# Buschman v. Druck

> Commonwealth Court of Pennsylvania · April 15, 1991 · 139 Pa. Commw. 182

URL: https://www.frixlaw.com/law-library/cases/9764615

## Case

- **Full name:** Deborah A. BUSCHMAN, Appellant, v. Ann Marie DRUCK and Department of Transportation, Appellees; Ann Marie DRUCK and William S. Druck, Appellants, v. Deborah A. BUSCHMAN and Pennsylvania Department of Transportation, Appellees
- **Court:** Commonwealth Court of Pennsylvania
- **Decided:** April 15, 1991
- **Citations:** 139 Pa. Commw. 182; 590 A.2d 53; 1991 Pa. Commw. LEXIS 204
- **Precedential status:** Published
- **Opinion:** Concurrence by Doyle
- **Judges:** Craig, Doyle, Palladino, McGinley, Pellegrini, Kelley, Byer
- **Cited by:** 27 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.
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## Opinion text

DOYLE, Judge,
concurring.
I concur with the determination of the plurality opinion authored by Judge Palladino that Crowell v. City of Philadelphia, 131 Pa.Commonwealth Ct. 418, 570 A.2d 626 , petition for allowance of appeal granted, 525 Pa. 550 , 582 A.2d 1311 (1990), should be overruled to the extent expressed in that opinion, that is, that the Crowell court erred when it suggested that joint tort-feasor liability was no longer available against a government agency. Further, I join Judge Byer in his sage explanation that Crowell should be overruled in its entirety.
I write separately, however, to explicate why I cannot further agree with Judge Byer that Mascaro v. Youth Study Center, 514 Pa. 351 , 523 A.2d 1118 (1987), must be limited to the real property exception to governmental immunity 1 (see Byer concurring opinion, p. 60). Directly contrary to this view is the Supreme Court’s decision in Chevalier v. City of Philadelphia, 516 Pa. 316 , 532 A.2d 411 (1987), a case where the plaintiff was mugged (a criminal act) in a City of Philadelphia parking lot and the pertinent exception was not the (b)(3) real estate exception, but the (b)(4) dangerous lighting condition exception (trees, traffic controls and street lighting). 2 Mr. Justice Papadakos wrote:
*189 Under such a factual allegation, judgment on the pleadings is properly granted, but not for the reasons ascribed by the trial judge [lack of knowledge that a dangerous condition existed]____ The City’s Motion for Judgment on the Pleadings is properly granted because the harm caused by third persons may not be imputed to a local agency or its employees. Mascaro v. Youth Study Center, 514 Pa. 351 , 523 A.2d 1118 (1987); see also Johnson v. SEPTA, 516 Pa. 312 , 532 A.2d 409 (1987).
In Mascaro , we held that the Tort Claims Act, specifically 42 Pa.C.S. § 8541, clearly precludes the imposition of liability on the Commonwealth or its local agencies for the acts of third parties, and the Legislature has not seen fit to waive immunity for such actors or their acts in any of the eight exceptions.
Since Appellee’s injuries were caused by the criminal acts of a third party, the City is insulated from all liability for the harm caused by such a party.
Amendment to the complaint, under these circumstances, would be futile since no cause of action exists against the City for the injuries Mr. Chevalier sustained at the hands of his unknown attacker.
Chevalier, 516 Pa. at 319 , 532 A.2d at 413 (emphasis in original).
What I glean from reading Mascaro and Chevalier in pari materia is that the Supreme Court has held that there are some criminal acts that, by their very nature, are so severe and savage that their visitation upon innocent, or even negligent, third parties could not have been anticipated by the governmental agency and they are, therefore, by judicial fiat, a superseding intervening cause. See Restatement (Second) of Torts § 448. 3 This principle is nothing *190 more than a slight expansion of, or more precisely, a greater restriction upon, the well-settled principle of common law that even an intentional tort or criminal act may be within the foreseeable likelihood of the actor’s negligent conduct, which of course could be in this case a governmental agency. Section 449 of the Restatement (Second) of Torts (1965) pertinently provides:
If the likelihood that a third person may act in a particular manner is the hazard or one of the hazards which makes the actor negligent, such an act whether innocent, negligent, intentionally tortious, or criminal does not prevent the actor from being liable for harm caused thereby.
For an excellent discussion and application of this principle in a case where the acts of the third party amounted to arson which resulted in a death and criminal charges of felony murder, see Vattimo v. Lower Bucks Hospital, Inc. 4 59 Pa.Commonwealth Ct. 1, 428 A.2d 765 (1981), aff'd in part, rev’d in part, 502 Pa. 241 , 465 A.2d 1231 (1983); see also Goryeb v. Department of Public Welfare, 525 Pa. 70 , 575 A.2d 545 (1990) (act of criminal homicide can form the basis upon which liability is placed upon the Commonwealth by specific statutory provisions under the Mental Health Procedures Act, Act of July 9, 1976, P.L. 817, as amended, 50 P.S. §§ 7101-7503).
In the case immediately before this Court, there were no allegations that any of the parties were engaged in that *191 type of criminal conduct that our Supreme Court in Mascaro and Chevalier determined, in effect, was a superseding intervening cause. 5 Here, as in Crowell , the tortious or criminal conduct of the third parties would at best be violations of the Vehicle Code 6 and would not be within the penumbra of that type of criminal act found in Mascaro and Chevalier. See also Moore v. Department of Justice, 114 Pa.Commonwealth Ct. 56, 538 A.2d 111 (1988), petition for allowance of appeal granted, 520 Pa. 610 , 553 A.2d 971 (1988), appeal dismissed as improvidently granted, 523 Pa. 418 , 567 A.2d 1040 (1990) (sovereign immunity under the (b)(1) exception for medical-professional liability was the issue where the act of the third party was criminal homicide); Herman v. Greene County Fair Board, 112 Pa.Commonwealth Ct. 615, 535 A.2d 1251 (1988) (acts of the third parties were not criminal, but only negligent, in allowing a team of draft horses to break away and run into the crowd watching a “horse pull” sponsored by the Greene County Fair Board; the exception was (b)(8) regarding the care, *192 custody, or control of animals). 7
Finally, despite the language of Mr. Justice Papadakos in Chevalier that “harm caused by third persons may not be imputed to a local agency or its employees” (emphasis added), and in Mascaro that “the Legislature has clearly precluded the imposition of liability on itself or its local agencies for acts of third parties____” and “it would be incongruous, indeed, to shield the City or Center from liability for the crimes of its agents and employees, but impose liability for the crimes of others” (emphasis added), it seems clear that what was meant was not the application of the common law principles of vicarious liability, which are not at issue in these matters, but rather the negligence of the agencies themselves and the extent to which the General Assembly meant to protect those agencies through the doctrines of sovereign immunity and governmental immunity. The Supreme Court has at no time pronounced that such “crimes” as driving under the influence of alcohol, or driving up a one-way street, for example, are such acts that would shield from liability the sovereign’s own negligence; e.g., posting two one-way street signs facing one another at opposite ends of the same street or, failure to repair a malfunctioning traffic light that, through negligence, shows green in all four directions, or, as in Crowell , placing a sign indicating a curve in the wrong direction. That phrase in Section 8541 of the Judicial Code, 42 Pa.C.S. § 8541, dealing with governmental immunity which provides that no local agency shall be liable for damages on account of an injury caused by any act “of the local agency or an employee thereof or any other person,” except as provided therein, is not found in the Code provisions dealing with sovereign immunity, 42 Pa.C.S. §§ 8521-8528, and must be viewed as addressing only considerations of vicarious liability. I further note for guidance the language in Moore, distinguishing Allentown State Hospital v. Gill, 88 Pa.Commonwealth Ct. 331, 488 A.2d 1211 (1985):
*193 However, that case [Gill] is distinguishable because the mental patient’s harmful acts could not be regarded as having superseded the hospital’s own original negligence in releasing the mental patient. A cause is not considered superseding when it is a foreseeable or normal incident of the risk created by the original actor’s negligence. Vattimo Restatement (Second) of Torts § 448 (1965).
Moore, 114 Pa.Commonwealth Ct. at 61, 538 A.2d at 114 (emphasis in original).
PELLEGRINI, J., joins in this concurring opinion.
. Section 8542(b)(3) of the Judicial Code, 42 Pa.C.S. § 8542(b)(3).
. See Section 8542(b)(4) of the Judicial Code, 42 Pa.C.S. § 8542(b)(4), which provides an exception to governmental immunity when there is *189 ‘‘[a] dangerous condition of trees, traffic signs, lights or other traffic controls, street lights or street lighting systems under the care, custody or control of the local agency____”
. Section 448 of the Restatement (Second) of Torts (1965) provides: The act of a third person in committing an intentional tort or crime is a superseding cause of harm to another resulting therefrom, although the actor's negligent conduct created a situation which *190 afforded an opportunity to the third person to commit such a tort or crime, unless the actor at the time of his negligent conduct realized or should have realized the likelihood that such a situation might be created, and that a third person might avail himself of the opportunity to commit such a tort or crime.
. I note also the full discussion and explanation by Mr. Justice Flaherty in the opinion announcing the judgment of the Court in Vattimo of the distinction between the concepts of "primary” and "secondary" liability on the one hand (quoting with approval, Builders Supply Co. v. McCabe, 366 Pa. 322, 325-328 , 77 A.2d 368, 370-71 (1951)), and the terms "intervening” and "superseding” cause on the other hand, Vattimo, 502 Pa. at 253 n. 4, 465 A.2d at 1237 n. 4. On this basis I decline to follow Judge Byer’s reasoning in his concurring opinion regarding these concepts. See Byer, concurring opinion, p. 198 n. 12.
. I can discern no reason to apply this type of criminal activity differently in cases involving sovereign immunity, see Moore v. Department of Justice, 114 Pa.Commonwealth Ct. 56, 538 A.2d 111 (1988), petition for allowance of appeal granted, 520 Pa. 610 , 553 A.2d 971 (1988), appeal dismissed as improvidently granted, 523 Pa. 418 , 567 A.2d 1040 (1990), and cases involving governmental immunity, Mascaro. Compare, however, the language of the Supreme Court in Snyder v. Harmon, 522 Pa. 424, 434 , 562 A.2d 307, 312 (1989) (“Finally, we have found the real estate exception to the rule of [sovereign] immunity ... can be applied only to those cases where it is alleged that the artificial condition or defect of the land itself causes injury, not merely when it facilitates injury by acts of others, whose acts are outside of the Political Subdivision Tort Claims Act’s scope of liability, see Mascaro____”), with that in Chevalier, 516 Pa. at 319 , 532 A.2d at 413 , dealing with the street lighting exception, ("In Mascaro we held that the Tort Claims Act, specifically, 42 Pa.C.S. § 8541, clearly precludes the imposition of liability on the Commonwealth or its local agencies for the acts of third parties ... ”). But cf. Goryeb v. Department of Public Welfare, 525 Pa. 70 , 79 n. 18, 575 A.2d 545 , 549 n. 18 (1990) ("Since we have determined this case on other grounds, we need not decide if acts of others are to be treated the same under the Sovereign Immunity Act as the Political Subdivision Tort Claims Act.”).
. 75 Pa.C.S. §§ 101-8105.
. I take this opportunity to note my disagreement with the holding in this opinion.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9764615. Public record. Not legal advice.