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Geier v. Board of Public Education of School District of Pittsburgh

Commonwealth Court of Pennsylvania

January 25, 2017

John F. Geier, Executor of the Estate of Marianne M. Geier and John F. Geier, her husband
v.
Board of Public Education of the School District of Pittsburgh
v.
American Art Clay Company, Inc., a/k/a Amaco, Inc., American Biltree, and it's division AMTICO; AVCO Corporation, on behalf of its Lycoming-Spencer division; Azrock Industries, Board of Public Education of the School District of Pittsburgh, a Delaware Corporation, f/k/a Viacom, Inc., successor by merger to CBS Corporation, a Pennsylvania Corporation, f/k/a Westinghouse Electric Corporation; Certainteed Corporation; Conwed Corporation, Individually and as successor to the Wood Conversion Company; F.B. Wright Company; George V. Hamilton, Inc.; Georgia Pacific Corporation; Hinkle Hoffman Supply Company; I.U. North America, Inc., as successor by merger to the Garp Company, formerly known as The Gage Company, formerly known as Pittsburgh Gage and Supply Company; Kaiser Gypsum Company, Inc.; Mannington Mills, Inc., Owens-Illinois, Inc., Plum Borough School District; Rust Engineering and Construction, Inc., Trane U.S. Inc. f/k/a American Standard, Inc., successor in interest to Kewanee Boiler Company, Inc.; Union Carbide Corporation and its Linde Division; Cemline Corporation; Oakfabco, Inc.; Rheem Manufacturing Company; ECR International; Allentown; Armstrong Pumps, Inc.; Arnold Lumber and Supply Co.; The Columbus Heating and Ventilating Company; Davis Fetch Corporation of Pennsylvania; Eaton Corporation, as successor-in-interest to Cutler-Hammer, Inc.; Grinnel LLC; Hammond Valve Company; Houston-Starr Company; ITT Corporation, f/k/a ITT Industries; Kennedy-Tubular Products, Inc., in its own right as and successor-in-interest to Pennco Industries; Kurtz Bros.; Milton W. Ryan and Associates, Inc.; North American Manufacturing Company; Schultheis Bros. Co.; and Square D Company Appeal of: Board of Public Education of the School District of Pittsburgh

          Argued: November 15, 2016

          BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge, HONORABLE ROBERT SIMPSON, Judge, HONORABLE P. KEVIN BROBSON, Judge.

          OPINION

          ROBERT SIMPSON, Judge.

         In this interlocutory appeal by permission, the Pittsburgh School District's Board of Public Education (PBE) seeks review of an order of the Court of Common Pleas of Allegheny County (trial court) denying its motion for summary judgment in a negligence action for personal injuries caused by exposure to asbestos dust. PBE, a local government agency, asserts it is entitled to governmental immunity under Sections 8541-64 of the Judicial Code, 42 Pa. C.S. §§8541-64, often referred to as the Political Subdivision Tort Claims Act (Tort Claims Act), and the Pennsylvania Constitution, for injuries caused by workplace exposure to products containing asbestos. Because we conclude PBE could be liable to an employee for exposure to asbestos dust if the condition causing the exposure falls within one of the exceptions to governmental immunity, and because we conclude this is the only issue before us on interlocutory appeal by permission, we affirm.

         I. Background

         A. Generally

         Marianne M. Geier (Decedent) worked for PBE as a math teacher at South High School from the fall of 1958 through the summer of 1959. During this period of time, Decedent was exposed to asbestos dust coming from pipe coverings on the steam and water pipes located in the hallways, stairways, and classrooms of the high school.

         Five decades later, in October 2013, Decedent was diagnosed with mesothelioma. Thereafter, Decedent and her husband, John F. Geier (collectively, Plaintiffs) filed a tort action for severe and permanent personal injuries against PBE and 40 other defendants (collectively, Defendants), which include various corporate entities engaged in the manufacturing, fabricating, distributing, selling, supplying, installing and removing of asbestos products. Plaintiffs allege Decedent's occupational exposure to asbestos dust, caused by Defendants' acts or omissions, caused her mesothelioma. Plaintiffs sought compensatory and punitive damages for their injuries. Decedent ultimately passed away in July 20l6.

         B. Motion for Summary Judgment

         1. Immunity Under Tort Claims Act

         In March 2016, following the close of discovery, PBE filed a motion for summary judgment asserting governmental immunity.[1] PBE argued its duty to provide a safe workplace does not fall within any of the eight exceptions waiving immunity under the Tort Claims Act. Further, although Plaintiffs allege Decedent suffered exposure to asbestos-containing products manufactured, sold and distributed by third parties, PBE averred it was insulated from liability because the Tort Claims Act bars claims for damages facilitated by the acts of others.

         PBE further observed that Plaintiffs' complaint sets forth a claim for recovery under the utility service facilities exception in Section 8542(b)(5) of the Tort Claims Act, which provides:

(a) Liability imposed.-A local agency 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):
(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); 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.
(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:
(5) Utility Service facilities.-A dangerous condition of the facilities of steam, sewer, water, gas or electric systems owned by the local agency and located within rights-of-way, except that the claimant to recover must establish the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred and that the local agency had actual notice or could reasonably be charged with notice under the circumstances of the dangerous condition at a sufficient time prior to the event to have taken measures to protect against the dangerous condition.

42 Pa. C.S. §8542(b)(5).

         Although not expressly raised by Plaintiffs, we recognize that the real property exception in Section 8542(b)(3) of the Tort Claims Act may also be relevant in this case.[2] This exception provides:

(3) Real property.-The care, custody or control of real property in the possession of the local agency, except that the local agency shall not be liable for damages on account of any injury sustained by a person intentionally trespassing on real property in the possession of the local agency. As used in this paragraph, 'real property' shall not include:
(i) trees, traffic signs, lights and other traffic controls, street lights and street lighting systems;
(ii) facilities of steam, sewer, water, gas and electric systems owned by the local agency and located within rights of-way;
(iii) streets; or
(iv) sidewalks.

42 Pa. C.S. §8542(b)(3) (emphasis by underline added).

         As to all exceptions to governmental immunity, to fall within an exception to governmental immunity: (1) the damages sought must otherwise be recoverable under common law or a statute creating a cause of action against a person not having a defense under 42 Pa. C.S. §8541; (2) the negligent act of the local agency, or an employee thereof must have caused the injury; and, (3) the negligent act of the local agency must fall within one of the eight enumerated exceptions in 42 Pa. C.S. §8542. Sellers v. Twp. of Abington, 67 A.3d 863 (Pa. Cmwlth. 2013). PBE also noted the exceptions to governmental immunity are narrowly construed given the legislature's expressed intent to insulate political subdivisions from tort liability. Love v. City of Phila., 543 A.2d 531 (Pa. 1988); Walsh v. City of Phila., 585 A.2d 445 (Pa. 1991); Sellers.

         PBE further argues that Plaintiffs must allege that the dangerous condition causing the injury must be "of the facilities of steam, water, gas or electric" and "located within rights of way." 42 Pa. C.S. §8542(b)(5). In addition, it is critical that the utilities' facilities themselves cause the injury and not merely facilitate the injury by the acts of others. Falor v. Sw. Pa. Water Auth., 102 A.3d 584 (Pa. Cmwlth. 2014).

         To fall within the real property exception in Section 8542(b)(3) of the Tort Claims Act, a claim must allege an injury caused by the real property itself, or the negligent care, custody or control of it. Mandakis v. Borough of Matamoras, 74 A.3d 301 (Pa. Cmwlth. 2013). To that end, the real property exception does not apply to personal property not permanently attached or affixed to the real property. Sanchez-Guardiola v. City of Phila., 87 A.3d 934 (Pa. Cmwlth. 2014).

         Nonetheless, a local agency's negligent care, custody or control of its real property includes the agency's negligent maintenance of its real property. See Grieff v. Reisinger, 693 A.2d 195 (Pa. 1997) (claim for injury caused by ignition of cleaning fluid used by fire chief to clean floor fell within real property exception); Hanna v. West Shore Sch. Dist., 717 A.2d 626 (Pa. Cmwlth. 1988) (claim for injury caused by slip and fall on accumulated water used to mop floor fell within the real property exception); Kelly v. Curwensville High Sch., 595 A.2d 787 (Pa. Cmwlth. 1991) (claim for injury caused by fall through skylight from permanently attached ladder located too close to skylight fell within real property exception).

         Here, Decedent stated in an affidavit that she was occupationally exposed to the following asbestos-containing products: (a) pipe coverings; (b) floor tile; (c) drywall; and (d) joint compound. However, Decedent mentioned no exposure to asbestos-containing products in her classroom. PBE further asserted Decedent failed to identify the rights-of-way where the alleged dangerous conditions were located. Moreover, Decedent testified in her deposition that she had no knowledge that any PBE employee or representative was aware of the potential hazards of asbestos at South High School during the 1958-59 school year.

         Summarizing, PBE asserted that none of the asbestos-containing products to which Decedent may have been exposed constituted part of PBE's utility service facilities located within rights-of-way. Therefore, PBE reasoned, Plaintiffs failed to demonstrate the existence of a genuine issue of material fact that would allow a jury to find that damages would be recoverable under common law or that Plaintiffs' claims fell within the utility service facilities exception. As such, PBE claimed it was entitled to judgment in its favor as a matter of law. Sellers.

         2. Denial of Summary Judgment; Emergency Motion to Amend

         By order dated April 4, 2016, the trial court denied PBE's motion for summary judgment.[3] In response, PBE filed an emergency motion requesting that the trial court certify for immediate appeal PBE's argument that it is entitled to governmental immunity under the Tort Claims Act. In particular, PBE asserted:

a. an alleged failure to provide a safe workplace does not fall within the scope of any of the exceptions to immunity set out in the [Tort Claims Act];
b. the pipe covering and cement that was supposedly present on pipes located in South High School were supplied by third-parties and [PBE] could not be held liable for their actions[;] and
c. the utility exception does not apply to Plaintiffs' claims.

Emergency Motion to Amend at ¶12; R.R. at 245a.

         PBE also asserted that to date, no appellate court ruled on the central question of whether a local agency can be subject to liability under the exceptions to governmental immunity based on an employee's alleged occupational exposure to asbestos. PBE further asserted this issue constitutes a controlling question of law because if Plaintiffs' claims are barred by governmental immunity, Plaintiffs' claims fail.

         Consequently, PBE requested that the trial court amend its order denying summary judgment to provide for an interlocutory appeal to determine whether a local agency can be subject to liability under the exceptions to governmental immunity based on an employee's alleged occupational exposure to asbestos. By order dated April 8, 2016, the trial court denied PBE's emergency motion. R.R. at 260a.

         C. ...


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