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Falor v. Southwestern Pennsylvania Water Auth.

Commonwealth Court of Pennsylvania

October 9, 2014

Sherri A. Falor, Appellant
v.
Southwestern Pennsylvania Water Authority

Submitted September 11, 2014

Appealed from No. A.D. No. 36, 2012. Common Pleas Court of the County of Greene. Nalitz, J.

Timothy N. Logan, Waynesburg, for appellant.

Pamela V. Collis, Pittsburgh, for appellee.

BEFORE: HONORABLE MARY HANNAH LEAVITT, Judge, HONORABLE PATRICIA A. McCULLOUGH, Judge, HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge.

OPINION

Page 585

MARY HANNAH LEAVITT, Judge

Sherri A. Falor appeals an order of the Court of Common Pleas of Greene County (trial court) granting summary judgment to the Southwestern Pennsylvania Water Authority on Falor's tort claim. Falor sought to hold the Water Authority liable for water damage to her commercial property that occurred when the pipes in her building burst in the winter. This would not have happened if the Water Authority had turned off water service to her building as it had agreed to do. The trial court held that Falor's claim was barred by governmental immunity, as provided by the statute commonly referred to as the Political Subdivision Tort Claims Act (Tort Claims Act), 42 Pa. C.S. § § 8541-8542. We affirm.

Factual and Procedural Background

The pertinent facts follow. Falor has owned a four-story commercial building located at 325 East High Street in Waynesburg, Pennsylvania since 1983. In 2010, Falor decided to sell the property and to shut off all utilities because the building was not occupied. In December 2010, Falor asked the Water Authority to shut off the water for her building. The Water Authority sent its employee, Patrick Knight, to shut off the water. He discovered that the tap connecting the water main to Falor's property also served another building next door. Deciding that shutting off Falor's water would also shut off the neighbor's water, Knight did nothing. No one from the Water Authority informed Falor of Knight's omission. However, it did not continue to bill her.

In the meantime, the gas company complied with Falor's request to shut off service, which left the building unheated. At some point during the winter of 2010-2011, the pipes in Falor's building froze and burst. As a result, thousands of gallons of water flooded the building, unbeknownst to Falor.

In February 2011, the Waynesburg Borough Manager told Falor that there was water running in the alley behind her building. Falor replied that the water was not coming from her building because the water had been shut off. In March 2011, the Water Authority informed Falor that the water had not been shut off to the building, and she investigated. She discovered substantial damage to the interior of the building as well as mold and mildew contamination.

Falor filed a civil action against the Water Authority to recover for the damage to

Page 586

her building that is now uninhabitable. The Water Authority filed preliminary objections. Falor then filed an amended complaint. The amended complaint alleged that the Water Authority did not shut off the water or notify her that it chose not to do so. As a consequence, the water pipes burst inside the building and caused significant flooding. Amended Complaint, ¶ 16; Supplemental Reproduced Record at 005b (S.R.R. ). The amended complaint asserted several theories: negligence, nuisance, trespass and strict liability. The Water Authority filed an answer and new matter denying liability and asserting the defense of governmental immunity under the Tort Claims Act.

After discovery, the Water Authority moved for summary judgment, asserting that it was immune from liability for its failure to shut off the water as requested. Falor responded with her own motion for summary judgment, asserting, inter alia, that the two-headed tap serving Falor's property was a " dangerous condition." The trial court rejected Falor's theory of liability and concluded that the harm was caused by the Water's Authority's failure to shut off the water and to inform Falor of that fact. Concluding the Water Authority was immune from liability for this omission, the trial court granted judgment to the Water Authority. The present appeal followed.[1]

Issues

On appeal, Falor raises five issues for our consideration.[2] First, Falor argues that the trial court erred by holding that a dangerous condition did not exist when such determination is a finding of fact reserved for the jury. Second, Falor argues that the trial court erroneously concluded that an exception to governmental immunity did not apply. Third, Falor argues that the trial court erred in denying her claim in trespass. Fourth, Falor argues that the trial court erred in concluding that her claim in nuisance does not fall under an exception to governmental immunity. Fifth, Falor argues that the trial court erred in finding that the water supply line running to Falor's building was not an ultra hazardous condition, which imposed strict liability on the Water Authority. We address these issues seriatim.

Applicable Principles of Law

The Tort Claims Act generally shields local agencies from tort liability for injuries caused by the agency or its employees.[3] ...


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