Moon v. Dauphin Cnty., 2011 C.D. 2014

• Decision Date: 10 December 2015
• Docket Number: No. 2011 C.D. 2014,2011 C.D. 2014
• Citation: 129 A.3d 16
• Parties: Doral MOON, Appellant v. DAUPHIN COUNTY.
• Court: Pennsylvania Commonwealth Court

129 A.3d 16

Doral MOON, Appellant

v.DAUPHIN COUNTY.

No. 2011 C.D. 2014

Commonwealth Court of Pennsylvania.

Submitted on Briefs June 12, 2015.

Decided Dec. 10, 2015.

Joseph T. Sucec, Gardners, for appellant.

John J. McNally, III, Harrisburg, for appellee.

BEFORE: RENÉE COHN JUBELIRER, Judge, and ROBERT SIMPSON, Judge, and ANNE E. COVEY, Judge.

OPINION BY Judge COVEY.

Doral Moon (Moon) appeals from the Dauphin County Common Pleas Court's (trial court) August 29, 2014 order granting Dauphin County's summary judgment motion. There are three issues for this Court's review: (1) whether the trial court erred by holding that Moon's claims fail under the Hills and Ridges Doctrine; (2) whether the trial court abused its discretion by not addressing Moon's contention that res ipsa loquitur applied to his design flaw claim; and (3) whether the trial court abused its discretion by ruling that there was no actual or constructive notice of a dangerous condition. After review, we affirm.

Moon resided at the Dauphin County Work Release Center (Center), located at 919 Gibson Street, Harrisburg. On August 22, 2008, Moon filed a Complaint with the trial court alleging that he sustained injuries and damages on February 22, 2008 when he fell on ice on the Center's fenced-in walkway and struck a metal pole adjacent thereto. On October 17, 2008, Moon filed a First Amended Complaint (Amended Complaint), wherein, in Count I (Negligence Count) he averred:

12. Dauphin County was negligent in:

a. restricting entry and exit from the Center to an area open to the elements, despite the likelihood of hazardous conditions during certain times of the year.

b. constructing the Center in a fashion that invited incidents such as the one that injured Moon....

c. doing absolutely nothing to mitigate the obvious design flaw in the layout of the Center by either clearing, or warning of, said hazardous conditions.

13. Dauphin County's negligence is based primarily on the faulty design and configuration of [the Center].

14. Dauphin County's negligence is both the direct and proximate cause of Moon's fall because:

a. the proximate cause of Moon's injuries was the ice/snow accumulated at the on[l]y entrance/exit permitted for Center residents.

b. the direct cause of Moon's injuries was Moon's striking of the pole constructed adjacent to the exterior fence of the Center.

....

16. Because [Dauphin County's] negligence is based on a design flaw (that of restricting ingress/egress to an exposed, potentially hazardous area[ ) ], the Commonwealth does not enjoy sovereign immunity; [Moon] can therefore recover under the ‘real estate’ exception embodied in 42 Pa.[ ]C.S.[§ ] 8522(b) [.]

Reproduced Record (R.R.) at 42a–43a.¹

On November 21, 2008, Dauphin County filed an Answer and New Matter to Moon's Amended Complaint, inter alia, denying that a design flaw or any other Center condition caused Moon's injuries, or that it "was aware of any icy condition that it did not properly address." R.R. at 58a. Dauphin County further pled, in relevant part, that it "did not have any notice of the alleged defective condition of the premises" (R.R. at 59a) and that Moon's "claims are barred by the Hills and Ridges Doctrine" (R.R. at 60a). On December 10, 2008, in his Answer to New Matter, and again in his December 11, 2008 Amended Answer to New Matter, Moon denied those affirmative defenses. The parties completed discovery.

On April 15, 2014, Dauphin County filed a Motion for Summary Judgment (Summary Judgment Motion). Moon answered the Summary Judgment Motion. The trial court heard argument on August 8, 2014. On August 29, 2014, the trial court granted Dauphin County's Summary Judgment Motion and dismissed Moon's Amended Complaint with prejudice, stating:

Viewing the record in a light most favorable to [Moon], the facts establish that the slip and fall occurred while the wintery weather was ongoing. Consequently, [Dauphin County] cannot be shown to have actual or constructive notice of the existence of a dangerous condition; thus, [Moon's] claims fail under the Hills and Ridges Doctrine. In addition, this Court finds that [Moon's] claims are barred by the real estate exception under 42 P.S. § 8522(b)(4) [sic]. We find that the lack of additional walkways does not constitute ‘a dangerous condition’ of real estate; thus, [Moon's] claims are barred by sovereign immunity.

Trial Ct. Order at 1–2 (emphasis added).² Moon appealed to this Court.³

Moon first argues that the trial court erred by holding that his claims fail under the Hills and Ridges Doctrine. Specifically, Moon avers that his design flaw claim abrogates the immunity conveyed by the Hills and Ridges Doctrine. We disagree.

Section 8541 of the Judicial Code, commonly referred to as the Political Subdivision Tort Claims Act (Tort Claims Act),⁴ 42 Pa.C.S. § 8541, makes local agencies⁵ like Dauphin County immune from liability for damages caused to persons or property, except as otherwise provided in the Tort Claims Act.⁶

Subsection 8542(a) [of the Tort Claims Act] provides two conditions a plaintiff must satisfy before determining whether the injury to person or property alleged falls within one of the exceptions to immunity for ‘acts by a local agency or any of its employees,’ contained in Subsection 8542(b) [of the Tort Claims Act]. Id. First, a plaintiff must establish that ‘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,’ of governmental immunity or official immunity. 42 Pa.C.S. § 8542(a)(1). Second, a plaintiff must establish that ‘the injury was caused by the negligent acts of the local agency ... with respect to one of the categories listed in subsection (b) ...’ 42 Pa.C.S. § 8542(a)(2).

Gale v. City of Phila., 86 A.3d 318, 320 (Pa.Cmwlth.2014) (emphasis added). Based upon the record in this case, the trial court held that Moon could not satisfy the first condition of establishing a prima facie negligence action against Dauphin County.

During his deposition, Moon testified that he had been a Center resident since December 2007. He reflected that, on February 22, 2008, as he returned from his first job between 4:00 p.m. and 5:00 p.m., it was raining and the rain just "started getting a little ... icy[,]" but he had no difficulty entering the Center to check in before leaving for his second job. R.R. at 391a; see also R.R. at 395a, 405a. While at the Center, he recalled thinking that the weather must have worsened since he heard an announcement at approximately 6:40 p.m. that the Center's "grocery time" and "utility time" and temporary job transportation were cancelled for the evening. R.R. at 395a.

Moon stated that he checked out to go to his 7:00 p.m. to 11:00 p.m. job at 6:45 p.m. and exited the Center by its only route—through the doors and onto a small walkway/ramp to the front gate. He recalled the only light being from the Center's interior. See R.R. at 399a–400a. Moon described that the ramp was wet, because he saw "a little shimmering of water," and parts of the walkway were getting icy. R.R. at 400a; see also R.R. at 398a, 400a. He recalled that he "patty step[ped]" and dragged his feet down the path. R.R. at 400a; see also R.R. at 404a, 407a, 410a. He explained that he "couldn't ... really sense ... ice," but "knew it was more than rain" because he could "hear ... the little like pebble-type sound hitting the ground." R.R. at 410a; see also R.R. at 411a. He stated: "[I]t's like ice and stuff coming, you know, I know there's frost or stuff or ice coming down, too." R.R. at 411a. Moon articulated:

A. ... You know, I know it's—the ground is frosted one way or another. So, ... it was kind of hard, because I couldn't sustain the sense of rain or the sense of frost, because since there's still the—the condensation is still coming down ... it's like kind of hard to tell.

Q. So you're saying it's like kind of mixed, rain and sleet?

A. Sort of. It's only, I guess, rain until it settles ... on the ground.

Q. Okay.

A. Till it's like this, you know, like the frost point. So, like I said, I couldn't see. You know, I could barely see, you know, the sense of the path, understanding that, you know ... if it's just ice or if it's rain.

But ... I had to take the chance, you know, no matter what.... I was put in the predicament that I had to leave the building.

R.R. at 412a. Moon's testimony further revealed:

Q. ... Did you lose traction at any point in time? Slip?

A. From the time I left the building until I got to the gate to leave, no, I didn't have no problem.

Q. At any point along that walk did you see any accumulation of ice?

A. Nawh .... The only thing that I seen was just a little bit of salt right in front of the—the probation office doorway.^[7] That's it.

R.R. at 401a (emphasis added); see also R.R. at 404a. Moon testified that since he did not feel crunching under his boots as he walked, he did not believe that the subject walkway was likewise salted. See R.R. at 405a, 410a.

Moon explained that he slipped and fell at the end of the walkway onto the post that holds the chain separating the walkway from the adjacent grass area. He declared that he proceeded to his job, arriving at approximately 8:15 p.m., but was only able to work 2 ½ hours due to pain. He described that as he walked back to the Center in the rain between 10:30 p.m. and 11:00 p.m., he observed that the building and the parking lot lights were on, and that there was salt on the walkway. R.R. at 424a–427a.

a. First Condition—The damages would be recoverable at common law if caused by someone without an immunity defense. 42 Pa.C.S. § 8542(a)(1).

[I]n order to prevail in a negligence action under common law, the plaintiff must establish that: (1) the defendant owed a duty of care to the plaintiff; (2) that duty was breached; (3) the breach resulted in the plaintiff's injury; and (4) the plaintiff suffered an actual loss or damages.

Brown v. Dep't of Transp., 11 A.3d 1054, 1056 (Pa.Cmwl...