while appellant’s argument had “a certain appeal” nonetheless under a narrow interpretation of the statute the case did not fall within the exception
How later courts described this case
- while appellant’s argument had “a certain appeal” nonetheless under a narrow interpretation of the statute the case did not fall within the exception
Written by the judges who cited it.
The opinion
*523 Dissenting Opinion by
Judge Doyle:
I respectfully dissent. The majority concedes, and I would certainly agree, that the cell door, is real property. Therefore, the question we must decide is whether the door constituted a dangerous condition within the intendment of Section 8522(b)(4) of the Judicial Code, 42 Pa. C. S. §8522(b)(4). While the door, in and of itself, may not have been defective, its placement next to the bunk in light of the custom to utilize the door to gain access to the .top bunk and in light of the total absence of any other means of access to that bunk indicates to me a design defect in the real property which a jury could reasonably view as a dangerous condition.
While Mascaro v. Youth Study Center, 514 Pa. 351 , 523 A.2d 1118 (1987), and its progeny construed the real property exception narrowly, they did not eradicate the principle entirely. Moreover, those cases involved intervening criminal action by a third party which could logically be viewed as the proximate cause of the injury. Here, in contrast, the cell door was being used for the very purpose for which it was intended and the action of Mr. Gallaghers cell mate in .closing the door was certainly not criminal. Thus, on the peculiar facts before us, I believe that Mr. Gallagher has pled sufficient facts to resist dismissal of his case by way of a motion for summary judgment. Accordingly, I would reverse the trial courts order and direct that the case continue.
Judge McGinley joins.