Gurnari v. Luzerne County Housing Auth.

• Decision Date: 17 November 2006
• Parties: Bernard GURNARI, Appellant v. LUZERNE COUNTY HOUSING AUTHORITY.
• Court: Pennsylvania Commonwealth Court

911 A.2d 236

Bernard GURNARI, Appellant v. LUZERNE COUNTY HOUSING AUTHORITY.

Commonwealth Court of Pennsylvania.

Submitted on Briefs September 14, 2006.

Decided November 17, 2006.

Joseph F. Sklarosky, Sr., Forty Fort, for appellant.

Frank J. Bolock, Scranton, for appellee.

BEFORE: PELLEGRINI, Judge, and COHN JUBELIRER, Judge, and LEAVITT, Judge.

OPINION BY Judge LEAVITT.

Bernard Gurnari (Gurnari), appeals from the post-trial order of the Court of Common Pleas of Luzerne County (trial court), directing judgment in favor of the Luzerne County Housing Authority. The trial court held that Gurnari failed to provide evidence on which a finding could be made that the Housing Authority was liable under the common law of negligence, which is the threshold burden of a plaintiff seeking damages from a local government agency protected by governmental immunity. Finding no error in the trial court's decision, we affirm.

On or about February 1, 1995, Gurnari, an Emergency Medical Technician (EMT) with the Hanover Township Community Ambulance, responded to an emergency call at Lee Park Towers, a housing complex for elderly persons owned and operated by the Housing Authority. Consistent with past practice, the ambulance crew pulled up to the loading dock and walked up the ramp with a gurney, to one of two garage doors, in order to gain entrance to the facility. Because the garage door was locked, a maintenance man let Gurnari in through a side door, and the two men proceeded to lift the garage door from the inside. In the process, Gurnari was struck in the head by a metal bar that dropped from the garage door. It was never established whether the metal object was a tool or part of the garage door.¹

Gurnari commenced a negligence action against the Housing Authority on April 19, 1997, which was amended on May 15, 1997. After discovery, Gurnari and the Housing Authority each filed motions for summary judgment that were denied. Accordingly, a jury trial was held from March 29, 2005, to April 1, 2005. At the conclusion of Gurnari's case, the Housing Authority moved for compulsory nonsuit, but its motion was denied. The case went to the jury, which was unable to reach a verdict after two days. Accordingly, the trial court declared a mistrial.

On April 8, 2005, the Housing Authority filed a post-trial motion pursuant to Pa. R.C.P. 227.1(a), asserting the same legal arguments that had been presented in its motion for summary judgment and in its motion for compulsory nonsuit. On September 26, 2005, the trial court granted the post-trial motion of the Housing Authority and entered judgment in its favor, acknowledging that it erred in not granting the Housing Authority's motion for compulsory nonsuit.²

Gurnari appealed the trial court's order directing a verdict in favor of the Housing Authority. Gurnari raises three issues to this Court.³

First, Gurnari contends that the trial record, when viewed as a whole, contains sufficient evidence to allow a jury to conclude that the Housing Authority knew or should have known that a dangerous condition existed on its premises. Second, he contends that the trial record contains sufficient evidence to allow a jury to conclude that Gurnari was injured by a dangerous condition of real property under the care, custody and control of the Housing Authority, thereby bringing his cause of action within the real estate exception to sovereign immunity.⁴ Third, Gurnari contends that the doctrine of res ipsa loquitur would allow the jury to infer negligence on the part of the Housing Authority, and it was error for the trial court to hold the doctrine not to be applicable.

The threshold question in any case where sovereign or governmental immunity protects a defendant is whether the plaintiff would have had an action in negligence at common law. Williams v. Philadelphia Housing Authority, 873 A.2d 81, 85 (Pa.Cmwlth.2005). Accordingly, in the present case, it must be shown that the evidence Gurnari presented at trial was sufficient to demonstrate that the Housing Authority was negligent at common law.

At common law, as the trial court instructed the jury, the Housing Authority had to know or have reason to know of a dangerous condition on its real property in order to be held liable. See Section 342 of the Restatement (Second) of Torts.⁵ This charge to the jury was requested by the Housing Authority relying on Commonwealth, Department of Transportation v. Patton, 546 Pa. 562, 686 A.2d 1302 (1997). In Patton, our Supreme Court held that a Commonwealth agency must have actual or constructive notice of the alleged defect or dangerous condition, when a plaintiff alleges that such defect or dangerous condition in real estate caused his injury. Id. at 565, 686 A.2d at 1304. The Supreme Court explained:

This requirement of notice is well established in the common law of this Commonwealth and, if any relevant section of the Restatement (Second) of Torts does not incorporate the requirement, we will interpret it as requiring notice, if possible, or we must conclude that it does not comport with Pennsylvania Law.

Id. at 567, 686 A.2d at 1305.

It is clear from the record that the Housing Authority did not have actual notice of the alleged defect in the garage door. Nevertheless, the Housing Authority may be held liable if it had constructive notice of the problem.⁶ Constructive notice requires that the dangerous condition be apparent upon reasonable inspection. Patton, 546 Pa. at 566, 686 A.2d at 1304. Gurnari contends that the Housing Authority should have known of the alleged dangerous condition presented by the garage door because it would have been apparent upon a reasonable inspection. He argues, further, that if the Housing Authority had adopted a formal inspection policy with respect to the garage door, the accident would not have occurred. However, Gurnari provided no evidence, either by witness testimony or by expert report, to show that a reasonable inspection of the premises would have revealed a dangerous condition or structural defect. As such, the trial court was correct in finding that Gurnari failed to provide evidence to establish that the Housing Authority had actual or constructive notice of an alleged defect on its property.

Gurnari also argues on appeal that the trial court erred in finding the doctrine of res ipsa loquitur was not applicable in this case. We disagree. In the seminal case of Gilbert v. Korvette's, Inc., 457 Pa. 602, 611, 327 A.2d 94, 99 (1974), the Pennsylvania Supreme Court explained that res ipsa loquitur "is neither a rule of procedure nor one of substantive tort law. It is only a shorthand expression for circumstantial proof of negligence — a rule of evidence." As such, the Court adopted the evidentiary rule articulated in Section 328D of the Restatement (Second) of Torts, which provides:

(1) It may be inferred that harm suffered by the plaintiff is caused by negligence of the defendant when

(a) the event is of a kind which ordinarily does not occur in the absence of negligence;

(b) other responsible causes, including the conduct of the plaintiff and third persons, are sufficiently eliminated by the evidence; and

(c) the indicated negligence is within the scope of the defendant's duty to the plaintiff.

(2) It is the function of the court to...