Appeal from the Order of the Commonwealth Court Entered May 22, 1985, at No. 21 T.D. 1884, Reversing, as to the City of Philadelphia and its Youth Study Center, the Order of the Court of Common Pleas of Philadelphia County, Entered on January 18, 1984, at No. 6068, April Term, 1983. 89 Pa. Commonwealth Ct. 388,
Nix, C.j., and Larsen, Flaherty, McDermott, Hutchinson, Zappala and Papadakos, JJ. Hutchinson, J., joins the majority opinion and files a concurring opinion. Larsen, J., files a dissenting opinion.
This is the appeal of the City of Philadelphia and its Youth Study Center (Appellants) from the Opinion and Order of Commonwealth Court reversing in part the Order of the Court of Common Pleas of Philadelphia County which entered judgment on the pleadings in its favor and dismissed a complaint against it and other parties filed by Michelle Mascaro and Kenneth Mascaro, in their own right and as parents of their children, Kenneth Mascaro and Michelle Mascaro, both minors (Appellees).
Appellees alleged in their complaint that one Claude Opher, a detainee in the Philadelphia Youth Study Center (Center), a detention center for juvenile criminal offenders, escaped from the detention center because the City of Philadelphia (City) and the Center negligently maintained the real estate, thereby facilitating the escape. The complaint also alleges that once at large, Opher, and an accomplice, broke into Appellees' home in Philadelphia. While they were burglarizing Appellees' house, Appellees came home discovering the intruders. Opher and his accomplice tied up Mr. and Mrs. Mascaro and young Kenneth, while the accomplice raped Mrs. Mascaro. Opher took young Michelle and, after beating her, took her into her parents' bedroom where he raped and sodomized her for several hours, as the rest of the family, bound and gagged, were forced to listen to her screams. Opher was eventually tried and convicted and received a sentence of incarceration of 50
to 150 years for his actions. Mr. Mascaro, unable to live with the memory and consequences of what happened to his wife and daughter, committed suicide.
Prior to Mr. Mascaro's suicide, he, his wife and children, filed the instant complaint against the Youth Study Center, City of Philadelphia, its then managing director, Wilson Goode, and the Commonwealth of Pennsylvania and claimed that because of Appellants' negligent maintenance of the detention center, Opher was permitted to escape and injure Appellees. By Answer, Appellees denied the allegations of negligence and, in their New Matter, invoked the affirmative defenses of governmental and official immunity conferred by 42 Pa.C.S. §§ 8541,*fn1 and asked for judgment on the pleadings.
The trial court agreed with Appellants and granted judgment on the pleadings whereupon an appeal was taken to Commonwealth Court. That court found Mr. Goode immune from suit, but held that the complaint did state a cause of action against the City and Center under the exception to governmental immunity found at 42 Pa.C.S. § 8542(b)(3),*fn2 covering the care, custody, and control of real estate by a local agency. By its order, Commonwealth Court reversed the trial court's entry of judgment on the
pleadings and remanded the matter to the trial court for proceedings, 89 Pa. Commw. 388, 492 A.2d 786.
The City and Center filed a Petition for Allowance of Appeal, which we granted to consider the extent of the real estate exception to local agency immunity, and whether it bars an action against the City and Center under these facts.
In response to our Court's abrogation of the judicially created doctrine of governmental immunity in Ayala v. Philadelphia Board of Public Education, 453 Pa. 584, 305 A.2d 877 (1973), the Legislature enacted the Political Subdivision Tort Claims Act, 42 Pa.C.S. §§ 8541-8564. This Act legislatively raises the shield of governmental immunity against any damages on account of any injury to a person or property caused by any act of a local agency or employee thereof or any other person, except as otherwise provided. 42 Pa.C.S. § 8541, supra. We have already found this statute to be a valid exercise of legislative authority granted by the Pennsylvania Constitution, Carroll v. County of York, 496 Pa. 363, 437 A.2d 394 (1981), and have recently upheld a legislatively imposed cap on the amount that may be recovered by claimants in the aggregate when such damages are permitted under the exceptions in the Political Subdivision Tort Claims Act. Smith v. City of Philadelphia, 512 Pa. 129, 516 A.2d 306 (1986).
By way of exception to the legislatively created rule of governmental immunity, the Act provides that liability may be imposed if two conditions are satisfied, and if the injury occurs as a result of one of eight acts described at 42 Pa.C.S. § 8542(b). The two threshold conditions required are that 1) damages would be recoverable under common law or a statute creating a cause of action against one not having an immunity defense, and 2) the injury must be caused by the negligent acts of the local agency or its employee acting within the scope of its office or duties,
excepting therefrom acts of crime, fraud, malice or willful misconduct.*fn3
As pertains to Appellees' claims against the City and Center, acts by a local agency or its employees which may result in the imposition of liability include the care, custody or control of real property in the possession of the local agency. 42 Pa.C.S. § 8542(b)(3), supra.
In analyzing Appellees' complaint, Commonwealth Court determined that it stated a cause of action against the City and Center. First, it found that, at common law, a landowner owed a duty to keep his property safe from disrepair. If the disrepair was the cause of an injury or permitted a crime to take place which later injured another, the landowner could be held liable. 474 Pa. 588, 379 A.2d 111 (1977), and Sections 365 and 448, infra, of the Restatement Second of Torts for these propositions.
Second, Commonwealth Court determined that the alleged acts of negligence of the City and Center and its agents in not securing the doors and windows of the Center satisfied the second requirement of 42 Pa.C.S. § 8542(a)(2), supra. Third, the Court ruled that the exception to immunity for the care, control and custody of real estate was broad enough to encompass both injuries caused directly by the defective condition of the property, as well as injuries
caused indirectly through a defect of the property, coupled with the criminal acts of a third person.
Appellants strenuously argue that the real estate exception to governmental immunity does not extend to the criminal acts of detainees who escape. Appellants also argue that while control over the physical plant is one for which they may be liable in damages, this control does not extend to control of its detainees and the injuries they cause. This argument is premised on their belief that control over the Center, as a correctional institution, is a purely governmental function for which immunity has not been waived. Finally, Appellants argue that if they are liable for Opher's escape, they can only be held accountable to Appellees if they were aware of a danger posed to them, and knowing same, failed to take any steps to prevent these acts.
We agree that as a precondition to maintaining an action against the City and Center, Appellees had to satisfy the three statutory requirements. First, they had to demonstrate that at common law or by statute one not having an immunity defense available could be held liable for the same harm alleged against the local agency. Appellees urge that our decision in Ford v. Jeffries, 474 Pa. 588, 379 A.2d 111 (1977), provides the necessary common law analogy. In Ford, the landlord of a dwelling house permitted his structure to become dilapidated and a haven for large rats, dogs and arsonists. Two fires broke out in the house and because the second fire spread to the next door neighbor's home (five to six feet from this structure), almost totally destroying it, we held the landlord of the firetrap responsible to the neighbor for the destruction of his home. We specifically ruled that "a property owner can reasonably be expected to know that the visible conditions of vacant property in a state of disrepair may attract, for various purposes, children or adults, who, having entered the property, might act, either negligently or intentionally, in a
manner that would cause a fire." Ford, 474 Pa. at 593, 379 A.2d at 113.
We premised a finding of negligence by referring to Section 365 of the Restatement of Torts, Second, which provides in pertinent part:
A possessor of land is subject to liability to others outside of the land for physical harm caused by the disrepair of a structure . . . . if the exercise of reasonable care . . . would have made it reasonably safe by repair or otherwise.
We also noted that even if the superseding force of an arsonist was the cause of the fire, it would not insulate the landlord from liability because the landlord should have realized the likelihood that such a situation might be created because of his negligent maintenance of the property. Restatement of Torts, Second, Section 448.*fn4
Under the circumstances of that case, the result was totally appropriate and, in theory, can be said to apply here. A dilapidated, abandoned, rat infested structure a few feet distant from occupied dwellings was permitted to burn down and damage a nearby dwelling. Ford teaches that:
If one engages in negligent conduct toward another, such as unreasonably increasing the risk that that person will suffer a particular kind of harm, it cannot be said, as a matter of law, that the actor is not liable simply because the foreseeable plaintiff suffered the foreseeable harm in a manner which was not foreseeable. Appellee's conduct in this case could have increased the risk that appellant's house would be damaged by fire. Such harm in fact occurred. Given these circumstances, it was for the jury
to determine whether the appellee's conduct, if it was negligent, was ...