J.F. Geier, of the Estate of M.M. Geier v. Board of Public Education of the SD of Pittsburgh v. American Art Clay Company, Inc., a/k/a Amaco, Inc.

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

John F. Geier, Executor of the Estate of :

Marianne M. Geier and John F. Geier, :

her husband :

:

v. :

:

Board of Public Education of the :

School District of Pittsburgh :

:

v. : No. 625 C.D. 2016

: Argued: November 15, 2016

American Art Clay Company, Inc., :

a/k/a Amaco, Inc., American Biltree, :

and it's division AMTICO; AVCO :

Corporation, on behalf of its :

Lycoming-Spencer division; Azrock :

Industries, Board of Public Education :

of the School District of Pittsburgh, a :

Delaware Corporation, f/k/a Viacom, :

Inc., successor by merger to CBS :

Corporation, a Pennsylvania :

Corporation, f/k/a Westinghouse :

Electric Corporation; Certainteed :

Corporation; Conwed Corporation, :

Individually and as successor :

to the Wood Conversion Company; :

F.B. Wright Company; George V. :

Hamilton, Inc.; Georgia Pacific :

Corporation; Hinkle Hoffman Supply :

Company; I.U. North America, Inc., :

as successor by merger to the Garp :

Company, formerly known as :

The Gage Company, formerly known :

as Pittsburgh Gage and Supply :

Company; Kaiser Gypsum Company, :

Inc.; Mannington Mills, Inc., :

Owens-Illinois, Inc., Plum Borough :

School District; Rust Engineering :

and Construction, Inc., Trane U.S. Inc. :

f/k/a American Standard, Inc., successor :

in interest to Kewanee Boiler Company, :

Inc.; Union Carbide Corporation and :

its Linde Division; Cemline :

Corporation; Oakfabco, Inc.; Rheem :

Manufacturing Company; ECR :

International; Allentown; Armstrong :

Pumps, Inc.; Arnold Lumber and :

Supply Co.; The Columbus Heating :

and Ventilating Company; Davis :

Fetch Corporation of Pennsylvania; :

Eaton Corporation, as successor-in- :

interest to Cutler-Hammer, Inc.; :

Grinnel LLC; Hammond Valve :

Company; Houston-Starr Company; :

ITT Corporation, f/k/a ITT Industries; :

Kennedy-Tubular Products, Inc., :

in its own right as and :

successor-in-interest to Pennco :

Industries; Kurtz Bros.; Milton W. :

Ryan and Associates, Inc.; North :

American Manufacturing Company; :

Schultheis Bros. Co.; and Square D :

Company :

:

Appeal of: Board of Public Education :

of the School District of Pittsburgh :

BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge

HONORABLE ROBERT SIMPSON, Judge

HONORABLE P. KEVIN BROBSON, Judge

OPINION

BY JUDGE SIMPSON FILED: January 25, 2017

In this interlocutory appeal by permission, the Pittsburgh School

District’s Board of Public Education (PBE) seeks review of an order of the Court

of Common Pleas of Allegheny County (trial court) denying its motion for

summary judgment in a negligence action for personal injuries caused by exposure

to asbestos dust. PBE, a local government agency, asserts it is entitled to

governmental immunity under Sections 8541-64 of the Judicial Code, 42 Pa. C.S.

§§8541-64, often referred to as the Political Subdivision Tort Claims Act (Tort

Claims Act), and the Pennsylvania Constitution, for injuries caused by workplace

exposure to products containing asbestos. Because we conclude PBE could be

liable to an employee for exposure to asbestos dust if the condition causing the

exposure falls within one of the exceptions to governmental immunity, and

because we conclude this is the only issue before us on interlocutory appeal by

permission, we affirm.

I. Background

A. Generally

Marianne M. Geier (Decedent) worked for PBE as a math teacher at

South High School from the fall of 1958 through the summer of 1959. During this

period of time, Decedent was exposed to asbestos dust coming from pipe coverings

on the steam and water pipes located in the hallways, stairways, and classrooms of

the high school.

Five decades later, in October 2013, Decedent was diagnosed with

mesothelioma. Thereafter, Decedent and her husband, John F. Geier (collectively,

Plaintiffs) filed a tort action for severe and permanent personal injuries against

PBE and 40 other defendants (collectively, Defendants), which include various

corporate entities engaged in the manufacturing, fabricating, distributing, selling,

supplying, installing and removing of asbestos products. Plaintiffs allege

Decedent’s occupational exposure to asbestos dust, caused by Defendants’ acts or

2

omissions, caused her mesothelioma. Plaintiffs sought compensatory and punitive

damages for their injuries. Decedent ultimately passed away in July 20l6.

B. Motion for Summary Judgment

1. Immunity Under Tort Claims Act

In March 2016, following the close of discovery, PBE filed a motion

for summary judgment asserting governmental immunity. 1 PBE argued its duty to

provide a safe workplace does not fall within any of the eight exceptions waiving

immunity under the Tort Claims Act. Further, although Plaintiffs allege Decedent

suffered exposure to asbestos-containing products manufactured, sold and

distributed by third parties, PBE averred it was insulated from liability because the

Tort Claims Act bars claims for damages facilitated by the acts of others.

PBE further observed that Plaintiffs’ complaint sets forth a claim for

recovery under the utility service facilities exception in Section 8542(b)(5) of the

Tort Claims Act, which provides:

(a) 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

1

School districts are considered local agencies entitled to governmental immunity under

the Tort Claims Act. Taylor v. Ne. Bradford Sch. Dist., 101 A.3d 144 (Pa. Cmwlth. 2014).

3

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.

(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:

****

(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 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.

42 Pa. C.S. §8542(b)(5).

Although not expressly raised by Plaintiffs, we recognize that the real

property exception in Section 8542(b)(3) of the Tort Claims Act may also be

relevant in this case.2 This exception provides:

2

We may affirm an order for any reason, regardless of the trial court’s rationale, so long

as the basis for our decision is clear on the record. Guy M. Cooper, Inc. v. E. Penn Sch. Dist.,

903 A.2d 608 (Pa. Cmwlth. 2006).

4

(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:

(i) trees, traffic signs, lights and other traffic controls,

street lights and street lighting systems;

(ii) facilities of steam, sewer, water, gas and electric

systems owned by the local agency and located within

rights of-way;

(iii) streets; or

(iv) sidewalks.

42 Pa. C.S. §8542(b)(3) (emphasis by underline added).

As to all exceptions to governmental immunity, to fall within an

exception to governmental immunity: (1) the damages sought must otherwise be

recoverable under common law or a statute creating a cause of action against a

person not having a defense under 42 Pa. C.S. §8541; (2) the negligent act of the

local agency, or an employee thereof must have caused the injury; and, (3) the

negligent act of the local agency must fall within one of the eight enumerated

exceptions in 42 Pa. C.S. §8542. Sellers v. Twp. of Abington, 67 A.3d 863 (Pa.

Cmwlth. 2013). PBE also noted the exceptions to governmental immunity are

narrowly construed given the legislature’s expressed intent to insulate political

subdivisions from tort liability. Love v. City of Phila., 543 A.2d 531 (Pa. 1988);

Walsh v. City of Phila., 585 A.2d 445 (Pa. 1991); Sellers.

5

PBE further argues that Plaintiffs must allege that the dangerous

condition causing the injury must be “of the facilities of steam, water, gas or

electric” and “located within rights of way.” 42 Pa. C.S. §8542(b)(5). In addition,

it is critical that the utilities’ facilities themselves cause the injury and not merely

facilitate the injury by the acts of others. Falor v. Sw. Pa. Water Auth., 102 A.3d

584 (Pa. Cmwlth. 2014).

To fall within the real property exception in Section 8542(b)(3) of the

Tort Claims Act, a claim must allege an injury caused by the real property itself, or

the negligent care, custody or control of it. Mandakis v. Borough of Matamoras,

74 A.3d 301 (Pa. Cmwlth. 2013). To that end, the real property exception does not

apply to personal property not permanently attached or affixed to the real property.

Sanchez-Guardiola v. City of Phila., 87 A.3d 934 (Pa. Cmwlth. 2014).

Nonetheless, a local agency’s negligent care, custody or control of its

real property includes the agency’s negligent maintenance of its real property. See

Grieff v. Reisinger, 693 A.2d 195 (Pa. 1997) (claim for injury caused by ignition

of cleaning fluid used by fire chief to clean floor fell within real property

exception); Hanna v. West Shore Sch. Dist., 717 A.2d 626 (Pa. Cmwlth. 1988)

(claim for injury caused by slip and fall on accumulated water used to mop floor

fell within the real property exception); Kelly v. Curwensville High Sch., 595 A.2d

787 (Pa. Cmwlth. 1991) (claim for injury caused by fall through skylight from

permanently attached ladder located too close to skylight fell within real property

exception).

6

Here, Decedent stated in an affidavit that she was occupationally

exposed to the following asbestos-containing products: (a) pipe coverings; (b) floor

tile; (c) drywall; and (d) joint compound. However, Decedent mentioned no

exposure to asbestos-containing products in her classroom. PBE further asserted

Decedent failed to identify the rights-of-way where the alleged dangerous

conditions were located. Moreover, Decedent testified in her deposition that she

had no knowledge that any PBE employee or representative was aware of the

potential hazards of asbestos at South High School during the 1958-59 school year.

Summarizing, PBE asserted that none of the asbestos-containing

products to which Decedent may have been exposed constituted part of PBE’s

utility service facilities located within rights-of-way. Therefore, PBE reasoned,

Plaintiffs failed to demonstrate the existence of a genuine issue of material fact that

would allow a jury to find that damages would be recoverable under common law

or that Plaintiffs’ claims fell within the utility service facilities exception. As such,

PBE claimed it was entitled to judgment in its favor as a matter of law. Sellers.

2. Denial of Summary Judgment; Emergency Motion to Amend

By order dated April 4, 2016, the trial court denied PBE’s motion for

summary judgment.3 In response, PBE filed an emergency motion requesting that

the trial court certify for immediate appeal PBE’s argument that it is entitled to

governmental immunity under the Tort Claims Act. In particular, PBE asserted:

3

The trial court did not author an opinion in support of its order denying summary

judgment.

7

a. an alleged failure to provide a safe workplace does not

fall within the scope of any of the exceptions to

immunity set out in the [Tort Claims Act];

b. the pipe covering and cement that was supposedly

present on pipes located in South High School were

supplied by third-parties and [PBE] could not be held

liable for their actions[;] and

c. the utility exception does not apply to Plaintiffs’

claims.

Emergency Motion to Amend at ¶12; R.R. at 245a.

PBE also asserted that to date, no appellate court ruled on the central

question of whether a local agency can be subject to liability under the exceptions

to governmental immunity based on an employee’s alleged occupational exposure

to asbestos. PBE further asserted this issue constitutes a controlling question of

law because if Plaintiffs’ claims are barred by governmental immunity, Plaintiffs’

claims fail.

Consequently, PBE requested that the trial court amend its order

denying summary judgment to provide for an interlocutory appeal to determine

whether a local agency can be subject to liability under the exceptions to

governmental immunity based on an employee’s alleged occupational exposure to

asbestos. By order dated April 8, 2016, the trial court denied PBE’s emergency

motion. R.R. at 260a.

8

C. Petition for Review

PBE next filed a petition for review in this Court seeking review of

the trial court’s order denying the emergency motion. See R.R. at 261a-368a. In

May 2016, the Court, speaking through Senior Judge James G. Colins, granted

PBE’s petition and certified the following issue for review:

Is a school district entitled to governmental immunity

under [the Tort Claims Act], and the Pennsylvania

Constitution, for work-based exposure to asbestos-

containing products[?]

R.R. at 370a.

II. Issues

On appeal, PBE contends it is entitled to governmental immunity

under the Tort Claims Act, and the Pennsylvania Constitution, for injuries to

Plaintiffs caused by workplace exposure to products containing asbestos. PBE

asserts Plaintiffs’ allegations that PBE is liable to them for failing to provide

Decedent with a safe place to work do not fall within the scope of any of the

exceptions to immunity in the Tort Claims Act. PBE also contends it is entitled to

summary judgment here because the record contains no evidence that PBE knew or

should have known of the supposedly unsafe nature of Decedent’s working

conditions or the dangers posed by exposure to asbestos.

III. Argument

A. Pennsylvania Constitution; Tort Claims Act Generally

PBE contends, as a local government agency, it is entitled to

governmental immunity under the Tort Claims Act, and the Pennsylvania

9

Constitution, for injuries to Plaintiffs caused by workplace exposure to products

containing asbestos. Article I, Section 11 of the Pennsylvania Constitution

provides (with emphasis added):

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. Suits may be

brought against the Commonwealth in such manner, in

such courts and in such cases as the Legislature may by

law direct.

PA. CONST. art. I, §11.

PBE points out Article I, Section 11 of the Pennsylvania Constitution

provides the General Assembly with the authority to decide the extent to which the

Commonwealth, its agencies, and its local political subdivisions, may be held

liable for tortious conduct. See Zauflik v. Pennsbury Sch. Dist., 104 A.3d 1096

(Pa. 2014). All eight exceptions to governmental immunity are limited to specific

acts of local agencies or their employees. See 42 Pa. C.S. §8542(b)(1)-(8).

Further, as discussed above, the exceptions to governmental immunity are

narrowly construed given the legislature’s expressed intent to insulate political

subdivisions from tort liability. Dorsey v. Redman, 96 A.3d 332 (Pa. 2014);

Mascaro v. Youth Study Ctr., 523 A.2d 1118 (Pa. 1987).

B. Duty to Provide Safe Workplace

Here, Plaintiffs’ complaint alleges that PBE is liable to them because

it breached a common law duty by failing to provide Decedent with a safe place to

work. In paragraph 30 of their complaint, Plaintiffs allege Decedent’s injuries

10

were caused by the negligent acts of PBE and its employees or agents acting within

the scope of their duties “with respect to a dangerous condition of the utility

service facilities of steam, sewer, water, gas and electric systems owned by [PBE]

and located within rights of way that created a reasonably foreseeable risk of the

kind of injury suffered by [Decedent].” R.R. at 39a (emphasis added).

Essentially, PBE contends, Plaintiffs claim PBE is liable for failure to

provide Decedent with a safe place to work. However, PBE argues, an unsafe

workplace does not fall within any of the eight exceptions to governmental

immunity, including acts involving a dangerous condition of utility service

facilities. In particular, PBE cites Paragraph 33 of Plaintiffs’ complaint, which

alleges PBE:

a. Purchased and maintained asbestos-containing

products relating to utility service facilities used at the

schools by its employees and/or agents/independent

contractors;

b. Had their [sic] employees and/or agents/independent

contractors install and remove various asbestos-

containing products when they repaired and maintained

equipment and piping systems relating to utility service

facilities without taking steps to minimize or remove

exposures to asbestos-containing products;

c. Specified the use of asbestos-containing products by

their [sic] employees and/or agents/independent

contractors without requiring the use of appropriate

precautions to minimize or eliminate exposure to

asbestos-containing products;

d. Failed to exercise reasonable care to adequately warn

[Decedent] of the risks, dangers and harm to which she

was exposed in working around and inhaling toxic and/or

pathogenic dusts including asbestos;

11

e. Failed to minimize or eliminate [Decedent’s] exposure

to asbestos; by not utilizing proper methods including but

not limited to adequate ventilation with exhaust fans,

dampening or wetting procedures and other

recommended and available procedures to preclude

exposures;

f. Failed to conduct any test to determine the presence

and/or amount of asbestos, in and around [Decedent]; and

g. Failed to advise [Decedent] of the increased risk of

pleural, pericardial or peritoneal mesothelioma, lung

cancer, cancer of the gastrointestinal tract and non-

malignant pleural and parenchymal abnormalities as well

as asbestosis, and other asbestos diseases.

R.R. at 40a.

In short, PBE argues Plaintiffs’ claims do not fall within any of the

eight specific exceptions in 42 Pa. C.S. §8542(b). PBE asserts the General

Assembly has not decided that a governmental entity can be held liable because it

allowed one of its employees to work in an allegedly dangerous environment.

Therefore, PBE maintains the trial court erred in denying its motion for summary

judgment.

C. PBE’s Knowledge of a Dangerous Condition

PBE also contends that Plaintiffs must not only establish the existence

of a dangerous condition of the utility service facilities that caused Decedent’s

injuries, but also that PBE knew or should have known of the dangerous condition

and made no effort to correct it.

12

Here, PBE asserts, Plaintiffs allege the utility service facilities

exception applies because: (a) South High School, where Decedent worked during

the 1958-59 school year, utilized pipes to circulate steam in order to heat the

building; and, (b) those pipes purportedly constituted a dangerous condition

because they were covered by a material that contained asbestos.

According to the plain language of 42 Pa. C.S. §8542(b)(5), the utility

service facilities exception only applies if Plaintiffs can show PBE had knowledge

of the allegedly dangerous condition at a time sufficiently prior to Decedent’s

exposure to have taken steps to protect against that danger. Here, PBE asserts,

Plaintiffs acknowledge they have no evidence that PBE knew or should have

known in 1958-1959 of the hazards of asbestos. Because Plaintiffs have no

evidence that PBE reasonably should have known, at or prior to the time of

Decedent’s employment, that asbestos in the materials used to cover certain steam

pipes posed a health hazard, Plaintiffs cannot prevail on their allegation that PBE

acted negligently in not protecting Decedent from exposure to asbestos dust.

For this reason, PBE asserts, Plaintiffs failed to demonstrate the

existence of a genuine issue of material fact that would permit a jury to find that

Plaintiffs’ claims fell within the utility service facilities exception. Dorsey.

Therefore, PBE urges, the trial court committed an error of law and an abuse of

discretion by failing to enter summary judgment in PBE’s favor.

13

IV. Analysis

A. Common Law Duties

To begin, we note that at common law PBE, a possessor of land, owes

an invitee a high duty of care summarized as follows:

A possessor of land is subject to liability for physical

harm caused to his invitees by a condition on the land if,

but only if, he:

(a) knows or by the exercise of reasonable care would

discover the condition, and should realize that it involves

an unreasonable risk of harm to such invitees, and

(b) should expect that they will not discover or realize the

danger, or will fail to protect themselves against it, and

(c) fails to exercise reasonable care to protect them

against the danger.

RESTATEMENT (SECOND) OF TORTS §343 (1965) (emphasis added). The owner

or possessor of real property must use reasonable care to make the premises safe

or warn the invitee of dangerous conditions of the property. The possessor must

also use reasonable care to discover or inspect for any such dangerous conditions.

Id. The invitee enters the premises with implied assurance of preparation and

reasonable care for his protection and safety while he is there. Treadway v. Ebert

Motor Co., 436 A.2d 994 (Pa. Super. 1982).

In addition, we recognize there are different types of invitees.

Pennsylvania law defines an “invitee” as follows (with emphasis added):

(1) An invitee is either a public invitee or a business

visitor.

(2) A public invitee is a person who is invited to enter or

remain on land as a member of the public for a purpose

for which the land is held open to the public.

14

(3) A business visitor is a person who is invited to enter

or remain on the land for a purpose directly or indirectly

connected with business dealings with the possessor of

the land.

Gutteridge v. A.P. Green Servs., Inc., 804 A.2d 643, 655-56 (Pa. Super. 2002);

RESTATEMENT (SECOND) OF TORTS §332 (1965). With respect to the

employer/employee or master/servant relationship, a servant, whether an industrial

employee or a domestic servant, is a business visitor at common law.

RESTATEMENT (SECOND) OF TORTS §332 cmt. j. (1965). If the invitee is an

industrial employee, the purpose of his entry is directly connected with the

business which the possessor conducts upon the land. Id. If the invitee is a

domestic servant, he enters the land for a business purpose of his own which

concern the affairs of possessor, in that it is incidental to the possessor’s residential

and social use of the land. Id.

Nonetheless, the relationship of master and servant, or employer and

employee, has certain peculiarities which provide the servant or employee with a

somewhat different degree of protection from that given to other classes of

business visitors. Id. cmt j. In some instances, the protection is greater, in others,

it is less. Id. “These peculiarities require that the rules which determine the

liability of a master to a servant be stated in Chapter 14 of the Restatement of

Agency, Second.” Id.

“In creating and maintaining the conditions of employment, the

master has a duty to his servants to have precautions taken which reasonable care,

15

intelligence and regard for the safety of his servants require.” R ESTATEMENT

(SECOND) OF AGENCY §493 (1958). Comment a to Section 493 states in part:

In creating the conditions under which his servants are to

work, the master must conform to the conduct of the

ordinary prudent person having the special knowledge

which, as stated in Section 495, the employer is required

to have. The employer is not an insurer. The precautions

he is required to take vary with the enterprise in which

his servants are engaged. Thus, in a simple business, the

precautions required are correspondingly small. Insofar

as the work is conducted on his premises, his duties to his

employees are, in most cases, substantially the same as

those of a landowner to any business visitor.

RESTATEMENT (SECOND) OF AGENCY §332 cmt. a (1958) (emphasis added).

Further, “[a] master is subject to a duty to his servants to conduct his

business in the light of knowledge which he has, and of such knowledge as to the

conditions likely to harm his servants as persons experienced in the business and

having special acquaintance with the subject matter have.” RESTATEMENT

(SECOND) OF AGENCY §495 (1958). Comment a to Section 495 provides (with

emphasis added):

Ordinarily, a servant has reason to believe that his

employer is himself an expert or has employed experts

who have the special knowledge requisite to create safe

conditions of employment, including the maintaining of

safe structures, the supplying of proper instrumentalities,

the orderly arrangement of the business, and the other

matters as to which the employer has special duties to his

servants. If the servant so believes, the master is subject

to liability unless his plant, equipment and methods are

reasonably safe in view of what is generally known by

experts in his business.

16

Id. cmt. a. With regard to notice to the employer or master of dangerous

conditions, Section 496 of the Restatement of Agency, Second, provides (with

emphasis added):

For the purpose of determining whether or not due care

has been used in the performance of the non-delegable

duties of the master to his servants, the master has notice

of facts affecting the safety of his servants if notice of

such facts comes to him, or to a servant or other person

whose duty is to act upon them in the performance of the

master’s duty to protect his servants.

RESTATEMENT (SECOND) OF AGENCY §496 (1958).

Under Section 496, a master has a duty to take care to ascertain facts

which would indicate danger to his servants. Id. cmt. a. Similarly, if the master

ascertains facts indicating a dangerous condition, although he was under no duty to

ascertain them, or even through the exercise of due care would not necessarily

ascertain them, he is nevertheless under a duty to take action. Id.

As recognized by Section 528 of the Restatement of Agency, Second,

a master’s common law liability for failure to perform non-delegable duties owed

his servant may be diminished or terminated by Workers’ Compensation Acts.

With the onset of compensation for Pennsylvania workers suffering occupational

diseases, starting with statutes enacted in 1937, this was the case. See Moffat v.

Harbison-Walker Refractories Co., 14 A.2d 111 (Pa. 1940) (common law action

against employer for occupational disease, alleging in part failure to furnish

reasonably safe place to work and to warn plaintiff of incident dangers; statutory

remedy excludes common law actions). In other words, since about 1938, the

17

common law has not been a basis for recovery for Pennsylvania workers exposed

to occupational diseases by reason of their employment. Id.; see also Tooey v. AK

Steel Corp., 81 A.3d 851 (Pa. 2013).

However, the Pennsylvania Supreme Court recently reorganized

liability in this area. In Tooey v. AK Steel Corp., the Court addressed the 300-

week occupational disease limitation provision under the current Workers’

Compensation Act.4 The Court essentially held that to the extent the occupational

disease limitation provision precluded recovery under the Workers’ Compensation

Act, an employee could again seek a common law remedy. This decision is the

basis for the current lawsuit, at least as it applies to Decedent’s prior employers.

In sum, we recognize that under common law Decedent, a teacher

during the 1958-59 school year, would have been entitled to the protections

afforded a business invitee while on the premises of South High School. “The duty

of care owed to a business invitee (or business visitor) is the highest duty owed to

any entrant upon land.” Gutteridge, 804 A.2d at 656 (emphasis added). “The

landowner must protect an invitee not only against known dangers, but also against

those that might be discovered with reasonable care.” Id.

In Gutteridge, an asbestos case involving the death of an independent

contractor’s employee from mesothelioma, the Superior Court reversed a trial court

order granting summary judgment in favor of PECO, an electric utility/landowner,

4

Section 301(c)(2) of the Pennsylvania Workers’ Compensation Act, Act of June 2,

1915, P.L. 736, as amended, 77 P.S. §411(2).

18

on the basis that a disputed issue of material fact existed as to whether PECO

violated its duty to a business invitee (employee of an independent contractor) by

failing to warn him of the dangers of asbestos despite having superior knowledge

of asbestos hazards. In so doing, the Superior Court noted that material issues of

fact existed as to when the landowner and the independent contractor should have

become aware prior to the employee’s exposure that employees and contract

workers needed protection from asbestos. In particular, the Superior Court noted

that scientific literature indicated as early as 1935 that asbestos posed peculiar

workplace hazards, and that the Commonwealth issued bulletins to public utilities

regarding the hazards of asbestos and mesothelioma in 1960.

Keeping in mind an employer’s common law duties to Decedent, an

employee and business invitee during the 1958-59 school year, we review

Plaintiffs’ evidence.

B. Plaintiffs’ Evidence

Plaintiffs assert Decedent suffered exposure to asbestos dust from

pipe coverings on the steam and water pipes at South High School while working

as a math teacher during the 1958-59 school year. In her deposition, Decedent

testified her classroom had a steam pipe which went from the ceiling to the floor.

Dep. of Marianne M. Geier, 11/30/15 (Geier Dep.), at 103-04; R.R. at 130a-31a. A

pipe covering fitted over the pipe like a doughnut. Id. at 104-05; R.R. at 131a-32a.

The purpose of the pipe covering was to keep people from being burnt by the hot

steam pipe. Id. at 106, R.R. at 133a. Repairs were made to the pipe covering

during the year Decedent taught there. Id. at 105-07; R.R. at 132a-34a. Decedent

19

also testified that maintenance was performed on the walls and the floor and

ceiling tiles in the classroom, the auditorium next to her classroom, and the halls.

Id. at 108-16; R.R. at 135a-43a. If Decedent brushed up against the pipe covering,

like many students did, she would have those materials on her clothes. Id. at 116-

17; R.R. at 143a-44a.

During a later deposition, Decedent testified that when repairs were

being made in the halls and the auditorium, she observed bags that contained

powder. Geier Dep., 12/14/15, at 267-68; R.R. at 155a-56a. The maintenance men

would mix the powder with water from hallway drinking fountains and then use it

to repair the walls. Id. at 268-70; R.R. at 156a-58a. Decedent recalled seeing the

words “joint compound” and “asbestos” on the bags. Id. at 273-74; R.R. at 161a-

62a.

Plaintiffs argue PBE, as a landowner, must protect an invitee not only

from known dangers, but also dangers that might be discovered with reasonable

care. Chenot v. A.P. Green, Inc., 895 A.2d 55 (Pa. Super. 2006). In Chenot, the

decedent, a construction worker, developed mesothelioma from asbestos dust from

insulation on pipes from his workplace. In Chenot, the decedent’s widow, as

plaintiff, presented evidence that the owner of the building was a member of an

industry association that knew of the dangers of asbestos many years before the

decedent’s exposure to it. In reversing summary judgment for the defendants, the

Superior Court reasoned that the owner should have known it was exposing the

decedent to reasonably foreseeable asbestos hazards and should have recognized

the need to take special measures. Id.

20

In the present case, Decedent claimed she was exposed to asbestos

dust from pipe coverings on the steam and water pipes in a building owned by

PBE. As owner, PBE had a duty to protect Decedent, an invitee, from the hazards

of asbestos pipe coverings which might have been discoverable with reasonable

care. Chenot. Therefore, Plaintiffs claim they established that their claim would

be cognizable under common law.

C. Utility Service Facilities Exception

Under Section 8542(b)(5) of the Tort Claims Act, liability depends

first on the strictly legal determination that the injury was caused by a dangerous

condition of the local agency’s property. Metro. Edison Co. v. City of Reading,

125 A.3d 499, 502 (Pa. Cmwlth. 2015) (citation omitted). Similarly, in Falor, we

observed that in order for the utility service facilities exception to apply, the real

property itself must cause the injury and not merely facilitate the injury by the acts

of others.

We reject PBE’s defense that Plaintiffs failed to identify the rights-of-

way that contain the utility service facilities in question. We reject that defense

because the utility service facilities in question are located within the PBE building

(South High School) where Decedent worked. Thus, the facilities in question are

located in a place accessible by PBE and over which PBE maintained control.

Nevertheless, the plain language of 42 Pa. C.S. §8542(b)(5) indicates

the utility service facilities exception only applies if Plaintiffs can show that PBE

21

had knowledge of the allegedly dangerous condition or could reasonably be

charged under the circumstances with notice of a dangerous condition at a time

sufficiently prior to Decedent’s exposure to have taken steps to protect against that

danger. King v. Pittsburgh Water & Sewer Auth., 139 A.3d 336 (Pa. Cmwlth.

2016).

D. Real Property Exception

In addition to alleging occupational exposure to asbestos-containing

products in steam and water pipe coverings, Plaintiffs also allege Decedent was

exposed to asbestos-containing products in materials PBE used to maintain and

repair floor tiles, ceiling tiles and drywall. As discussed above, a local agency’s

negligent care, custody or control of its real property includes the agency’s

negligent maintenance of its real property. Grieff; Kelly; Hanna.

Moreover, although the real property exception to governmental

immunity in 42 Pa. C.S. §8542(b)(3) does not include the term “dangerous

condition,” our Supreme Court recognized that in order for the real property

exception to governmental immunity to apply, there must be negligence making

the real property unsafe for which it is used. Snyder v. Harmon, 562 A.2d 307 (Pa.

1989). “The government owned real estate must be able to afford safety not only

for the activities for which the property is regularly used but also intended to be

used or reasonably foreseen to be used.” Id. at 312. Regardless of the language in

42 Pa. C.S. §8542(b)(3), this Court continues to apply the term dangerous

condition in cases involving the real property exception to governmental immunity.

22

See, e.g., Wombacher v. Greater Johnson Sch. Dist., 20 A.3d 1240 (Pa. Cmwlth.

2011).

E. Dangerous Condition; Defects Having Source in Realty

As discussed above, in order for a dangerous condition of PBE’s

steam and water facilities or real property to fall within the exceptions to

governmental immunity, the dangerous condition must derive from, originate, or

have as its source, the local agency’s realty. Falor. However, in Thornton v.

Philadelphia Housing Authority, 4 A.3d 1143 (Pa. Cmwlth. 2010), we recognized

that several defects in the property, such as a defective smoke detection system,

lack of firewalls between apartments and insufficient insulation, which did not

themselves directly kill the plaintiff, nevertheless substantially contributed to the

plaintiff’s death. As such, we determined they constituted dangerous conditions of

the realty sufficient to invoke the real property exception because they profoundly

contributed to the plaintiff’s harm. In other words, the dangerous conditions in

Thornton did not merely facilitate the plaintiff’s injuries; they constituted an

integral part of the building that caused the plaintiff’s death and rendered the

building unfit for its intended purpose. Id.

In addition, in Crowell v. City of Philadelphia, 613 A.2d 1178 (Pa.

1992), a jury determined that a misplaced directional road sign on a city street,

which led to a fatal automobile accident, did not merely facilitate the plaintiffs’

harm by others, but rather constituted a substantial contributing cause of the

accident by causing a drunk driver to travel in the wrong direction into the path of

the plaintiffs’ car. As such, even though the harm in Crowell resulted in part from

23

the negligence of a third party, the plaintiffs’ claim still fell within the “trees,

traffic controls and street lighting” exception to governmental immunity in Section

8542(b)(4) of the Tort Claims Act, 42 Pa. C.S. §8542(b)(4).

F. Integral Part of PBE’s Utility Facilities or Real Estate

Here, Plaintiffs’ evidence shows that during the 1958-59 school year,

PBE used asbestos products, purchased from various third parties, to maintain floor

and ceiling tiles, drywall, and steam and water pipe coverings. See Aff. of

Marianne M. Geier, 10/12/15; R.R. at 97a. Decedent also testified that, on 10 or

more occasions, maintenance workers repaired and replaced floor tiles and cracks

in the drywall near her classroom. See Geier Dep., 11/30/15, at 75-117; R.R. at

104a-41a. In particular, Decedent testified the plaster the workers mixed to fill the

cracks in the wall came from bags with “asbestos” written on them. Id. at 100-01;

R.R. at 127a-28a.

Decedent further testified her classroom had a steam pipe which went

from the ceiling to the floor. Id. at 103-04; R.R. at 130a-31a. A pipe covering

fitted over the pipe like a doughnut. Id. at 104-05; R.R. at 131a-32a. The purpose

of the pipe covering was to keep people from being burnt by the hot steam pipe.

Id. at 106; R.R. at 133a. Repairs were made to the pipe covering during the year

Decedent taught there. Id. at 105-07; R.R. at 132a-34a. If Decedent brushed up

against the pipe covering, like many students did, she would have those materials

on her clothes. Id. at 116a-17a.

24

In addition, Decedent testified she observed PBE’s maintenance men

mix a powdery product from bags with water from drinking fountains in the

hallways and then use the mixture to repair the hallway walls. Geier Dep.,

12/14/15, at 267-70; R.R. at 155a-58a. Decedent again testified the word

“asbestos” clearly appeared on the bags containing the powder used to make the

mixture. Id. at 273-74; R.R. at 161a-62a.

We hold that a public employer has a common law duty to create

reasonably safe conditions of employment, including the maintaining of safe

structures. See RESTATEMENT (SECOND) OF AGENCY §495 (1958). Further, an

employer is charged with such knowledge as to the conditions likely to harm its

servants as persons experienced in the business and having special acquaintance

with the subject matter have. Id. Therefore, it is possible for a local agency to be

liable to an employee for workplace exposure to asbestos dust, if the condition

causing exposure falls within one of the exceptions to governmental immunity.

Given the evidence here of PBE’s use of asbestos-containing products

in its maintenance of its steam and water pipe coverings, and repair of its floors,

ceilings and walls, and the Decedent’s contraction of mesothelioma, we conclude

Plaintiffs sufficiently alleged a dangerous condition of PBE’s utility service

facilities and real property substantially contributed to Decedent’s mesothelioma

and ultimate death. Crowell; Falor; Thornton.

In addition, Plaintiffs’ factually supported allegations of PBE’s

maintenance workers’ actions in spreading asbestos dust during the maintenance or

25

repair of the steam and water pipe coverings, floor and ceiling tiles and drywall,

while Decedent was present, are sufficient to assert a claim that PBE’s negligent

care, custody or control of its real property substantially contributed to Decedent’s

death. Grieff; Kelly; Hanna.

G. PBE’s Notice of Dangerous Condition

As noted above, the plain language of 42 Pa. C.S. §8542(b)(5)

indicates the utility service facilities exception only applies if Plaintiffs can show

that PBE had knowledge of the allegedly dangerous condition at a time sufficiently

prior to Decedent’s exposure to have taken steps to protect against that danger.

King; Falor. Here, however, Plaintiffs do not identify or cite to any evidence in the

record supporting a finding that PBE knew, or at least should have known of the

dangers of asbestos, prior to Decedent’s employment in 1958.

However, it is unclear whether the issue of notice of a dangerous

condition was fairly submitted to the trial court as part of the motion for summary

judgment. PBE’s “Brief in Support of Non-Product Identification Motion for

Summary Judgment” fails to develop the “notice” issue. See R.R. at 74a-96a.

Likewise, “Plaintiffs’ Brief in Opposition to Non-Product Identification Motion for

Summary Judgment of Defendant Board of Education of the School District of

Pittsburgh” does not address the “notice” issue. See R.R. at 225a-240a.

Certainly, PBE raises the issue in its brief to this Court. However,

PBE does not direct our attention to any place in the record below where this issue

was reasonably developed before the trial court for decision. Given the foregoing,

26

we are not convinced the “notice” issue was part of the trial court’s denial of

summary judgment, and we are not convinced that the “notice” issue is

encompassed in our limited permission for interlocutory appeal. For these reasons,

we decline PBE’s invitation to reverse the trial court based solely on the “notice”

issue.

V. Conclusion

We hold that given an employer’s usual common law duty to create

reasonably safe conditions of employment, including the maintaining of safe

structures, RESTATEMENT (SECOND) OF AGENCY §495 cmt. a (1958), it is

possible for a local agency to be liable to an employee for workplace exposure to

asbestos dust, if the condition causing exposure falls within one of the exceptions

to governmental immunity.

Moreover, given the evidence here of PBE’s use of asbestos-

containing products in its maintenance of its steam and water pipe coverings, and

repair of its floors, ceilings and walls, and the Decedent’s contraction of

mesothelioma, we conclude Plaintiffs sufficiently alleged a dangerous condition of

PBE’s utility service facilities and real property substantially contributed to

Decedent’s mesothelioma and ultimate death.

Further, while PBE asserts Plaintiffs offered no evidence to support a

determination that it knew or reasonably could have discovered the dangers

associated with exposure to asbestos before 1958, PBE did not seek summary

judgment on this basis. Additionally, PBE fails to advise where the “notice” issue

27

was fairly developed before the trial court. Therefore, we conclude that the

“notice” issue is not before us on limited interlocutory appeal by permission, and

we decline to reverse the trial court on that basis. Accordingly, we affirm.

ROBERT SIMPSON, Judge

28

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

John F. Geier, Executor of the Estate of :

Marianne M. Geier and John F. Geier, :

her husband :

:

v. :

:

Board of Public Education of the :

School District of Pittsburgh :

:

v. : No. 625 C.D. 2016

: Argued: November 15, 2016

American Art Clay Company, Inc., :

a/k/a Amaco, Inc., American Biltree, :

and it's division AMTICO; AVCO :

Corporation, on behalf of its :

Lycoming-Spencer division; Azrock :

Industries, Board of Public Education :

of the School District of Pittsburgh, a :

Delaware Corporation, f/k/a Viacom, :

Inc., successor by merger to CBS :

Corporation, a Pennsylvania :

Corporation, f/k/a Westinghouse :

Electric Corporation; Certainteed :

Corporation; Conwed Corporation, :

Individually and as successor :

to the Wood Conversion Company; :

F.B. Wright Company; George V. :

Hamilton, Inc.; Georgia Pacific :

Corporation; Hinkle Hoffman Supply :

Company; I.U. North America, Inc., :

as successor by merger to the Garp :

Company, formerly known as :

The Gage Company, formerly known :

as Pittsburgh Gage and Supply :

Company; Kaiser Gypsum Company, :

Inc.; Mannington Mills, Inc., :

Owens-Illinois, Inc., Plum Borough :

School District; Rust Engineering :

and Construction, Inc., Trane U.S. Inc. :

f/k/a American Standard, Inc., successor :

in interest to Kewanee Boiler Company, :

Inc.; Union Carbide Corporation and :

its Linde Division; Cemline :

Corporation; Oakfabco, Inc.; Rheem :

Manufacturing Company; ECR :

International; Allentown; Armstrong :

Pumps, Inc.; Arnold Lumber and :

Supply Co.; The Columbus Heating :

and Ventilating Company; Davis :

Fetch Corporation of Pennsylvania; :

Eaton Corporation, as successor-in- :

interest to Cutler-Hammer, Inc.; :

Grinnel LLC; Hammond Valve :

Company; Houston-Starr Company; :

ITT Corporation, f/k/a ITT Industries; :

Kennedy-Tubular Products, Inc., :

in its own right as and :

successor-in-interest to Pennco :

Industries; Kurtz Bros.; Milton W. :

Ryan and Associates, Inc.; North :

American Manufacturing Company; :

Schultheis Bros. Co.; and Square D :

Company :

:

Appeal of: Board of Public Education :

of the School District of Pittsburgh :

ORDER

AND NOW, this 25th day of January, 2017, for the reasons stated in

the foregoing opinion, the order of the Court of Common Pleas of Allegheny

County is AFFIRMED.

ROBERT SIMPSON, Judge