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Gillingham v. County of Delaware

Commonwealth Court of Pennsylvania

February 14, 2017

Ronhilde J. Gillingham, Appellant
v.
County of Delaware

          Argued: October 20, 2016

          BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE DAN PELLEGRINI, Senior Judge.

          OPINION

          P. KEVIN BROBSON, Judge.

         In this 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.

         I. BACKGROUND

         For 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.

         In a 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.)

         The 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 51a-58a.)

         On 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 wall.

(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.)

         On 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.

         On appeal,[1] 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.

         II. DISCUSSION

         A. The Real Property Exception to Governmental Immunity

         "Generally, 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.

         At 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.[2] Section 8542(b)(3) of the Tort Claims Act provides:

(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 rights-of-way;
(iii) streets; or
(iv) sidewalks.

         This 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).

         There 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.

         Under 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 ...


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