Michelle MASCARO, a Minor, and Kenneth Mascaro, a Minor, by their parents Kenneth Mascaro and Michelle Mascaro, Appellees, v. YOUTH STUDY CENTER, City of Philadelphia, Wilson Goode and Commonwealth of Pennsylvania, Appellants.
Supreme Court of Pennsylvania.
Argued Oct. 20, 1986. Decided April 7, 1987.
523 A.2d 1118 | 514 Pa. 351
HUTCHINSON, J., joins in this concurring opinion.
David Assad, Philadelphia, for appellees.
Before NIX, C.J., and LARSEN, FLAHERTY, MCDERMOTT, HUTCHINSON, ZAPPALA and PAPADAKOS, JJ.
OPINION OF THE COURT
PAPADAKOS, Justice.
This is the appeal of the City of Philadelphia and its Youth Study Center (Appellants) from the Opinion and Order of Commonwealth Court reversing in part the Order of the Court of Common Pleas of Philadelphia County which entered judgment on the pleadings in its favor and dismissed a complaint against it and other parties filed by Michelle Masсaro and Kenneth Mascaro, in their own right and as parents of their children, Kenneth Mascaro and Michelle Mascaro, both minors (Appellees).
Appellees alleged in their complaint that one Claude Opher, a detainee in the Philadelphia Youth Study Center (Center), a detention center for juvenile criminal offenders, escaped from the detention center because the City of Philadelphia (City) and the Center negligently maintained the real estate, thereby facilitating the escape. The complaint also alleges that once at large, Opher, and an accomplice, broke into Appellees’ home in Philadelphia. While they were burglarizing Appellees’ house, Apрellees came home discovering the intruders. Opher and his accomplice tied up Mr. and Mrs. Mascaro and young Kenneth, while the accomplice raped Mrs. Mascaro. Opher took young Michelle and, after beating her, took her into her parents’ bedroom where he raped and sodomized her for several hours, as the rest of the family, bound and gagged, were forced to listen to her screams. Opher was eventually tried and convicted and received a sentence of incarceration of 50
Prior to Mr. Mascaro‘s suicide, he, his wife аnd children, filed the instant complaint against the Youth Study Center, City of Philadelphia, its then managing director, Wilson Goode, and the Commonwealth of Pennsylvania and claimed that because of Appellants’ negligent maintenance of the detention center, Opher was permitted to escape and injure Appellees. By Answer, Appellees denied the allegations of negligence and, in their New Matter, invoked the affirmative defenses of governmental and official immunity conferred by
The trial court agreed with Appellants and granted judgment on the pleadings whereupon an appeal was taken to Commonwealth Court. That court found Mr. Goode immune from suit, but held that the complaint did state a cause of action against the City and Center under the exception to governmental immunity found at
The City and Center filed a Petition for Allowance of Appeal, which we granted to consider the extent of the real estate exception to local agency immunity, and whether it bars an action against the City and Center under these facts.
I.
In response to our Court‘s abrogation of the judicially created doctrine of governmental immunity in Ayala v. Philadelphia Board of Public Education, 453 Pa. 584, 305 A.2d 877 (1973), the Legislature enacted the Political Subdivision Tort Claims Act,
By way of exception to the legislatively created rule of governmental immunity, thе Act provides that liability may be imposed if two conditions are satisfied, and if the injury occurs as a result of one of eight acts described at
As pertains to Appellees’ claims against the City and Center, acts by a local agency or its employees which may result in the imposition of liability include the carе, custody or control of real property in the possession of the local agency.
In analyzing Appellees’ complaint, Commonwealth Court determined that it stated a cause of action against the City and Center. First, it found that, at common law, a landowner owed a duty to keep his property safe from disrepair. If the disrepair was the cause of an injury or permitted a crime to take place which later injured another, the landowner could be held liable. 474 Pa. 588, 379 A.2d 111 (1977), and Sections 365 and 448, infra, of the Restatement Second of Torts for these propositions.
Second, Commonwealth Court determined that the alleged acts of negligence of the City and Center and its agents in not securing the doors and windows of the Center satisfied the second requirement of
Appellants strenuously argue that the real estate exception to governmental immunity does not extend to the criminal acts of detainees who escape. Appellants also argue that while control over the physical plant is one for which they may be liable in damages, this control does not extend to control of its detainees and the injuries they cause. This argument is premised on their belief that control over the Center, as a correctional institution, is a purely governmental function for which immunity has not been waived. Finally, Appellants argue that if they are liable for Opher‘s escape, they can only be held accountable to Appellees if they were aware of a danger posed to them, and knowing same, failed to take any steps to prevent these acts.
II.
We agree that as a precondition to maintaining an action against the City and Center, Appellees had to satisfy the three statutory requirements. First, they had to demonstrate that at common law or by statute one not having an immunity defense available could be held liable for the same harm alleged against the local agency. Appellees urge that our decision in Ford v. Jeffries, 474 Pa. 588, 379 A.2d 111 (1977), provides the necessary common law analogy. In Ford, the landlord of a dwelling house permitted his structure to become dilapidated and a haven for large rats, dogs and arsonists. Two fires broke out in the house and because the second fire spread to the next door neighbor‘s home (five to six feet from this structure), almost totally destroying it, we held the landlord of the firetrap responsible to the neighbor for the destruction of his home. We specifically ruled that “a property owner can reasonably be expected to know that the visible conditions of vacant property in a state of disrepair may attract, for various purposes, children or adults, who, having entered the property, might act, either negligently or intentionally, in a
We premised a finding of negligence by referring to Section 365 of the Restatement of Torts, Second, which provides in pertinent part:
A possessor of land is subject to liability to others outside of the land for physical harm caused by the disrepair of a structure.... if the exercise of reasonable care ... would have made it reasonably safe by repair or otherwise.
We also noted that even if the superseding force of an arsonist was the cause of the fire, it would not insulate the landlord from liability because the landlord should have realized the likelihood that such a situation might be created becаuse of his negligent maintenance of the property. Restatement of Torts, Second, Section 448.4
Under the circumstances of that case, the result was totally appropriate and, in theory, can be said to apply here. A dilapidated, abandoned, rat infested structure a few feet distant from occupied dwellings was permitted to burn down and damage a nearby dwelling. Ford teaches that:
If one engages in negligent conduct toward another, such as unreasonably increasing the risk that that person will suffer a particular kind of harm, it cannot be said, as a matter of law, that the actor is not liable simply because the foreseeable plaintiff suffered the foreseeable harm in a manner which was not foreseeablе. Appellee‘s conduct in this case could have increased the risk that appellant‘s house would be damaged by fire. Such harm in fact occurred. Given these circumstances, it was for the jury
Appellees also argue that this Court has recognized a duty on the part of the custodian of personalty to keep that personalty out of the reach of individuals who would misuse it and harm others with it. Thus, in Kuhns v. Brugger, 390 Pa. 331, 135 A.2d 395 (1957), we found that the owner of a loaded gun, who kept it in a place where young children frequented, would be liable for the injuries suffered when the child found the loaded gun and shot his young cousin. In Anderson v. Bushong Pontiac Co., 404 Pa. 382, 171 A.2d 771 (1961), we imposed liability on the ownеr of a used car lot for damages done when a car was stolen by minors and negligently driven, hitting a pedestrian, rendering him a paraplegic. It appeared in that case that the car keys were stolen from the car and the owner, who knew of the theft, did nothing to secure the car from theft. We found that it was reasonable to foresee that the car would be stolen by youths who frequented the area, and that the car lot owner had a duty to safeguard the property from misuse.
These cases, and cases like them, also establish liability over one charged with the control and custody of property when the custodian knows, or should have known, that the property could be misused by persons who could commit crimes.
Here, Appellants alleged that because the City and Center negligently maintained their property, Opher, a dangerous criminal, escaped. The City and Center knew Opher had at least fourteen arrests and five convictions, including three other rapes, four burglaries and three robberies, and that he had escaped from detention centers three other times. Following one escape, Opher committed rape, aggravated assault, robbery, burglary, involuntary deviate sexual intercourse, and auto theft against two elderly sisters. Given Opher‘s known propensities to crime, Appellees alleged that the Center and City knew, or should have known,
Under our case law and the Restatement of Torts, Second, we have held landowners liable for failing to take precautions against unreasonable risks that stem directly and indirectly from the property including the contemplated acts of third parties, whose crimes are facilitated by the condition of the property. Ford v. Jeffries, supra; Anderson v. Bushong Pontiac Co., Inc., supra; Kuhns v. Brugger, supra; Churbuck v. Union Railroad Company, 380 Pa. 181, 110 A.2d 210 (1955); McCarthy v. Ference, 358 Pa. 485, 58 A.2d 49 (1948); Nelson v. Duquesne Light Co., 338 Pa. 37, 12 A.2d 299 (1940); Welser v. United Gas Improvement Co., 304 Pa. 227, 155 A. 561 (1931). Accordingly, Appellees have stated a cause of action which could be maintained at common law against one not having the immunity defense, and thus satisfied the first requirement imposed by the statute at
III.
Under the second requirement imposed by
IV.
Lastly, we come to the most difficult question under consideration; namely, whether the real estate exception to the Political Subdivision Tort Claims Act exposes the City and Center to liability coextensive with the liability imposed on private landowners. In pertinent рart, the section permits a cause of action against the political subdivision for injuries arising out of “the care, custody or control of real property in the possession of the local agency....”
In construing this section, it must be kept in mind that it represents an exception to the absolute rule of governmental immunity stated in
Except as otherwise provided in this subchapter, no local agency shall be liable for any damages on account of any injury to a person or property caused by any act of the local agency or an employee thereof or any other person. (Emphasis added.)
Since Section 3 is an exception to the rule of immunity, we believe that its extent must be narrowly interpreted given the expressed legislative intent to insulate political subdivisions from tort liability. Casey v. Geiger, 346 Pa. Superior Ct. 279, 499 A.2d 606 (1985); Vann v. Board of Education of the School District of Philadelphia, 76 Pa. Commonwealth Ct. 604, 464 A.2d 684 (1983).
Commonwealth Court has consistently held that the real estate exception imposes a standard of liability on the political subdivision to an extent no greater than that of a private landowner, and that this duty is to maintain the property safely for the activities for which it is regularly used, for which it is intended to be used, or for which it may
We agree that the real estate exception to governmental immunity is a narrow exception and, by its own terms, refers only to injuries arising out of the care, custody or control of the real property in the possession of the political subdivision or its employees. Acts of the local agency or its employees which make the property unsafe for the activities for which it is regularly used, for which it is intended to be used, or for which it may reasonably be foreseen to be used, are acts which make the local agency amenable to suit. Acts of others, however, are specifically excluded in the general immunity section (
The real estate exception, however, has consistently been held to be unavailable to those whose claim of negligence consists of a failure to supervise the conduct of students or persons adequately. Davies v. Barnes, 94 Pa. Commonwealth Ct. 145, 503 A.2d 93 (1986); Messina v. Blairsville-Saltsburg School District, 94 Pa. Commonwealth Ct. 100, 503 A.2d 89 (1986); Johnson v. City of Philadelphia, 93 Pa. Commonwealth Ct. 87, 500 A.2d 520 (1985); Acker v. Spangler, 92 Pa. Commonwealth Ct. 616, 500 A.2d 206 (1985); Usker v. Upper St. Clair School District, 87 Pa. Commonwealth Ct. 461, 487 A.2d 1022 (1985); Robson v. Penn Hills School District, 63 Pa. Commonwealth Ct. 250, 437 A.2d 1273 (1981);
We believe those cases to have been decided correctly and they persuade us to hold that the real estate exception can be applied only to those cases where it is alleged that the artificial condition or defect of the land itself causes the injury, not merely when it facilitates the injury by the acts of others, whose acts are outside the statute‘s scope of liability.
We believe the Legislature has clearly precluded the imposition of liability on itself or its local agencies for acts of third parties by its language of
Such a legislative judgment is wholly within the province of the Legislature according to our current interpretation of sovereign and governmental immunity, Carroll v. York, 496 Pa. 363, 437 A.2d 394 (1981), and is consistent with the general rule that the criminal and negligent acts of third parties are superseding causes which absolve the original actor (the City and Center) from liability for the harm caused by such third parties. Feld v. Merriam, 506 Pa. 383, 485 A.2d 742 (1984); Miller v. Checker Yellow Cab Co., 465 Pa. 82, 348 A.2d 128 (1975); Estate of Flickinger v. Ritsky, 452 Pa. 69, 305 A.2d 40 (1973); Liney v. Chestnut Motors, Inc., 421 Pa. 26, 218 A.2d 336 (1966); Green v. Independent Oil Co., 414 Pa. 477, 201 A.2d 207 (1964); Kite v. Jones, 389 Pa. 339, 132 A.2d 683 (1957); DeLuca v. Manchester Laundry and Dry Cl. Co., 380 Pa. 484, 112 A.2d 372 (1955).
This is also consistent with the Legislative determination that the criminal acts, actual fraud, actual malice or willful
The Order of Commonwealth Court is reversed, and the Order of the Court of Common Pleas of Philadelphia County is reinstated.
HUTCHINSON, J., joins the majority opinion and files a concurring opinion.
LARSEN, J., files a dissenting opinion.
HUTCHINSON, Justice, concurring.
I join the majority opinion. I аgree that the real estate exception to the Political Subdivision Tort Claims Act,
LARSEN, Justice, dissenting.
Initially, I agree with the Commonwealth Court, and with parts II and III of the majority opinion, that the appellees, the Mascaros, have stated a cause of action which could be maintained at common law against a person not having
The Commonwealth Court relied upon this Court‘s decision in Ford v. Jeffries, 474 Pa. 588, 379 A.2d 111 (1977), and our application there of sections 365 and 448 of the Restatement (Second) of Torts (1965), to conclude:
This case, as Ford v. Jeffries, is one for the jury to determine whether the local agency defendants negligently failed to maintain the Center, whether that failure was the legal cause of the plaintiffs’ injuries, whether the defendants’ acts, if negligent, afforded an opportunity to a third person to commit a crime, and whether the defendant agencies realized or should have realized that the likelihood that such an opportunity would be created and that a third person, such as Opher, would avail himself of the opportunity to commit a crime.
89 Pa.Cmwlth. 388, 492 A.2d 786 at 790.
The majority agrees with the Commonwealth Court‘s interpretation of the Restatement and finds that the common law cause of action was supported not only by Ford v. Jeffries, but also by several other decisions of this Court, stating:
These cases, and cases like them, also establish liability over one charged with the control and custody of property when the custodian knows, or should have known, that the property could be misused by persons who could commit crimes.
Here, Appellants alleged that because the City and Center negligently maintained their property, Opher, a dangerous criminal, escapеd. ... Given Opher‘s known propensities to crime, Appellees alleged that the Center
and City knew, or should have known, that Opher would take advantage of the defect at the Center, escape and commit more burglaries and rapes, including the ones at issue here. Under our case law and the Restatement of Torts, Second, we have held landowners liable for failing to take precautions against unreasonable risks that stem directly and indirectly from the property including the contemplated acts of third parties, whose crimes are facilitated by the condition of the property. (citations omitted) Accordingly, Appellees have stated a cause of action which could be maintained at common law against one not having the immunity defense, and thus satisfied the first requirement imposed by the statute at
42 Pa.C.S. § 8542(a)(1) , supra.
At 360.
The majority also has no difficulty in finding the requisite causation under
Despite its determinations that appellees have stated in their complaint a common law cause of action and that the averments of that complaint satisfy the statutory “threshold” requirements of the Political Subdivision Tort Claims Act,
[T]he real estate exception to governmental immunity is a narrow exception and, by its own terms, refers only to injuries arising out of the care, custody or control of the real property in the possession of the political subdivision or its employees. Acts of the local agency or its employees which make the property unsafe for the activities for which it is regularly used, for which it is intended to be used, or for which it may reasonably be foreseen to be used, are acts which make the local agency amenable to suit.
At 362 (emphasis added).
Under this interpretation, the appellees have made out a viable claim against appellants under section 8542(b)(3). Sections II and III of the majority opinion convincingly demonstrate that apрellees’ injuries and damages arose out of and were caused by the negligent “care, custody and control of real property” in the possession of appellants, and that this negligence led to the predictable and foreseeable criminal acts of a third party, an inmate of that real property, the “Youth Study” detention center. But for appellants’ negligence in the care, custody and control of the real property, an innocent family would not have been
The “care, custody and control” of the detention center, if proven to be negligent, obviously rendered (in the words of the majority) “the property unsafe for the activities for which it is regularly used, ... intended to be used, ... [and] reasonably ... foreseen to be used....” After all, despite its fanciful designation as the “Youth Study” Center, the real property in question here was not a boy scout camp, a learning center, or a school for the performing arts—it was a detention center, a jail, a prison; a place to hold violent and delinquent offenders under the age of eighteen; a place to detain those offenders and keep them away from the general, law-abiding citizenry of this Commonwealth in order to avoid exactly the type of tragedy that occurred in the instant case.
If a municipality was in the possession of a water reservoir and, due to the negligent care, custody and control of that real property, the reservoir burst and caused extensive damage to persons and property a mile down the road, I submit that such negligence would fall squarely within the “real estate exception” to the Act, and the municipality would not be immune from liability. The damages caused outside the real property by the unleashing of the dangerous instrumentality housed on the property would be a foreseeable and predictable result of the negligent care, сustody or control of the property. In the instant case, the dangerous instrumentality housed on appellants’ real property was a vicious criminal, and that instrumentality was unleashed by appellants’ negligent care, custody and control of the property, causing serious, foreseeable and predictable damage to persons outside of the property.
Thus, section 8542(b)(3), as initially interpreted by the majority, allows appellees to seek recovery for their damages from appellants, and does not immunize appellants from liability. However, even though the language of
that the real estate exception can be applied only to those cases where it is alleged that the artificial condition or defect of the land itself causes the injury, not merely when it facilitates the injury by the acts of others, whose acts are outside the statute‘s scope of liability.
At 363.
This implicit limitation is derived from the majority‘s newly-announced principle of construction of this Act, that in construing the scope of an “exception” to the rule of immunity, “its extent must be narrowly interpreted given the expressed legislative intent to insulate political subdivisions from tort liability.” At 361. Once again, in creating such a miserly rule of construction, the majority ignores—indeed, it tramples upon—the rights guaranteed our citizens by the Pennsylvania Constitution.
Article I, section 11 of the Constitution declares that:
All courts shall be open; and every man for an injury done him in his lands, goods, person or reputation shall have remedy by due course of law, and right and justice administered without sale, denial or delay.
Article III, section 18 states:
Other than Workmen‘s Compensation, in no other cases shall the General Assembly limit the amount to be recovered for injuries resulting in death, or for injuries to persons or property.
I remain of the belief that the Political Subdivision Tort Claims Act violates these provisions of the Constitution and unconstitutionally denies and/or limits the recovery of damages, justice and the right of remedy to those injured by the negligence of local agencies and municipalities. See e.g., Carroll v. County of York, 496 Pa. 363, 437 A.2d 394 (1981) (Larsen, J., dissenting); James v. SEPTA, 505 Pa. 137, 477 A.2d 1302 (1984) (Larsen, J., dissenting); Smith v. City of Philadelphia, 512 Pa. 129, 516 A.2d 306 (1986) (Larsen, J.,
Nothing is clearer to me than the plain, untechnical language of [Article I] section 11. It simply guarantees that all people shall have remedies for their injuries without exception....
What is even clearer is the dirеct, mandatory language of Article III, section 18....
*
*
*
No limitation or exception is contained by the language of the Section, except for Workmen‘s Compensation cases, and no other exception should be written into the Section by this Court.
*
*
*
I view this Section as a broad mandate by the people to the Legislature directing it not to meddle in the people‘s right to recover against those responsible for injuring them. Article III, Section 18 ... stands as a bulwark, until the people otherwise direct, against all present and future attempts by the Legislature to fritter away the rights of the people. We do a great disservice to the people, whose trust we have accepted, to interpret this Section in any way but in their favor.
*
*
*
The majority‘s present course is regrettable, because it ignores the duty entrusted to this Court of protecting rights reserved by the people, for the people, and instead creates rights in favor of the creature of the people, at the expense of the people, who in actuality, are
the only sovereign under our form of government. Accordingly, I dissent.
512 Pa. at 150-54, 516 A.2d at 317-19 (emphasis added).
Equally regrettable is the majority‘s course of action today which creates a rule of narrow construction and further limits an injured person‘s right of recovery as if the Pennsylvania Constitution did not exist. While the majority of this Court has previously accepted the Political Subdivision Tort Claims Act as constitutional, it has now progressed beyond passive approval of the rule of immunity to active participation in the legal conspiracy that denies the right of remedy for injuries done to our citizens.
As I stated in Mayle v. Pennsylvania Department of Highways, 479 Pa. 384, 388 A.2d 709 (1978), “I can think of no greater function or more honorable pursuit than for the [government] to care for those whom it has injured or maimed.” Id. 479 Pa. at 407, 388 A.2d at 720. Those injured and maimed citizens pay for the Youth Study Center, the reservoirs, the sewage treatment plants, the roads, the highways, etc. To construe the recovery provisions of the Political Subdivision Tort Claims Act narrowly, to imply further limitations to recovery into that Act, as the majority does today, is an insult to civilization and a violation of the “trust we have accepted” to protect the rights reserved by the people and for the people.
I dissent.