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April 19, 1994

JOHN I. SMITH and PATRICIA N. SMITH, Co-Administrators of the Estate of Patricia Marie Smith, Deceased, and Natural Guardians of Johnathon Smith

The opinion of the court was delivered by: J. CURTIS JOYNER


 This matter concerns a motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure filed by defendants City of Chester and City of Chester Police Department. Plaintiffs, John P. Smith and Patricia N. Smith, initiated this action seeking damages when their daughter was killed and son was injured as they were crossing the street on their way home from school. Plaintiffs have filed a five count complaint against defendants seeking damages for negligence as well as punitive damages for willful and wanton misconduct.

 The accident occurred at the intersection of Route 320 and the 1700 block of Providence Road in Chester, Pennsylvania. On the day of the accident, the school crossing guard failed to report for duty. Plaintiffs claim that the crossing guard frequently failed to report to duty, and further, that defendants were aware of this fact.

 Defendants claim that they are immune from suit for negligence under the Pennsylvania Political Subdivision Tort Claims Act, 42 Pa.C.S.A. § 8541 et seq. ("the Act"), that as local agencies, they are entitled to immunity from suit for willful and wanton misconduct under the Act, and that the conduct of Gordon Scott Moore, the driver of the car involved in the accident and Thomas Brown, the owner of the car involved in the accident, constituted superseding and intervening causes.

 In response, plaintiffs claim that defendants are not immune under the Act because they fall within 42 Pa.C.S.A. § 8542(b)(4), which is the "trees, traffic controls, and street lighting" exception to immunity under the Act, that the motion for summary judgment is premature, and that the City of Chester and Chester Police Department are liable under statutory and common law.

 A. Standard

 In considering a motion for summary judgment, the court must consider whether the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, show there is no genuine issue as to any material fact, and whether the moving party is entitled to a judgment as a matter of law. Fed.R.Civ.P. 56(c). The court is required to determine whether the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 2510, 91 L. Ed. 2d 202 (1986). In making this determination, all reasonable inferences must be drawn in favor of the nonmoving party. Anderson, 477 U.S. at 256, 106 S. Ct. at 2512. While the movant bears the initial burden of demonstrating an absence of genuine issues of material fact, the nonmovant must then establish the existence of each element of its case. J.F. Feeser, Inc. v. Serv-A-Portion, Inc., 909 F.2d 1524, 1531 (3rd Cir. 1990), cert. denied, 499 U.S. 921, 111 S. Ct. 1313, 113 L. Ed. 2d 246 (1991) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 2553, 91 L. Ed. 2d 265 (1986)).

 B. Discussion

 1. Immunity for claims of negligence under the Act

 In order to state a cause of action against a local agency, a plaintiff must allege conduct that falls within one of the enumerated exceptions to governmental immunity set forth in the Act. *fn1" The exception under which plaintiffs seek to recover from defendants, section 8542(b)(4), abrogates immunity if plaintiff proves:

 Defendants claim that, under § 8542(b)(4), the crossing guard was not a "traffic control" and was not under their "care, custody or control." We need not decide whether the crossing guard was under the "care, custody, or control" of the City of Chester or Chester Police Department because a school crossing guard is not a "traffic control" within the meaning of the Act. In our decision of January 5, 1994, we thoroughly considered this issue. In interpreting the Act, we considered the words themselves, sections of the Vehicle Code, Pennsylvania courts' interpretation of the Act, the reasoning of the only Pennsylvania court to consider the precise issue, and accepted rules of statutory construction. After careful consideration of all of the above, we decided that crossing guards are not "traffic controls" within the meaning of the Act.

 Plaintiffs, in opposing defendants' motion for summary judgment, incorporated arguments made in their motion for reconsideration of our previous decision regarding the same issue. Thus, in addressing the merits of defendants' motion for summary judgment, we consider the arguments made by plaintiffs in their motion for reconsideration.

 Plaintiffs argue that our reliance on Erney v. Wunsch, 35 Pa. D. & C. 3d 440 (1983), a Pennsylvania Common Pleas Court decision, was in error because of its slight precedential value and faulty reasoning. In their reply memorandum to defendants' answer to plaintiffs' motion for reconsideration, plaintiffs state that "this Honorable Court chose to adopt the Erney Court decision in its entirety" and that "this Court's Opinion and Memorandum . . . adopted not only the Erney Court's conclusion but its reasoning and rationale leading to the same." We by no means adopted Erney, nor do we accept Erney as controlling precedent. In fact we recognized the precedential value of Erney and expanded our consideration of the issue beyond Erney. As a federal court sitting in diversity, we predicted how the issue would be decided if the Pennsylvania Supreme Court was confronted with it. Robertson v. Allied Signal, Inc., 914 F.2d 360, 378 (3d Cir. 1990). Plaintiffs cite no authority for their proposition that the court in Erney somehow interpreted the Act incorrectly. Even if we ...

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