520 A.2d 945 | Pa. Commw. Ct. | 1987
Gabriel Sauvion (appellant) appeals the portion of an order of the court of common pleas which held appellant primarily liable for injuries sustained by the plaintiff below, Phyllis Psichos. The trial court found appel-lee, the City of Philadelphia (City), only secondarily liable. We affirm the trial court.
Before trial, appellant and Psichos settled, and appellant paid the claims. Appellant continued his suit for indemnification from the City on the theory that the obligation of the City was one of primary liability for the existence of the defect in the pavement which was the proximate cause of the injuries to Psichos. Appellant contends that he was obliged to pay by reason of the City’s negligence.
It was stipulated at trial that the growth of a tree and tree roots on the pavement in front of appellant’s property caused a change in grade of the concrete block over which Psichos had tripped. The theory of appellant’s action is that the City created the dangerous condition of the pavement and thus became primarily liable.
Section 15-203 of the Philadelphia Code, Act of March 26, 1967, P.L. 547, 53 P.S. §16471, pertaining to street trees, provides:
The Fairmount Park Commission shall have custody and control of the street trees on the streets of Philadelphia and shall make rules and regulations regarding the planting, setting out, removal, maintenance, protection and care of said trees as are necessary. Such rules and regulations shall also prohibit any action deemed to be detrimental to the life of said trees.
It has long been established in Pennsylvania that a property owner has the primary duty, of keeping the sidewalk in front of his property in repair, and that the City’s liability to see that the sidewalk is left in repair is secondary. Fisher v. City of Philadelphia, 112 Pa. Superior Ct. 226, 170 A. 875 (1934); Philadelphia Code, §11-505(1).
There have been situations where, as between the City and the property owner, the duty of primary liability has shifted to the City. For example, in Golden v. Philadelphia, 162 Pa. Superior Ct. 247, 57 A.2d 429 (1948), the City of Philadelphia, during the construction of a subway entrance, created a step or obstruction in placing a concrete slab on the pavement. The city contended that even though it created the dangerous condition, it was the duty of the owner to raise the sidewalk slab to eliminate the step and bring the sidewalk to grade. The court held that since the city created this hazardous condition, there was no duty in the property owner to eliminate this condition by bringing the pavement to grade and making it safe for pedestrian travel.
Likewise, in Helz v. Pittsburgh, 387 Pa. 169, 127 A.2d 89 (1956), an injury was sustained when the plaintiff fell over a metal cover of a water meter which was sunk into the pavement. The evidence showed that the ordinance gave the city complete control over the meter, requiring its employees to read the meters, inspect the covers and frames of the water meters, and to report all defects to the city so that its plumbers could repair them. These facts imposed liability on the city and the property owner as joint tort feasors. As to a pedestrian, the city and property owner shared a common liability, rather than a primary and secondary liability.
Accordingly, we affirm the trial court.
Order
Now, February 5, 1987, the order of the Court of Common Pleas of Philadelphia County, No. 3046 December Term, 1981, dated September 26, 1985, is affirmed.