# Buschman v. Druck > Commonwealth Court of Pennsylvania · April 15, 1991 · 139 Pa. Commw. 182 URL: https://www.frixlaw.com/law-library/cases/9764617 ## 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 Byer - **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. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9764617 ## Opinion text BYER, Judge, concurring. I agree that Crowell v. City of Philadelphia, 131 Pa.Commonwealth Ct. 418, 570 A.2d 626 , appeal granted, 525 Pa. 550 , 582 A.2d 1311 (1990), should be overruled to the extent it construes statutes governing sovereign immunity 1 and governmental immunity 2 as precluding liability on the part of a Commonwealth party or local agency whenever such a party is a joint tortfeasor. I do not join in the opinion by Judge Palladino announcing the judgment of the court but concur in the result, because I cannot agree *194 with the rationale and because I would overrule Crowell in its entirety. I respectfully believe it is incorrect to characterize the drunk driver in Crowell as a superseding cause and to imply that criminal conduct is always a superseding cause. It is hornbook law that criminal conduct which brings about harm within the risk created or increased by the negligence of another does not constitute a superseding cause, relieving the other of liability, unless the criminal conduct is both of an intentional nature and not within the scope of the risk created by the other. See O’Malley v. Laurel Line Bus Co., 311 Pa. 251 , 166 A. 868 (1933); Vattimo v. Lower Bucks Hospital Inc., 59 Pa.Commonwealth Ct. 1, 9-10, 428 A.2d 765, 769 (1981), aff'd in part, rev’d in part, 502 Pa. 241 , 465 A.2d 1231 (1983); Restatement (Second) of Torts § 442B and comments b and c; Keeton, Dobbs, Keeton and Owen, Prosser and Keeton on The Law of Torts, §§ 33, 44 (5th ed. 1984). 3 Under the facts in Crowell , the drunk driver did not intentionally cause the accident, and it certainly was foreseeable by the city that a drunk driver or speeder, having been misdirected by the incorrect traffic sign, would crash into another car. 4 It is for this reason that the jury in Crowell correctly returned a verdict on the basis of joint *195 and several liability. 5 Therefore, the attempt to save the result in Crowell by reasoning that a superseding cause relieved the city of liability is contrary both to the facts in Crowell and the common law of torts. 6 I believe that Crowell should be overruled because it represents what I respectfully believe to be this court’s incorrect approach in both reading too literally and out of context certain language of our Supreme Court in Mascaro v. Youth Study Center, 514 Pa. 351 , 523 A.2d 1118 (1987), and in applying that language to immunity exceptions other than the real property exception involved in Mascaro . In Mascaro , the Supreme Court considered a case where the plaintiffs were attempting to use the real property exception to governmental immunity 7 as basis to subject a local agency to liability for harm which occurred outside the real property and which was caused by the intentional criminal conduct of third parties. 8 The plaintiff’s theory of *196 liability was that the third parties had escaped from a detention center operated by the local agency, and that this escape was facilitated by the local agency’s negligent maintenance of the “real estate.” The Supreme Court’s opinion by Mr. Justice Papadakos described the precise issue to be decided as “the extent of the real estate exception to local agency immunity, and whether it bars an action against the City and Center under these facts.” 514 Pa. at 355 , 523 A.2d at 1120 . In analyzing this issue, the Supreme Court concluded that the immunity statute was not intended to subject an otherwise immune governmental defendant to the broad spectrum of liability imposed on private landowners, who could be liable “for failing to take precautions against unreasonable risks that stem directly and indirectly from the property including the contemplated acts of third parties, whose crimes are facilitated by the condition of the property.” Id., 514 Pa. at 360 , 523 A.2d at 1122 . Mascaro expressly agreed with decisions of this court holding that to impose liability under real estate exception of the immunity statutes: the conduct or negligent act in question must be directly related to the condition of the property; the liability cannot be premised on an imputed negligence theory; and the negligence of the governmental defendant must arise to something more than a failure to supervise the conduct of others. Id., 514 Pa. at 361-62 , 523 A.2d at 1123-24 . The opinion of the court then summarized these principles as follows: the real estate exception can be applied only to those cases where it is alleged that the artificial condition or defect of the land itself causes the injury, not merely when it facilitates the injury by the acts of others, whose acts are outside the statute’s scope of liability. Id., 514 Pa. at 363 , 523 A.2d at 1124 (emphasis in original). It is improper to read this quoted language out of context, which I believe we have done in Crowell and other *197 cages. See Bartell v. Straub, 134 Pa.Commonwealth Ct. 43, 578 A.2d 72 (1990); Gallagher v. Commonwealth, Bureau of Correction, 118 Pa.Commonwealth Ct. 516, 545 A.2d 981 (1988) (en banc); and McCloskey v. Abington School District, 115 Pa.Commonwealth Ct. 289, 539 A.2d 946 (1988) (en banc). Read in context of the opinion as a whole, the above-quoted language merely is a shorthand expression of the preceding principles expressed in the opinion. In other words, this language should not be read literally and out of context to preclude liability in all circumstances where the harm occurs as a result of the concurrent negligence of another, including the causal negligence of the victim. 9 I cannot believe that the Supreme Court intended by this language to reach the radical result of abolishing for governmental defendants the common law principles of concurrent causes and joint and several liability or the statutory rules of comparative negligence 10 and contribution among joint tortfeasors. 11 Instead, read in context of the entire opinion, I believe that this language in Mascaro was intended to express the principles that for liability to attach under the real property exception, there must be a direct nexus between the injury *198 and the condition of the real property and that the negligence of the governmental defendant must be such as would create a primary rather than only a secondary liability. 12 Furthermore, I believe it is improper to apply this limitation under the real property exception to all other exceptions under the immunity statutes. In Crowell , we applied this limitation to the trees, traffic controls and street lighting exception. 13 I believe it was error to do so. To begin with, the General Assembly specifically provided in the real property exception that the term “real property” was intended to exclude “trees, traffic signs, lights and other traffic controls____” 42 Pa.C.S. § 8542(b)(3)(i). To me, this indicates a legislative recognition that different principles are applicable to these two exceptions. More importantly, Crowell reached an incorrect result by requiring the plaintiffs “to prove that the dangerous condition of the traffic directional sign itself caused the [plain *199 tiffs’] injuries and not merely that the dangerous condition of the traffic directional sign facilitated the injury by the acts of [the drunk driver] whose acts are outside the scope of liability contained in Section 8542(b)(4).” 131 Pa.Commonwealth Ct. at 425, 570 A.2d at 630 (emphasis in original). I cannot think of a situation where an incorrect traffic directional sign could “itself” cause an injury without the concurrent acts of a driver or pedestrian. Surely, when the General Assembly waived immunity with respect to traffic signs, it did not intend to waive immunity only in cases where the traffic sign “itself” leaps into the road and hits someone. If the General Assembly had intended to amend the comparative negligence and contribution statutes to make them inapplicable to governmental tortfeasors and to abrogate the common law principles of concurrent causes and joint and several liability, I believe the General Assembly would have done so expressly. I cannot discern from the language of the statutes governing sovereign or governmental immunity any legislative intent to create such a radical change in the law of torts. I think it is beyond our proper role to engage in such legislation on our own, and I cannot believe the Supreme Court intended such a result in Mascaro . For these reasons, I believe that the approach reflected in Crowell is erroneous and based upon a misinterpretation of the obvious intent of the Supreme Court in Mascaro . I am heartened that on November 7, 1990, the Supreme Court granted allocatur in Crowell , “limited to the issue of the interpretation of 42 Pa.C.S. § 8542(b)(4) in light of our decision in Mascaro ....” 525 Pa. 550 , 582 A.2d 1311 . This will give the Supreme Court a much needed opportunity to clarify the proper approach to these questions, which to date have been characterized by both confusion and, in my opinion, injustice. . 42 Pa.C.S. §§ 8521-8522. . 42 Pa.C.S. §§ 8541-8542. . In Vattimo , the opinion of our court by Judge Rogers correctly observed, ‘‘even where an intervening act is wrongful it does not become a superseding cause unless, looking retrospectively from the harm through the sequence of events by which it was produced, it is so extraordinary as not to have been reasonably foreseeable." 59 Pa.Commonwealth Ct. at 9-10, 428 A.2d at 769 . None of the six separate opinions in the Supreme Court in Vattimo expressed disagreement with this statement, and the opinion of Mr. Justice Flaherty announcing the judgment of the court expressly agrees with this statement. The criminal conduct in Vattimo was much more egregious than that in Crowell . . Actually, it was foreseeable that any driver who obeyed this sign would have a collision. The important issue for a superseding cause analysis is that there is nothing so extraordinary about a drunk driver or speeder having such a collision that it would be unforeseeable and thus outside the scope of the original risk. The fact that the conduct also violated criminal statutes is beside the point under the facts in Crowell . . This follows logically from the jury’s determination that the city’s negligence in Crowell was a substantial contributing factor in causing the harm. . The logical extension of the rationale that Crowell involved a superseding cause is that any tortfeasor whose conduct also violates a criminal statute, including every moving violation under the Vehicle Code, would be a superseding cause. I respectfully suggest that such a position is untenable. . 42 Pa.C.S. § 8542(b)(3). . I believe Mascaro , unlike Crowell , did involve a superseding cause and could have been decided on that basis. However, the only justice who urged that result in Mascaro was Mr. Justice Hutchinson, who joined the opinion of the court but also filed a concurring opinion on this point. 514 Pa. at 364 , 523 A.2d at 1125 . Therefore, it appears that the Supreme Court tacitly rejected the notion that Mascaro should be decided on the basis of a superseding cause analysis. That is why I cannot join in Judge Doyle’s conclusion that the Supreme Court in Mascaro and Chevalier "determined, in effect, [that the criminal conduct] was a superseding intervening cause.” Doyle, J., concurring opinion, at 191. If we were writing on a clean slate, I would have no difficulty in joining Judge Doyle’s excellent opinion analyzing these cases on the basis of superseding cause. However, our Supreme Court has tacitly declined to follow that analysis. Although I would not mind at all if the Supreme Court would switch to a superseding cause analysis in this type of case, I believe we must engage in an analysis which is consistent with what the Supreme Court actually did in Mascaro . . For example, McCloskey held that Mascaro precluded recovery by a teenager who was rendered a quadraplegic when he fell from gymnastics rings, because he contributed to his own harm. This approach effectively abrogates the comparative negligence statute, 42 Pa.C.S. § 7102, in actions involving governmental tortfeasors. I see no justification for allowing the determination of a plaintiffs causal negligence to intrude upon and confuse the analysis of whether the case falls within an exception to immunity. If a plaintiff s causal negligence is to preclude recovery in a tort action subject to 42 Pa.C.S. § 7102, it must be because the plaintiffs causal negligence exceeds that of the defendant[s], not because the plaintiffs causal negligence takes the case outside an exception to immunity. The result of such an analysis is to reinstate the legislatively rejected common law rule of contributory negligence in cases involving governmental defendants. If contributory negligence is to replace the legislature’s mandate to use comparative negligence in these cases, it must be the General Assembly and not the judiciary which decides to do so. . 42 Pa.C.S. § 7102. . 42 Pa.C.S. § 8324. . In Builders Supply Co. v. McCabe, 366 Pa. 322, 325-26 , 77 A.2d 368, 370 (1951), the Supreme Court noted that "[t]he difference between primary and secondary liability is not based on a difference in degrees of negligence or any doctrine of comparative negligence____ It depends on a difference in the character or kind of the wrongs which cause the injury and in the nature of the legal obligation owed by each of the wrongdoers to the injured person.” (emphasis in original). The Supreme Court further pertinently observed, "secondary as distinguished from primary liability rests upon a fault that is imputed or constructive only, being based on some legal relation between the parties, or arising from some positive rule of common or statutory law or because of a failure to discover or correct a defect or remedy a dangerous condition caused by the act of the one primarily responsible.” Id., 366 Pa. at 328 , 77 A.2d at 368 . Although the concepts of primary and secondary liability generally have been used to determine whether there is an obligation of indemnity between tortfeasors, I find these concepts to be useful in connection with the real estate exception and consistent with the principles expressed in Mascaro . However, this analysis might be imperfect, because a governmental defendant's liability almost always will be on the basis of imputed negligence of its servants under the respondeat superior doctrine. Therefore, for this limited purpose only, I would not consider a governmental defendant’s tort liability to be secondary merely because the liability is imposed under the respondeat superior doctrine. . 42 Pa.C.S. § 8542(b)(4). --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9764617. Public record. Not legal advice.