Casey v. Geiger

Decision Date04 October 1985
PartiesLisa R. CASEY, a/k/a Lisa R. Morse, A Minor Child of Bridget C. Casey, Her Natural Mother and Guardian, and Bridget C. Casey, Appellants, v. James C. GEIGER and Borough of Camp Hill, and Andrew Janssen. 2110 Phila. 1982
CourtPennsylvania Superior Court

Howard M. Newstadt, Harrisburg, for appellants.

Thomas J. Williams, Carlisle, for appellees.

Before McEWEN, TAMILIA and HOFFMAN, JJ.

TAMILIA, Judge:

Appellants contend that the lower court erred in sustaining appellees' preliminary objections in the nature of a demurrer to counts IV and V of appellants' amended complaint and in dismissing the amended complaint as against appellees. We disagree and, accordingly, affirm the Order of the court below.

On September 10, 1981, appellants Bridget Casey and her daughter, Lisa, filed a complaint against defendant James Geiger alleging false imprisonment, assault and battery, and intentional infliction of emotional distress, and against appellees, Borough of Camp Hill and Andrew Janssen, Borough Manager, alleging negligence. 1 On September 23, appellees filed preliminary objections in the nature of a demurrer to counts IV and V, the negligence counts, of the complaint. Appellees claimed that appellants failed to state a cause of action against them in accordance with the Political Subdivision Tort Claims Act, 42 Pa.C.S.A. § 8541 et seq. (formerly 53 P.S. § 5311.101 et seq.) [hereinafter cited as the "Act"] 2 The court below sustained the objections on November 2 and filed in support thereof a Memorandum Opinion on November 4, basing its decision on Chapman v. City of Philadelphia, 290 Pa.Super 281, 434 A.2d 753 (1981). The court, however, granted appellants' leave to file an amended complaint, which they did on April 12, 1982. On April 16, appellees filed the same objections to the amended counts IV and V. The lower court sustained the objections, dismissed the amended complaint as against appellees, and filed an opinion in support thereof on June 18, again relying primarily upon Chapman. This appeal followed.

In considering preliminary objections in the nature of a demurrer, the following standard is applied:

It is axiomatic in the law of pleading that preliminary objections in the nature of a demurrer admit as true all well and clearly pleaded material, factual averments and all inferences fairly deducible therefrom.... Conclusions of law and unjustified inferences are not admitted by the pleading. Starting from this point of reference the complaint must be examined to determine whether it sets forth a cause of action which, if proved, would entitle the party to the relief sought. If such is the case, the demurrer may not be sustained. On the other hand, where the complaint fails to set forth a cause of action, a preliminary objection in the nature of a demurrer is properly sustained....

Abarbanel v. Weber, 340 Pa.Super. 473, 479, 490 A.2d 877, 880 (1985) (citations omitted).

In their amended complaint, the appellants allege the following: (1) On June 19, 1979, appellant Lisa Casey, then ten years old, participated in swimming lessons sponsored by appellee Borough at Seibert Memorial Park, a recreational park facility owned and operated by the Borough for use solely by the residents of the Borough; (2) appellant Bridget Casey, Lisa's mother, paid an annual fee to appellee Borough for which consideration her children were entitled to use of the recreational facilities in the Park; (3) at about 10:40 on the morning of June 19, 1979, appellant, Lisa Casey, after completing her swimming lesson, proceeded to walk through the Park; (4) at about 10:45 a.m. defendant Geiger engaged appellant Lisa Casey in conversation, then forcibly picked up and carried her into the bushes and overgrown underbrush in the Park whereupon he proceeded to rape and assault her; (5) at the time of the above-described incidents, appellant Lisa Casey was an invitee of appellee Borough; (6) appellees owed appellant Lisa Casey, as an invitee, a duty of reasonable care for her protection and even a greater duty of care than that owed an adult invitee because appellant was a minor; (7) appellees failed to exercise reasonable care and were negligent (a) in failing to provide adequate protection in the form of police or security personnel to protect her as an invitee against the criminal acts of third persons, (b) by permitting underbrush in the Park to become overgrown thus facilitating such criminal acts, (c) by allowing a nonresident, defendant Geiger, to gain entrance into the Park and remain there without being questioned as to his purpose for being there, and (d) by reason of the fact that appellees knew or should have known that the type of criminal act committed against appellant was likely, as a rape of a young girl had occurred in the Park only months before the attack on appellant; and (8) by permitting her daughter to attend the swimming lessons, appellant justifiably relied upon appellees to reasonably provide for her daughter's safety. Accepting the above facts as true, we find that appellants have failed to state a claim upon which relief may be granted.

We begin our analysis by noting that 42 Pa.C.S.A. § 8541 provides:

§ 8541. Governmental immunity generally

Except as otherwise provided in this subchapter, no local agency shall be liable for any damages on account of any injury to a person or property caused by any act of the local agency or an employee thereof or any other person. 3

The Political Subdivision Tort Claims Act was a legislative response to the proliferation of liability claims against governmental units following Ayala v. Philadelphia Board of Public Education, 453 Pa. 584, 305 A.2d 877 (1973), which abrogated the common law doctrine of governmental immunity. See generally Comment, The Political Subdivision Tort Claims Act: Pennsylvania's Response to the Problems of Municipal Tort Liability, 84 Dick L.Rev. 717 (1980). While the Act generally provides for immunity, 42 Pa.C.S.A. § 8542 sets forth several conditions which, if fulfilled, will impose liability on a local agency. 4 Specifically, section 8542 provides:

§ 8542. Exceptions to governmental immunity

(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:

....

(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. 5

In construing the above section, one must keep in mind that it is an exception to the general rule of governmental immunity that is stated in section 8541. Therefore, a proper application of the rules of statutory construction dictates a strict and narrow interpretation of the eight categories of liability enumerated in section 8542(b). 1 Pa.C.S.A. § 1924 (Purdon Supp.1984-85). See Borenstein v. City of Philadelphia, 595 F.Supp. 853 (Ed.Pa.1984) (waivers of immunity are to be narrowly construed). Moreover, a narrow reading of the eight categories of liability is also mandated upon consideration of the legislative intent to insultate political subdivisions from tort liability, as expressed in the preamble of the Act. 1 Pa.C.S.A. § 1921 (Purdon Supp.1984-85).

Appellants contend that section 8542(b)(3) strips from appellees the cloak of immunity afforded them under section 8541 since the acts of appellees fall within "[t]he care, custody, or control of real property" exception. We disagree and refer to the instructive case of Vann v. Board of Education of the School District of Philadelphia, 76 Pa.Commw. 604, 464 A.2d 684 (1983), wherein the distinguished Commonwealth Court Judge Joseph P. Doyle stated:

We have held that Section 8542(b)(3) does not waive immunity as to any unfortunate incident solely because it occurs on government-owned premises. Wimbish v. School District of Penn Hills, 59 Pa. Commonwealth Ct. 620, 430 A.2d 710 (1981). We believe the Section must be read as a narrow exception to a general legislative grant of immunity and we construe it to impose liability only for negligence which makes government-owned property unsafe for the activities for which it is regularly used, for which it is intended to be used, or for which it may be reasonably foreseen to be used. Violent criminal acts such as occurred here are not a reasonably foreseeable use of school property such that the exception will be applied.

Id. at 606, 464 A.2d at 686 (footnotes...

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