IN THE COMMONWEALTH COURT OF PENNSYLVANIA Carver Moore and La Tonya : Reese Moore, : : Appellants : : v. : No. 1598 C.D. 2009 : The School District of Philadelphia : Argued: May 17, 2010 and URS Corporation : BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE JAMES R. KELLEY, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE COHN JUBELIRER FILED: June 14, 2010 Carver Moore (Mr. Moore) and La Tonya Reese Moore, husband and wife, (collectively, Plaintiffs), appeal an order of the Court of Common Pleas of Philadelphia County (trial court) granting the School District of Philadelphia s (the District) Motion for Summary Judgment. The trial court found that the real estate exception to the general grant of governmental immunity under the Political Subdivision Tort Claims Act (Act) 1 did not apply because Plaintiffs did not plead or produce evidence that Mr. Moore s slip and fall was caused by the improper design, construction, or inherent defect of the District s parking lot itself. The trial court also 1 42 Pa. C.S. 8541-8542.
determined that Plaintiffs did not plead or produce evidence that: any ice or snow accumulated in hills or ridges of sufficient size to obstruct pedestrian travel; the District had actual or constructive notice of such a condition; or such an accumulation caused Mr. Moore s fall. Therefore, the trial court determined that the hills and ridges doctrine did not apply. On appeal, Plaintiffs argue that the trial court erred in granting summary judgment in this matter because there remain questions of material fact regarding the applicability of the real property exception to governmental immunity and the hills and ridges doctrine. On December 12, 2007, Mr. Moore filed a Civil Action Complaint (Complaint) against the District alleging that he slipped and fell in the parking lot adjacent to a District building as a result of ice, which was a dangerous condition, and that he sustained serious injuries as a result. 2 The District and URS Corporation (collectively 2 The pertinent text of the Complaint is as follows: COUNT ONE 4. On or about December 15, 2005, and for a period of time prior thereto, there existed a dangerous condition on the aforesaid property in the form of ice in the parking lot adjacent to the [District] building located at 440 N. Broad Street, Philadelphia, Pennsylvania. 5. On December 15, 2005, at approximately 4:15 p.m., plaintiff, Carver Moore, was walking in the parking lot adjacent to the [District] building... and was caused to sustain serious injuries when he slipped and fell as a result of the aforesaid described dangerous and defective condition. 6. At all times relevant hereto, said parking lot was part of the real estate in possession and under the care, custody and control of the defendant, [the District]. 7. At all times material hereto, the acts of negligence by the defendant, [the District], which caused plaintiff s injuries were outside the protection of the Pennsylvania Governmental Immunity Statute, 42 Pa. C.S. 8541..., and falls within an exception to immunity including, but not limited to, the care, custody and control of [the] Real Property Exception, 42 Pa. C.S. 8541(b)(3). (Continued ) 2
8. Plaintiff, Carver Moore, was injured as the direct and proximate result of the aforesaid dangerous condition 9. Plaintiff, Carver Moore, believes, and therefore avers, that the defendant, [the District], had actual notice and/or constructive notice of the dangerous conditions prior to the aforesaid date when plaintiff, Carver Moore, was seriously injured.... 11. As a result of the negligence, recklessness and carelessness of the defendant, [the District], plaintiff, Carver Moore, suffered serious and painful injuries 12. The negligence, recklessness and carelessness of the defendant, [the District], consisted of the following: (a) Permitting or allowing a dangerous condition to exist on the premises supervised by it after it knew, or should have known, of said condition; (b) Failing to give plaintiff proper and due notice of the dangerous condition existing on it s [sic] premises; (c) Failing to place warnings or barricades at the point of the accident to prevent the occurrence heretofore recited; (d) Failing to inspect and/or negligently inspecting said premises; (e) Failing to properly maintain the aforesaid parking lot; (f) Failing to give plaintiff proper and adequate protection to which he was entitled; (g) Failing to remove or treat icy conditions; (h) Otherwise failing to use due care and caution under the circumstances; and (i) Negligence as a matter of law. COUNT TWO 23. At all such times, plaintiff was employed by KB Consultants, LLC, a subcontractor of defendant, URS Corporation. URS Corporation was serving in the capacity of Community Outreach Consultant in accordance with a contract between the general contractor, URS Corporation, and [the District], the owner of the property 24. That contract provides that defendant, URS Corporation, shall indemnify, defend and hold harmless [the District] from all claims of its employees or workers of its subcontractor or sub-consultants injured on [the District] real property from the commencement to the completion of the Contract. 25. On or about December 15, 2005, and for a period of time prior thereto, there existed a dangerous condition on the aforesaid property in the form of ice in the parking lot adjacent to the property COUNT THREE (Continued ) 3
referred to as Defendants) filed a joint Answer and New Matter in which they asserted, among other defenses, governmental immunity pursuant to Section 8541 of the Act, 42 Pa. C.S. 8541. The District filed its Motion for Summary Judgment on June 5, 2009, 3 alleging, among other reasons, 4 that it was entitled to governmental immunity as to all claims by Plaintiffs. Specifically, the District alleged that the real estate exception to immunity did not apply because Plaintiffs neither pleaded, nor proved a defect in the real estate itself but, rather, only claimed the negligent failure to remove snow and ice from the parking lot. The District also alleged that, if the trial court would conclude that an exception to immunity applied, the District would not be liable because Plaintiffs cannot satisfy the elements of the hills and ridges doctrine. 42. Plaintiff, La Tonya Reese Moore, has been and will be deprived of the services, society and consortium of the plaintiff, Carver Moore. (Complaint 4-9, 11-12, 23-25, 42 (emphasis added).) 3 The trial court entered a Case Management Order on March 31, 2008, under which discovery was to be completed not later than 02-Mar-2009. (Trial Ct. Appeal Inventory Report at 4 (describing order of Trial Court docketed March 31, 2008).) On February 27, 2009, the trial court entered an order granting extraordinary relief such that deadlines for discovery, expert discovery and motion are extended sixty (60) days, (Trial Ct. Appeal Inventory Report at 7 (describing order of Trial Court docketed February 27, 2009)), which would extend the discovery deadline to May 2, 2009. Thus, it appears that discovery was closed before the District filed its Motion for Summary Judgment. 4 The District alleged that it was entitled to summary judgment under the independent contractor defense. The District also alleged that Plaintiffs overall potential recovery, and possible recovery for alleged pain and suffering was barred or limited pursuant to 42 Pa. C.S. 8553. The trial court did not rule on either of these defenses and these issues are not before us on appeal. 4
On July 21, 2009, the trial court granted the District s Motion for Summary Judgment because the the plaintiff s slip and fall was not caused by the improper design, construction, or inherent defect of the parking lot itself. (Trial Ct. Order at 1.) In a footnote, the trial court explained its reasoning for its Order: Viewing the facts in the light most favorable to the non-moving party establishes that at 4:15 p.m., plaintiff was the first person to enter the parking lot since snow began falling at approximately 2:00 p.m. As snow continued to fall, plaintiff haltingly made his way through the generally slippery parking lot, falling near a normal drainage area. Plaintiff offers no proof that the presence of the slippery substance was caused by any kind of deterioration, improper design or defect in the property, or that such an imperfection caused his fall. The condition identified by the plaintiff does not apply as an exception to the statutory immunity that is afforded to the School District. See Metkus v. Pennsbury School District, 674 A.2d 355 (Pa. C[mwlth]. 19[9]6). Furthermore, even if the School District did not enjoy statutory immunity, plaintiffs fail to demonstrate a case for negligence because they cannot satisfy the required elements of the Hills and Ridges Doctrine. Plaintiff s testimony fails to prove that any ice or snow accumulated in hills or ridges of sufficient size to obstruct pedestrian travel, or that property owner had actual or constructive notice of such a condition, or that such an accumulation caused his fall. See Rinaldi v. Levine, 176 A.2d 623 (Pa. Super[.] 1962). Neither of the exceptions to this rule applies in his case. The hazard was the result of a general slippery condition prevailing in the community, and the icy condition was not caused by the defendant s neglect, but rather by snow that was still falling as plaintiff entered the parking lot. See Harmotta v. Bender, 601 A.2d 837 (Pa. Super. 1992). (Trial Ct. Order at 1, n.1.) Plaintiffs now appeal to this Court. On appeal, Plaintiffs argue that the trial court erred in granting summary judgment because there remain questions of material fact regarding: (1) the applicability of the real estate exception to governmental immunity; and (2) the applicability of the hills and ridges doctrine. 5
Summary judgment is appropriate only where there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Pritts v. Department of Transportation, 969 A.2d 1, 3 (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. 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 Housing Authority, 751 A.2d 1201, 1203 n.4 (Pa. Cmwlth. 2000). When reviewing a trial court s grant of summary judgment, this Court 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. The Act provides local agencies governmental immunity from liability for any damages they cause to a person or property. 42 Pa. C.S. 8541. However, several exceptions to immunity are enumerated under Section 8542(b), which provides, in relevant part: (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: (3) Real property.-the care, custody or control of real property in the possession of the local agency, except that the local agency shall not be liable for damages on account of any injury sustained by a person intentionally trespassing on real property in the possession of the local agency. 42 Pa. C.S. 8542(b). 6
Plaintiffs first argue that the trial court erred in granting governmental immunity to the District because the real property exception applies. Specifically, Plaintiffs contend that: a close perusal of plaintiff s pleadings indicates that at least some of these allegations set forth by plaintiff in his Complaint do indeed encompass the supposition that the presence of the slippery substance, i.e. snow and ice, on the property of the School District was caused by improper design, construction, deterioration, or inherent defect of the real estate itself. In particular, (d), failing to inspect and/or negligently inspecting said premises and (e), failing to properly maintain the aforesaid lot as well as (h), otherwise failing to use due care and caution under the circumstances all can certainly be said to infer deterioration and/or improper design and/or an inherent defect of the real estate. (Plaintiffs Br. at 9-10.) Plaintiffs also assert that Mr. Moore s testimony supports their argument that it was not just the black ice and/or snow that caused Mr. Moore s fall. Specifically, Plaintiffs rely on the deposition testimony at pages 59-60 in which the following exchange took place: Q. Okay. Did [the fall] actually occur on the asphalt of the parking lot? A. Yes, the asphalt. Yeah. Q. Okay. Take me through the rest. You said you were approximately 50 percent of the way through the parking lot. A. And there is kind of a drainage or little slope, and then you kind of gradually start up to walk out. Q. Yes. A. And that s when I lost both feet. It was like I was at a water park and coming down and going up. And I never felt like that. I mean, I went up so high my head bounced off the off the pavement and my leg was trapped behind me, and I had a gigantic pain and I heard a pop. And I mean it was like I was dressed up, but I had to roll over because my leg was just kind of dangling there and I had to try to pull my [sic] to the front. It was behind me. Q. The left leg, sir? A. My right leg. 7
(Mr. Moore Dep. at 59-60, R.R. at 55a (emphasis added).) In further support of Mr. Moore s testimony, Plaintiffs also attached photographs of the area of the parking lot in question, and Mr. Moore drew an X on the attached photograph (Plaintiffs Ex. EL-5, R.R. at 74a), indicating the approximate area of the fall, which shows a drainage area. It is Plaintiffs contention that this drainage area is indeed a condition of the real estate that would apply as an exemption to the statutory immunity, and this supplies a genuine issue of material fact, in that this area can certainly be viewed as an inherent defect of the real estate itself. (Plaintiffs Br. at 11.) The Supreme Court has established the following principles for interpreting the real property exception to governmental immunity: (1) courts must narrowly construe the real property exception to governmental immunity to effectuate the legislative intent to insulate political subdivisions from tort liability, Diaz v. Houch, 632 A.2d 1081, 1084 (Pa. Cmwlth. 1993); (2) the real property exception to governmental immunity should be interpreted in pari materia with the sidewalk exception to governmental immunity, Section 8542(b)(7) of the Act, 42 Pa. C.S. 8542(b)(7), 5 and the real estate exception to sovereign immunity, 42 Pa. C.S. 5 This section provides: (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: (7) Sidewalks.-A dangerous condition of sidewalks within the rightsof-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 (Continued ) 8
8522(b)(4), 6 Finn v. City of Philadelphia, 541 Pa. 596, 601, 664 A.2d 1342, 1344 (1995); and (3) liability is predicated upon proof that a "condition of government realty itself, deriving, originating from, or having the realty as its source," caused the plaintiff's injuries. Id. at 605, 664 A.2d at 1346. Such proof might include an improperly designed sidewalk, an improperly constructed sidewalk, or a badly maintained, deteriorating, crumbling sidewalk. Id. As a result, liability cannot be imposed under the real property exception for injuries that were caused by negligence on the part of a governmental entity in failing to remove a foreign substance from realty. The trial court and the District are correct in relying on Metkus, as that case is similar to the case at bar. In Metkus, the plaintiffs brought an action in negligence 42 Pa. C.S. 8542(b)(7). 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 secondarily liable only and such other person shall be primarily liable. 6 42 Pa. C.S. 8522(b)(4) provides: (b) Acts which may impose liability.--the following acts by a Commonwealth party may result in the imposition of liability on the Commonwealth and the defense of sovereign immunity shall not be raised to claims for damages caused by: (4) Commonwealth real estate, highways and sidewalks.--a dangerous condition of Commonwealth agency real estate and sidewalks, including Commonwealth-owned real property, leaseholds in the possession of a Commonwealth agency and Commonwealth-owned real property leased by a Commonwealth agency to private persons, and highways under the jurisdiction of a Commonwealth agency, except conditions described in paragraph (5). 9
against the Pennsbury School District (Pennsbury) after Mrs. Metkus sustained injuries when she slipped and fell on a patch of ice located in a parking area owned by [Pennsbury]. Metkus, 674 A.2d at 356. The plaintiffs in that case alleged that Pennsbury failed to use reasonable prudence and care in maintaining the parking lot, failed to remove snow and ice which accumulated on the parking lot, and the School District knew or should have discovered the defects or problems with the condition of the parking area. Id. (quoting Metkus s Complaint at 3). Pennsbury moved for summary judgment arguing it was entitled to governmental immunity, but the plaintiffs in Metkus argued that the real property exception to governmental immunity applied. The trial court granted Pennsbury s motion and this Court affirmed. This Court reasoned that the real property exception did not apply because the complaint failed to allege that the injuries were the result of a parking lot that was negligently designed or constructed, and that liability could not be imposed when a plaintiff suffers an injury which is caused solely by the presence of ice on top of real property. Id. at 358. Here, there is no real factual dispute over what caused Mr. Moore to slip and fall that would need to be presented to a jury. Like the plaintiffs in Metkus, here, Mr. Moore alleged in the Complaint that the dangerous condition that caused him to fall and sustain injuries was ice that was present on the parking lot. (Complaint 4-5, 25.) Further, Mr. Moore presented testimony in support of his pleadings that the cause of his fall was the black ice or ice that was under the snow. (Mr. Moore Dep. at 61, R.R. at 57a.) While Mr. Moore also testified as to the exact location of his fall in the parking lot, i.e. near a drainage or little slope, (Mr. Moore Dep. at 59, R.R. at 55a), like the plaintiffs in Metkus, Mr. Moore failed to allege in his Complaint or 10
offer proof that there was a defect of the drainage area in the parking lot which caused the ice to form. In other words, Mr. Moore failed to allege or offer proof that the presence of the ice was caused by any form of improper design, construction or deterioration of the real property itself. As such, Plaintiffs Complaint fails to plead sufficient facts, and Plaintiffs do not adduce evidence that could, if believed, permit the application of the real property exception to governmental immunity. Accordingly, there are no questions of material fact and summary judgment was proper. Because the District is immune from liability, we need not reach the issue of whether the hills and ridges doctrine applies. 7 7 Even if we were to reach this issue, we would still affirm the trial court because the hills and ridges doctrine is not applicable to the case at bar. As explained in Harmotta v. Bender, 601 A.2d 837 (Pa. Super. 1992), the hills and ridges doctrine provides that a plaintiff may recover for a fall on a sidewalk covered with ice or snow if the plaintiff proves: (1) that snow and ice had accumulated on the sidewalk in ridges or elevations of such size and character as to unreasonably obstruct travel and constitute a danger to pedestrians travelling thereon; (2) that the property owner had notice, either actual or constructive, of the existence of such condition; (3) that it was the dangerous accumulation of snow and ice which caused the plaintiff to fall. Id. at 841 (quoting Gilligan v. Villanova University, 584 A.2d 1005, 1007 (Pa. Super. 1991)). However, the hills and ridges doctrine is subject to a number of exceptions, such that: proof of hills and ridges is not required when the hazard is not the result of a general slippery condition prevailing in the community, but of a localized patch of ice. Nor is proof of hills and ridges required when an icy condition is caused by the defendant's neglect, as where a city maintains a defective hydrant, water pipe, drain, or spigot. Id. at 842 (quoting Bacsick v. Barnes, 341 A.2d 157, 160 (Pa. Super. 1975) (citations omitted) (emphasis added)). We disagree with Plaintiffs contention that even though there is no actual evidence of hills or ridges of snow or ice, the hills and ridges doctrine still applies because the icy condition was caused by the District s neglect. Specifically, Plaintiffs contend that the District failed to react to the precipitation in a timely manner and was negligent in failing to exercise (Continued ) 11
As such, we affirm the trial court s order granting the District s Motion for Summary Judgment. RENÉE COHN JUBELIRER, Judge reasonable care to discover the condition and protect individuals, like Mr. Moore, from that condition. Here, Plaintiffs presented no evidence of hills or ridges of ice or snow that were formed as a result of the storm. Moreover, the exception discussed above does not apply because there is no evidence which would prove that the icy condition, which caused Mr. Moore to fall, was caused by the District s neglect such as in maintaining a defective hydrant, water pipe, drain, or spigot. Id. at 842 (quoting Bacsick, 341 A.2d at 160). There is no evidence that the drainage area was defective or that the drainage area is what caused the ice to form, which resulted in Mr. Moore s fall and resulting injuries. Rather, the ice formed due to freezing rain and sleet that fell before turning to snow. 12
IN THE COMMONWEALTH COURT OF PENNSYLVANIA Carver Moore and La Tonya : Reese Moore, : : Appellants : : v. : No. 1598 C.D. 2009 : The School District of Philadelphia : and URS Corporation : O R D E R NOW, June 14, 2010, the order of the Court of Common Pleas of Philadelphia County in the above-captioned matter is hereby AFFIRMED. RENÉE COHN JUBELIRER, Judge