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HomeMy WebLinkAbout96-0606 civilDEBORAH L. GRAHAM, Individually and as parent and natural guardian of EZEKIEL E. GRAHAM, Plaintiffs VS. PENNSYLVANIA TURNPIKE COMMISSION, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION- LAW 96-0606 CIVIL IN RE: PRELIMINARY OBJECTIONS OF DEFENDANT BEFORE HOFFER, P.J., HESS AND GUIDO, JJ. ORDER AND NOW, this day of May, 1999, the preliminary objections of the defendant in the form of a demurrer are DENIED. C. William Kenny, Esquire For the Plaintiff Mark S. Silver, Esquire For the Defendant B Y THE COURT, /~inA. Hess, J. :rlm DEBORAH L. GRAHAM, Individually and as parent and natural guardian of EZEKIEL E. GRAHAM, Plaintiffs VS. PENNSYLVANIA TURNPIKE COMMISSION, Defendant 1N THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY' PENNSYLVANIA CIVIL ACTION- LAW 96-0606 CIVIL IN RE: PRELIMINARY OBJECTIONS OF DEFENDANT BEFORE HOFFER, P.J., HESS AND GUIDO, JJ. OPINION AND ORDER This case is before us on the defendant's preliminary objections in the form of a demurrer to the plaintiffs complaint. For the following reasons, the defendant's preliminary objections will be denied. Deborah L. Graham has brought suit on the behalf her minor son, Ezekiel E. Graham, against the defendant, the Pennsylvania Turnpike Commission, alleging that the defendant is liable for injuries sustained by Ezekiel during a sled-riding accident. According to the complaint, on February 6, 1994, seven-year-old Ezekiel was sled-riding near the apartment where he and his mother resided. The apartment property is adjacent to the Pennsylvania Tumpike right-of-way. A fence separates the apartment property where the plaintiff and his mother lived and the property owned and maintained by the Turnpike Commission. Ezekiel's foot became caught in this fence while he was sled-riding. As a result, he suffered a severe foot injury, which the plaintiffs claim caused and will cause Ezekiel "great pain and suffer [sic], loss of income, loss of 96-0606 CIVIL enjoyment of life, deformity, shortening of the foot, and embarrassment." Plaintiff's complaint, para. 13. The plaintiff and his mother aver that Ezekiel's injuries were caused by "openings in the fence [that] were metal and ... were too large". Id. at para. 11. The plaintiff's complaint also avers that the "Defendant was negligent in designing, maintaining, buying, building, installing and inspecting" the fence. Id. These paragraphs are captioned under the heading "Negligence Pursuant to 42 Pa.C.S.A. Section 8522(b)4." The fence that the plaintiff refers to in the complaint is apparently a "mesh" fence. See Plaintiff's Response in Opposition to Preliminary Objections at para. 5. However, we are unable to determine whether the plaintiff's complaint refers to holes that occur as part of the design of mesh fencing or whether the holes were present because the fence was in disrepair. 42 Pa.C.S.A. Section 8521 provides a general grant of sovereign immunity to the Commonwealth. Section 8522 lists several exceptions to this grant of sovereign immunity. The plaintiffs have brought suit against the defendant to recover damages for the injuries sustained by Ezekiel under the theory that the defendant is not immune from suit under Section 8522 (b)(4), which provides' (b)Acts 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 to claims for damages caused by: (4) Commonwealth real estate, highways and sidewalks.-- A dangerous condition of Commonwealth agency real estate and sidewalks, including Commonwealth-owned real property, leaseholds in the possession of a Commonwealth agency and 96-0606 CIVIL Commonwealth-owned real property leased by private persons, and highways under the jurisdiction of a Commonwealth agency, except conditions described in paragraph (5). 42 Pa.C.S. Section 8522(b)(4). Section 8522(b)(4) requires that there be a "dangerous condition of" Commonwealth owned real estate before sovereign immunity is waived. "These key words indicate that a dangerous condition must derive, originate from or have as its source the Commonwealth realty." Snyder v. Harmon, 522 Pa. 424, 433,562 A.2d 307, 311 (1989). Additionally, the property owned by the Commonwealth must be safe for its intended use as well as those uses that are reasonably foreseeable. See Id. at 434, 562 A.2d at 312. Two requirements must be satisfied before' sovereign immunity is waived under Section 8522 and an injured person can recover damages. First, there must be an artificial condition or defect of the land which creates a dangerous condition. Secondly, the property must be unsafe for the purposes it is used or reasonably foreseen to be used. See Id_. at 434-35, 562 A.2d at 312. The defendant has filed preliminary objections to the plaintiff' s complaint pursuant to Pa.R.C.P. 1028(a)(4). "The question presented by the demurrer is whether, on the facts averred, the law says with certainty that no recovery is possible ... A demurrer should not be sustained if there is any doubt as to whether the complaint adequately states a claim for relief under any theory." Sevin v. Kelshaw, 417 Pa. Super. 1, 7, 611 A.2d 1232, 1235 (1992). (citations omitted) We do not believe that there are sufficient facts available for us to determine whether the fence was or was not "inherently dangerous" under Section 8522(b)(4). The plaintiff's complaint alleges that, under Section 8522(b)(4), there was a dangerous condition of a fence that was 96-0606 CIVIL affixed to Commonwealth owned real property, and that this dangerous condition caused Ezekiel's injuries. Specifically, the plaintiff claims that the holes in the fence were too large. Also, the plaintiff claims that the defendant knew or should have known that children sled-ride in the vicinity of the fence and could be injured by the allegedly dangerous condition. Based on these allegations, we cannot say with certainty that no recovery is possible. ORDER AND NOW, this day of May, 1999, the preliminary objections of the defendant in the form of a demurrer are DENIED. BY THE COURT, C. William Kenny, Esquire For the Plaintiff ~:r~. Hess, J. Mark S. Silver, Esquire For the Defendant :rlm