Opinion
No. 904 C.D. 2011
02-07-2012
Louise A. Elliott and Robert Elliott, husband and wife, Appellants v. The County of Berks and Berks County Home-Berks Heim
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, President Judge HONORABLE BERNARD L. McGINLEY, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY PRESIDENT JUDGE LEADBETTER
This case was assigned to the opinion writer on or before January 6, 2012, when President Judge Leadbetter completed her term as President Judge.
Louise A. Elliott and Robert Elliot, husband and wife, (hereinafter, the Elliotts), appeal from the order of the Court of Common Pleas of Berks County (trial court) that sustained the preliminary objections of the County of Berks and the Berks County Home-Berks Heim (collectively, Appellees) to the Elliotts' amended complaint. The County of Berks, a political subdivision of the Commonwealth, runs the Berks County Home-Berks Heim, a residential facility located in Leesport, Pennsylvania. The Elliotts asserted that Appellees were negligent in the care, custody and control of their real property and that Mrs. Elliott suffered injuries as a result. Concluding that the Elliotts' claim did not fall within the real property exception to governmental immunity under Section 8542(b)(3) of the Judicial Code (Code), as amended, 42 Pa. C.S. §8542(b)(3), the trial court dismissed the Elliotts' amended complaint with prejudice. After review, we affirm.
The facts alleged in the Elliotts' amended complaint are as follows. The ground floor entrance to the residential facility is at the end of a sidewalk from the parking area and consists of an automatic sliding door that leads into a small foyer. Across from the sliding doors and through the foyer is another manual door that leads into the facility itself. On November 7, 2004, while entering the residential facility to visit her father, Mrs. Elliott tripped and fell when her foot caught on the corner of a mat placed on the floor of the small foyer. Mrs. Elliott injured her left knee, right hand, right arm, and her face, striking her mouth on the floor. The Elliotts claimed that the mat had never been in the foyer on any prior visits and that after the incident, the mat was placed after the second door, inside the facility.
After the Elliotts filed their amended complaint on February 22, 2011, Appellees filed preliminary objections in the nature of a demurrer, asserting that they were entitled to governmental immunity under Section 8541 of the Code, 42 Pa. C.S. §8541, and that the Elliotts failed to make out a claim under the real property exception to governmental immunity in Section 8542(b)(3) of the Code, 42 Pa. C.S. §8542(b)(3). Appellees averred that because the Elliotts alleged that the cause of Mrs. Elliott's injuries was a floor mat, which is personalty, and any negligent use of personalty does not fall within the real property exception, they were entitled to judgment as a matter of law. On April 20, 2011, the trial court sustained Appellees' preliminary objections and dismissed the Elliotts' amended complaint with prejudice. The Elliotts have now appealed to this court.
On appeal from an order sustaining preliminary objections in the nature of a demurrer, we must determine whether on the facts alleged the law states with certainty that no recovery is possible. Hawks by Hawks v. Livermore, 629 A.2d 270 (Pa. Cmwlth. 1993).
The sole issue presented on appeal is whether the trial court erred by disregarding the decisions in Grieff v. Reisinger, 548 Pa. 13, 693 A.2d 195 (1997), and Hanna v. West Shore School District, 717 A.2d 626 (Pa. Cmwlth. 1998), in concluding that the negligent placement of the mat inside the foyer of Appellees' residential facility did not fall with the real estate exception to governmental immunity.
Local government agencies are generally immune from tort liability under Sections 8541, 42 Pa. C.S. §§8541 and 8542 of the Code. Section 8541 states that "[e]xcept 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 an act of the local agency or any employee thereof or any other person." 42 Pa. C.S. §8541. Section 8542(b) sets forth limited exceptions to such immunity. Section 8542(b)(3) provides in relevant part:
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
42 Pa. C.S. §8542(b)(3). Because the General Assembly intended to insulate government agencies from liability, the exceptions to immunity are to be narrowly construed against injured plaintiffs. Wilson v. Norristown Area Sch. Dist., 783 A.2d 871 (Pa. Cmwlth. 2001).person intentionally trespassing on real property in the possession of the local agency.
In the matter sub judice, the Elliotts argue that both Grieff and Hanna instruct the courts to look at whether the facts as alleged implicate the "care, custody or control of" aspect of the real estate exception and that "it is no longer of any consequence that the injury does not result from a defect in, or condition of, the real property itself . . . ." Hanna, 717 A.2d at 629. In Grieff, the court held that Grieff's negligent care of the property in removing paint from the floor caused plaintiff's injuries and therefore the claim fell within the real property exception to immunity. Similarly in Hanna, the Elliotts argue, the court also found that the negligent care of the floor by the school district which allowed water to accumulate on the floor as a result of the "'damp-mopping of an otherwise sound, level and unblemished floor by an employee of the . . . School District" caused plaintiff's injuries and that this negligent care of the floor fell within the real property exception to immunity, under the reasoning of Grieff. Hanna, 717 A.2d at 627. The Elliotts argue that the negligent act here was the careless or negligent placement or maintenance of the floor mat on the real property which created a dangerous condition to occur on the real property and caused Mrs. Elliott's injuries. For this reason, the Elliotts assert, Appellees are liable under the real estate exception to governmental immunity.
Appellees counter that the Elliotts cannot escape the fact that because the mat was not affixed to the property in any way so as to be considered part of the real property, it remained personalty. Appellees contend that the facts of this case are similar to those of Blocker v. City of Philadelphia, 563 Pa. 559, 763 A.2d 373 (2000), in which the plaintiff was injured when bleachers she was seated on at a concert at a city-owned venue collapsed. The court concluded: "chattel that is not affixed to realty remains personalty . . . It is undisputed that the bleacher from which Blocker fell was not attached to the ground. The bleacher was, therefore, personalty, and any negligent maintenance of it did not fall within the real property exception to immunity." Id. at 563-64, 763 A.2d at 375-76. Therefore, Appellees assert, even assuming arguendo that they were negligent in the placement, care, or maintenance of the mat, and this conduct caused Mrs. Elliott's injury, such negligent conduct would not fall within the real property exception to governmental immunity. Id.; See Also Rieger v. Altoona Area Sch. Dist., 768 A.2d 912 (Pa. Cmwlth. 2001) (gym mats not affixed to floor are personalty; therefore, even assuming failure to provide mats was negligent, such negligent conduct does not fall within real property exception to immunity). We agree.
A claim under the real property exception to governmental immunity must arise from the property itself, or the care, custody or control of it. Wilson v. Norristown Area School District, 783 A.2d 871 (Pa. Cmwlth. 2001). This exception is unavailable for a claim of a school district employee's negligent failure to supervise on the school district's property, Wilson, as well as to claims arising from the negligent maintenance of personalty, such as bleachers, Blocker, gymnasium mats, Rieger, or tables, Repko v. Chichester School District, 904 A.2d 1036 (Pa. Cmwlth. 2006). In their amended complaint, the Elliotts have alleged that the negligent care of a portable floor mat caused Mrs. Elliott's injuries. A floor mat is not part of the real property and, accordingly, the real estate exception is inapplicable and governmental immunity bars the Elliotts' claim.
Accordingly, we affirm the order of the trial court.
The Elliotts also argue that a local agency has the same duty as a private landlord to keep the property, including the adjacent sidewalk which is part of its real estate, in good repair, citing Sherman v. City of Philadelphia, 745 A.2d 95 (Pa. Cmwlth. 2000). Therefore, the Elliotts argue, since the walkway leading up to the foyer/entranceway of the residential facility, as well as the foyer/entranceway itself, is indisputably owned by Appellees, "[i]t strains credulity to accept that by stepping from the sidewalk, across the threshold and into the building, the Appellant would be denied recovery for injuries suffered as the result of Appellees' negligent care, custody or control of its real property simply because the mat may be deemed portable personal property when it caused a dangerous condition and resulting harm." Elliotts' Brief at 7. As we noted previously, the exceptions to governmental immunity must be strictly construed against injured plaintiffs. Wilson. In any event, the Elliotts' alternative argument with respect to Sherman must fail. Sherman's holding was that the real property exception to governmental immunity "must be read as intending to exclude from the definition of real property, sidewalks, except where those sidewalks are part of the real property owned by the local agency." 745 A.2d at 105 (emphasis omitted). However, this holding was abrogated by the Supreme Court in Reid v. City of Philadelphia, 598 Pa. 389, 957 A.2d 232 (2008), wherein the court held that the real property exception is inapplicable to injuries arising from sidewalks, even if the sidewalk abuts local agency property. Accordingly, the Elliotts' argument must fail. --------
/s/_________
BONNIE BRIGANCE LEADBETTER,
President Judge ORDER
AND NOW, this 7th day of February, 2012, the order of the Court of Common Pleas of Berks County in the above-captioned matter is hereby AFFIRMED.
/s/_________
BONNIE BRIGANCE LEADBETTER,
President Judge