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Dayami Reyes v. The Salvation Army et al. No. 2011-02465

Civil Action-Law-Negligence-Slip and Fall-Sidewalk-Snow and Ice-Local Government-Motion for Summary Judgment-Political Subdivisions Tort Claims Act-Governmental Immunity-Exceptions-Real Property Exception-Ownership-Possession-Total Control-Sidewalks Exception-Defect-Dangerous Condition

1. Plaintiff, who alleges that she was injured when she fell on a sidewalk adjacent to property owned by Defendants The Salvation Army and The Salvation Army of New York (“the Salvation Army”), filed a Complaint in negligence against the Salvation Army and Defendant the City of Lebanon (“City of Lebanon”), alleging that Defendants had a duty to remove snow and ice from curbs and sidewalks surrounding the premises. The City of Lebanon filed a Motion for Summary Judgment alleging immunity from liability pursuant to the Political Subdivision Tort Claims Act (“the Tort Claims Act”), 42 Pa.C.S. § 8541 et seq.

2. Pa.R.C.P. Rule 1035.2 provides that a party may move for summary judgment when the evidentiary record establishes that the moving party is entitled to judgment as a matter of law.

3. Summary judgment may be granted only in cases where the right is clear and free from doubt. The moving party has the burden of proving the nonexistence of any genuine issue of material fact. The court must view the record in the light most favorable to the nonmoving party and must resolve all doubts as to the existence of a genuine issue of material fact against the moving party.

4. Where the nonmoving party bears the burden of proof on an issue, that party may not merely rely upon the pleadings. Rather, the nonmoving party must present depositions, affidavits or other acceptable documents showing the existence of a factual issue for the jury’s consideration.

5. The determination of whether a government agency enjoys immunity under a particular set of facts is a conclusion of law properly made by the court, not an issue of fact for the jury.

6. The Tort Claims Act provides immunity from liability to local agencies for damages for any injury to a person or property caused by any act of the local agency or its employee. § 8541.

7. Section 8542 of the Tort Claims Act sets forth exceptions to governmental immunity, including a local agency’s negligence relating to the care, custody or control of real property in its possession. Under this “real property” exception to governmental immunity, ownership of the real property is not required for possession to be found. However, possession requires total control over the premises. Limited control or mere occupation of the premises for a limited period is insufficient to impose liability under the real property exception to governmental immunity.

8. Liability under the real property exception cannot be imposed for damages caused by the failure of a governmental entity to remove a foreign substance from real property. Instead, liability may be imposed only upon proof that a condition of the government realty itself, deriving, originating from or having the realty as the source, caused the plaintiff’s injury.

9. The “real property” exception to governmental immunity could not act to confer liability upon the City of Lebanon for Plaintiff’s alleged injuries, as the record established that the City of Lebanon did not own the property upon which Plaintiff’s alleged injuries were sustained and Plaintiff failed to produce any evidence that the City of Lebanon possessed, maintained or exercised control over the sidewalk in question.

10. Even if Plaintiff had established that the City of Lebanon had possessed sufficient control over the premises, Plaintiff failed to come forward with any evidence establishing that the accumulation of ice and/or snow was caused by any defect or dangerous condition of the property itself.

11. The Tort Claims Act contains another exception to governmental immunity for a dangerous condition of the sidewalks within the rights-of-way of streets owned by the local agency. Under the “sidewalks exception” to governmental immunity, the plaintiff must prove that there was a dangerous condition of the sidewalk or street, not merely a dangerous condition present on the sidewalk or street. When a plaintiff’s injuries are alleged to have occurred as a result of a foreign substance on the sidewalk, there must be an allegation and proof that the substance on the sidewalk was caused to be on a real estate because of an improper design, construction, deterioration or inherent defect in the real estate itself.

12. The “sidewalks exception” could not act to confer liability upon the City of Lebanon for Plaintiff’s alleged injuries because Plaintiff failed to produce any evidence that her injuries were the result of a defect of the sidewalk itself.

L.C.C.C.P. No. 2011-02465, Opinion by John C. Tylwalk, President Judge, October 26, 2015.

IN THE COURT OF COMMON PLEAS OF LEBANON COUNTY

PENNSYLVANIA

CIVIL DIVISION NO. 2011-02465

DAYAMI REYES

v.

THE SALVATION ARMY, THE SALVATION ARMY OF NEW YORK and THE CITY OF LEBANON

APPEARANCES:

RICHARD VEON, ESQUIRE

FOR DAYAMI REYES

BRITTANY E. BAKSHI, ESQUIRE

FOR THE SALVATION ARMY, and THE SALVATION ARMY OF NEW YORK

DAVID MACMAIN, ESQUIRE

FOR THE CITY OF LEBANON

OPINION, TYLWALK, P.J., OCTOBER 26, 2015.

Plaintiff Dayami Reyes (“Reyes”) alleges that she was injured on December 20, 2009 when she fell on the sidewalk adjacent to property at 1031 Guilford Street in the City of Lebanon (“the City”) which was owned by Defendants The Salvation Army and The Salvation Army of New York (“Salvation Army”). Reyes alleges that the sidewalk was unshoveled and that she tripped and fell on the snow and ice which had accumulated there. Her Complaint alleges that the City and the Salvation Army had a joint duty to remove the snow and ice from the curbs and sidewalks surrounding the premises. The City has filed a Motion for Summary Judgment asserting that it is immune from liability pursuant to the provisions of the Political Subdivision Torts Claims Act, 42 Pa.C.S.A. §8541 et seq (“Torts Claims Act”). Plaintiff has failed to respond to the Motion and the Salvation Army’s Response indicates that it does not oppose the entry of judgment in favor of the City.

Pursuant to Pa.R.C.P. No. 1035.2, a party may move for summary judgment when the evidentiary record reveals that the moving party is entitled to judgment as a matter of law:

Rule 1035.2. Motion

After the relevant pleadings are closed, but within such time as not to unreasonably delay trial, any party may move for summary judgment in whole or in part as a matter of law

(1) whenever there is no genuine issue of any material fact as to a necessary element of the cause of action or defense which could be established by additional discovery or expert report, or

(2) if, after the completion of discovery relevant to the motion, including the production of expert reports, an adverse party who will bear the burden of proof at trial has failed to produce evidence of facts essential to the cause of action or defense which in a jury trial would require the issues to be submitted to a jury.

Pa.R.C.P. No. 1035.2. The Note to Rule 1035.2 provides, in part that:

The evidentiary record may be one of two types. Under subparagraph (1), the record shows that the material facts are undisputed and, therefore, there is no issue to be submitted to a jury.

Under subparagraph (2), the record contains insufficient evidence of facts to make out a prima facie cause of action or defense and, therefore, there is no issue to be submitted to a jury. The motion in this instance is made by a party who does not have the burden of proof at trial and who does not have access to the evidence to make a record which affirmatively supports the motion. To defeat this motion, the adverse party must come forth with evidence showing the existence of the facts essential to the cause of action or defense.

Pa.R.C.P. No. 1035.2 – Note.

Summary judgment may be granted only in cases where the right is clear and free from doubt. Marks v. Tasman, 589 A.2d 205 (Pa. 1991). The moving party has the burden of proving the nonexistence of any genuine issue of material fact. Thompson Coal Co. v. Pike Coal Co., 412 A.2d 466 (Pa. 1979). The court is required to view the record in the light most favorable to the nonmoving party and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party. Davis v. Pennzoil, 264 A.2d 597 (Pa. 1970).

Where the non-moving party bears the burden of proof on an issue, he may not merely rely on his pleadings or answers in order to survive summary judgment; rather, he must present depositions, affidavits, or other acceptable documents that show the existence of factual issues for the jury’s consideration. DeWeese v. Anchor Hocking Consumer and Indus. Products Group, 628 A.2d 421, 427 Pa.Super. 47(Pa. Super.1993) The determination of whether a government agency enjoys immunity under a particular set of fact is a conclusion of law and not an issue of fact for the jury. Martin v. City of Philadelphia, 696 A.2d 909, 911 (Pa. Commw. 1997).

The Torts Claims Act, provides immunity from liability to local agencies for any damages on account of any injury to a person or property caused by any act of the local agency or its employee. 42 Pa.C.S.A. §8541. Section 8542 of the Act provides for exceptions to this immunity:

§ 8542. Exceptions to governmental immunity

Liability imposed.–A local agency shall be liable for damages on account of an injury to a person or property within the limits set forth in this subchapter if both of the following conditions are satisfied and the injury occurs as a result of one of the acts set forth in subsection (b):

(1) The damages would be recoverable under common law or a statute creating a cause of action if the injury were caused by a person not having available a defense under section 8541 (relating to governmental immunity generally) or section 8546 (relating to defense of official immunity); and

(2) The injury was caused by the negligent acts of the local agency or an employee thereof acting within the scope of his office or duties with respect to one of the categories listed in subsection (b). As used in this paragraph, “negligent acts” shall not include acts or conduct which constitutes a crime, actual fraud, actual malice or willful misconduct.

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:

(1) Vehicle liability.–The operation of any motor vehicle in the possession or control of the local agency, provided that the local agency shall not be liable to any plaintiff that claims liability under this subsection if the plaintiff was, during the course of the alleged negligence, in flight or fleeing apprehension or resisting arrest by a police officer or knowingly aided a group, one or more of whose members were in flight or fleeing apprehension or resisting arrest by a police officer. As used in this paragraph, “motor vehicle” means any vehicle which is self-propelled and any attachment thereto, including vehicles operated by rail, through water or in the air.

(2)Care, custody or control of personal property.–The care, custody or control of personal property of others in the possession or control of the local agency. The only losses for which damages shall be recoverable under this paragraph are those property losses suffered with respect to the personal property in the possession or control of the local agency.

(3)Real property.–The care, custody or control of real property in the possession of the local agency, except that the local agency shall not be liable for damages on account of any injury sustained by a person intentionally trespassing on real property in the possession of the local agency. As used in this paragraph, “real property” shall not include:

trees, traffic signs, lights and other traffic controls, street lights and street lighting systems;

facilities of steam, sewer, water, gas and electric systems owned by the local agency and located within rights-of-way;

streets; or

sidewalks.

(4)Trees, traffic controls and street lighting.–A dangerous condition of trees, traffic signs, lights or other traffic controls, street lights or street lighting systems under the care, custody or control of 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.

(5) Utility service facilities.–A dangerous condition of the facilities of steam, sewer, water, gas or electric systems owned by the local agency and located within rights-of-way, 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.

(6)Streets.—

A dangerous condition 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.

A dangerous condition of streets owned or under the jurisdiction of

Commonwealth agencies, if all of the following conditions are met:

The local agency has entered into a written contract with a Commonwealth agency for the maintenance and repair by the local agency of such streets and the contract either:

had not expired or been otherwise terminated prior to the occurrence of the injury; or

if expired, contained a provision that expressly established local agency responsibility beyond the term of the contract for injuries arising out of the local agency’s work.

The injury and dangerous condition were directly caused by the negligent performance of its duties under such contract.

The claimant 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.

(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.

(8)Care, custody or control of animals.–The care, custody or control of animals in the possession or control of a local agency, including but not limited to police dogs and horses. Damages shall not be recoverable under this paragraph on account of any injury caused by wild animals, including but not limited to bears and deer, except as otherwise provided by statute.

Limited definition.–As used in this section the amount of time reasonably required to take protective measures, including inspections required by law, shall be determined with reference to the actual equipment, personnel and facilities available to the local agency and the competing demands therefor.

(d) Evidence.–Whenever any plaintiff claims liability under subsection (b)(1), evidence is admissible to demonstrate that the plaintiff, at any time during the course of the alleged negligence, was engaged or participating in willful misconduct, including, but not limited to, the illegal possession of controlled substances, firearms or ammunition.

42 Pa.C.S.A. §8542. Of these, the only two which could arguably to this situation are the “real property” and “sidewalks” exceptions.

Under the “real property” exception, a local agency may be liable for its employees’ or its own negligence related to “the care, custody or control of real property” in its possession. 42 Pa.C.S.A. §8542(b)(3). Ownership of the real property is not required for possession to be found for purposes of the real property exception to governmental immunity.  Gramlich v. Lower Southampton Tp., 838 A.2d 843 (Pa. Commw. 2003), appeal denied 851 A.2d 143 (Pa. 2004). However, the meaning of “possession” within the real property exception to governmental immunity is total control over the premises; limited control or mere occupation of the premises for a limited period is insufficient to impose liability.  Id. Liability cannot be imposed under the real estate exception for injuries caused by the negligent failure of a government entity to remove a foreign substance from real property; liability can be imposed only upon proof that a “condition of the government realty itself, deriving, originating from, or having the realty as its source caused the plaintiff’s injuries. Metkus v. Pennsbury School District, 674 A.2d 355, 357 (Pa. Commw. 1996).

Here, it is undisputed that the City did not own the property where Plaintiff sustained her injuries. Attached to Plaintiff’s Complaint is the Deed dated December 20, 1993 evidencing the Salvation Army’s acquisition of this property. (Complaint, Exhibit “A”) Also, attached to the City’s Motion is the transcript of the deposition testimony of Captain Moises Rivera of the Salvation Army in which he acknowledges the Salvation Army’s ownership of the premises. (Dep. of Captain Moises Rivera, Exhibit “2” to City of Lebanon’s Motion for Summary Judgment at p. 22) Plaintiff has failed to produce any evidence whatsoever that the City possessed, maintained or exercised any control over the sidewalk where Plaintiff fell. Moreover, Plaintiff indicates that she fell on snow and/or ice that had accumulated on the sidewalk of the premises, but she has failed to produce any evidence that this accumulation was caused by any defect or dangerous condition of the property itself. Thus, the real property exception is inapplicable.

In order for the “sidewalks exception” to apply, the plaintiff must also prove that there was a dangerous condition of the sidewalk or street, not merely on the sidewalk or street. Finn v. City of Philadelphia, 664 A.2d 1342 (Pa. 1995). As with the real property exception the word “of” is interpreted restrictively, and a plaintiff must show that the danger derived, originated from, or had its source in the realty itself. Cohen v. City of Philadelphia, 847 A.2d 778 (Pa. Commw. 2004). When the plaintiff’s injuries are alleged to have occurred as a result of a foreign substance on the sidewalk, there must be an allegation and proof that the substance on the sidewalk was caused to be on the real estate because of an improper design, construction, deterioration, or inherent defect in the real estate itself. Alexander v. City of Meadville, 61 A.3d 218 (Pa. Super. 2012). Thus, this exception is likewise inapplicable due to Plaintiff’s failure to come forth with any evidence that her injuries were a result of any defect or problem with the property itself.

Because Plaintiff has failed to provide proof to indicate the applicability of any of the exceptions to the immunity provided pursuant to the Torts Claims Act here, the City is entitled to judgment as a matter of law and we will grant its Motion for Summary Judgment.

 

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