The Commonwealth Court of Pennsylvania in Gillingham v. Cnty. of Delaware, PICS Case No. 17-0270 (Pa. Commw. Feb. 14, 2017) Brobson, J. (24 pages), has affirmed the strength of governmental immunity in negligence actions, approving of the Supreme Court’s approach in Blocker v. City of Philadelphia, 763 A.2d 373 (Pa. 2000).
Section 8541 of the Political Subdivision Tort Claims Act provides 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 any act of the local agency or an employee thereof or any other person.” 42 Pa. C.S. §8541.
Gillingham v. Cnty. of Delaware arose out of a trip and fall at the County Recorder of Deeds Office. Plaintiff Ronhilde Gillingham sat to conduct searches at the County Computer when her foot became entangled in the computer cables and wires under the computer cubicle. With her foot still entangled in the computer cables, Gillingham stood up to walk away from the computer, tripped, and fell. Gillingham’s Amended Complaint alleged that the County’s negligence directly and proximately caused her injuries. Specifically, Gillingham’s Amended Complaint alleged that the County was negligent by its failure to inspect and maintain the floor. After the completion of discovery, the County filed a motion for summary judgment, in which it argued that the County was immune under the Tort Claims Act, 42 Pa. C.S. § 8541 et seq. The County argued that the “real property exception,” 42 Pa. C.S. § 8542(b)(3), is not viable in this case because “none of [the computer cables] are affixed or wired to the real estate.”
The real property exception to governmental immunity provides that governmental immunity does not apply where the injury stems from “[t]he care, custody or control of real property in the possession of the local agency…” 42 Pa. C.S. § 8542(b)(3). There are two approaches that have been used by our Pennsylvania Supreme Court to determine whether the real property exception to immunity under the Tort Claims Act applies – (1) the Grieff approach, and (2) the Blocker approach. See Greiff v. Riesinger, 693 A.2d 195 (Pa. 1997) as compared to Blocker v. City of Philadephia, 763 A.2d 373 (Pa. 2000).
Under Grieff, the determinative inquiry is whether the injury is caused by the care, custody or control of the real property itself. In Grieff, our Supreme Court held that the real property exception applied to injuries caused by the alleged negligent care of a fire association’s property. There, the fire chief poured paint thinner across the floor causing a fire to erupt under a refrigerator, resulting in severe injuries to a bystander.
Under Blocker, the determinative inquiry is whether the injury is caused by the “personalty,” which is not attached to the real estate, or by a fixture, which is attached. In Blocker, a concert attendee sustained injuries after the bleachers on which she was sitting collapsed. The Supreme Court held that the bleachers were personalty and therefore, that the real property exception did not apply to the concern attendee’s injuries. Therefore, under Blocker, if the injury is caused by the real property, including a fixture, the real property exception overrides governmental immunity. If the injury is caused by personalty that is merely on the real property, the political subdivision remains immune.
Plaintiff Gillingham argued that under the Grieff approach, it is sufficient for Gillingham to show that the County was negligent in its care, custody or control of the real property. The trial court concluded that the approach from Blocker is more applicable than the approach set forth in Grieff, holding the real property exception did not apply because the computer wires were not affixed to the real property. On appeal, Plaintiff Gillingham argued that the trial court erred in applying the Blocker rather than the Greiff approach to the Tort Claims Act, 42 Pa. C.S. § 8542(b)(3).
The Commonwealth Court affirmed the trial court’s analysis under Blocker, and explained that Gillingham tripped on the computer cables that were not affixed to the real property. Accordingly, Gillingham’s injury was caused by the personality (i.e., the computer cables) rather than the surrounding real property.
This decision strengthens governmental immunity in negligence actions, reiterates the “personalty” versus “real property” distinction, and may deter future negligence actions against governmental entities in Pennsylvania.
We recently defended a suburban housing authority client where plaintiff alleged she tripped and fell due to an accumulation of snow and ice on the exterior steps of the property. We contended our client was immune from suit, should be dismissed from the case and, in fact, the real property exception did not apply to the facts presented as the snow and ice were not affixed to the property. It was argued that the failure to remove the snow constituted a failure to maintain the property. The Court of Common Pleas agreed with our position and dismissed the complaint based upon the defense of immunity which was raised by preliminary objections.
We welcome your inquiries regarding this, and any other topic of interest.