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Allen v. County of Wayne

Commonwealth Court of Pennsylvania

September 13, 2013

Kevin Allen, Appellant
v.
County of Wayne, Acting in and Through the Wayne County Correctional Facility and the County of Wayne, Acting in and Through the Wayne County Commissioners, Brian W. Smith, Anthony
v.
Herzog, and Wendell R. Kay

Argued March 13, 2013.

Appealed from No. 526-2011-CIVIL. Common Pleas Court of the County of Wayne. Conway, Senior Judge.

Scott E. Schermerhorn, Scranton, for appellant.

Michael J. Donohue, Scranton, for appellees.

BEFORE: HONORABLE DAN PELLEGRINI, President Judge, HONORABLE BERNARD L. McGINLEY, Judge, HONORABLE BONNIE BRIGANCE LEADBETTER, Judge, HONORABLE RENÉ E COHN JUBELIRER, Judge, HONORABLE ROBERT SIMPSON, Judge, HONORABLE MARY HANNAH LEAVITT, Judge, HONORABLE P. KEVIN BROBSON, Judge. OPINION BY PRESIDENT JUDGE PELLEGRINI. Judge McGinley dissents. CONCURRING and DISSENTING OPINION BY JUDGE SIMPSON. Judge Leadbetter joins in this concurring and dissenting opinion.

OPINION

Page 1036

DAN PELLEGRINI, President Judge.[1]

Kevin Allen (Plaintiff) appeals from an order of the Court of Common Pleas of Wayne County (trial court) sustaining the preliminary objections in the nature of a demurrer of Wayne County, acting in and through the Wayne County Correctional Facility and the Wayne County Commissioners, Brian W. Smith, Anthony V. Herzog and Wendell R. Kay (collectively, County), and dismissing Plaintiff's personal injury complaint on the basis that a county prison inmate is not an employee for purposes of the governmental immunity provisions in Sections 8541-8564 of the Judicial Code, 42 Pa. C.S. § § 8541-8564, commonly referred to as the Political Subdivision Tort Claims Act (Act). For the reasons that follow, we reverse the trial court's order and remand for further proceedings consistent with this Opinion.

In September 2009, Plaintiff, while an inmate at the County's correctional facility, sustained serious injuries when another inmate, Jason Hicks (Hicks), backed into him with a lawn tractor, causing Plaintiff's right leg to become pinned underneath the tractor while they were performing yard work at a correctional facility in Monroe County.

Page 1037

Plaintiff filed a personal injury complaint in the trial court averring that Hicks was an employee or agent of the County within the meaning of 42 Pa. C.S. § 8501; that negligence on the part of the County, through its employee, caused his injuries; and that the circumstances surrounding the accident fell within the vehicle liability exception to governmental immunity, 42 Pa. C.S. § 8542(b)(1). Plaintiff further alleged that the lawn tractor's reverse warning mechanism was broken or disabled at the time of the accident, and the County's negligent maintenance of the lawn tractor also fell within the vehicle liability exception. The County filed preliminary objections in the nature of a demurrer.[2]

Ultimately, the trial court sustained the County's preliminary objections on the basis that a county prison inmate is not a local agency employee for purposes of liability under the exceptions to governmental immunity in 42 Pa. C.S. § 8542. Without addressing Plaintiff's claim as to the County's alleged improper maintenance of the lawn tractor's reverse warning mechanism, the trial court dismissed Plaintiff's complaint with prejudice. This appeal by Plaintiff followed.[3]

I.

On appeal, Plaintiff first argues that the trial court erred in holding that an inmate performing yard maintenance at a neighboring county correctional facility is not a county employee for purposes of governmental liability under 42 Pa. C.S. § 8542. Plaintiff contends that inmate Hicks fell within the definition of employee at the time of the accident because he was acting on behalf of the County when he was operating the lawn tractor while doing yard work at the County's jail.

To impose liability on the County, the Plaintiff must show that the negligent action was caused by the negligence of the local agency or one of its employees and also falls within one of the exceptions to immunity. Section 8542(a), 42 Pa. C.S. § 8542(a), provides, in relevant part:

(a) Liability imposed.

--A local agency[4] shall be liable for damages on account of an injury to a person or property within the limits set forth in this subchapter if both of the following conditions are satisfied and the injury occurs as a result of one of the acts set forth in subsection (b):

Page 1038

(1) The damages would be recoverable under common law or a statute creating a cause of action if the injury were caused by a person not having available a defense under section 8541 (relating to governmental immunity generally) or section 8546 (relating to defense of official immunity); [5] and
(2) The injury was caused by the negligent acts of the local agency or an employee thereof acting within the scope of his office or duties with respect to one of the categories listed in subsection (b). As used in this paragraph, 'negligent acts' shall not include acts or conduct which constitutes a crime, actual fraud, actual malice or willful misconduct.

(Emphasis added).

The exception to immunity that is applicable to this case is contained in Section 8542(b)(1), which provides, in relevant part:

(b) Acts which may impose liability.

--The following acts by a local agency or any of its employees may result in the imposition of liability on a local agency:

(1) Vehicle liability .

--The operation of any motor vehicle in the possession or control of the local agency .... As used in this paragraph, 'motor vehicle' means any vehicle which is self-propelled and any attachment thereto, including vehicles operated by rail, through water or in the air.

42 Pa. C.S. § 8542(b)(1) (emphasis added).[6]

The dispute here is whether Hicks was an employee within the meaning of Section 8501 of the Judicial Code, 42 Pa. C.S. ยง 8501, which defines an " ...


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