Commw. Ct. recognizes new exception to govt. immunity

Wednesday, February 2, 2000
By Danielle N. Rodier
Of the Legal Staff

Plaintiff Karen Sherman was represented by Ezra Wohlgelernter and Daniel Mann

For the first time, the Commonwealth Court has ruled that cities and municipalities can be sued for defects in a sidewalk under the real property exception to governmental immunity.

The exception provides that a local agency can be sued for the negligent care, custody or control of real property. The definition excludes certain kinds of property, including sidewalks.

But a majority of the en banc court earlier this week said there are certain situations, like the one in Sherman v. City of Philadelphia, when an "exception to the exception" applies.

Three dissenters from the decision asserted that the judges in the majority were acting outside their given roles by inserting their own language into a statute enacted by the legislature.

But the majority, led by Commonwealth Court Judge Joseph Doyle, said the court had to fill a gap left by the General Assembly between commonwealth and municipal liability for sidewalks.

"Accordingly, rather than laboring through an analysis as to the true definition of what constitutes a 'street,' -- we believe that the more appropriate solution to the problem is to make a key acknowledgment at the starting point of the analysis - that is, that the General Assembly, when it was drafting the exceptions to governmental immunity, did not envision nor consider the situation where the local agency owns the property adjacent to the sidewalk on which the injury occurs and the commonwealth owns the street abutting the sidewalk," he said.

"Accordingly, we now hold that Section §542(b)(3), the real property exception, must be read as intending to exclude from the definition of real, sidewalks, except where those sidewalks are part of the real property owned by the local agency.

"Although we acknowledge that this analysis clearly sets up an 'exception' to an exception to governmental immunity, thereby obliterating a distinction between sidewalks owned by a local government and those owned by private citizens, such an analysis is clearly reasonable and reaches a sensible result."

FALL ON SPRING GARDEN

The plaintiff, Karen Sherman, fell on a sidewalk in front of the city-owned Fire Department Administration Building on Spring Garden Street. The section of Spring Garden abutting the sidewalk is a designated state highway.

The Philadelphia Common Pleas Court granted the city's motion for summary judgment, finding that Sherman's negligence suit did not fit within any of the exceptions to governmental immunity.

Doyle said the case was originally listed for argument before a three-judge panel, but because of the "importance of the issue," it was relisted for argument before the court en banc.

The city argued that because the commonwealth owns the section of Spring Garden adjacent to the Fire Administration Building, the sidewalk was within the right of way of the commonwealth-owned state highway and was not one of its streets. For that reason, the sidewalk exceptions did not apply, the city said, and the trial court agreed.

The sidewalks exception allows a city or municipality to be sued for a dangerous condition of sidewalks within the right-of-way of streets owned by the local agency.

Doyle began his in-depth analysis of Sherman's appeal by stating that under a strict reading of the real property and sidewalk exception to governmental immunity, Sherman would be precluded from recovering for her injuries because the sidewalk she fell on was not within the right-of-way of a street owned by the city.

Additionally, her suit would be precluded because the sidewalk exception is based upon the city's secondary liability**

**commonwealth is limited to primary liability - the liability of a private property owner - for sidewalk injuries, Doyle said.

He explained that primarily liability is imposed on a party who is directly negligent, such as when a sidewalk owner fails to make repairs.

Secondary liability flows from some sort of legal relationship between parties, he said. For example