Tort Liability. July 11, Call in number: Pass Code: #

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1 Tort Liability July 11, 2013 Call in number: Pass Code: #

2 Your Cooperation is Needed Please mute your phone *6 To ask questions and open your line *6 This will help all of our friends!

3 PSAB s Blended Training Webinars Traditional Classroom Sessions One-on-One Assistance

4 Upcoming Training Webinars COSTARS July 17 Encouraging Small Business July 24 Cyber Security Threat Landscape July 25 Intermediate Government Accounting July 31 * Free to PSAB members 4

5 Upcoming Classroom Training The Course in Community Planning The Course in Zoning The Course in Subdivision & Land Development Review Municipal Officials Training & Update The Course in Zoning Administration Basic Municipal Budgeting Confined Space Training Police Civil Service 2013 Pennsylvania Municipal Legal Update Conference August 13 & 14,

6 I ll Sue! Tort Liability and Borough Employees Prepared for: Pennsylvania State Association of Boroughs July 10, 2013 Presented by: Michael McAuliffe Miller, Esq. Eckert Seamans Cherin & Mellott, LLC 213 Market Street 8 th Floor Harrisburg, PA (717) *No Statements made in this seminar or in the written materials/powerpoint should be construed as legal advice pertaining to specific factual situations.

7 What The Hell Is A Tort Anyways? A person can have a interest in their bodily security, tangible property, financial resources or reputation. A tort is an action that causes harm to someone s health or property. Unlike contract law where the standard is based upon promises made by two parties to each other, in tort law, a party is held to a particular standard of conduct or duty. To succeed in a lawsuit based in tort, a person must prove that someone violated that standard or duty.

8 So, What s A Tort Get You? Money. The law of torts is based upon the idea that where another person s actions have harmed you the tortfeasor (the wrongdoer) must pay to place the injured party in a position that they were in prior to injury. The idea is that if the State hits you in the wallet, you will be deterred from your improper conduct.

9 Are There Different Types of Torts? Yes, and any municipal official will have to understand the difference between: 1. Intentional torts 2. Negligence 3. Nuisances

10 Intentional Torts Intentional torts are deliberate wrongful acts that cause personal injury or property damage. These acts give rise to liability unless a special privilege exists. A plaintiff only has to show that the individual deliberately engaged in the wrongful act. It is not necessary to prove that the tortfeasor intended the consequences of the wrongful act.

11 Intentional Torts Battery The intentional striking of another person without their consent or legally recognized authorization constitutes the intentional tort of battery. A police officer has a privilege to use reasonable force to effect a lawful arrest but if the force used is unreasonable under the circumstances, his lawful action could be considered the intentional tort of battery.

12 Intentional Torts Assault If a person acts to place another in reasonable fear of immediate harm or offensive contact, then they have committed the intentional tort of assault. Example: If a clerk approaches a constituent wit clenched fists while screaming epithets, the constituent may reasonably consider himself to have been assaulted.

13 Intentional Torts False Imprisonment False imprisonment is restraining the movement of another person without the person s permission or a legally recognized authorization. So, for instance, if a person arrested is kept in jail or a holding cell beyond his or her legally recognized release date, they may have a claim for false imprisonment.

14 Intentional Torts Defamation Defamation is written or oral communication that injures a third party s reputation. Written defamation is called libel. Oral defamation is called slander. Defamatory remarks may include claims that an individual is a criminal or has an infectious disease. If a borough manager falsely told another person that a former employee had been dismissed for stealing, then that might be defamatory.

15 Intentional Torts Defamation There are two defenses to defamation. First, the truth of a statement is an absolute defense to a defamation action. Second, a person may avoid liability for an otherwise defamatory statement if they can demonstrate that they had an absolute or a qualified privilege to make the statement.

16 Negligence Negligence law is a body of law that defines the duties of care that we all must observe in conducting our daily affairs. If a person fails to use reasonable care or perform the duty outlined under the circumstances and their conduct or inaction causes harm, then they have been negligent.

17 Negligence The main exception to this law is where an individual has been contributorily negligent. Where someone has been contributorily negligent, then their own conduct may lessen or altogether bar any recovery even if a tort has been committed against that person.

18 Negligence Negligence can occur in a myriad of situations and is perhaps less able to be defined than intentional torts.

19 Nuisance A local government that engages in actions that substantially and unreasonably interferes or deprives a person of the use or enjoyment of land or property may have committed the tort of nuisance. Examples: The smell from a sewage plant located near someone s house; noise from landing aircraft.

20 Liability of Local Governments Scope of Employment A local government is not responsible for the tortious action of its employees if it can demonstrate that the employee was acting outside of his or her scope of employment. But, caution, determining what is inside and what falls outside of the scope of employment can sometimes be difficult and complex.

21 Liability of Local Governments Tort Immunity A local government is not like a private employer because the Pennsylvania General Assembly has limited the liability of government in tort by the enactment of the Pennsylvania Municipal Torts Claim Act (PMTCA). The Torts Clam Act is derived from the ancient principle that the King can do no wrong. It also protects municipal governments from harassing and unnecessary tort litigation.

22 Liability of Local Governments Tort Immunity First question: What is a local agency? A government unit other than the Commonwealth government. The term includes an intermediate unit; municipalities cooperating in the exercise or performance of governmental functions, powers or responsibilities (relating to intergovernmental cooperation); and councils of government and other entities created by two or more municipalities under 53 Pa. C.S. Ch. 23 subch. A. 53 P.S

23 Liability of Local Governments Tort Immunity Second question: What is a viable claim? First, you need to have cause of action which would allow the recovery of damages, at common law, against a tortfeasor not otherwise shielded by governmental unity.

24 Liability of Local Governments Tort Immunity Liability imposed The general assembly,... does hereby waive, in the instances set forth in subsection (b) only and only to the extent set forth in this subchapter and within the limits set forth in subsection 8528 (relating to limitations on damages), sovereign immunity as a bar to an action against Commonwealth parties, for damages arising out of a negligent act where the damages would be recoverable under the common law or a statute creating a cause of action if the injury were caused by a person not having available the defense of sovereign immunity. (Emphasis added). 42 Pa. C.S. Section 8522(a).

25 Liability of Local Governments One must also prove that: Tort Immunity 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 the subparagraph "negligent acts" shall not include acts or conduct which constitutes a crime, actual fraud, actual malice or willful misconduct. (Emphasis added). 42 C.S. Section 8542 (a)(1) & (2).

26 Liability of Local Governments Tort Immunity Burden of Proof Plaintiff seeking to impose liability on a local agency has the burden of showing that the common law or a statutory cause of action for negligence exists and the negligent act falls into one of the exceptions to governmental immunity enumerated in the code. Tyree v. City of Pittsburgh, 669 A.2d 487, (Pa. Cmwlth. 1995).

27 Liability of Local Governments Tort Immunity What are these mysterious categories in subsection b?: The following acts by a local agency or any of its employees may result in the imposition of liability on the local agency: (1) vehicle liability...; (2) care, custody or control of personal property...; (3) real property...; (4) tress, traffic controls and street lighting...; (5) utility service facilities...; (6) streets...; (7) sidewalks...; (8) care, custody or control of animals...

28 Liability of Local Governments Tort Immunity "Because the legislature's intent in both the Sovereign Immunity and Tort Claims Act is to shield government from liability, except as provided for in the statute themselves, we apply a rule of strict construction in interpreting these exceptions." Jones v. SEPTA, 772 A.2d 435, 440 (Pa. 2001); also see, Kiley by Kiley v. City of Philadelphia, 537 Pa. 402, 506, 645 A.2d 184, (Pa. 1994); and Snyder v. Harmon, 562 A.2d 307, 311 (Pa. 1989).

29 Liability of Local Governments Tort Immunity Limitations on recovery: $500,000. Pain and suffering is only permitted for permanent loss of bodily function, permanent disfigurement or permanent dismemberment where medical expenses exceed the sum of $1,500. See, Walsh v. City of Philadelphia, 585 A.2d 445 (Pa. 1991). The status of claimant is more important under the Tort Claims Act as a municipal defendant will remain immune if the claimant is found to be a trespasser.

30 Liability of Local Governments But I didn t know.... Tort Immunity Under the Tort Claims Act, a municipal defendant does not require notice for a liability claim arising from the "care, custody or control" of its real property. See 42 Pa. C.S. 8542(b)(3). However, under this Act, sections (b)(4), (5), (6) and (7) provide that a dangerous condition of trees, utility service facilities, streets and sidewalks... "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.

31 Now What Should I Do? 1. Look at the site. 2. Any police report? 3. Is an expert needed early? 4. Has the notice requirement been met and,if not,is there any undue prejudice? 5. As to damages, know the statutory damage caps $250,000 (Commonwealth) versus $500,000 (political subdivision/local agencies); and if political subdivision/local/municipal, then plaintiff must establish, for a pain and suffering recovery, permanent loss of bodily function, permanent disfigurement or permanent dismemberment or medical expenses exceed the sum of $1,500. Does the plaintiff have the medical expert to establish the alleged permanent condition?

32 Now What Should I Do? 6. Does the plaintiff have the right defendants, correct name; do you, the defendant, need to join anyone, including a person or entity that may have an easement or right of way, etc.? 7. Any prior losses or incidents at the location in question? 8. Any work that was done by the specific agency, including any inspections? 9. Any applicable codes, ordinances, regulation or statutes? 10. Any records concerning construction, design or maintenance, including any contracts between any governmental agency and/or others?

33 Now What Should I Do? 11. In addition to the 8522 and 8552, are there any other statutes that bar the case such as the Recreational Use of Land and Water Act (RULWA)? 12. Secure as many facts as possible concerning the incident, including location, entities, control, possession, ownership, contracts, work performed, inspections. 13. Is notice required under 8522 or 8542 (such as potholes) and, if so, did the entity have notice of the alleged condition? 14. Is the property real property or is it affixed to the property? If this is an issue, you need to determine if the property in question is permanently affixed, moveable, or temporary.

34 Thank You!