itself. Such proof might include an improperly designed sidewalk, an improperly constructed sidewalk, or a badly maintained, deteriorating, crumbling sidewalk. Here, however, we have no such allegation or proof. We have a perfectly designed and constructed sidewalk, undamaged, upon which an unidentified individual or individuals deposited a foreign substance which caused appellant‘s injury. In the terms of Snyder, supra, at 522 Pa. 424, 562 A.2d 307, the dangerous condition did not derive, originate from or have as its source the sidewalk. In the language of the statutory exception to governmental immunity, the dangerous condition was on the sidewalk, not of the sidewalk, and thus is insufficient to create liability in the city.
We hold, therefore, that the Commonwealth Court correctly interpreted and applied the statute of governmental immunity, and thus affirm the judgment of the court.
Judgment affirmed.
ZAPPALA and CAPPY, JJ., file a dissenting opinion.
MONTEMURO, J., is sitting by designation.
CAPPY, Justice, dissenting.
I respectfully dissent.
On December 24, 1987 Mary Finn slipped and seriously injured herself on a sidewalk owned and maintained by the City of Philadelphia (“City“). This sidewalk, located in the
Nevertheless, the Majority herein concludes that the City is immune from liability for Ms. Finn‘s injuries, because it believes that the dangerous condition of the sidewalk found to exist by the trial court does not fall within the “sidewalks” exception to the immunity afforded the City through the Political Subdivision Tort Claims Act,
The “sidewalk exception,”
The Majority believes that sufficient support for this proposition exists by virtue of this Court‘s decision in Snyder v. Harmon, 522 Pa. 424, 562 A.2d 307 (1989) wherein it was stated that sovereign immunity is waived only “where it is alleged that the artificial condition or defect of the land itself causes an injury to occur.” Id. at 435, 562 A.2d at 312. However, the facts of Snyder are clearly distinguishable from this case, as Snyder involved injuries sustained on real property that was not owned by the Commonwealth, and accordingly cannot be relied upon for the proposition espoused by the majority. Clearly, since in Snyder the plaintiff was not injured on Commonwealth property, the expansive reading given to the above-quoted statement by the Majority is without foundation. For the same reasons, the Majority‘s reliance upon Mascaro v. Youth Study Center, 514 Pa. 351, 523 A.2d 1118 (1987) is misplaced, where the injuries inflicted by an escaped prisoner did not occur on Commonwealth realty, and
Pursuant to Snyder and Mascaro, and their progeny, the focus is more properly directed away from result-oriented analysis of what constitutes the sidewalk “itself” in favor of a determination of whether the City‘s “sidewalk was safe for the activities for which the property is regularly used, intended to be used or reasonably foreseen to be used.” Snyder, 522 Pa. at 435, 562 A.2d at 312; Bendas v. Township of White Deer, 531 Pa. 180, 183, 611 A.2d 1184, 1186 (1992). By enacting the sidewalks exception, the Legislature intended to require political subdivisions to design, construct and maintain their sidewalks in a safe condition. Clearly, the Legislature could not have intended to hold the City to such a duty with regard to its sidewalks without intending it to be liable for injuries resulting from a breach of such duty. Once again, all that is required for the exception to apply is a dangerous condition of the sidewalk of which the City possessed actual or constructive notice, and I conclude that few citizens of this Commonwealth would agree that grease on a sidewalk does not, and can never, constitute a dangerous condition of the sidewalk.
This proposition is further borne out by the Majority‘s conclusion that piercing the Commonwealth agency‘s immunity is warranted only upon proof of things such as the existence of an “improperly designed sidewalk, and improperly constructed sidewalk, or a badly maintained, deteriorating, crumbling sidewalk.” Maj. Op. at p. 605. Obviously, as a practical matter, a sidewalk cannot act in a negligent manner. Rather, it is conduct attributable to the political subdivision that is being subject to scrutiny.
Unquestionably, the City‘s potential liability for a badly deteriorating sidewalk would arise from the negligence of the City in failing to maintain the sidewalk. Similarly, the City‘s potential liability for a sidewalk that is dangerous by virtue of defective design or construction would result from the negligence of the individuals who created the defective design or performed the defective construction for the City. Given this, I cannot comprehend how the Majority can logically conclude
The dangerous repercussions of the Majority‘s interpretation of the sidewalk exception are already being felt throughout the Commonwealth. During the pendency of this particular appeal the Commonwealth Court rendered a decision in the case of McRae v. School District of Philadelphia, 660 A.2d 209 (Pa.Cmwlth.1995). The Plaintiff in that case slipped and fell on hills and ridges of ice remaining on the improperly maintained sidewalk abutting the McMichael School in Philadelphia. The trial court entered judgment on the pleadings for the school district and the Commonwealth Court affirmed. The Commonwealth Court, relying upon its earlier opinion in Finn, (now being affirmed by the Majority) determined that snow and ice are not defects emanating from the real estate itself; therefore liability does not attach. The impact of this absurd conclusion that the defect must emanate from the sidewalk itself is glaringly obvious when taken to such an absurd extreme as was done by the McRae decision. Do we really want to send a message to our school districts that they no longer need to carefully remove the snow and ice from their sidewalks?
I cannot comprehend how the Majority can justify its decision, in light of such absurd results, to afford immunity in situations of active negligence, such as where the City itself deposits the grease, where the same would not be true in circumstances involving passive negligence, such as where the City simply permits a sidewalk to crumble.
Because this particular sidewalk “itself,” was, as reasonably found by the trier of fact, rendered dangerous by the presence of the grease thereon, I respectfully but emphatically dissent.2
With the exception of footnote 2 and the reference therein to Kiley v. City of Philadelphia, 537 Pa. 502, 645 A.2d 184 (1994), a case in which I joined the majority and which I believe is distinguishable from the present case, I join in Justice Cappy‘s Dissenting Opinion.
I also note that the majority‘s interpretation of this language is apparently at odds with the understanding expressed in the May 1978 Report of the Joint State Government Commission Task Force on Sovereign Immunity, proposing the legislation which, after revision not relevant in this context, became
Because I find the majority‘s interpretation to be strained, illogical, contrary to the intention of the General Assembly, and apt to foster absurd results, I respectfully dissent. I would reverse the Order of the Commonwealth Court.
Notes
1.
Sidewalks.—A dangerous condition of sidewalks within the rights-of-way of streets owned by the local agency, except that the claimant to recover must establish that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred and that the local agency had actual notice or could reasonably be charged with notice 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. When a local agency is liable for damages under this paragraph by reason of its power and authority to require installation and repair of sidewalks under the care, custody and control of other persons, the local agency shall be secondarily liable only and such other persons shall be primarily liable.