IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Transcription

1 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Elizabeth Karbowski, : Appellant : : v. : No C.D : Submitted: June 10, 2009 The City of Scranton and John Doe, : Independent Contractor : BEFORE: HONORABLE ROBERT SIMPSON, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge HONORABLE JOSEPH F. McCLOSKEY, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE SIMPSON FILED: July 20, 2009 In this pedestrian fall case involving a municipal defendant, Elizabeth Karbowski (Plaintiff) appeals from an order of the Court of Common Pleas of Lackawanna County (trial court) 1 that granted the City of Scranton s (City) motion for summary judgment and dismissed Plaintiff s tort claim against the City. Plaintiff, injured in a fall on snow and ice while crossing a City street, brought a personal injury action against the City and its snow removal contractor alleging negligence in the failure to remove accumulated snow and ice from the crosswalk. In granting summary relief for the City, the trial court reasoned the snow was not a dangerous condition of the street. The court thus held Plaintiff s claim did not fall within the streets exception to governmental immunity in 42 Pa. C.S. 8542(b)(6). Upon review, we affirm.

2 I. Background On January 9, 2002, shortly after a substantial snowfall, Plaintiff slipped and fell on snow and ice in a crosswalk on Hickory Street at the intersection of Hickory and Prospect Avenue in the City. Snow plows created a large pile of snow and ice in the crosswalk near the abutting sidewalk. However, pedestrian traffic created a path through the plowed snow. The snow in the pathway consisted of hills and ridges approximately inches high. As Plaintiff tried to reach the sidewalk, she slipped and fell backward into the street, injuring her right hand and wrist. Plaintiff managed to get up and walk home. She telephoned her relatives, who drove her to a hospital emergency room for treatment. Plaintiff s injury was diagnosed as a fracture of the radius and ulnar styloid of the right wrist. Plaintiff incurred $6,000 in medical expenses and sustained a loss of earnings over a five-month period. Ultimately, Plaintiff filed a personal injury complaint against the City and John Doe Independent Contractor, the City s snow removal contractor. Plaintiff alleged negligence and sought damages for medical expenses, pain and suffering and wage loss. The City filed an answer and new matter. In its new matter, the City pled the defense of governmental immunity in 42 Pa. C.S , often referred to as the Political Subdivision Tort Claims Act (Tort Claims Act). The (continued ) 1 Senior Judge Harold S. Thomson of Pike County sat by designation. 2

3 City also alleged Plaintiff failed to provide notice of a claim against the City within six months of the injury as required by 42 Pa. C.S Following the close of pleadings and discovery, the City filed a motion for summary relief asserting governmental immunity. The City maintained Plaintiff s claim did not fall within the streets exception to governmental immunity in 42 Pa. C.S. 8542(b)(6), which imposes liability for injuries caused by the negligent acts of a local agency or an employee resulting in a dangerous condition of municipal streets. The City also cited case law holding that under the streets exception, the alleged dangerous condition of the street must arise from a condition of the street itself. See Walinsky v. St. Nicholas Ukrainian Catholic Church, 740 A.2d 318 (Pa. Cmwlth. 1999) (accumulation of snow and ice on street is not a condition of the street; it did not derive, originate from or have the street as its source); Vitelli v. City of Chester, 545 A.2d 1011 (Pa. Cmwlth. 1988) (accumulation of snow and ice, even if shoveled onto the street, is a natural condition for which the municipality is not liable). In view of these decisions, the City asserted it was entitled to judgment as a matter of law. The trial court agreed with the City and granted summary judgment. It held the accumulated snow and ice was not a dangerous condition of the street. The trial court further found Plaintiff failed to establish the City had actual or constructive notice of the dangerous condition of the intersection and that Plaintiff s injuries did not meet the threshold requirement for recovery of noneconomic damages in 42 Pa. C.S. 8553(c)(2) (damages recoverable for pain and 3

4 suffering only in cases of permanent loss of a bodily function, permanent disfigurement or permanent dismembership). Plaintiff appeals. 2 II. Issues In her brief, Plaintiff states four issues for our review. Plaintiff contends: the trial court erred in granting the City s motion for summary judgment because the defect or dangerous condition at issue falls within an exception to governmental immunity; the trial court erred in applying the governmental immunity statute; the evidence of record supports a finding there are genuine issues of material fact; and, she is entitled to a jury trial because the facts fall within the real estate exception. III. Discussion A. Tort Claims Act Section 8541 of the Code, 42 Pa. C.S. 8541, provides: Except as otherwise provided in this subchapter, no local agency shall be liable for any damages on account of any injury to a person or property caused by any act of the local agency or an employee thereof or any other person. 2 Our review of a trial court order granting summary judgment is limited to determining whether the trial court erred as a matter of law or abused its discretion. Irish v. Lehigh County Hous. Auth., 751 A.2d 1201 (Pa. Cmwlth. 2000). When reviewing a trial court s grant of summary judgment, we must examine the record in a light most favorable to the non-moving party, accepting as true all well-pleaded facts and reasonable inferences drawn from those facts. Id. 4

5 (with emphasis added): Section 8542 of the Code, 42 Pa. C.S. 8542, relevantly provides (a) Liability imposed. A local agency shall be liable for damages on account of an injury to a person or property within the limits set forth in this subchapter if both of the following conditions are satisfied and the injury occurs as a result of one of the acts set forth in subsection (b): (1) The damages would be recoverable under common law or a statute creating a cause of action if the injury were caused by a person not having available a defense under section 8541 (relating to governmental immunity generally) or section 8546 (relating to defense of official immunity); and (2) The injury was caused by the negligent acts of the local agency or an employee thereof acting within the scope of his office or duties with respect to one of the categories listed in subsection (b). As used in this paragraph, negligent acts shall not include acts or conduct which constitutes a crime, actual fraud, actual malice or willful misconduct. (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: (6) Streets. (i) A dangerous condition of streets owned by the local agency, except that the claimant to 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 5

6 time prior to the event to have taken measures to protect against the dangerous condition.. (7) Sidewalks. A dangerous condition of sidewalks within the rights-of-way of streets owned by the local agency, except that the claimant to 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 only secondarily liable and such other persons shall be primarily liable. B. Argument Plaintiff argues her tort claim survives the City s governmental immunity defense because her injuries were caused by a dangerous condition of a City street. 3 Moreover, Plaintiff asserts the City had actual or constructive notice of the condition and sufficient time to protect against it. Additionally, Plaintiff 3 Although Plaintiff does not argue that the sidewalks exception applies, we note Plaintiff s complaint alleges her slip and fall was caused by ice and snow in both the crosswalk and abutting sidewalk. See Pl. s Compl. at 2, 4 and 5. Further, as an issue stated in her brief, Plaintiff asserts the City claimed sovereign (as opposed to local government) immunity and that her claim falls within the real estate exception to immunity. See Pl. s Br. at 2. However, Plaintiff does not address or develop this issue in the argument section of her brief. Therefore it is waived. Pa. R.A.P. 2119(a); Rapid Pallet v. Unemployment Comp. Bd. of Review, 707 A.2d 636 (Pa. Cmwlth. 1998). In any event, the City properly raised local government immunity as a defense and the real property exception to local government immunity specifically excludes streets and sidewalks. See 42 Pa. C.S. 8542(b)(3); Reid v. City of Phila., 598 Pa. 389, 957 A.2d 232 (2008). 6

7 contends the trial court erred in granting summary judgment because there are genuine issues of material fact a jury must decide. Regarding the notice requirement, Plaintiff s position is as follows. The City had actual or constructive notice of the snowstorm because weather forecasts by the local media predicted the snowfall days in advance. In fact, the City moved the mayor s inauguration indoors. Moreover, the snowstorm occurred in the early morning hours of January 8, City schools and businesses closed. Claimant s fall did not occur until 2:30 p.m. on January 9. The hills and ridges of snow and ice in the crosswalk, approximately inches high, were caused by City plows. Therefore, the City had notice that the condition of the crosswalk was treacherous enough to come within an unspecified exception to immunity provided in the Tort Claims Act. Plaintiff further argues she produced sufficient evidence in discovery to sustain the damages portion of her cause of action. She contends she is entitled to economic as well as non-economic damages in accordance with 42 Pa. C.S (relating to limitations on damages). Plaintiff maintains she sustained a serious and permanent injury to her right upper extremity and wrist, which resulted in a fracture, permanent arthritis, daily pain in her right hand, inability to pick up more than five pounds and the loss of the ability to position her hand in the supine position. See Dep. of Elizabeth Karbowski, 06/14/07, at Plaintiff further asserts she incurred medical expenses in excess of $6,000 and lost approximately five months of wages. The City counters the trial court properly determined that governmental immunity barred Plaintiff s claim and, therefore, the trial court did 7

8 not err in granting summary judgment. The City s argument is as follows. The exceptions to governmental immunity are narrowly construed. Walsh v. City of Phila., 526 Pa. 227, 585 A.2d 445 (1991). Further, the streets exception in 42 Pa. C.S. 8542(6) is inapplicable here because the alleged dangerous condition must derive or originate from the street itself. Walinsky; Vitelli. In Vitelli, this court recognized a municipality s duty to remove ice and snow from its streets depends on whether the snow and ice resulted from natural or artificial causes. Shoveled snow is a natural incident of the snowfall which cannot be separated from the snowfall itself. Id. (citing Imhoff v. City of Pittsburgh), 195 A.2d 862 (Pa. Super. 1963)). In contrast, artificial causes include conditions resulting from overflowing drains and sewers, and dripping eaves. Id. Plowed snow is not a dangerous condition caused by the street itself; it does not derive, originate from, or have the street as its source. Walinsky; Vitelli. Consequently, it is not a dangerous condition of streets, as contemplated by 42 Pa. C.S. 8542(6). In addition, because a municipality has no common law duty to remove natural snowfall from its streets, Plaintiff could not recover under common law. Also, Plaintiff cited no statutes imposing such a duty. Therefore, the exceptions to governmental immunity are inapplicable. Walinsky. The City further contends Plaintiff failed to prove the City had actual or constructive knowledge of the alleged dangerous condition in the crosswalk. Plaintiff merely alleged the City was aware that weather forecasts predicted a snowstorm. Plaintiff presented no evidence showing the City had actual or constructive knowledge of this specific condition on Hickory Street. Therefore, the City maintains it is entitled to summary judgment on the notice issue. See 8

9 Kennedy v. City of Phila., 635 A.2d 1105 (Pa. Cmwlth. 1993) (insufficient notice of dangerous condition where city did not have actual or constructive knowledge of specific problem of no painted lines separating vehicle lanes from pedestrian area); Fenton v. City of Phila., 561 A.2d 1334 (Pa. Cmwlth. 1989) (insufficient notice of dangerous condition where city did not have actual or constructive knowledge of the specific problem of no left-hand turning lane). Finally, the City contends Plaintiff failed to meet the threshold standard for recovery of damages in 42 Pa. C.S First, all of Plaintiff s medical expenses were paid by insurance. Thus, there is no claim for medical expenses. 42 Pa. C.S. 8553(d). Second, Plaintiff failed to submit a medical report establishing she suffered a permanent loss of a bodily function. Therefore, Plaintiff s pain and suffering claim fails. C. Analysis Initially, we note summary judgment is appropriate only when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Pritts v. Dep t of Transp., 969 A.2d 1 (Pa. Cmwlth. 2009). To successfully challenge a motion for summary judgment, a party must show through depositions, interrogatories, admissions or affidavits that there are genuine issues of material fact to present at trial. Id. at 3. Here, the trial court did not err in granting summary judgment. 4 First, the plowed snow and ice creating the alleged dangerous condition in the crosswalk 4 However, we recognize the trial court mistakenly stated the on/of distinction continues to apply. See Trial Ct. Slip. Op., 11/05/08, at 6. In Jones v. Southeastern (Footnote continued on next page ) 9

10 did not derive or originate from the street, or have the street as its source. As a result, the streets exception does not apply. 5 Walinsky. The same rationale applies to sidewalks. Cohen v. City of Phila., 847 A.2d 778 (Pa. Cmwlth. 2004) (snow and ice accumulation on the sidewalk is not a dangerous condition of the sidewalk for purposes of the sidewalks exception; it did not derive, originate from or have the sidewalk as its source). 6 For these reasons, we discern no error in the trial court s determination that there are no genuine issues of material fact to be resolved and (continued ) Pennsylvania Transportation Authority, 565 Pa. 211, 772 A.2d 435 (2001), the Supreme Court rejected the on/of distinction as confusing and problematic. The Jones Court determined the proper inquiry is whether the dangerous condition derived, originated from or had the street or sidewalk as its source. Id. 5 Furthermore, a municipality has no common law duty to remove natural snow and ice from its streets. Walinsky; Vitelli. Snow shoveled into the street is a natural incident of the snowfall that cannot be separated from the snowfall itself. Vitelli. Also, Plaintiff cites no statute imposing such a duty on the City. Because Plaintiff cannot recover against the City under either common law or any statute, she cannot recover against the City under the streets exception. Walinsky. 6 Additionally, we note Plaintiff did not establish the City had actual or constructive knowledge of the specific problem in the crosswalk where Plaintiff fell prior to her slip and fall. Knowledge that weather forecasters predicted a significant snowstorm is inadequate notice of the specific location of a dangerous condition. Kennedy v. City of Phila., 635 A.2d 1105 (Pa. Cmwlth. 1993); Fenton v. City of Phila., 561 A.2d 1334 (Pa. Cmwlth. 1989). Having determined that the exceptions to governmental immunity are inapplicable here, we need not address the damages issue under 42 Pa. C.S

11 that the City is entitled to judgment as a matter of law. Accordingly, we affirm. ROBERT SIMPSON, Judge 11

12 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Elizabeth Karbowski, : Appellant : : v. : No C.D : The City of Scranton and John Doe, : Independent Contractor : AND NOW, this 20 th O R D E R Common Pleas of Lackawanna County is AFFIRMED. day July, 2009, the order of the Court of ROBERT SIMPSON, Judge