LARK vs. SHERIFF OFFICE OF LEBANON, et al No. 2012-01262

Civil Action – Political Subdivision Tort Claims Act – Real Estate Exception – Negligent Supervision – Immunity – Affirmative Defense – Decision on Preliminary Objections.

 

1. Normally, immunity from suit is an affirmative defense that must be raised in a responsive pleading under the heading “New Matter” and is not properly raised via Preliminary Objection.  However, where the defense is clearly applicable on the face of a Complaint and in a Defendant’s Objections and where the plaintiff does not object to the improper procedure, a Court may decide the Objection on its merits.
2. The Pennsylvania Political Subdivision Tort Claims Act provides that no local government entity is liable for injury to a person by the government or government employee except as provided in that Act.
3. In order to recover for the negligent act of the government or its employee, the conduct alleged must fall within one of eight exceptions to governmental immunity which are enumerated in the Tort Claims Act at Section 8542.  Thus, liability may be imposed on a governmental unit only if the conduct complained of is related to the following:  (1) vehicle liability; (2) care, custody or control of personal property; (3) care, custody or control of real property; (4) dangerous conditions of trees, traffic controls and street lighting; (5) dangerous conditions of utility service facilities; (6) dangerous conditions of streets; (7) dangerous conditions of sidewalks; or (8) care, custody or control of animals.  Pennsylvania courts have construed these exceptions narrowly due to the legislative intent to insulate government entities from exposure to tort liability.
4. While allegations of improper design of a stairway and the existence of a dangerous condition may bring a claim within the real estate exception to the Tort Claims Act, the plaintiff’s injuries must be caused by a condition of the realty itself.
5. Claims for negligent supervision do not fall within any exception to the Tort Claims Act.
6. Since the Complaint here contained no allegation of any defect or dangerous condition of the realty, but rather that the Plaintiff’s injuries were caused by alleged negligent supervision which occurred on a stairway, the Court held that this claim was not within the real property exception to the Tort Claims Act.  Consequently, the Court sustained Defendants’ Preliminary Objections and dismissed the Amended Complaint.

Preliminary Objections to Amended Complaint.  C.P. of Lebanon County, Civil Action-Law, No. 2012-01262.

Jimmie Lee Lark, Per Se

David L. Schwalm, Esquire, for Defendants

 

IN THE COURT OF COMMON PLEAS OF LEBANON COUNTY

PENNSYLVANIA

CIVIL DIVISION

 

JIMMIE LEE LARK,                                      :           NO. 2012-01262

Plaintiff                                 :

:

v.                                                         :

:

SHERIFF DEPARTMENT OF LEBANON  :

SHERIFF DILLMAN, SHERIFF                   :

BENNINGS, SHERIFF KNAPP,                  :

SHERIFF KLINGER, CORRECTIONAL       :

OFFICER HERSHEY, CORRECTIONAL     :

OFFICER GEORGE FREEZE,                       :

SERGEANT STEVE DAVIS,                         :

Defendants                          :

 

ORDER OF COURT

 

AND NOW, this 13th day of August, 2013, upon consideration of the Defendant’s Preliminary Objections, Plaintiff’s Response thereto, and the Briefs submitted by the parties, it is hereby Ordered that said Preliminary Objections are SUSTAINED and Plaintiff’s Amended Complaint is dismissed.

                                                                        _____________________________, P.J.

                                                                        JOHN C. TYLWALK

 

JCT/jah

Cc:  Jimmie Lee Lark/#KK-1469/1120 Pike Street/Huntingdon, PA  16652

David L. Schwalm, Esquire/Thomas, Thomas & Hafer, LLP/305 North Front

Street/P.O. Box 999/Harrisburg, PA  17108

Judith A. Huber, Esquire, Law Clerk

 

IN THE COURT OF COMMON PLEAS OF LEBANON COUNTY

PENNSYLVANIA

CIVIL DIVISION

 

JIMMIE LEE LARK,                                      :           NO. 2012-01262

Plaintiff                                 :

:

v.                                                         :

SHERIFF DEPARTMENT OF LEBANON,  :

SHERIFF DILLMAN, SHERIFF                   :

BENNINGS, SHERIFF KNAPP,                  :

SHERIFF KLINGER, CORRECTIONAL       :

OFFICER HERSHEY,                                    :

CORRECTIONAL OFFICER                                     :

GEORGE FREEZE,                                        :

SERGEANT STEVE DAVIS,                         :

Defendants                          :

 

APPEARANCES:

 

JIMMIE LEE LARK                                       SRL

 

DAVID L. SCHWALM, ESQUIRE             FOR SHERIFF DEPARTMENT OF LEBANON, SHERIFF DILLMAN, SHERIFF BENNINGS, SHERIFF KNAPP, SHERIFF KLINGER, CORRECTIONAL OFFICER HERSHEY, CORRECTIONAL OFFICER GEORGE FREEZE, SERGEANT STEVE DAVIS

 

OPINION, TYLWALK, P.J., AUGUST 13, 2013.

 

Plaintiff Jimmie Lee Lark (“Lark”) filed a Complaint seeking damages for

injuries he allegedly sustained in a fall while he was an inmate at the Lebanon County Correctional Facility (“LCCF”) on December 28, 2011.  After Defendants filed Preliminary Objections, Lark filed an Amended Complaint alleging claims under the United States Constitution.  As a result, the case was removed to the United States District Court for the Middle District of Pennsylvania on February 8, 2013.[1]  Defendants filed a Motion to Dismiss the federal action which was granted by Order of March 25, 2013.  Upon dismissal of the federal claims, the District Court remanded the matter to this Court for resolution of the state law claims alleged in the Amended Complaint.

Lark’s Amended Complaint alleges that he was injured when he fell down a flight of steps at LCCF and that his injuries were caused by Defendants’ negligence. Defendants have filed Preliminary Objections seeking dismissal of the Amended Complaint.  In the Preliminary Objections, Defendants assert that Lark’s claims are barred by the doctrine of governmental immunity since the Defendants were employees of the County of Lebanon at the time of this incident. The matter was scheduled for Argument, both parties have filed Briefs and the matter is before us for resolution.

Normally, immunity from suit is an affirmative defense that must be raised in a responsive pleading under the heading “New Matter” and is not properly raised via Preliminary Objection.  Pa.R.C.P. No. 1030(a); CSX Transportation, Inc. v. Franty Construction, 630 A.2d 932 (Pa. Commw. 1993).  However, where the defense is clearly applicable on the face of a Complaint and in a Defendant’s Objections and where the plaintiff does not object to the improper procedure, a Court may decide the Objection on its merits.  Sweeney v. Merrymead Farm, Inc., 799 A.2d 972 (Pa. Commw. 2002); 3 Goodrich Amram 2d §1030(a):18.  A defendant’s Preliminary Objection raising the defense of governmental immunity will not be stricken for being in violation of Rule 1030 where the plaintiffs fail to file a Preliminary Objection to the defendant’s Preliminary Objection.   Taras v. Wausau Ins. Companies, 602 A.2d 882 (Pa. Super. 1992), appeal denied 615 A.2d 1313 (Pa. 1992).

Lark has not objected to Defendants raising the defense of governmental immunity and our review of the Complaint reveals that the defense is applicable to this suit.  In addition, Lark has addressed the merits of the issue in his Brief.  Thus, we will dispose of Defendants’ Preliminary Objections despite the procedural irregularity.

The Pennsylvania Political Subdivision Tort Claims Act, 42 Pa.C.S.A. §8541 et seq. (“Tort Claims Act”) provides that no local government entity is liable for injury to a person by the government or government employee except as provided in that Act.  42 Pa.C.S.A. §8545.  In order to recover for the negligent act of the government or it employee, the conduct alleged must fall within one of eight exceptions to governmental immunity which are enumerated in the Tort Claims Act at Section 8542.  Thus, liability may be imposed on a governmental unit only if the conduct complained of is related to the following:

1.  Vehicle liability;

2.  Care, custody or control of personal property;

3.  Care, custody or control of real property;

4.  Dangerous conditions of trees, traffic controls and street lighting;

5.  Dangerous conditions of utility service facilities;

6.  Dangerous conditions of streets;

7.  Dangerous conditions of sidewalks; or

8.  Care, custody or control of animals.

See 42 Pa.C.S.A. §8542(b).  Pennsylvania courts have construed these exceptions narrowly due to the legislative intent to insulate government entities from exposure to tort liability.  Lory v. City of Philadelphia, 674 A.2d 673 (Pa. 1996).

In his Amended Complaint, Lark explains that he had a court appearance scheduled on the date of this incident.  After he was picked up from his cell, the prison guards escorted him to a stairway where members of the Sheriff’s Department were waiting to transport him to Court.  These steps led to the area where the Sheriff’s van was parked.  At that point, members of the Sheriff’s Department placed Lark in leg shackles and handcuffed his wrists to a waistband.  He was then placed at the head of a line of inmates at the top of the flight of steps.   Several prison guards and members of the Sheriff’s Department were standing at the top of the stairs and several members of the Sheriff’s Department were waiting at the bottom.  Although Lark questioned how he was to descend the stairs while wearing the leg shackles, he was directed to proceed unassisted.  He alleges that during his descent, the leg shackles caused him to fall forward and that he hit his head and back at the bottom of the stairs and suffered bruised ribs.  Due to his wrists being secured to the waistband, he was unable to grab onto anything to stop or break his fall.  In the Amended Complaint, he asserts that his injuries were caused by Defendants’ failure to secure his person and otherwise assist him as he walked down the steps.

Defendants argue that Lark’s claims do not fall within any of the enumerated exceptions to the doctrine of governmental immunity.  In his Brief, Lark counters that his action falls within the real estate exception.  He contends that the stairway was defective due to the lack of safeguards to protect individuals who were walking down the stairs in leg shackles and handcuffs.

While allegations of improper design of a stairway and the existence of a dangerous condition may bring a claim within the real estate exception to the Tort Claims Act,  See, Wilson v. Norristown Area School District, 783 A.2d 872 (Pa. Commw. 2001), appeal denied 798 A.2d 1294 (Pa. 2002); Berhane v. SEPTA, 646 a.2D 1268 (Pa. Commw. 1994), the plaintiff’s injuries must be caused by a condition of the realty itself.   Here, the Amended Complaint does not allege or specify any design defect or dangerous condition in the structure of the stairs themselves which caused Lark to fall.  Instead, the crux of the claim as set forth in the Amended Complaint is negligent supervision.  Lark attributes Defendants’ liability to their failure to properly supervise his descent down the stairs by securing his person or otherwise assisting him.  In addition, he charges that the Defendants were negligent for failing to properly supervise each other in that they did not direct one another to escort or assist Lark down the steps.

Claims for negligent supervision do not fall within any exception to the Tort Claims Act.  Tackett v. Pine Richland School District, 793 A.2d 1022 (Pa. Commw. 2002), appeal denied 812 A.2d 1232 (Pa. 2002).  Defendant points to the decision in King v. City of Philadelphia, 527 A.2d 1102 (Pa. Commw. 1987), appeal denied 563 A.2d 889 (Pa. 1989)  in which an inmate using crutches fell on some steps while being transported from a Sheriff’s holding cell.   The lower court granted the City’s Preliminary Objections based on the Tort Claims Act, explaining as follows:

We are of the view, in this respect, that appellant, in averring the City’s “failure to provide a safe means for a person on crutches to go from one building level to another without stairs,” did not allege any defective condition of real property, but instead only alleged negligent or otherwise unsatisfactory procedures in the transportation of prisoners within the involved building.  The very presence of stairs no doubt presents a potential hazard to any individual whose ambulatory capabilities have been in some manner restricted, as is the case, rather clearly, with a person handcuffed to a crutch.  That reality, however, does not compel the conclusion that stairs are “defective” real property either in common parlance or for purposes of the Judicial Code.  The most that can be said, as suggested above, is that the City’s procedure in transporting appellant may have been poorly conceived, and hence that it may have discharged its supervisory duty in a negligent fashion.  The trial court thus did not err in sustaining the preliminary objections.

 

King v. City of Philadelphia, 527 A.2d at 1104.   The Complaint here contains no allegation of any defect or dangerous condition and the fact that the conduct alleged to be negligent supervision occurred on the stairway does not bring the claim within the real property exception.

Furthermore, our review of the Amended Complaint fails to reveal allegations of any facts whatsoever to support a decision to allow Lark to pursue his claim.  The vehicle exception is inapplicable as Lark’s injuries were in no way related to the vehicle he was meant to enter.   Likewise, there is no connection between Lark’s injuries and any of the other possible exceptions. For these reasons, we will sustain the Preliminary Objections and dismiss the Amended Complaint.