# Byard v. Philadelphia Housing Authority

> Commonwealth Court of Pennsylvania · July 22, 1993 · 157 Pa. Commw. 269

URL: https://www.frixlaw.com/law-library/cases/9543436

## Case

- **Full name:** Donald R. BYARD, Jr., a Minor, by His Parent and Natural Guardian, Brenda BYARD, and Brenda Byard, in Her Own Right, Appellants, v. PHILADELPHIA HOUSING AUTHORITY
- **Court:** Commonwealth Court of Pennsylvania
- **Decided:** July 22, 1993
- **Citations:** 157 Pa. Commw. 269; 629 A.2d 283; 1993 Pa. Commw. LEXIS 451
- **Precedential status:** Published
- **Opinion:** Concurrence by Lord
- **Judges:** Doyle, Kelley, Lord
- **Cited by:** 7 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9543436

## Opinion text

*276 LORD, Senior Judge,
concurring.
I concur. In my opinion, the lack of proper closure device and the jagged metal edge of the fire door which had torn off Byard’s finger could be found by a jury to be both a dangerous condition of the real estate and a substantial cause of the accident. I am bound to agree with that portion of the majority which, when discussing governmental immunity in the context of third-party tortfeasors 1 , states:
Furthermore, this Court recently, in reconciling the Supreme Court’s recent pronouncements concerning immunity in general, has stated that:
Crowell [v. City of Philadelphia, 531 Pa. 400 , 613 A.2d 1178 (1992)] then establishes the principle that for a governmental unit to be held liable, active fault that has a direct nexus to the plaintiff is required on the part of the governmental unit to impose liability. Mere failure to act will not act to impose liability.
Powell v. Drumheller, 153 Pa.Commonwealth Ct. 571, 582, 621 A.2d 1197, 1203 (1993). Here PHA has, at most, failed to act, which is insufficient to impose liability on it.
However, I am constrained to observe that Crowell also says a governmental agency’s exemption from liability should only be applied when that governmental agency would be entitled to indemnity, and not when the governmental agency is a joint tortfeasor with a third party. It is, of course, settled law that the governmental agency or anyone else can be held to be a joint tortfeasor even if the negligence is based on a failure to act when a duty to act exists.
. In this case, the alleged third-parly tortfeasor is unknown.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9543436. Public record. Not legal advice.