Ronhilde J. Gillingham, Appellant
County of Delaware
Argued: October 20, 2016
BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge
HONORABLE P. KEVIN BROBSON, Judge HONORABLE DAN PELLEGRINI,
KEVIN BROBSON, Judge.
negligence action, Appellant Ronhilde Gillingham (Gillingham)
appeals from an order of the Court of Common Pleas of
Delaware County (trial court), which granted the County of
Delaware's (County) motion for summary judgment and
dismissed Gillingham's personal injury complaint with
prejudice. In so doing, the trial court concluded that the
County was immune from liability for the injuries Gillingham
sustained after a fall in the Delaware County Recorder of
Deeds Office. For the reasons set forth below, we affirm.
purposes of summary judgment, the undisputed material facts
are as follows. On November 12, 2012, Gillingham visited the
County Recorder of Deeds Office to conduct title searches.
Gillingham sat to conduct searches at a County computer, and
her foot became entangled in the computer cables and wires
under the computer cubicle. With her foot still entangled in
the computer cables, Gillingham stood up to walk away from
the computer, tripped, and fell.
complaint filed on October 9, 2014, Gillingham named the
County and the Recorder of Deeds as separate defendants.
(Reproduced Record (R.R.) at 7a-12a.) The County filed
preliminary objections on behalf of the Recorder of Deeds,
arguing that the Recorder of Deeds cannot be sued as an
entity distinct from the County. (Id. at 15a-16a.)
Gillingham amended her complaint, dropping the Recorder of
Deeds as a defendant and re-alleging that the County's
negligence directly and proximately caused her injuries.
(Id. at 44a-49a.) Specifically, Gillingham alleged
that the County was negligent by its failure to inspect and
maintain the floor and failure to make safe or remove the
foreign substance-i.e., the computer cables-from the
floor. (Id. at 11a-12a, Compl. ¶ 19.)
County filed an answer and new matter, denying the material
allegations of Gillingham's complaint and asserting that
the County was immune under what is commonly referred to as
the Political Subdivision Tort Claims Act (Tort Claims Act),
42 Pa. C.S. §§ 8541-8542. (Id. at
September 25, 2015, following the completion of discovery,
the County filed a motion for summary judgment, in which it
again argued that the County was immune under the Tort Claims
Act. (Id. at 61a-65a.) The County attached to its
motion the affidavit of Joseph DeVuono, who placed the
computers in their location at the Recorder of Deeds Office.
(Id. at 203a.) In his affidavit, Mr. DeVuono states:
The computers and cubicles may be moved for repairs or for
cleaning. There is no hardwiring of the computers at the
individual stations and nothing at the computer station is
bolted or attached to the floor or walls. The computer
station cubicle itself as well as each computer are fully
moveable and are not affixed in anyway [sic] to the floor or
(Id. at 203a.) The County argued that the "real
property exception" is not viable in this case because
"none of [the computer cables] are affixed or wired to
the real estate." (Id. at 74a.) In response,
Gillingham argued that it is not necessary for her to show
that a fixture to the real property caused the injuries.
(Id. at 225a-31a.) Instead, Gillingham contended,
under the approach from our Supreme Court's decision in
Grieff v. Riesinger, 693 A.2d 195 (Pa. 1997), it is
sufficient for Gillingham to show that the County was
negligent in its care, custody, or control of the real
property. (Id. at 226a.) Gillingham argued that the
County was negligent in its maintenance of the real property,
namely, the floor in the Recorder of Deeds Office.
(Id. at 230a.)
November 17, 2015, the trial court granted the County's
motion for summary judgment and dismissed Gillingham's
complaint against the County with prejudice. Gillingham filed
a notice of appeal with this Court, and the trial court
issued an opinion pursuant to Pa. R.A.P 1925(a) on May 16,
2016. In explaining its ruling, the trial court cited prior
cases from this Court and appears to have concluded that the
approach from Blocker v. City of Philadelphia, 763
A.2d 373 (Pa. 2000), is more applicable than the approach set
forth in Grieff.
appeal, Gillingham essentially argues that the
trial court erred in applying the Blocker approach
rather than the Grieff approach to Section
8542(b)(3) of the Tort Claims Act, 42 Pa. C.S. §
8542(b)(3). Gillingham contends that the trial court erred
because she alleged that the County's negligent care,
custody, or control of the floor in the Recorder of Deeds
Office, rather than the computer cables, caused her injuries.
Thus, Gillingham argues, the approach from the
Grieff line of cases is the most applicable
analysis. Gillingham also appears to argue that the
maintenance of an object of personalty can fall within
Section 8542(b)(3)'s exception for real property.
The Real Property Exception to Governmental Immunity
local agencies are immune from tort liability under Section
8541 of the Tort Claims Act." Gibellino v.
Manchester Twp., 109 A.3d 336, 342 (Pa. Cmwlth. 2015). A
local agency may, however, be liable for damages that are:
(1) recoverable under common law or a statute creating a
cause of action; (2) caused by the negligent act of the local
agency or its employees acting within the scope of their
employment; and (3) caused by one of the specific acts
enumerated in Section 8542(b) of the Act. Section 8542(a) of
the Tort Claims Act.
issue in this appeal is whether Gillingham failed to state a
claim under Section 8542(b)(3) of the Tort Claims Act, which
is referred to as the "real property exception" to
governmental immunity. Section 8542(b)(3) of the Tort Claims Act
(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:
. . .
(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
(iii) streets; or
exception applies "where acts of the local agency or its
employees make the property unsafe for the activities for
which it is regularly used, for which it is intended to be
used or for which it may reasonably be foreseen to be
used." Moles v. Borough of Norristown, 780 A.2d
787, 791 (Pa. Cmwlth. 2001). "Because of the clear
intent to insulate government from exposure to tort
liability, the exceptions to immunity are to be strictly
construed." Lockwood v. City of Pittsburgh, 751
A.2d 1136, 1139 (Pa. 2000).
are two approaches that can be used to determine whether to
apply the real property exception to immunity under the Tort
Claims Act-the Grieff approach and the
Blocker approach. Repko v. Chichester Sch.
Dist., 904 A.2d 1036, 1040 (Pa. Cmwlth. 2006). Both
approaches have been applied by the courts. Id. We
acknowledge that "at times, deciding which approach to
apply under a given set of facts is challenging."
Id. In deciding which approach to apply, this Court
determines which line of cases has more analogous facts
pertaining to causation.
the Grieff approach, the determinative inquiry is
whether the injury is caused by the care, custody, or control
of the real property itself. Id. In Grieff,
our Supreme Court held that the real property exception
applied to injuries caused by the alleged negligent care of a
fire association's property. Grieff, 693 A.2d at
197. There, the fire chief poured paint thinner onto the
floor to remove paint from the floor. Id. at 196.
The paint thinner spread across the floor and caught fire
under a refrigerator, causing severe injuries to a bystander.
Id. The Court explained that the fire chief's
alleged negligence was in the paint removal, and paint
removal clearly fell within the exception's ...