stating that sidewalks exception only applies when plaintiff’s injuries are alleged to be the result of a defect or dangerous condition which originates from the sidewalk itself and is not applicable when injuries allegedly occurred only because of substances on the sidewalk (e.g., snow, ice, oil, grease)
How later courts described this case
- stating that sidewalks exception only applies when plaintiff’s injuries are alleged to be the result of a defect or dangerous condition which originates from the sidewalk itself and is not applicable when injuries allegedly occurred only because of substances on the sidewalk (e.g., snow, ice, oil, grease)
Written by the judges who cited it.
The opinion
CRAIG, President Judge
dissenting.
Although there certainly is a need for this court to resolve our conflicting approaches to the sidewalk exception to governmental immunity, 42 Pa.C.S. § 8542(b)(7), our analysis of the statute is led astray if we focus upon a deemed difference between prepositions, by emphasizing “of’ the sidewalk — as used in the statute — in contrast to the alternative preposition, “on” the sidewalk.
The heart of this exception to immunity is its focus upon a “dangerous condition of sidewalks.” The preposition used— “of’ instead of “on” — does not warrant confining the concept of “condition” solely to “design, construction or internal defects,” as the majority opinion would now do. Among the wide range of concepts embraced by the dictionary definition of “condition,” the pertinent one here is:
3 ... b: A state of affairs that hampers or impedes or requires correction < delayed by the ~ of the road> ....
4 a: A state of being
Webster’s New Collegiate Dictionary 235 (1977).
If a particular portion of sidewalk provides good footing when dry and clean, but would cause a pedestrian to fall by virtue of its slippery surface when it is covered by grease, common parlance correctly would describe the condition of the sidewalk as having changed.
*266 The majority opinion here wisely avoids fixing solely upon structure and design per se, by stating that there can be liability if there is proof “that the substance on the sidewalk or other real estate was caused to be on the real estate because of an improper design, construction, deterioration or inherent defect of the real estate itself.”
One example of that sensible qualification would be a sidewalk slab constructed with perfect integrity and regularity, but without the slightly sloping surface plane which the expert artisan introduces to make sure that rainwater drains off the surface and does not accumulate there to produce a hazardous puddle or ice. Governmental liability could then apply if a plaintiff were able to surmount the daunting challenge of proving that the local agency had notice of the injury-inducing design defect — the absolute horizontal level of the construction.
However, if the foregoing illustration can fairly be considered to be within the sound qualification expressed in the majority opinion, it suggests the difficulty of making a workable distinction between (1) the slippery condition of a sidewalk (design as a contributing cause to a hazardous surface) versus (2) a slippery condition on the sidewalk (a slippery condition, whatever its origin, which remains hazardous because not corrected after notice).
To distinguish between the sidewalk’s structure in contrast to substances adhering to it, and particularly to distinguish between substances adhering to a sidewalk because of its design in contrast to adherent substances having no design origin, is certain to involve us — as illustrated by review of our decisions to date — in making esoteric distinctions of a kind unsuitable for adjudication.
The practical key is the undoubted requirement that the plaintiff must prove that the local agency had notice of the dangerous condition of the sidewalk, regardless of the origin of the accretion involved. If a municipal administrator is shown to have had knowledge that a piece of municipal property presents an actual danger to the public, surely the *267 legislature did not intend that the danger could be ignored simply on the theory that it did not emanate from the sidewalk’s structure or design.
The Supreme Court’s decision in Snyder v. Harmon, 522 Pa. 424 , 562 A.2d 307 (1989), contains no holding which would bar us from recognizing “dangerous condition” in its everyday sense. Although the Snyder opinion did state that “of’ is the critical word in the analogous sovereign immunity real estate exception, 42 Pa.C.S. § 8522(b)(4), and that these “key words indicate that a dangerous condition must derive, originate from or have as its source the Commonwealth realty,” Snyder at 433 , 562 A.2d at 311 , the facts of Snyder justify a conclusion that those words were merely emphasizing that the condition causing the injury was entirely detached and removed from the Commonwealth real estate itself. As the Snyder opinion noted with respect to the facts:
Thus, liability is not predicated on a defective condition on Commonwealth land, but rather the knowledge of an inherently dangerous condition contiguous with Commonwealth property____ While this theory appears attractive, it is not supported by any exception to our immunity statute.
It is uncontroverted that the strip mine highwall, at the points where the appellees fell, was some distance from the edge of PennDOT’s right-of-way____ Accordingly, we conclude that Section 8522(b)(4) is inapplicable to this cause of action.
522 Pa. at 435 , 562 A.2d at 312-13 . Hence, in terms of the actual holding in Snyder , the meaning of a dangerous condition is still open for resolution, provided that, as here, the dangerous condition is one which is either of or on the public property, and not removed at a distance from it, as it was in Snyder .
In Bendas v. Township of White Deer, 531 Pa. 180 , 611 A.2d 1184 (1992), our Supreme Court, in applying the “dangerous condition of ... real estate and sidewalks” language of 42 Pa.C.S. § 8522(b)(4), emphasized “dangerous condition” rather than the word “of,” concluding that a jury may find that the *268 absence of traffic control devices at an intersection could constitute a “dangerous condition” of real estate for which the Commonwealth could be liable. 581 Pa. at 185, 611 A.2d at 1186 . This holding, along with the holding in Snyder (which was cited in Bendas), indicates that the ultimate judicial focus, in construing the immunity exception, well may rest upon the condition in which the public property exists as a matter of fact, without an added requirement that such condition must have emanated from that property.
The trial court was correct in concluding that a slippery, greasy sidewalk surface was a dangerous condition of the sidewalk, and that decision should be affirmed.