Opinion
No. 97 MAP 2019
04-28-2021
Sharon WISE, Appellant v. HUNTINGDON COUNTY HOUSING DEVELOPMENT CORPORATION, Housing Authority of the County of Huntingdon, Chestnut Terrace Resident's Association and Weatherization Inc., a Non Profit Corporation d/b/a Huntingdon County Housing Services, Appellees
David C. Harrison, Esq., George Gerasimos Rassias, Esq., Schmidt, Kirifides & Rassias, PC, for Pennsylvania Association for Justice, 212 N. 3rd Street, #101, Amicus Curiae. Joshua D. Shapiro, Esq., Claudia M. Tesoro, Esq., Pennsylvania Office of Attorney General, Harrisburg, for Commonwealth of Pennsylvania, Amicus Curiae. Steven B. Barrett, Esq., Nathan M. Murawsky, Esq., Hamburg, Rubin, Mullin, Maxwell & Lupin, PC, Lansdale, for Appellant. Anthony John Vigilante, Esq., City Solicitor's Office, New Kensington, for Appellee.
David C. Harrison, Esq., George Gerasimos Rassias, Esq., Schmidt, Kirifides & Rassias, PC, for Pennsylvania Association for Justice, 212 N. 3rd Street, #101, Amicus Curiae.
Joshua D. Shapiro, Esq., Claudia M. Tesoro, Esq., Pennsylvania Office of Attorney General, Harrisburg, for Commonwealth of Pennsylvania, Amicus Curiae.
Steven B. Barrett, Esq., Nathan M. Murawsky, Esq., Hamburg, Rubin, Mullin, Maxwell & Lupin, PC, Lansdale, for Appellant.
Anthony John Vigilante, Esq., City Solicitor's Office, New Kensington, for Appellee.
BAER, C.J., SAYLOR, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.
OPINION
CHIEF JUSTICE BAER
We granted discretionary review of this matter to consider whether insufficient outdoor lighting of Commonwealth property, occurring because of the location on the property of a pole light and a tree blocking the light emitting from the pole light, constitutes a "dangerous condition of" the property for purposes of the real estate exception to sovereign immunity. See 42 Pa.C.S. § 8522(b)(4) (explaining that "sovereign immunity shall not be raised to claims for damages caused by ... [a] dangerous condition of Commonwealth agency real estate," sidewalks, and highways). For the reasons that follow, we answer this question in the affirmative. As the Commonwealth Court reached a contrary result, we reverse that court's order and remand this matter for further proceedings.
On March 9, 2015, Sharon Wise (Wise) filed a negligence action against the Housing Authority of the County of Huntingdon (HACH) alleging that, at approximately 12:10 a.m. on May 9, 2013, she tripped and fell while walking on a sidewalk in the Chestnut Terrace public housing complex in Mount Union, Pennsylvania. While Wise originally claimed that "insufficient lighting and demar[c]ation of the ... sidewalk, and/or ... a defect within the sidewalk itself" caused her fall, Complaint, 3/9/2015, at ¶ 9, she has since limited the cause of her fall to the alleged insufficient outdoor lighting of the sidewalk area, purportedly due to the location of a pole light and a tree obstructing the light provided. See, e.g, Wise's Brief in Opposition to HACH's Motion for Summary Judgment, 11/14/2016, at unnumbered page 2. Wise further asserted that, at the time of the accident, HACH: (1) was responsible for the maintenance, control, and supervision of the dangerous condition of the sidewalk area; (2) knew or should have known of the dangerous condition of the sidewalk area and its insufficient illumination, and (3) failed to take corrective action. Id. at ¶¶ 10-11. Wise claimed that she suffered severe and permanent injuries and losses as a result of the accident. Id. ¶ 12.
It is undisputed that HACH owns the housing complex. We further note that Wise's complaint also named the Huntingdon County Housing Development Corporation, the Chestnut Terrace Resident's Association, and Weatherization, Inc., A Non-profit Corporation d/b/a Huntingdon County Housing Services as additional defendants. She ultimately filed a Praecipe to Discontinue Action in the trial court withdrawing with prejudice all claims against those parties.
During the course of the proceedings, HACH filed a motion for summary judgment asserting that, inter alia , sovereign immunity barred Wise's claim. On this point, HACH argued that the only exception to immunity that was potentially applicable to Wise's claim was the real estate exception set forth in Section 8522(b)(4) of the Sovereign Immunity Act (Act), supra at page 1, which requires that a dangerous condition "derive, originate from or have a[s] its source the Commonwealth realty." HACH's Brief in Support of Motion for Summary Judgment, 10/17/2016, at 8 (quoting Snyder v. Harmon , 522 Pa. 424, 562 A.2d 307, 311 (1989) ). HACH contended that there was no defect in the sidewalk, as Wise had acknowledged, and that "[a]llegedly insufficient lighting is not a condition or defect of the land itself." Id. Thus, according to HACH, Wise's claim could not serve as a basis to waive sovereign immunity.
Wise filed a brief in opposition to HACH's motion. Therein, Wise alleged that genuine issues of material fact existed in this case and challenged HACH's argument that sovereign immunity barred her claim of insufficient lighting because as a matter of law it did not constitute a condition or defect of the land itself under the real estate exception. In support of her position, Wise argued that the question of whether inadequate lighting constitutes a defect in the property is a question of fact for the jury, relying upon Peterson v. Philadelphia Housing Authority , 154 Pa.Cmwlth. 309, 623 A.2d 904, 906 (1993) (holding that whether the inadequate stairwell lighting system at issue constitutes a defect in the real property, by way of its status as a fixture, and thus a dangerous condition of the Philadelphia Housing Authority's (Authority) real estate, as contemplated by Section 8522(b)(4), was a question of fact for the jury), and Floyd by Floyd v. Philadelphia Housing Authority , 154 Pa.Cmwlth. 303, 623 A.2d 901, 903 (1993) (relying on Peterson to hold that the trial court erred in concluding as a matter of law that the inadequate lighting system in a stairwell was not a defect in the Commonwealth realty). Thus, Wise asserted that HACH was not entitled to the entry of summary judgment in its favor.
By way of further explanation, Peterson and Floyd involved claims for damages arising out of injuries individuals sustained while descending interior stairwells in buildings owned by the Authority that were alleged to be inadequately lit. In both cases, the trial court awarded summary judgment in favor of the Authority based on immunity and the inapplicability of the real estate exception as a matter of law. The Commonwealth Court reversed the trial court's award of summary judgment in each case, rendering their holdings set forth above. Peterson , 623 A.2d at 906-07 ; Floyd , 623 A.2d at 903.
Thereafter, HACH filed a reply brief reiterating its position that Wise's claim was insufficient to waive sovereign immunity. HACH further argued that Peterson and Floyd were distinguishable because they held that it was for a jury to determine whether the inadequate stairwell lighting system at issue in each case constituted a fixture and, thus, could be deemed to be a defect of the land itself. HACH contended that, in contrast, Wise failed to demonstrate that the subject light pole was defective, regardless of whether it was a fixture.
On February 10, 2017, the trial court granted HACH's motion for summary judgment, dismissed Wise's case, and entered judgment in HACH's favor. Wise appealed the trial court's order. In its opinion issued pursuant to Pa.R.A.P. 1925(a), the trial court concluded that Wise's claim was barred by sovereign immunity. The trial court agreed with HACH that the only viable exception to the application of immunity in this case was the real estate exception and that, in order for that exception to apply, "the defect must derive, originate, or have its source as the Commonwealth realty itself." Trial Ct. Rule 1925(a) Op., 4/21/2017, at 2 (citing Jones v. Se. Pa. Transp. Auth. , 565 Pa. 211, 772 A.2d 435, 443 (2001) ). The trial court opined that there was no defect in the sidewalk itself, as was undisputed by the parties, and that the real estate exception was not so expansive to encompass Wise's claim of inadequate outdoor lighting.
Wise originally filed her appeal in the Superior Court, which transferred the action to the Commonwealth Court.
In doing so, the trial court rejected Wise's reliance on Floyd and Peterson to support her argument that there was a material factual dispute regarding the adequacy of lighting rendering the award of summary judgment to HACH inappropriate. The trial court explained that Wise was improperly attempting to broaden the holdings of those cases, which concerned allegations of inadequate stairwell lighting in government-owned buildings, to "all types of lighting, even outside lighting." Trial Ct. Rule 1925(a) Op., 4/21/2017, at 2. Based on the foregoing, the trial court concluded that Wise's cause of action failed as a matter of law.
On appeal, a three-judge panel of the Commonwealth Court affirmed the trial court's order in a unanimous, published opinion. Wise v. Huntingdon Cnty. Devel. Corp. , 212 A.3d 1156 (Pa. Cmwlth. 2019). Initially, the court highlighted that, even where the Commonwealth has breached a duty owed to those using its property, sovereign immunity will bar a claim against the Commonwealth so long as an exception to sovereign immunity does not apply. Id. at 1165. Thus, like the trial court, the Commonwealth Court focused its analysis on whether Wise had met the real estate exception under Subsection 8522(b)(4).
The Commonwealth Court noted that Wise characterized the alleged defect of the Commonwealth realty "as insufficient lighting due to a tree on the property obstructing the pole light's illumination." Id. at 1165. The Commonwealth Court observed, however, that Wise's characterization "ignore[d] that, but for the natural nighttime darkness, there is no alleged defect." Id. In this regard, the Commonwealth Court highlighted that Wise did not allege that the pole light or tree themselves were defective, that the tree directly injured her, or that the Commonwealth realty was defective in any manner during daylight hours. Thus, the court concluded that Wise's complaint was, in actuality, that "the Commonwealth failed to alter the natural state of nighttime darkness," causing her fall. Id. at 1166.
Based upon its characterization of her claim, the Commonwealth Court held that the real estate exception did not apply. In doing so, the court distinguished this case from Peterson and Floyd . The court first noted that, unlike this case, Peterson and Floyd involved factual questions regarding whether the defective lights were fixtures and, if so, whether they constituted a dangerous condition of Commonwealth realty. The Commonwealth Court added that, in Peterson and Floyd , the enclosed building stairwells caused the "artificial condition of darkness" by blocking natural light, and the plaintiffs alleged that the Authority "failed to ensure that the lights which were installed to cure the artificially dark area were operative." Id.
The Commonwealth Court reasoned that, in contrast, the exterior nighttime darkness here was not an artificial condition caused by the Commonwealth realty, but rather occurred naturally. Id. at 1166-67 (explaining further that, "[g]iven the earth's natural rotation from light to darkness, the alleged dangerous condition – darkness – did not ‘derive, originate from or have as its source the Commonwealth realty’ " (quoting Synder , 562 A.2d at 311 )). The court thus opined that because the tree or pole light did not cause the already-existing natural darkness, whether they constituted fixtures was irrelevant. The court also distinguished Peterson and Floyd on the basis that, in its view, Wise claimed that a defect existed because a necessary fixture (i.e. , additional lighting) should have been installed, or a tree should have been removed.
Additionally, the Commonwealth Court explained that, while Wise claimed that the Commonwealth should have taken steps to ameliorate the natural nighttime darkness on its property, "the Commonwealth's failure to adequately remove or alter a naturally occurring condition – exterior darkness – is not a situation for which the General Assembly waived sovereign immunity." Id. at 1167. In this regard, the court likened the naturally occurring darkness to snow, which also "visits Commonwealth property naturally," and relied upon Miller v. Kistler , 135 Pa.Cmwlth. 647, 582 A.2d 416, 418 (1990) (holding that "any improper plowing [of snow] by [the Pennsylvania Department of Transportation (DOT)] did not create an artificial condition for which DOT can be held liable"), among other cases, to hold that the Commonwealth's failure to ameliorate the exterior nighttime darkness did not create an artificial condition for which it could be exposed to liability. Wise , 212 A.3d at 1166-67.
Based on the foregoing, the Commonwealth Court held that, while the Commonwealth may have a duty to light a naturally dark exterior area, sovereign immunity barred Commonwealth liability for its breach of that duty. As HACH could not be held liable for its alleged failure to illuminate the sidewalk adequately "during hours of darkness," the Commonwealth Court affirmed the trial court's order granting HACH summary judgment and dismissing Wise's complaint. Id. at 1167-68. Wise then filed a petition for allowance of appeal with this Court, which granted review of the following question, as stated by Wise:
Whether the Commonwealth Court, in affirming the Huntingdon County Trial Court's grant of Summary Judgment, has unwarrantedly expanded sovereign immunity under 42 Pa.C.S.[ ] § 8521 et. seq., and hence, continued the dwindling applicability of the real estate exception under 42 Pa.C.S.[ ] § 8522(b)(4) to a dangerous level in its continued disregard of the legislative intent of the Sovereign Immunity Act and enumerated exceptions, and also advances existing conflict and confusion within an already unclear legal history?
Wise v. Huntingdon Cnty. Housing Devel. Corp., ––– Pa. ––––, 222 A.3d 748 (2019) (per curiam ). This issue presents a question of law, for which our standard of review is de novo , and our scope of review is plenary. Balentine v. Chester Water Auth. , 648 Pa. 105, 191 A.3d 799, 803 (2018).
Further, we will "reverse a grant of summary judgment if there has been an error of law or an abuse of discretion." Balentine , 191 A.3d at 803 n.3 (quoting Yenchi v. Ameriprise Fin., Inc. , 639 Pa. 618, 161 A.3d 811, 818 (2017) ).
Wise argues that the Commonwealth Court erred in its characterization of the "dangerous condition" alleged and its determination that the condition was not "of" Commonwealth realty for purposes of the real estate exception. According to Wise, she alleges that the "dangerous condition" was "the combination of the lamppost and tree creating a shadow on a portion of sidewalk where [she] fell." Wise's Brief at 16. She further claims that the lamppost, pathways, and tree are fixtures of the property and, thus, the dangerous condition alleged is "of" the property. Id. Wise emphasizes that the Commonwealth "conceived, designed and built" an apartment complex on its land, making decisions about things such as pathways, landscaping, grounds, and lighting. Id. at 17. According to Wise, the Commonwealth fashioned its real estate in a manner that did not provide pedestrians legally on the property "a safe area on which to walk due to the shadow created by" the Commonwealth. Id. (emphasis in original).
Wise submits that, given the above, it is a simple matter to conclude that the real estate exception applies. However, according to Wise, the Commonwealth Court ignored the factors she identified as giving rise to the dangerous condition and incorrectly identified the defect alleged as natural darkness. Wise claims that, in doing so, the court came to the "clearly nonsensical" conclusion that "the earth's natural rotation around the sun causing darkness transcends and thus supersedes any and all dangerous conditions created by the Commonwealth" on its real estate, thereby implying that the mere existence of a natural condition required to bring on the alleged defect was fatal to Wise's cause of action. Id. at 15-16, 21 n.16. Wise asks that we reverse the Commonwealth Court's "outcome driven" decision and remand the matter for further proceedings.
The Pennsylvania Association for Justice (PAJ) has filed an amicus curiae brief on behalf of Wise. Therein, PAJ agrees with Wise that this is a simple case concerning inadequate artificial lighting that created a dangerous condition. PAJ highlights that, given the appropriate proofs, reasonable minds could conclude that the fall resulted from that inadequate lighting, which made the real estate dangerous, or that the Commonwealth had reasonably fulfilled its duties.
HACH counters that, while the Political Subdivision Tort Claims Act (PSTCA) applicable to local agencies contains a specific exception pertaining to lighting, see 42 Pa.C.S. § 8542(b)(4) (outlining an exception to governmental immunity for dangerous conditions of "trees, traffic signs, lights or other traffic controls, street lights or street lighting systems"), the Act does not provide for a similar exception. HACH argues that this distinction was intentionally made by the Legislature and that Wise's attempt to broaden the Act's real estate exception, the only possible exception applicable to the current matter, to encompass her lighting claim is inappropriate. HACH submits that, pursuant to the real estate exception, immunity will only be waived when the negligence alleged arises from a dangerous condition that "derived, originated or had as its source the Commonwealth realty itself." HACH's Brief at 12 (quoting Jones , 772 A.2d at 441 ).
HACH emphasizes that Wise has not alleged that the sidewalk, pole light, or tree were themselves defective in any way, but rather claims that a combination of those non-dangerous factors created a dangerous condition. According to HACH, Wise's claim does not stem from a defect that derived, originated, or had as its source Commonwealth real estate. HACH adds that, to make an assertion that light, the absence of light, or insufficient lighting constitutes a defect "of" the property is completely contrary to the Act and applicable precedent, discussed in relevant part below.
HACH submits that, in contrast to Wise's position, the Commonwealth Court's decision is sound, as it is supported by the case law. HACH also contends that the court appropriately distinguished Floyd and Peterson on the basis that they involved interior lighting and concerned whether that lighting qualified as fixtures, and, if so, were a dangerous condition of Commonwealth realty. HACH argues that because Wise's claim does not fit within the real estate exception, the Commonwealth Court's decision to uphold the entry of summary judgment in HACH's favor was proper.
The Commonwealth, represented by the Pennsylvania Office of Attorney General (OAG), has filed an amicus curiae brief on behalf of HACH similarly arguing that the Commonwealth Court's decision is correct.
Having set forth the parties’ arguments, we now turn to our analysis. Under the Act, the Commonwealth generally enjoys immunity from suit for damages arising out of negligent acts, subject to certain limits. 42 Pa.C.S. §§ 8521 -22; see also 1 Pa.C.S. § 2310 (reaffirming sovereign immunity). In this regard, the Act most relevantly provides:
(a) Liability imposed. --The General Assembly, pursuant to section 11 of Article I of the Constitution of Pennsylvania, 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 section 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.
(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).[ ]
Subsection 8522(b)(5), relating to potholes and other dangerous conditions of highways, is not at issue in this appeal.
42 Pa.C.S. § 8522(a), (b)(4).
Accordingly, for liability to be imposed upon the Commonwealth for negligence, the injury must be recoverable under common law or statute if it were caused by a party not having the defense of sovereign immunity available, and it must arise from a category outlined in Section 8522(b), such as the real estate exception set forth above. Under that exception, "the injury must have resulted from a ‘dangerous condition,’ " and "the dangerous condition must be a condition ‘of Commonwealth agency real estate.’ " Cagey v. Commonwealth , 645 Pa. 268, 179 A.3d 458, 463 (2018) (quoting 42 Pa.C.S. § 8522(b)(4) ).
This case calls upon us to determine whether, in concluding that sovereign immunity barred Wise's claim, the Commonwealth Court properly applied the real estate exception. We thus turn to a discussion of pertinent precedent addressing that exception, beginning with Snyder . In Snyder , a group of people had stopped their car along the berm of a road, which was next to a strip mine, in the middle of the night. Some members of the group exited the vehicle and, in an effort to avoid being hit by another vehicle, scrambled up an embankment and fell into the strip mine, resulting in serious injuries and death. Snyder , 562 A.2d at 308-09.
Accordingly, we do not address the issue, or any associated arguments raised by the parties, regarding whether Wise has met the first requirement for a waiver of sovereign immunity, i.e. , that the injury is recoverable under common law or statute against a party not having the defense of sovereign immunity available.
The property upon which the strip mine was operated was owned by a private individual and leased by Harmon Mining Company. The mining company had obtained a variance that allowed mining within 100 feet of the road, which PennDOT owned, controlled, and maintained. The variance also required the mining company to build the embankment, which came within 7 to 12 feet of the road's right-of-way at the points where the individuals fell, to prevent cars from driving into the pit. Id.
The plaintiffs in Snyder sued PennDOT alleging, inter alia , that PennDOT was negligent in permitting a dangerous condition to exist within its right-of-way by failing to warn the public of the existence of the pit, either by lighting or by erecting physical barriers or guardrails along the right-of-way. PennDOT moved for summary judgment on the basis that, because the dangerous condition of the strip mine did not exist on Commonwealth realty (given its location outside of PennDOT's right-of-way), PennDOT was immune from suit and the real estate exception did not apply. Id. at 309.
Interpreting the real estate exception, this Court observed that the exception is to be strictly construed given the General Assembly's intent to exempt the Commonwealth from immunity only in specifically defined situations. Id. at 311. The Court also opined that the unambiguous language of the exception, specifically the "critical word ...‘of,’ " indicated that the "dangerous condition must derive, originate from or have as its source the Commonwealth realty." Id. at 311 & n.5. We further held that immunity will be waived under the real estate exception "where it is alleged that the artificial condition or defect of the land itself causes an injury to occur." Id. at 312 (relying upon Mascaro v. Youth Study Center , 514 Pa. 351, 523 A.2d 1118, 1124 (1984) (interpreting the real estate exception to local agency immunity under the PSTCA, 42 Pa.C.S. § 8542(b)(3), to apply "only to those cases where it is alleged that the artificial condition or defect of the land itself causes injury, not merely when it facilitates injury by acts of others, whose acts are outside [the PSTCA's] scope of liability")).
The Court explained that the plaintiffs had asserted that the close proximity of the road to the strip mine, "and the unlit and deceptive appearance of the shoulder of the road presented an inherently dangerous condition." Id. Thus, we observed, "liability is not predicated on a defective condition on Commonwealth land, but rather the knowledge of an inherently dangerous condition contiguous with Commonwealth property which the Commonwealth knows or should reasonably know and takes no action to prevent any harm from occurring." Id. In rejecting this theory, we observed that the strip mine highwall "was some distance from the edge of PennDOT's right-of-way." Id. We also observed that "the absence of lighting so as to create a deceptive appearance of the shoulder of the road cannot be said to be either an artificial condition or a defect of the land itself." Id. at 312-313. Thus, we concluded that the real estate exception was inapplicable to the plaintiffs’ cause of action and that PennDOT was entitled to the award of summary judgment in its favor.
Years later, this Court revisited the real estate exception to sovereign immunity in Dean v. Commonwealth, Department of Transportation , 561 Pa. 503, 751 A.2d 1130 (2000), where we addressed whether the absence of a guardrail constitutes a dangerous condition of Commonwealth realty for purposes of the exception. In Dean , a truck fishtailed on a snow-covered roadway, left the graveled portion of the roadway, traveled over an embankment, and overturned, resulting in serious injuries to the passenger-plaintiff. The plaintiff sued PennDOT, alleging that it was negligent in failing to shield the embankment properly with a guardrail and for failing to design, construct, and maintain a safe highway. In response, PennDOT argued that it was immune from suit because the lack of a guardrail merely facilitated the injury, rendering the real estate exception inapplicable. PennDOT further claimed that it was not liable for failing to erect a guardrail because it had no duty to guard against dangerous conditions off of the highway, pursuant to Snyder . Id. at 1131.
The Dean Court first concluded that PennDOT's "facilitation of the injury" theory failed because the claim presented to the Court was "one of concurrent causation rather than vicarious liability," as was the case in Mascaro , supra at page 1124. Dean , 751 A.2d at 1133. The Court explained that Mascaro "did not absolve the government of liability in cases where a joint tortfeasor was involved," but instead merely indicated that the PSTCA precluded "imposition of liability upon a governmental unit based upon the theory of vicarious liability." Id. Thus, the Court rejected PennDOT's argument "that the real estate exception does not apply merely because [Dean] asserted that a concurrent cause of her injures was the accumulation of snow on the highway." Id.
In this vein, we have repeatedly held that the Commonwealth can be held liable as a joint tortfeasor in the sovereign immunity and governmental immunity contexts. See, e.g., Crowell v. City of Philadelphia , 531 Pa. 400, 613 A.2d 1178, 1184 (1992) (explaining that a "governmental unit can be subjected to liability despite the presence of an additional tortfeasor if the governmental unit's actions would be sufficient to preclude it from obtaining indemnity from another for injuries rendered to a third person"); Powell v. Drumheller , 539 Pa. 484, 653 A.2d 619, 622 (1995) ("We recognize that our decision in Crowell reaffirmed the principle of joint liability by concurrent causes in the context of our governmental immunity statute, but we find these principles equally, if not more so, applicable in this case involving sovereign immunity.").
Then, applying Snyder , the Court held that "the Commonwealth's failure to erect a guardrail on the highway is not encompassed by the real estate exception to sovereign immunity." Id. at 1134. In doing so, we observed that, "[s]imilar to the absence of lighting and the deceptive appearance of the shoulder of the road in Snyder , the absence of a guardrail cannot be said to be a dangerous condition of the real estate that resulted in a reasonably foreseeable injury to [plaintiff]." Id. We further explained that "the lack of a guardrail does not render the highway unsafe for the purposes for which it was intended, i.e., travel on the roadway," and, thus, it was "irrelevant whether the guardrail is found to be a part of the state-owned highway." Id. We found "that the legislature did not intend to impose liability upon the government whenever a plaintiff alleged that his or her injuries could have been avoided or minimized, had the government installed a guardrail along side the roadway." Id. Based on the foregoing, we held that the grant of summary judgment in favor of PennDOT was proper.
Following Dean , this Court decided Jones . There, a plaintiff sued the Southeastern Pennsylvania Transportation Authority (SEPTA) in negligence for injuries she sustained when she slipped on rock salt on a train platform and fell. This Court concluded that Jones’ claim did not fall within the real estate exception to immunity. In so doing, we observed that an "on/of distinction" pertaining to the real estate exception had developed in the case law over the years. Under this "on/of" dichotomy, immunity was waived if a plaintiff alleged that her injuries were caused by a dangerous condition "of" the location at issue, but was not waived if a plaintiff alleged that a substance or object was "on" the location. Jones , 772 A.2d at 442.
We rejected this "on/of" distinction in Jones . Id. at 443 (explaining further that the distinction was "problematic," "of little or no use," and "incorrect, because it works to exclude claims that fall within the parameters of the Act's real estate exception"). Guided by Snyder , the Court held that a claim for damages for injuries caused by a substance or an object on Commonwealth real estate will fall within the real estate exception so long as it alleges "that the dangerous condition ‘derive[d], originate[d] or ha[d] as its source the Commonwealth realty’ itself." Id. (quoting Snyder , 562 A.2d at 311 & n.5 ). Stated another way, "the Commonwealth may not raise the defense of sovereign immunity when a plaintiff alleges, for example, that a substance or an object on Commonwealth realty was the result of a defect in the property or in its construction, maintenance, repair or design." Id. at 443-444. Applying these pronouncements to Jones’ claim that salt on the train platform constituted a dangerous condition, the Court concluded that it did not satisfy the real estate exception because she failed to allege that "the salt derived or originated from or had as its source the train platform itself." Id. at 444. Thus, the Court concluded that summary judgment in SEPTA's favor was proper.
After Jones , we decided Cagey , another case addressing guardrails, where we held that the Commonwealth's immunity is waived under the real estate exception for "damages caused by dangerous guardrails affixed to Commonwealth real estate." Cagey , 179 A.3d at 460. Most relevantly for purposes of this appeal, we explained that the plaintiffs had sufficiently alleged that the guardrail at issue was a dangerous condition "in that it was defective, negligently-installed and uncrashworthy," and that the dangerous "boxing glove" end speared and penetrated the door resulting in significantly more severe injuries than if one of the plaintiffs had not been speared by the guardrail's end. Id. at 464. The Court additionally concluded that the plaintiffs sufficiently averred that the guardrail was a condition "of" Commonwealth realty as the word is used in Section 8522(b)(4) because the guardrail was affixed to the land. Id. at 465 ("Because the guardrail at issue was affixed to Commonwealth real estate, making it legally indistinguishable from the land upon which it was erected, the [plaintiffs] sufficiently alleged that the dangerous condition ... was a condition ‘of Commonwealth agency real estate’ ") (quoting 42 Pa.C.S. § 8522(b)(4) ).
In rendering our decision, the Cagey Court distinguished the matter from Dean , noting that, in Dean , we "held only that a ‘dangerous condition of Commonwealth agency real estate’ must be an artificial condition or defect of the land itself, as opposed to the absence of such a condition." Id. at 466. We further rejected the notion that Dean required the defect alleged to make travel on the roadway itself dangerous and clarified that Dean was limited to its facts (i.e. , PennDOT's failure to install a guardrail). Id. at 466-67.
The Court additionally acknowledged the concern that, by operation of our holdings in Dean and Cagey , the Commonwealth would be incentivized to forego installation of guardrails for fear of being held liable for injuries caused by dangerous ones installed on its realty. See Cagey , 179 A.3d at 471, 473-74 (Wecht, J., concurring). Notably, we were unmoved by that concern, however, because we refused to "assume that the Commonwealth would act negligently, or even recklessly, for such a purpose." Id. at 466 n.6. We further declined to overrule Dean for several reasons, including that we had not granted review of that issue, we found Dean to be distinguishable from Cagey , and the parties had not presented developed advocacy on the matter. Id.
The foregoing discussion makes the following clear with respect to whether the dangerous condition is "of" the Commonwealth realty for purposes of the real estate exception. See 42 Pa.C.S. § 8522(b)(4) (waiving immunity for "[a] dangerous condition of Commonwealth agency real estate"). To be "of" the Commonwealth realty as the word is used in Section 8522(b)(4), the dangerous condition "must derive, originate from or have as its source the Commonwealth realty." See, e.g., Snyder , 562 A.2d at 311. Indeed, a dangerous condition resulting from "a defect in the property or in its construction, maintenance, repair or design" will preclude application of immunity. Jones , 772 A.2d at 444. Further, the dangerous condition must be an artificial condition or defect of the land itself, as opposed to the absence of such a condition, and that artificial condition or defect must be the cause, or a concurrent cause, of the injury. See Snyder , 562 A.2d at 312 ; Dean , 751 A.2d at 1133 ; see also supra at page 516 n.9.
Applying the above legal principles, we hold that the claim at issue is sufficient to invoke the real estate exception to sovereign immunity. Specifically, Wise has alleged the existence of a "dangerous condition," i.e. , insufficient outdoor lighting. In order to meet the exception, that "dangerous condition" of insufficient outdoor lighting "must derive, originate from or have as its source" the Commonwealth real estate. Snyder , 562 A.2d at 311. Here, in claiming that the insufficient outdoor lighting stems from the existence and position of the pole light and tree in relation to the sidewalk area of HACH's property, Wise has met this requirement. In other words, she has identified a dangerous condition that results from a "defect in the property or in its construction, maintenance, repair, or design." Jones , 772 A.2d at 444. Wise further alleges that the dangerous condition of inadequate lighting caused her injuries. Thus, HACH cannot raise immunity as a matter of law to bar her claim.
Before this Court, HACH does not dispute that the sidewalk, pole light, and tree are themselves a part of the Commonwealth real estate.
In reaching this conclusion, we are careful to emphasize the precise nature of Wise's claim. It is not simply an assertion of an "absence of a condition," like the "absence of lighting" in Snyder and "absence of a guardrail" in Dean , which were determined to fall outside of the real estate exception. Rather, Wise alleges that insufficient artificial lighting existed on the Commonwealth realty because of the arrangement of the sidewalk, pole light, and tree, which are part of the real property. Stated differently, Wise alleges the presence of inadequate lighting on the Commonwealth realty, not the absence of lighting altogether. In this respect, Wise's claim is akin to the claim addressed in Cagey , which was based upon the presence of a defective guardrail as part of the Commonwealth realty, rather than the absence of one, and determined to fit within the real estate exception. See Cagey , 179 A.3d at 467 (holding that "[w]hen PennDOT installs a guardrail, sovereign immunity is waived if the agency's negligent installation and design creates a dangerous condition"). We likewise hold that, when an agency installs lighting as part of its real estate, "sovereign immunity is waived if the agency's negligent installation and design creates a dangerous condition." Id .
On this point, we acknowledge that the concern expressed by Justice Wecht in his concurring opinion in Cagey , i.e. , that our holding in that case would "create[ ] a perverse incentive for the Commonwealth to forego the installation of guardrails entirely" for fear of exposing itself to liability for injuries caused by those guardrails, can also be raised here. Cagey , 179 A.3d at 471 (Wecht, J., concurring). That is, it can be said that our holding today could incentivize the Commonwealth to forego the installation of lighting altogether rather than risk exposing itself to liability for negligence arising out of the presence of defective lighting conditions it creates on its property. However, as the majority in Cagey opined, "we will not assume that the Commonwealth would act negligently, or even recklessly" for purposes of avoiding potential liability by foregoing the installation of lighting. Id. at 466 n.6. Additionally, like Cagey, this case does not require a reexamination of the distinction between the application of immunity in situations involving the absence of conditions versus the presence of defective conditions on Commonwealth realty given our analysis herein.
Turning to the lower courts’ decisions, we conclude that they erred in several respects. First, to the extent that the trial court and Commonwealth Court concluded that the real estate exception can apply to a claim of inadequate indoor lighting, but not a claim of inadequate outdoor lighting, they are incorrect. So long as the dangerous condition is alleged to be "of" the Commonwealth real estate as required by the language of Section 8522(b)(4) and defined above (i.e. , the dangerous condition "derive[s], originate[s] from or ha[s] as its source the Commonwealth realty," see Snyder , 562 A.2d at 311 ), it is of no moment whether the condition is indoors or outdoors.
We also reject HACH's suggestion that sovereign immunity cannot be waived under the Act for claims regarding dangerous lighting conditions generally because the Act does not contain a specific lighting exception like the PTSCA does. While the two statutory schemes are to be read consistently, their language is not identical, and they are thus not interpreted in lockstep with each other. Jones , 772 A.2d at 440, 443. Accordingly, irrespective of how the PTSCA addresses lighting claims, we discern no reasoned basis to preclude a claim regarding dangerous lighting conditions from falling under the real estate exception to sovereign immunity, so long as the claim satisfies the exception's requirements as previously articulated by this Court and reaffirmed herein.
Further, we agree with Wise that, in concluding that the real estate exception was inapplicable, the Commonwealth Court erred in its characterization and treatment of her claim. Again, in reaching its conclusion, the court opined that: (1) there was no defect of the Commonwealth realty but for the natural darkness, which was not caused by the realty; (2) Wise had not alleged that the pole light or tree were themselves defective, that the tree directly injured her, or that the realty was defective during the daytime; and (3) Wise actually claimed that the Commonwealth failed to ameliorate a natural condition, which is not encompassed by the real estate exception. Respectfully, the court was mistaken in its reasoning.
As repeatedly noted herein, Wise alleges that the dangerous condition is insufficient lighting of Commonwealth realty, stemming from the existence and location of the light pole, tree, and sidewalk, which are part of HACH's property. Viewing Wise's claim as she alleges it, the Commonwealth Court's assertion that "there is no alleged defect" but for the natural darkness is inaccurate. In this regard, the presence of natural darkness would at best constitute a concurrent cause of Wise's injuries. See Dean, 751 A.2d at 1133 (rejecting PennDOT's contention "that the real estate exception does not apply merely because Appellee asserted that a concurrent cause of her injuries was the accumulation of snow on the highway"). Accordingly, the existing natural darkness is not fatal to her claim under the real estate exception; nor is it at all relevant that HACH obviously did not cause the existing natural darkness.
Additionally, while the items of the Commonwealth realty identified by Wise may not be defective insofar as they were not inoperable, damaged, or the like, they are nonetheless alleged to be a "defect in the property or in its construction, maintenance, repair, or design" by way of their arrangement. Jones , 772 A.2d at 444. Wise claims that this arrangement resulted in the dangerous condition of deficient lighting on the property, which is sufficient to invoke the real estate exception as we concluded above. Thus, it is of no consequence that the individual items at issue (the sidewalk, light pole, and tree) were not themselves defective in the ways the lower court suggested.
Moreover, although the Commonwealth Court opined that HACH cannot be held liable for a failure to ameliorate the existing natural darkness, the court again made these observations without thoughtful analysis of Wise's actual claim. Specifically, the Commonwealth Court did not give proper credence to Wise's allegation that HACH's failure in this regard stemmed from "a dangerous condition of the Commonwealth real estate" (i.e. , insufficient artificial lighting of the property by way of the light pole, tree, and sidewalk). Thus, the Commonwealth Court was incorrect in holding that the claim could not be encompassed within the real estate exception on that basis.
The Commonwealth Court further erred to the extent that it observed that Wise claimed that a defect existed because additional lighting should have been installed or a tree should have been removed. Wise , 212 A.3d at 1166. Specifically, the court shifted its focus away from the defect alleged to be the cause of Wise's injuries, instead hypothesizing measures that could be taken to remedy the defect, which was improper.
Having concluded that the lower courts erred in their treatment of Wise's claim, we highlight that this case is presented to us at the summary judgment stage. As such, our decision today does not equate to a determination that Wise will ultimately obtain relief on the merits. (See, e.g., Cagey, 179 A.3d at 474 ) (Wecht, J., concurring) (explaining that the Commonwealth's waiver of immunity does not guarantee a plaintiff's recovery); Brewington for Brewington v. City of Philadelphia , 650 Pa. 139, 199 A.3d 348, 358 (2018) (making the same observation in the context of the PSTCA). Indeed, Wise's claim must survive all stages of litigation, including by prevailing at trial. In this respect, we observe that whether the condition of the Commonwealth realty, in fact, is dangerous as alleged is generally for a jury to decide. See Dean , 751 A.2d at 1135 (explaining that "the issue of whether a dangerous condition exists is a question of fact for the jury to resolve"). We hold only that, as a matter of law, a claim of insufficient lighting deriving from the Commonwealth realty falls within the real estate exception to sovereign immunity.
As a last point, we observe that, in their briefing to this Court, Wise and the PAJ propose specific standards to be used for application of the real estate exception and request that this Court adopt them in order to allay what they characterize as confusion existing in this area of the law. However, we view this case largely as one extending settled pronouncements regarding the real estate exception, as discussed herein, to a claim involving a novel factual scenario for purposes of determining that, as a matter of law, the exception encompasses that factual scenario. Thus, insofar as Wise and the PAJ seek adoption of a legal standard for application of the real estate exception that is "new" or goes beyond what we have outlined herein, we decline to do so.
Based on the foregoing, we conclude that the Commonwealth Court erred in affirming the trial court's award of summary judgment in favor of HACH on the basis that the real estate exception did not apply to Wise's claim. Accordingly, we reverse the order of the Commonwealth Court and remand the matter for further proceedings consistent with this opinion.
Justices Saylor, Todd and Mundy join the opinion.
Justice Donohue files a concurring opinion in which Justice Wecht joins.
Justice Wecht files a concurring opinion in which Justice Dougherty joins.
JUSTICE DONOHUE, concurring
When we granted allowance of appeal in this case, we agreed to review the Commonwealth Court's decision to determine whether, inter alia, it advances existing conflict and confusion in the application of the real estate exception to sovereign immunity codified in 42 Pa.C.S. § 8522(b)(4). While I agree with the result reached by the Majority, respectfully, in my view, the analysis perpetuates the reason for the confusion evidenced by the Commonwealth Court in its attempt to fit the facts of this case into the artificial condition versus a naturally occurring condition dichotomy implied in Snyder v. Harmon , 522 Pa. 424, 562 A.2d 307, 312 (1989).
We granted allowance of appeal on the following issue:
Whether the Commonwealth Court, in affirming the Huntingdon County Trial Court's grant of Summary Judgment, has unwarrantedly expanded sovereign immunity under 42 Pa.C.S.[ ] § 8521 et. seq., and hence, continued the dwindling applicability of the real estate exception under 42 Pa.C.S.[ ] § 8522(b)(4) to a dangerous level in its continued disregard of the legislative intent of the Sovereign Immunity Act and enumerated exceptions, and also advances existing conflict and confusion within an already unclear legal history?
Wise v. Huntingdon Cty. Hous. Dev. Corp., ––– Pa. ––––, 222 A.3d 748 (2019).
Maj. Op. at 508–09.
The Majority holds, and I agree, that the insufficiently illuminated walkway on the Housing Authority of Huntingdon County's ("HAHC") property was a dangerous condition "of the property" so that the real estate exception to sovereign immunity applies. The Majority reaches this conclusion by relying on the presence of a large tree and the inappropriate placement of a street lamp in relation to the tree so as to create shadows on the sidewalk. Since both the tree and the lamp are fixtures, the resulting shadow on the non-defective sidewalk created a dangerous condition of the property.
Although as said, I agree with this result, the only way to reconcile it with Snyder v. Harmon , 562 A.2d at 312, is by fitting it into the terminology "artificial conditions of the land." Although Snyder addressed an absence of lighting, the dangerous condition created was "a deceptive appearance" of the shoulder of the road. Id. at 312–13. According to the Snyder Court, this deceptive appearance could not be said to be either an artificial condition or a defect in the land itself. Id. Thus, the exception to immunity for Commonwealth real estate did not apply.
The Snyder Court stated:
We hold, therefore, that sovereign immunity is waived pursuant to 42 Pa.C.S. § 8522(b)(4) where it is alleged that the artificial condition or defect of the land itself causes an injury to occur. The corresponding duty of care a Commonwealth agency owes to those using its real estate, is such as to require that the condition of the property is safe for the activities for which it is regularly used, intended to be used or reasonably foreseen to be used.
Snyder , 562 A.2d at 312.
42 Pa.C.S. § 8522, entitled "Exceptions to Sovereign Immunity," provides, in relevant part, as follows:
(a) Liability imposed.--The General Assembly, pursuant to section 11 of Article I of the Constitution of Pennsylvania, 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 section 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.
(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).
Although not expressly stated, here, the Majority is concluding that the deceptive appearance created by the shadow is the result of an artificial condition of the land. The dangerous artificial condition of a shadowed walkway was created by a misplaced or insufficient outdoor lighting device. The HAHC's duty of care to the Plaintiff is such as to require that the property is safe for the activities for which it is regularly used, intended to be used, or reasonably foreseen to be used. Id. at 312. Here of course, Wise was using the walkway as intended. To me, there is no principled distinction between a deceptively shadowed walkway, where certain portions of it are not visible, and a totally unilluminated sidewalk, where none of it is visible so as to present a dangerous condition of the property.
The distinction between the dangers of an artificial condition of the property versus a naturally dangerous condition of the property is a distinction without a difference since the Commonwealth is held to account for negligent maintenance, design and construction of its real property. Jones v. SEPTA , 565 Pa. 211, 772 A.2d 435, 444 (2001). The failure to install lighting creates dangers to invitees using walkways as does the negligent choice or placement of lighting around the walkways. Both failures involve the maintenance, design and/or construction of the real estate. Both failures result in a dangerous condition of the real estate, specifically the walkway. In my view, we should take this opportunity to eschew distinguishing between an artificial condition of the land and the land in its natural state to the extent this was the intention of Snyder since this particular aspect of the holding is not accompanied by any rationale. Since 1989, the case law applying it has been inconsistent. Take this case for example. It was the Commonwealth Court's attempt to reconcile this case with the artificial/natural dichotomy that made it resort to the movement of the earth on its axis to create darkness discussion. Wise v. Huntingdon Cty. Hous. Dev. Corp. , 212 A.3d 1156, 1166–67 (Pa. Cmwlth. 2019) (exterior nighttime darkness on Commonwealth property is not an artificial condition) (emphasis in original).
The Appellant specifically argues that this distinction, between artificially created dangerous conditions that support application of the real estate exception and naturally occurring dangerous conditions that do not, should be eliminated. Wise Brief at 23-26. Although, technically, this case can be decided without abolishing the distinction, we accepted review to resolve the confusion in the application of the real estate exception to sovereign immunity. In my view, we should eliminate the unwarranted distinction and resolve the confusion instead of perpetuating it. Thus, I concur in the result.
Justice Wecht joins this concurring opinion.
JUSTICE WECHT, concurring
On May 9, 2013, Sharon Wise was injured when she tripped and fell while walking on a sidewalk in a public housing complex at night. In her ensuing negligence action against the Housing Authority of the County of Huntington (HACH), Wise alleged that the cause of her fall was insufficient outdoor lighting resulting from the relative position of a light pole and a tree which obstructed that light.1 HACH moved for summary judgment, arguing that Wise's suit was barred by sovereign immunity. Wise responded that her claim fell within the real estate exception to sovereign immunity.2 HACH replied that the exception was inapplicable because the sidewalk itself was not a dangerous condition, and because the allegedly insufficient lighting was not a condition of the real estate. Persuaded by HACH's argument against the applicability of the real estate exception, the trial court granted HACH's motion for summary judgment, dismissing Wise's case. Wise appealed. The Commonwealth Court affirmed, holding that, while HACH may have had a duty to light naturally dark exterior areas, sovereign immunity barred liability for HACH's breach of this duty. According to the Commonwealth Court, it was natural nighttime darkness, not the positioning of the light pole in relation to the tree and the sidewalk, that allegedly caused Wise's fall. The Commonwealth Court viewed Wise's allegations as being premised upon HACH's failure "to alter the natural state of nighttime darkness ," and held that sovereign immunity barred Wise's claim. We granted review in order to examine whether outdoor lighting of Commonwealth property resulting from the location of a light pole and from a tree blocking that light is a dangerous condition of the Commonwealth property under the real estate exception to sovereign immunity.
Wise v. Huntingdon Cty. Hous. Dev. Corp. , 212 A.3d 1156 (Pa. Cmwlth. 2019).
Id . at 1165.
Id . at 1166, 1167 (emphasis in original).
I agree with the Majority's reversal of the Commonwealth Court's erroneous decision. Wise's claim of insufficient lighting alleges that a dangerous condition of Commonwealth realty caused her injuries. Therefore, Wise successfully invoked the real estate exception to sovereign immunity. I write separately to delineate the unambiguous requirements of the real estate exception and to urge adherence to the exception's plain language. Our precedent has departed from that statutory language to the extent that it has advanced a non-textual and unsupported distinction between the Commonwealth's acts and omissions.
Mindful that exceptions to sovereign immunity must be strictly construed, this Court has found no ambiguity in the requirements of the real estate exception. See Snyder v. Harmon , 522 Pa. 424, 562 A.2d 307, 311 (1989) (observing that the language of Section 8522(b)(4) is unambiguous). The Court has examined the language of Subsections 8522(a) and 8522(b)(4) together, discerning in them three prerequisites to the imposition of liability upon the Commonwealth under the real estate exception:
See Jones v. Se. Pa. Transp. Auth. , 565 Pa. 211, 772 A.2d 435, 440 (2001) ("Because the legislature's intent in both the Sovereign Immunity and Tort Claims Acts is to shield government from liability, except as provided for in the statutes themselves, we apply a rule of strict construction in interpreting these exceptions."); see also Dean v. Commonwealth, Dep't of Transp., 561 Pa. 503, 751 A.2d 1130, 1132, 1134 (2000) ; Finn v. City of Philadelphia , 541 Pa. 596, 664 A.2d 1342, 1344 (1995) ; Kiley v. City of Philadelphia , 537 Pa. 502, 645 A.2d 184, 185-86 (1994) ; Snyder , 562 A.2d at 311 ; Mascaro v. Youth Study Ctr ., 514 Pa. 351, 523 A.2d 1118, 1123 (1987).
[I]n order for liability to be imposed ..., three statutory requirements must be met. First, the injury must have resulted from a "dangerous condition." [ 42 Pa.C.S.] § 8522(b)(4). Second, the dangerous condition must be a condition "of Commonwealth agency real estate." Id . Third, the damages must be recoverable under common law "if the injury were caused by a person not having available the defense of sovereign immunity." Id . § 8522(a).
Cagey v. Commonwealth, Dep't of Transp. , 645 Pa. 268, 179 A.3d 458, 463 (2018). The Cagey test thus takes the two prongs of Subsection 8522(b)(4)’s real estate exception and combines them with Subsection 8522(a)’s requirement that the damages must be damages that would be recoverable at common law had the injury not been caused by the sovereign.
In order to impose liability against a Commonwealth entity, the plaintiff must satisfy the general requirements of Subsection 8522(a) and the particular exceptions of Subsection 8522(b). In asking whether damages would be recoverable against "a person not having available the defense of sovereign immunity," Subsection 8522(a) indicates that, although the General Assembly has waived sovereign immunity in specified circumstances, the Commonwealth in any event is not to be held to a higher standard than a private tort defendant. Under Subsection 8522(b), the plaintiff must establish causation, i.e., that the damages were caused by particular acts bringing the cause of action within the relevant exceptions. And within the real estate exception in particular, there are two requirements: (1) that the injury resulted from "a dangerous condition;" and (2) that the dangerous condition was "of Commonwealth agency real estate." 42 Pa.C.S. § 8522(b)(4). Because the Subsection 8522(a) question is not before us in this case, the issue presented implicates only the real estate exception under Subsection 8522(b)(4).
Although the issue in this case implicates only Subsection 8522(b), HACH and the Office of the Attorney General (OAG) attempt to invoke Subsection 8522(a) as well, asserting that there is no common law duty in this case because they had no notice of the allegedly hazardous condition. Because this argument implicates Section 8522(a), it is beyond the scope of this appeal.
This Court generally has addressed the Subsection 8522(b) exceptions before deciding whether such a duty exists at common law or under statute. See, e.g. , Cagey , 179 A.3d at 464 ("We begin with the first requirement that their injuries resulted from a ‘dangerous condition.’ "); Dean , 751 A.2d at 1132 ("[W]e must first examine the exception to sovereign immunity which Appellee contends her claims falls under."); Snyder , 562 A.2d at 311 ("In order to ascertain that duty, it is necessary to first examine Section 8522(b)(4).").
In my view, the Cagey test fails to recognize a necessary requirement: causation. Although Cagey omitted the causation prong from its articulation of the real estate exception, Subsection 8522(b) generally requires causation for any exception to sovereign immunity. Id. § 8522(b). A more complete analysis of the real estate exception would encompass causation. Accordingly, while the Cagey Court divided the real estate exception into only two questions, i.e. , (1) whether a condition is "dangerous;" and (2) whether it is "of Commonwealth agency real estate," we should apply a three-prong approach: one that incorporates both of the Cagey prongs in addition to the causation analysis required of all exceptions to sovereign immunity under Subsection 8522(b). This three-prong approach presents a more complete view of what the plain language of the real estate exception requires.
Cagey, 179 A.3d at 463 ; Maj. Op. at 514–15.
The first requirement is that there is a "dangerous condition." 42 Pa.C.S. § 8522(b)(4). This requirement "is unambiguous and plainly encompasses any condition that presents a danger." Cagey , 179 A.3d at 464. We have held that "[w]hether a dangerous condition exists is a question of fact for the jury to resolve." Dean , 751 A.2d at 1135. The plain text of the statute does not restrict "condition" to a single factor. Rather, a dangerous condition can be comprised of a combination of factors that the factfinder could determine to be dangerous. See, e.g. , Floyd v. Philadelphia Hous. Auth. , 154 Pa.Cmwlth. 303, 623 A.2d 901 (1993) (finding that an alleged combination of factors in a stairwell in a public housing complex could constitute a dangerous condition); Peterson v. Philadelphia Hous. Auth., 154 Pa.Cmwlth. 309, 623 A.2d 904 (1993).
Here, it is undisputed that Wise sufficiently alleged that the condition was "dangerous." OAG and HACH do, however, argue that a "dangerous condition" can only be understood in the singular. I would reject this argument outright, as a dangerous condition may include a combination of factors, any one of which, standing alone, would not be dangerous. The plain language of the statutory term "condition" supports this interpretation. In this case, the light pole and the tree are not dangerous in and of themselves. Rather, as the Majority recognizes, the combination of the light pole, the tree, and the resulting lack of illumination on a portion of the sidewalk created the danger. See Maj. Op. at 519–20 (describing Wise's allegation that the dangerous condition was the insufficient lighting by way of the light pole, tree, and sidewalk). As a matter of law, a "dangerous condition" may result from a number of factors working in tandem. Whether that condition actually was dangerous is a question for the factfinder.
Second, the statute requires an examination of whether the dangerous condition is "of Commonwealth agency real estate." 42 Pa.C.S. § 8522(b)(4). This is a legal question. See Finn , 664 A.2d at 1346 ("The common theme of all these cases is that liability depends, first, on the legal determination that an injury was caused by a condition of government realty itself ... and, only then, [on] the factual determination that the condition was dangerous."). Like the first requirement, this second requirement contains no ambiguity. Cagey , 179 A.3d at 464 ("We find this statutory requirement [that the condition be ‘of the Commonwealth agency real estate’] to be unambiguous as well."). As our precedent states, "[t]hese key words indicate that a dangerous condition must derive, originate from or have as its source the Commonwealth realty." Snyder , 562 A.2d at 311.
Third, similar to the "dangerous condition" requirement, whether the condition of Commonwealth realty caused the plaintiff's injuries "is normally a question of fact for the jury; the question is to be removed from the jury's consideration only where it is clear that reasonable minds could not differ on the issue." Hamil v. Bashline , 481 Pa. 256, 392 A.2d 1280, 1285 (1978). And the Commonwealth realty's dangerous condition need not be the sole cause, but, rather, in line with our precedent regarding causation, must be "a substantial factor in bringing about the plaintiff's harm," as well as a factual cause of the injuries. Id . at 1284. Of course, there may be instances in which the court, as a matter of law, may find that the plaintiff has not met his or her burden with regard to causation. Accord Mascaro , 523 A.2d at 1125 (Hutchinson, J., concurring) ("[O]n these facts, a proximate cause analysis would insulate appellants from liability for negligence.").
In my view, and premised upon the plain language of the real estate exception, in order for a plaintiff to invoke the real estate exception to sovereign immunity, he or she "must plead and prove a prima facie claim of negligence to survive the pleading" and summary judgment phases. Cagey , 179 A.3d at 474 (Wecht, J., concurring). Part of that prima facie case must include an allegation that "a dangerous condition of the [Commonwealth agency real estate] caused the" injury. Smith v. Commonwealth, Dep't of Transp. , 700 A.2d 587, 591 (Pa. Cmwlth. 1997). When the Commonwealth's property contributes to a dangerous set of circumstances, the real estate exception operates to waive sovereign immunity.
In the past, this Court has read additional meaning into the word "of" in Subsection 8522(b)(4). See, e.g. , Finn , 664 A.2d at 1346. But "of" plainly states the obvious: only dangerous conditions that have a relationship to the Commonwealth's property can be a basis for a waiver of immunity. Indeed, the prepositional phrase "of Commonwealth agency real estate" acts as an adjective that describes the noun phrase "dangerous conditions." Because "Commonwealth agency" modifies the noun "real estate," the property that relates to the dangerous conditions must belong to the Commonwealth. As such, only dangerous conditions over which the Commonwealth has control permit waiver of immunity.
Our precedent had suggested that the real estate exception included an on/of distinction under which immunity was waived if an alleged injury resulted from a dangerous condition "of" Commonwealth realty, but not if the dangerous condition was "on" Commonwealth realty. See Finn , 664 A.2d at 1346. As the Majority observes, however, we rejected this on/of distinction in Jones . Maj. Op. at 516–17 (citing Jones, 772 A.2d at 443 ).
Other dangerous conditions, or negligence over which the Commonwealth has no control, cannot waive immunity. In other words, the General Assembly's decision to restrict the waiver of immunity to dangerous conditions "of Commonwealth agency real estate" reinforces the causation requirement of Subsection 8522(b); only in instances where the Commonwealth's realty itself, or maintenance thereof, causes the plaintiff's injuries is immunity waived.
Consistent with my view that the word "of" is to be read broadly, I believe that a condition may be "of" Commonwealth realty regardless of whether it results from the Commonwealth's act or omission. In its broadest sense, "of" simply expresses a relationship between two things. The manner by which the Commonwealth exercises its control of the condition and the property is irrelevant. Whether that relationship was created through act or omission has no bearing upon the analysis. In this regard, our precedent has created an unwarranted distinction between circumstances in which the Commonwealth takes no action to lesson a dangerous situation, and those in which the Commonwealth takes some step to lessen the dangerous situation, but does so negligently or fails to maintain that condition in a non-negligent manner.
This artificial and non-textual distinction encourages the Commonwealth not to resolve dangerous conditions, thereby creating a perverse incentive that was on display in Dean and Cagey . In Dean , this Court held that "the Commonwealth's failure to erect a guardrail on the highway is not encompassed by the real estate exception to sovereign immunity." Dean , 751 A.2d at 1134. In Cagey , the Court found that an allegation of a "defective, negligently installed and uncrashworthy" guardrail was sufficient to waive immunity. Cagey , 179 A.3d at 464. As I observed in a concurring posture in Cagey :
Under the Majority's holding, the Commonwealth waives immunity for defective guardrails. Yet, under Dean , the Commonwealth is immune if it never installs those guardrails in the first place. Thus, although the Commonwealth may have a statutory and common-law duty to make its highways reasonably safe for the purposes for which they are used, Dean tacitly insists that the Commonwealth need not install guardrails at all, even when they are obviously necessary to highway safety.
Id . at 473-74 (Wecht, J., concurring).
Similarly, the Commonwealth Court found a waiver of sovereign immunity when PennDOT plowed snow into an artificial mound that created a hazard, Commonwealth, Dep't of Transp. v. Weller , 133 Pa.Cmwlth. 18, 574 A.2d 728, 730 (1990), but held that PennDOT "has no common law duty to remove natural accumulations of ice and snow from a public road," implying that, had PennDOT done nothing, the suit would have been dismissed. Id.
I continue to believe, as I explained in Cagey , that Dean was wrongly decided. As I wrote therein:
For the reasons stated above, I would overrule Dean , apply the duty set forth in Snyder , and adopt the test outlined by Justice Newman in her Dean dissent. Under Snyder , the Commonwealth has a duty to ensure that "the condition of [Commonwealth] property is safe for the activities for which it is regularly used, intended to be used[,] or reasonably foreseen to be used." Snyder , 562 A.2d at 312. Under the real estate exception, the Commonwealth waives immunity when "the condition of government property created a reasonably foreseeable risk of harm that actually happened." Dean , 751 A.2d at 1135 (Newman, J., dissenting).... When a plaintiff is injured by an unsafe condition on Commonwealth realty, whether the condition is created by omission or commission, under circumstances that would otherwise impose liability on a private landowner, the Commonwealth is exposed to potential liability regardless of whether the danger was associated with the highway itself or with its immediate surroundings.
Id. at 474 (Wecht, J., concurring).
Similarly, with regard to claims premised upon the absence of lighting, I continue to urge the following clarification of Snyder and its absence-of-lighting language:
I would also clarify Snyder to the extent that its "absence of lighting" language seems to imply that the absence of any and all safety features cannot render Commonwealth realty dangerous. As noted supra , under our common law, a plaintiff may pursue a negligence claim against a landowner for failing to make her property reasonably safe, which necessarily includes the installation of reasonable safety features. Likewise, Dean ’s extension of this rationale to guardrails provides yet another reason to overrule Dean .
Id . at 474 n.10 (Wecht, J. concurring). Although the outcome in Snyder was correct—the injury did not occur on Commonwealth property— Snyder ’s suggestion that the absence of lighting cannot be a dangerous condition "of" Commonwealth realty finds no textual support in Subsection 8522(b)(4).
Given my view that claims premised upon the Commonwealth's acts or omissions are equally susceptible to the real estate exception, I cannot join the Majority's attempt to fit this case within our precedent distinguishing between the two. Whether a claim is premised upon a guardrail as in Cagey , or the absence of the guardrail as in Dean , or whether it is premised upon insufficient lighting as in this case, or the absence of lighting as in Snyder , the real estate exception is implicated as long as the plaintiff has alleged that some feature of the Commonwealth's realty, in some way, contributed to the dangerous condition that caused the plaintiff's injuries. The real estate exception applies equally to a condition or the absence of a condition. I do not agree with the portion of the Majority Opinion that makes the real estate exception contingent upon the presence of inadequate lighting, rather than the absence of lighting altogether, or premises the outcome upon an alignment with Cagey rather than Dean . The judicial preservation of this unwarranted distinction between acts of omission and acts of commission fortifies the perverse incentive that the Court supplies to Commonwealth agencies: encouraging such agencies to forego the installation of protective features on Commonwealth property.
Maj. Op. at 518–19 – ––––.
Any questions regarding the proportion of the Commonwealth's liability are issues for the jury. See Kiley , 645 A.2d at 186 (permitting concurrent liability for the Commonwealth under the real estate exception).
Maj. Op. at 518–19.
The Majority acknowledges the concern but chooses again simply to hope for the best with respect to Commonwealth agency conduct. Maj. Op. at 517 n.10 ("we refused to ‘assume that the Commonwealth would act negligently, or even recklessly, for such a purpose’ " (citing Cagey , 179 A.3d at 466 n.6 )); id . at 518 n.12 (" ‘we will not assume that the Commonwealth would act negligently, or even recklessly’ for purposes of avoiding potential liability by foregoing the installation of lighting" (citing Cagey , 179 A.3d at 466 n.6 )).
To date, the Court has remained unpersuaded by my concern that our precedent incentivizes the Commonwealth to forego the installation of safety features on Commonwealth realty for fear of being held liable for injuries caused by safety features that turn out to be dangerous. See Cagey , 179 A.3d at 471, 473-74 (Wecht, J., concurring). Today, the Majority does acknowledge my criticism that its holding could be construed as encouraging the Commonwealth to forego the installation of lighting altogether rather than risk exposing the Commonwealth to liability for negligence arising from its defective lighting conditions. In Cagey , the Majority refused to believe that the Commonwealth would act negligently by foregoing attempts to improve the safety of Commonwealth realty in order to avoid application of the real estate exception and to maintain sovereign immunity. Cagey , 179 A.3d at 466 n.6. Today's Majority continues to adhere to this rationale notwithstanding my concerns.
Id . at 518 n.12.
Id .
I remain unpersuaded by the Majority's unwavering faith in Commonwealth agencies. By exposing the Commonwealth to liability when the Commonwealth negligently designs or installs safety features while simultaneously insulating the Commonwealth from liability when it offers no safety features at all, our precedent encourages the Commonwealth to forego making its property safe, "confident that it cannot be held liable for any harm that ensues." Cagey , 179 A.3d at 470 (Wecht, J., concurring). The Majority continues to "subordinate[ ] the Commonwealth's duty to protect its citizens to Dean’ s implicit concern for protecting the public fisc." Id . at 474 (Wecht, J. concurring). Although the Commonwealth has a duty to keep the public safe, this duty is undermined by the financial incentive not to install safety features, an incentive that our precedent creates. If there is no sovereign immunity whenever the injury is alleged to have been caused by dangerously designed or installed safety features of Commonwealth realty, but complete immunity when no safety features are installed, why would Commonwealth agencies install any safety features at all?
Our role as the judiciary is to apply the unambiguous language of the statute. There is no basis in the plain language of the real estate exception that supports the act/omission distinction which the Majority perpetuates today. If the General Assembly wanted to narrow the scope of sovereign immunity beyond its plain terms, it could do so by amending the language of the Sovereign Immunity Act. Presently, there is no textual basis for this Court to perpetuate the judge-manufactured distinction between negligently designed or installed safety features on the one hand and no safety features at all on the other.
Nevertheless, I agree with the Majority's conclusion that Wise's claim is sufficient to invoke the real estate exception. Maj. Op. at 518. Wise alleges that the dangerous condition of insufficient outdoor lighting derives from, originates in, or has as its source Commonwealth realty, id . (citing Snyder , 562 A.2d at 311 ), and that this dangerous condition caused Wise's injuries. Sovereign immunity does not bar Wise's claim. Like the Majority, I would reverse the order of the Commonwealth Court and would remand for further proceedings. I concur in the judgment reversing the order of the Commonwealth Court.
Justice Dougherty joins this concurring opinion.