Wilson v. Philadelphia Housing Authority

• Decision Date: 26 July 1999
• Citation: 735 A.2d 172
• Parties: Rosalind WILSON, Appellant, v. PHILADELPHIA HOUSING AUTHORITY.
• Court: Pennsylvania Commonwealth Court

735 A.2d 172

Rosalind WILSON, Appellant, v. PHILADELPHIA HOUSING AUTHORITY.

Commonwealth Court of Pennsylvania.

Submitted on Briefs May 19, 1999.

Decided July 26, 1999.

Richard Glassman, Philadelphia, for appellant.

John R. O'Donnell, Philadelphia, for appellee.

Before COLINS, President Judge, and DOYLE, J., SMITH, J., PELLEGRINI, J., FRIEDMAN, J., FLAHERTY, J., and LEADBETTER, J.

PELLEGRINI, Judge.

Rosalind Wilson (Wilson) appeals from an order of the Court of Common Pleas of Philadelphia County (trial court) granting the motion for summary judgment filed by the Philadelphia Housing Authority (PHA).

The facts of this case are not in dispute. On August 22, 1992, Wilson's daughter became involved in an altercation that took place in front of an unoccupied residence owned by the PHA. Upon learning of the altercation, Wilson interceded. While attempting to break up the fight, one of the participants pushed her. Wilson fell, striking her right ankle against the stump of a metal pole protruding from the ground in front of the vacant residence and sustaining a fractured ankle. She filed suit against the PHA alleging, inter alia, that the PHA was negligent by allowing the pole stump to remain in the area and by failing to correct the unsafe condition which caused her injuries. After discovery was completed, the PHA filed a motion for summary judgment alleging that it was immune from suit based on sovereign immunity,¹ and that the real estate exception found at 42 Pa.C.S. § 8522(b)² did not render it liable because there was a superceding cause of Wilson's injuries—the push by the third party. The trial court granted the PHA's motion finding that the direct cause of Wilson's injuries was the person who pushed her and not the pole stump upon which she fell. This appeal by Wilson followed.³

Wilson contends that the trial court erred by finding that the PHA was not liable for her injuries because her injuries were caused by the pole stump and not by the person who pushed her. She also argues, however, that even if the person who pushed her is liable, the PHA can also be liable for her injuries because it was a concurrent cause of her injuries and is a joint tortfeasor.⁴ Relying on this Court's holding in Byard v. Philadelphia Housing Authority, 157 Pa.Cmwlth. 269, 629 A.2d 283 (1993),petition for allowance of appeal denied, 536 Pa. 618, 637 A.2d 278 (1993), and our Supreme Court's decision in Mascaro v. Youth Study Center of the City of Philadelphia, 514 Pa. 351, 523 A.2d 1118 (1987) (City not liable for actions of third party who attacked family after escaping from a negligently-maintained juvenile facility), the PHA argues that because ordinary tort causation principles do not apply in the context of sovereign immunity, it is not responsible for Wilson's injuries because she was injured as a result of a third party's actions even if the injury would not have occurred but for the defect in its property.

In Byard, a minor was injured when his companion slammed a fire door on his hand as they were running to escape from a dog roaming the hallway of their PHA residence. An injury resulted necessitating the amputation of the tip of the minor's left index finger. The minor's parents filed suit against the PHA alleging, among other things, that the fire door was defective and had a jagged metal edge that had torn off part of their child's finger. Relying on Mascaro, where our Supreme Court held that a local agency was not liable for actions of third parties,⁵ we held that the real estate exception to sovereign immunity only applied to those cases where it was alleged that the defect of the real estate itself caused the injury, not when it merely facilitated the injury caused by the action of a third party whose actions were outside the statute's scope of liability.

However, both Byard and Mascaro were decided prior to our Supreme Court's decision in Powell v. Drumheller, 539 Pa. 484, 653 A.2d 619 (1995), holding that just because an injury was caused by the negligence of a third party did not mean that a government entity was automatically immune.⁶ In Powell, Mr. Powell died as a result of injuries sustained when the car in which he was riding was hit head on by the car driven by an intoxicated Mr. Drumheller when he attempted to pass a car, and the car in which Mr. Powell was riding went over an embankment because there was no guardrail. Mr. Powell's estate brought an action against Mr. Drumheller and PennDot. Addressing the issue of concurrent causation and joint liability, our Supreme Court held that a governmental entity could be held liable even if another party was also at fault if its negligence was a substantial cause in bringing about the accident. For a governmental entity to be held not liable, our Supreme Court stated that the negligence of a third party had to be an intervening cause that superceded the governmental entity's negligence stating:

[a] determination of whether an act is so extraordinary as to constitute a superseding cause is normally one to be made by the jury... It is for the jury in the instant case to determine whether Drumheller's actions in attempting to pass a car while under the influence of alcohol thus crossing into Mr. Powell's lane were so extraordinary as to be unforeseeable to PENNDOT when designing the highway. Accordingly, we cannot say with certainty that no recovery against PENNDOT is possible.

Powell, 653 A.2d at 624-625. As a result, ordinary tort causation principles now apply, and just because a third party was involved does not mean that the governmental entity is automatically immune.

Recently, in Dean v. Department of Transportation, 718 A.2d 374 (Pa.Cmwlth. 1998), we addressed the issue of who assumes liability when there are two concurrent causes of an accident, one for which immunity has not been waived and precipitates the accident and another cause for which immunity has been waived and causes the more severe injuries. In that case, the plaintiff sustained serious injuries resulting in quadriplegia after the car in which she was riding as a passenger fishtailed on a snow-covered road, causing the driver to lose control of the car which then went over a steep embankment where it overturned sideways. The plaintiff alleged that PennDot was liable for her injuries because it negligently failed to place a guardrail on that portion of the road, conduct that falls within an exception to immunity⁷ where the accident occurred, while PennDot argued that it was not liable for Dean's injuries because it was the snow on the road, a condition that did not fall within any exception,⁸ that caused the car to leave the roadway, and the absence of a guardrail merely facilitated her injuries by allowing the car to proceed down the embankment.

In rejecting PennDot's position, we stated, "we believe that even if a condition exists that sets the accident in motion that is not considered a dangerous condition of, in this case, the highway [real estate], that does not mean that a second dangerous condition of the highway that caused a plaintiff's injuries is not actionable." Id. at 378. We noted that this interpretation of the sovereign immunity statute was "consistent with `normal' negligence law that provides there can be two or more proximate causes of injuries in a negligence action because a negligent act may be a proximate cause of damages even though other causes may have contributed to the result." Id. at 379. To escape liability where there were two or more substantial causes of damages, we stated that the defendant had to show that the plaintiff's injuries would have been the same even without its negligence. We then held that if the absence of a guardrail was found to be a dangerous condition of the real estate, PennDot would be liable under the real estate exception to sovereign immunity despite the fact that it might not be liable for the snow on the roadway, the cause that set the accident in motion.

Although Dean is somewhat different in that the Commonwealth party was purportedly negligent for both causes of plaintiff's injuries, the holding still applies even though a third party was responsible for the other concurrent causes of plaintiff's injuries. In this case, the third party who pushed Wilson and which set the action in motion that caused her injuries caused Wilson to fall on the pole stump, a dangerous condition of the real estate. Even though a third party caused the accident, unless it can be shown that the third party's conduct was an intervening superceding cause, the PHA would still be liable for its negligent conduct. Because Dean holds that there can be more than one proximate cause of Wilson's injuries, and Powell said the acts of third parties are not automatically intervening superceding causes, the trial court's order granting the PHA's motion for summary judgment is vacated and the case is remanded for further proceedings consistent with this opinion.⁹

Judge FRIEDMAN concurs in the result only.

O R D E R

AND NOW, this 26th day of July, 1999, the order of the Court of Common Pleas of Philadelphia County, dated November 3, 1997, is vacated. The case is remanded to the trial court for further proceedings consistent with this opinion.

Jurisdiction is relinquished.

FLAHERTY, Judge, concurring.

I join the opinion of the majority. I write separately because I believe that before we can vacate the order of the trial court, we must respond to the argument raised by PHA that it cannot be held liable for a mere failure to act.

I agree with the majority that Dean v. Department of Transportation, 718 A.2d 374 (Pa.Cmwlth.1998) adequately addresses the issue of whether Commonwealth parties may be held liable for injuries of which they are a concurrent cause. However, Dean does not sufficiently address PHA's argument that it cannot be liable for injuries where PHA's negligence consists of a mere failure to act.

Fairly read, PHA's argument is...