Kilgore v. City of Philadelphia

CASTILLE, Justice,

dissenting.

Although Finn v. City of Philadelphia, 541 Pa. 596 , 664 A.2d 1342 (1995), was decided less than four years ago, the *30 majority has sub silentio overruled it, and in so doing, has abandoned the principle of stare decisis. As I believe that we are constrained to adhere to the holding of Finn under the principle of stare decisis, I respectfully dissent.

The facts of this case, as recounted by the majority, demonstrate that appellant Walter Kilgore (“Kilgore”), an employee of Federal Express, was injured while working at the Philadelphia International Airport. The accident occurred as Kilgore was standing by a motorized tug on an airport roadway. Kilgore and a co-worker, Mark Newell, were attempting to hitch a cargo dolly to the motorized tug when Newell allegedly lost control of the tug due to an accumulation of ice and snow on the roadway from an earlier snow storm. As a result, the tug struck Kilgore and crushed his right foot.

Kilgore filed suit against appellees seeking damages under the third statutory exception to the general rule that the City is immune from suit for the negligent acts of its agents. The relevant exception provides

§ 8542. Exceptions to governmental immunity

(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

(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 hable for damages on account of any injury sustained by a person intentionally trespassing on real property in the possession of the local agency....

Although this statutory exception to governmental immunity is not identical to the exception at issue in Finn , this Court has held that the “sidewalks” exception at issue in Finn (§ 8542(b)(7)) must be interpreted consistently with the exception at issue here, and that each requires a showing that an “artificial condition or defect of the land itself caused an injury” in order for the exception to apply. Kiley by Kiley v. City of Philadelphia, 537 Pa. 502, 506-07 , 645 A.2d 184, 186 *31 (1994) (emphasis added). In Finn , the plaintiff had been walking on a sidewalk adjacent to city-owned property in Philadelphia when she slipped on an accumulation of grease. The plaintiff argued to this Court that because the accumulation of the grease constituted a dangerous condition “of the sidewalk” under § 8542(b)(7), an exception to the general rule of governmental immunity applied. Finn, supra, 541 Pa. at 599 , 664 A.2d at 1343 . The City argued that in order to pierce its shield of governmental immunity, a claim involving government property must establish that an actionable dangerous condition of government property derives or originates from the property in question and may not arise from a source outside the property. Because grease does not derive or originate from the sidewalk itself, the City argued that it is not a defect “of the sidewalk” and thus that the plaintiffs injury was not encompassed by the relevant exception.

This Court began its analysis by paying heed to the axiom that exceptions to immunity must be strictly construed. Id. at 601 , 664 A.2d at 1344 (citing Snyder v. Harmon, 522 Pa. 424, 434 , 562 A.2d 307, 311 (1989); Mascaro v. Youth Study Center, 514 Pa. 351, 361 , 523 A.2d 1118, 1123 (1987); Kiley by Kiley v. City of Philadelphia, 537 Pa. 502, 506 , 645 A.2d 184, 185-86 (1994)). With that axiom in mind, the Court resolved the underlying legal dispute:

What is necessary, therefore, to pierce the Commonwealth agency’s immunity is proof of a defect of the sidewalk itself. Such proof might include an improperly designed sidewalk, an improperly constructed sidewalk, or a badly maintained, deteriorating, crumbling sidewalk. Here, however, we have no such allegation or proof.... In the language of the statutory exception to governmental immunity, the dangerous condition was on the sidewalk, not of the sidewalk, and thus is insufficient to create liability in the city.

Id. at 605 , 664 A.2d at 1346 (emphasis added). The fact that City personnel knew or should have known of the dangerous condition, alluded to by the dissent, did not affect the Court’s interpretation of the immunity statute. Id. at 606 , 664 A.2d at 1347 (Cappy, J., dissenting).

*32 The instant case clearly is controlled by Finn . As in Finn , appellants here have failed to allege any defect of the real property itself. Appellants do not claim that the roadway at issue was designed in a manner which caused an unnatural amount of ice and snow to accumulate on it - a claim which arguably would not be barred by Finn . Rather, appellants have alleged that the City was negligent in failing to clear an accumulation of ice and snow from the roadway. The claim that this Court rejected in Finn - where the City had knowingly failed to remove an unsafe accumulation of grease from the sidewalk - is materially indistinguishable from the claim to which this Court lends its judicial imprimatur today. Since we have consistently held that the statutory exception at issue in Finn must be interpreted consistently with the statutory exception at issue here, Kiley, supra, appellant’s claim is barred under the authority of Finn . The Court fails to acknowledge this reality, much less explain or justify its departure. It would behoove the Court to recall the late Supreme Court Justice James T. McDermott’s sound admonition regarding the judicial construction of immunity statutes:

The judicial concept that where there is a wrong there must be a right often depends on the wisdom and large responsibility of the legislature. What rights for what wrongs are generally their prerogative and apportioned in the exercise of their many responsibilities and competing needs. Their task, like ours, is never easy. However, it is our duty to respect and enforce their judgment, even with heavy hearts in particular instances.

Love v. City of Philadelphia, 518 Pa. 370, 375-76 , 543 A.2d 531, 533 (1988) (McDermott, J., dissenting). Today, this Court inexcusably neglects the duty, by which it stood in Finn , to respect and enforce the judgment of the legislature. I respectfully but emphatically dissent.

FLAHERTY, C.J., joins this dissenting opinion.