Sherk v. County of Dauphin
Decision Date | 18 September 1992 |
Citation | 614 A.2d 226,531 Pa. 515 |
Parties | Thomas SHERK and Susan Sherk, His Wife, Appellants, v. COUNTY OF DAUPHIN, Mental Health and Retardation Services, Harrisburg State Hospital and Linda Weigel, Administrator of the Estate of Mark E. Jordan, Appellees. |
Court | Pennsylvania Supreme Court |
Gary M. Lightman, Harrisburg, for appellants.
John M. Abel, Deputy Atty. Gen., for appellees.
OPINION ANNOUNCING THE JUDGMENT OF THE COURT
Appellants, Thomas Sherk and Susan Sherk, his wife, appeal from an opinion and order of the Commonwealth Court, 128 Pa.Cmwlth. 150, 562 A.2d 1025, which reversed an order of Court of Common Pleas of Dauphin County that overruled preliminary objections in the nature of a demurrer raising the defense of sovereign immunity of appellee Harrisburg State Hospital. The Commonwealth Court remanded the case to the Dauphin County Common Pleas Court with directions to that court to sustain the preliminary objections of Harrisburg State Hospital and dismiss the Sherks' complaint. For the reasons that follow, we reverse.
At the outset we note that in reviewing the grant or denial of preliminary objections in the nature of a demurrer, we adhere to the following standard:
All material facts set forth in the Complaint as well as all inferences reasonably deducible therefrom are admitted as true for [the purpose of this review.] The question presented by the demurrer is whether on the facts averred the law says with certainty that no recovery is possible. Where a doubt exists as to whether a demurrer should be sustained, this doubt should be resolved in favor of overruling it.
Martin v. Lancaster Battery Co., 530 Pa. 11, 15-17, 606 A.2d 444, 446 (1992), citing Kyle v. McNamara & Criste, 506 Pa. 631, 634, 487 A.2d 814, 816 (1985).
Pursuant to that standard, the record discloses that the allegations contained in the Sherks' complaint filed against the County of Dauphin, Mental Health and Retardation Services, Harrisburg State Hospital and Lina Weigel, as Administrator of the Estate of Mark D. Jordan, which for purposes of this review we accept as true, aver that on June 14, 1986, appellant Thomas Sherk was employed as a police officer with the the police department of Lower Paxton Township, Dauphin County, Pennsylvania. On that date, Thomas Sherk was on duty and was dispatched to respond to and investigate a report of a suspicious person described in the report as a white male with a gun. Approximately one-half hour after embarking on the investigation assigned to him, officer Sherk encountered and arrested Mark A. Jordan (Jordan) who had a history of suffering from mental illness. While officer Sherk was attempting to control and subdue Jordan, a scuffle erupted during which Jordan gained possession of officer Sherk's weapon. Jordan fired a shot from that weapon wounding officer Sherk in the right thigh. Jordan then fled the scene taking officer Sherk's gun with him. Shortly thereafter, Jordan committed suicide by shooting himself with the gun he had taken from officer Sherk.
From October 12, 1985 until May 3, 1986, when he was released, Jordan had been a psychiatric patient in Harrisburg State Hospital. 1 The Sherks' complaint alleges that the appellee Harrisburg State Hospital acted recklessly, wantonly and negligently in caring for and in prematurely releasing Jordan. The Sherks' complaint further seeks damages for the bodily injuries sustained by Thomas Sherk at the hands of Jordan, allegedly caused by the "reckless, wanton and negligent" conduct of the appellees.
Appellee, Harrisburg State Hospital responded to the Sherks' complaint for damages by filing preliminary objections in the nature of a demurrer averring, inter alia: (a) that Harrisburg State Hospital is a Commonwealth party and is immune from suit; (b) that the Sherks' complaint fails to aver any facts which brings their claim within a statutory exception to sovereign immunity; and (c) that sovereign immunity is not waived by the facts pleaded by the Sherks. Harrisburg State Hospital's objections in the nature of a demurrer concluded by asking for dismissal of the Sherks' complaint. By order dated December 6, 1988, Harrisburg State Hospital's demurrer was denied by the trial court. Subsequently, the question of sovereign immunity was certified by the trial court as a controlling question of law and an appeal to the Commonwealth Court was filed by Harrisburg State Hospital. The Commonwealth Court reversed the order of the Dauphin County Common Pleas Court and remanded the case to that court with directions to sustain the preliminary objection in the nature of a demurrer and dismiss the complaint. Upon petition filed by appellants Thomas and Susan Sherk, we granted allowance of appeal to consider the question of whether appellee Harrisburg State Hospital is shielded from liability in this case by the doctrine of sovereign immunity. 2
The common law doctrine of sovereign immunity which provided that the Commonwealth was immune from liability for tortious acts unless the Legislature consented to suit was abolished by this Court in Mayle v. Pennsylvania Dept. of Highways, 479 Pa. 384, 388 A.2d 709 (1978). The Legislature responded to our decision in Mayle by enacting the Act of Sept. 28, 1978, P.L. 788, No. 152 § 1, 1 Pa.C.S. § 2310, which provides as follows:
§ 2310. Sovereign immunity reaffirmed; specific waiver
Pursuant to section 11 of Article I of the Constitution of Pennsylvania, it is hereby declared to be the intent of the General Assembly that the Commonwealth, and its officials and employees acting within the scope of their duties, shall continue to enjoy sovereign and official immunity and remain immune from suit except as the General Assembly shall specifically waive the immunity. When the General Assembly specifically waives sovereign immunity, a claim against the Commonwealth and its officials and employees shall be brought only in such manner and in such courts and in such cases as directed by the provisions of Title 42 ( ) unless otherwise specifically authorized by statute.
Chapter 85 of The Judicial Code, 42 Pa.C.S.A. § 8501, et seq., contains the statutory provisions relating to the specific waiver of sovereign immunity. Section 8521 (42 Pa.C.S. § 8521) provides: "Except as otherwise provided in this subchapter, no provision of this title shall constitute a waiver of sovereign immunity for the purposes of 1 Pa.C.S. § 2310 ( ) or otherwise."
Exceptions to sovereign immunity are provided for in Section 8522 (42 Pa.C.S. § 8522) which sets forth that sovereign immunity is waived in certain specific enumerated instances "for damages arising out of a negligent act where the damages would be recoverable under common law or a statute creating a cause of action if the injury was caused by a person not having available the defense of sovereign immunity." 42 Pa.C.S. § 8522(a). At the time of the events complained of in the Sherks' complaint, there were eight specific enumerated exceptions relating to acts by a Commonwealth party to which the defense of sovereign immunity had been specifically waived by the Legislature. Briefly, those categories are: (1) Vehicle liability; (2) Medical-professional liability; (3) Care, custody or control of personal property; (4) Commonwealth real estate, highways and sidewalks; (5) Potholes and other dangerous conditions; (6) Care, custody or control of animals; (7) Liquor store sales; (8) and National Guard activities. 3 The Sherks contend that the damages suffered by them arise out of the "reckless, wanton and negligent" acts of appellee Harrisburg State Hospital in caring for and prematurely releasing a psychiatric patient (Jordan), which damages would be recoverable by them under common law if the injury was caused by a person to whom the defense of sovereign immunity is not available.
Under well established precedent, if plaintiff produces sufficient evidence to demonstrate the mental condition of [the patient] warranted the duty asserted [by the plaintiff], the hospital would clearly be responsible for injury to the person or property of third parties where such injury resulted from a hospital's negligent failure to meet its responsibility. (citations omitted)
Vattimo v. Lower Bucks Hospital, 502 Pa. 241, 258, 465 A.2d 1231, 1240 (1983) ( ). The damages suffered by the Sherks would be recoverable under common law if they had been caused by a person who was not able to assert the defense of sovereign immunity. See Rhines v. Herzel, 481 Pa. 165, 392 A.2d 298 (1978); and Evanuik v. University of Pittsburgh, 234 Pa.Super. 287, 338 A.2d 636 (1975).
The appellants, Thomas and Susan Sherk, argue that the medical-professional liability exception to sovereign immunity (42 Pa.C.S. § 8522(b)(2)) applies to this case and thus, the defense of sovereign immunity to their claims for damages against appellee Harrisburg State Hospital is not available. Section 8522(b)(2) provides as follows:
(b) Act which may impose liability.--The following acts by a Commonwealth party may result in the imposition of liability on the Commonwealth and the defense of sovereign immunity shall not be raised for damages caused by:
(2) Medical-professional liability.--Acts of health care employees of Commonwealth agency medical facilities or institutions or by a Commonwealth party who is a doctor, dentist, nurse or related health care personnel.
The Commonwealth Court, citing our opinions in Mascaro v. Youth Study Center, 514 Pa. 351, 523 A.2d 1118 (1987) and, Chevalier v. City of Philadelphia, 516 Pa. 316, 532 A.2d 411 (1987), and its own opinion in Moore v. Department of Justice, 114 Pa.Commow. 56, 538 A.2d 111 (1988), concluded that "the criminal acts of a discharged mental patient...
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