Opinion

Buschman v. Druck

  • 139 Pa. Commw. 182
  • 590 A.2d 53
  • 1991 Pa. Commw. LEXIS 204
Court
Commonwealth Court of Pennsylvania
Filed
Apr 15, 1991
Status
Published
Author
McGINLEY
On the bench
Craig, Doyle, Palladino, McGinley, Pellegrini, Kelley, Byer
Cited by
27 cases
Authority
More cited than 10.5%

overruling in part Crowell v. City of Philadelphia, 131 Pa.Commonwealth Ct. 418, 570 A.2d 626 (1990)

How later courts described this case

  • overruling in part Crowell v. City of Philadelphia, 131 Pa.Commonwealth Ct. 418, 570 A.2d 626 (1990)
  • concurring opinion of Byer, J.

Written by the judges who cited it.

The opinion

McGINLEY, Judge,

dissenting.

I respectfully dissent.

*200 The majority would reverse our decision in Crowell v. City of Philadelphia, 131 Pa. Commonwealth Ct. 418 , 570 A.2d 626 (1990) insofar as it holds that a government unit can never be held jointly liable with a non-governmental unit. I believe our decision in Crowell was correctly based on the Supreme Court’s decision in Mascaro v. Youth Study Center, 514 Pa. 351 , 523 A.2d 1118 (1987) (that a defect in the land itself must cause the injury and not merely facilitate the injury by the acts of others); to reverse Crowell would effectively misapply Mascaro .

The plurality states that in Mascaro the court reasoned that the criminal conduct of a third party constituted a superseding cause. Plurality Opinion at 56. I disagree. More accurately, the court in Mascaro held “that 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 caused the injury, not merely when it facilitates the injury by the acts of others____” (Emphasis in original.) Mascaro, 514 Pa. at 363 , 523 A.2d at 1124 . The Mascaro court did not differentiate between the criminal and noncriminal conduct of third parties. 1 Accordingly, I would not overrule Crowell and would affirm the trial court.

. In Crowell we noted that had the Supreme Court decided Mascaro on the grounds that the criminal conduct of a third party acted as an intervening cause, Crowell could be distinguished because "there is no conduct on the part of Lewis which permits us to conclude that Lewis’ conduct was an intervening cause of the injuries sustained by the Crowells....” 131 Pa.Commonwealth Ct. at 427, 570 A.2d at 631 . In Crowell , we further noted: "Since the Supreme Court rejected an intervening cause analysis in Mascaro , we believe we are precluded from utilizing such an analysis to distinguish the present case from Mascaro. Id.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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