Finn v. City of Philadelphia

CAPPY, Justice,

dissenting.

I respectfully dissent.

On December 24, 1987 Mary Finn slipped and seriously injured herself on a sidewalk owned and maintained by the City of Philadelphia (“City”). This sidewalk, located in the *606 rear of the Philadelphia Juvenile Courthouse, was covered with grease as a result of the City’s regularly and improperly permitting individuals to park motor vehicles on the sidewalk. In my opinion, the trial court reasonably found that City personnel at the courthouse knew or should have known of this dangerous condition, which they had sought to eliminate by covering a portion of the sidewalk with a rug. Under these circumstances, the trial court also reasonably found that Ms. Finn’s injuries resulted from a “dangerous condition of sidewalks within the rights-of-way of streets owned by the local agency.” 42 Pa.C.S. 8542(b)(7).

Nevertheless, the Majority herein concludes that the City is immune from liability for Ms. Finn’s injuries, because it believes that the dangerous condition of the sidewalk found to exist by the trial court does not fall within the “sidewalks” exception to the immunity afforded the City through the Political Subdivision Tort Claims Act, 42 Pa.C.S. § 8542 et seq.. In reaching this conclusion, the Majority resorts to adoption of a hollow distinction — that the unsafe condition of the sidewalk herein was not “of’ the sidewalk, but simply “on” the sidewalk, because the sidewalk was “perfectly designed and constructed and undamaged.” Maj. Op. at p. 605. The Majority reasons that the Legislature intended to retain liability only in situations involving circumstances such as “an improperly designed sidewalk, an improperly constructed sidewalk, or a badly maintained, deteriorating, crumbling sidewalk.” Id. In my opinion, this proposition is not supported by a plain reading of the “sidewalks” exception, and the obvious intention of the Legislature to generally retain governmental liability in situations involving injuries suffered by individuals while using governmental real property, including sidewalks, where the real property constitutes a dangerous condition of which the political subdivision possesses actual or constructive notice.

The “sidewalk exception,” 42 Pa.C.S. § 8542(b)(7), 1 quite simply provides that political subdivisions such as the City *607 herein may be subject to liability for a “dangerous condition of sidewalks within the rights-of-way of streets owned by the local agency.” In my opinion, the only limitation on the application thereof stems from the Legislature’s requirements that the dangerous condition result in reasonably foreseeable injury and that the City have, or be reasonably charged with, notice of the dangerous condition. Thus, I see the Majority’s attempt to further limit the applicability of this exception to be erroneous.

The Majority believes that sufficient support for this proposition exists by virtue of this Court’s decision in Snyder v. Harmon, 522 Pa. 424 , 562 A.2d 307 (1989) wherein it was stated that sovereign immunity is waived only “where it is alleged that the artificial condition or defect of the land itself causes an injury to occur.” Id. at 435 , 562 A.2d at 312 . However, the facts of Snyder are clearly distinguishable from this case, as Snyder involved injuries sustained on real property that was not owned by the Commonwealth, and accordingly cannot be relied upon for the proposition espoused by the majority. Clearly, since in Snyder the plaintiff was not injured on Commonwealth property, the expansive reading given to the above-quoted statement by the Majority is without foundation. For the same reasons, the Majority’s reliance upon Mascaro v. Youth Study Center, 514 Pa. 351 , 523 A.2d 1118 (1987) is misplaced, where the injuries inflicted by an escaped prisoner did not occur on Commonwealth realty, and *608 were vastly removed from the dangerous condition that fostered the prisoner’s escape.

Pursuant to Snyder and Mascaro , and their progeny, the focus is more properly directed away from result-oriented analysis of what constitutes the sidewalk “itself’ in favor of a determination of whether the City’s “sidewalk was safe for the activities for which the property is regularly used, intended to be used or reasonably foreseen to be used.” Snyder, 522 Pa. at 435 , 562 A.2d at 312 ; Bendas v. Township of White Deer, 531 Pa. 180, 183 , 611 A.2d 1184, 1186 (1992). By enacting the sidewalks exception, the Legislature intended to require political subdivisions to design, construct and maintain their sidewalks in a safe condition. Clearly, the Legislature could not have intended to hold the City to such a duty with regard to its sidewalks without intending it to be liable for injuries resulting from a breach of such duty. Once again, all that is required for the exception to apply is a dangerous condition of the sidewalk of which the City possessed actual or constructive notice, and I conclude that few citizens of this Commonwealth would agree that grease on a sidewalk does not, and can never, constitute a dangerous condition of the sidewalk.

This proposition is further borne out by the Majority’s conclusion that piercing the Commonwealth agency’s immunity is warranted only upon proof of things such as the existence of an “improperly designed sidewalk, and improperly constructed sidewalk, or a badly maintained, deteriorating, crumbling sidewalk.” Maj. Op. at p. 605. Obviously, as a practical matter, a sidewalk cannot act in a negligent manner. Rather, it is conduct attributable to the political subdivision that is being subject to scrutiny.

Unquestionably, the City’s potential liability for a badly deteriorating sidewalk would arise from the negligence of the City in failing to maintain the sidewalk. Similarly, the City’s potential liability for a sidewalk that is dangerous by virtue of defective design or construction would result from the negligence of the individuals who created the defective design or performed the defective construction for the City. Given this, I cannot comprehend how the Majority can logically conclude *609 that the negligence of the City in depositing the grease and/or in failing to correct the dangerous condition it knew about somehow compels a different result.

The dangerous repercussions of the Majority’s interpretation of the sidewalk exception are already being felt throughout the Commonwealth. During the pendency of this particular appeal the Commonwealth Court rendered a decision in the case of McRae v. School District of Philadelphia, 660 A.2d 209 (Pa.Cmwlth.1995). The Plaintiff in that case slipped and fell on hills and ridges of ice remaining on the improperly maintained sidewalk abutting the McMichael School in Philadelphia. The trial court entered judgment on the pleadings for the school district and the Commonwealth Court affirmed. The Commonwealth Court, relying upon its earlier opinion in Finn, (now being affirmed by the Majority) determined that snow and ice are not defects emanating from the real estate itself; therefore liability does not attach. The impact of this absurd conclusion that the defect must emanate from the sidewalk itself is glaringly obvious when taken to such an absurd extreme as was done by the McRae decision. Do we really want to send a message to our school districts that they no longer need to carefully remove the snow and ice from their sidewalks?

I cannot comprehend how the Majority can justify its decision, in light of such absurd results, to afford immunity in situations of active negligence, such as where the City itself deposits the grease, where the same would not be true in circumstances involving passive negligence, such as where the City simply permits a sidewalk to crumble.

Because this particular sidewalk “itself,” was, as reasonably found by the trier of fact, rendered dangerous by the presence of the grease thereon, I respectfully but emphatically dissent. 2

. Sidewalks. — A dangerous condition of sidewalks within the rights-of-way of streets owned by the local agency, except that the claimant to *607 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.

42 Pa.C.S. § 8542(b)(7) (emphasis added).

. I note that in Kiley v. City of Philadelphia, 537 Pa. 502 , 645 A.2d 184 (1994), I similarly disagreed with the manner in which the Majority therein chose to expand the immunity of the City of Philadelphia in connection with the maintenance of its sidewalks. While my dissent in Kiley addressed numerous other shortcomings contained in the majority opinion therein, I believe the simple facts of the matter sub judice *610 sufficiently expose the frailty of the majority’s approach to these situations.