Argued February 11, 2014.
Appealed from No. March Term, 2010, No. 1762. Common Pleas Court of the County of Philadelphia. Tereshko, J.
James R. Radmore, Philadelphia, for appellant.
Alan C. Ostrow, Deputy City Solicitor, Philadelphia, for appellees.
BEFORE: HONORABLE RENÉ E COHN JUBELIRER, Judge, HONORABLE PATRICIA A. McCULLOUGH, Judge, HONORABLE JAMES GARDNER COLINS, Senior Judge.
JAMES GARDNER COLINS, Senior Judge.
Rebecca Gale (Appellant) appeals from the order of the Philadelphia County Court of Common Pleas (Trial Court) sustaining the preliminary objections in the nature of a demurrer filed by the City of Philadelphia (City) and dismissing Appellant's amended complaint as to the City with prejudice. The Trial Court concluded that the City was immune from suit because Appellant's cause of action did not fall within one of the enumerated exceptions to governmental immunity contained in the Judicial Code (Tort Claims Act).
On or about March 16, 2008, Jose Garriya was taken into custody by the Philadelphia
Police Department, handcuffed, and placed in the back of a police cruiser. (Amended Complaint, ¶ 7.) Inexplicably, Mr. Garriya managed to commandeer the police cruiser and drive it onto the Benjamin Franklin Bridge. (Amended Complaint, ¶ ¶ 8, 9.) Appellant was in her vehicle traveling eastbound on the bridge from Philadelphia, Pennsylvania toward Camden, New Jersey. (Amended Complaint, ¶ 5.) At approximately 5:45 a.m., the police cruiser driven by Mr. Garriya struck Appellant's vehicle from behind. (Amended Complaint, ¶ ¶ 6, 10-11.) As a result of the collision, Appellant sustained serious injury. (Amended Complaint, ¶ 13.)
Appellant argues that the Trial Court erred in concluding that the City is immune from suit, because the cause of action falls within the vehicle exception to governmental immunity. Appellant contends that both Mr. Garriya and the vehicle were in the custody and control of police, and that the actions of police officers were part of a continuous sequence of events that caused the operation of the vehicle by Mr. Garriya. The City contends that the vehicle exception to governmental immunity only applies where the vehicle is being operated by a local agency employee authorized to operate the vehicle and does not apply to the failure of a local agency employee to control a vehicle or the operator of a vehicle.
Section 8542 of the Tort Claims Act contains eight enumerated exceptions to the General Assembly's broad grant of immunity from tort claims to local governmental agencies. 42 Pa. C.S. § 8542. Subsection 8542(a) provides two conditions a plaintiff must satisfy before determining whether the injury to person or property alleged falls within one of the exceptions to immunity for " acts by a local agency or any of its employees," contained in Subsection 8542(b). Id. First, a plaintiff must establish that " 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," of governmental immunity or official immunity. 42 Pa. C.S. § 8542(a)(1). Second, a plaintiff must establish that " 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)..." 42 Pa. C.S. § 8542(a)(2). If a plaintiff is able to satisfy the requirements of Subsection 8542(a), a local agency will retain immunity unless the claim alleged by the plaintiff also falls within one of the exceptions contained in Subsection 8542(b), including the exception for vehicle liability. In accordance with the General Assembly's expressed intent to insulate local agencies from tort liabilities, the statutory language of the exceptions to governmental immunity contained in Subsection 8542(b) of the Tort Claims Act must be construed narrowly; immunity remains the rule. Mascaro v. Youth Study Center, 514 Pa. 351, 361 523 A.2d 1118, 1123 (1987).
The vehicle exception to governmental immunity permits liability where a plaintiff's injury is due to " [t]he operation of any motor vehicle in possession or control of the local agency...." 42 Pa. C.S. § 8542(b)(1). The word " operation," in this context, means " to actually put in motion," and does not include " preparing to operate a vehicle, or acts ...