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HomeMy WebLinkAbout97-1761 civilELEANOR VALINSKY, PLAINTIFF V. SILVER SPRINGS FIRE CO., DEFENDANT IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 97-1761 CIVIL TERM BEFORE BAYLEY, J. AND HESS, J. OPINION AND ORDER OF COURT Bayley, J., June 17, 1999:- On August 16, 1996, plaintiff, Eleanor Valinsky, was at a bingo game operated by and on the premises of defendant, Silver Springs Fire Co. While there she slipped on some meat that had been dropped by a thirteen-year-old boy who was with his mother. Plaintiff seeks damages for injuries alleged to have been incurred when she fell as a result of slipping on the meat. Defendant filed a motion for summary judgment that was briefed and argued on May 26, 1999. Defendant maintains that it is immune from liability. With certain exceptions, "no local agency shall be liable for any damages on account of any injury to a person... caused by any act of the local agency or an employee thereof or any other person." Political Subdivision Tort Claims Act, 42 Pa.C.S. Section 8541. A volunteer fire company, a local agency, has governmental immunity pursuant to 42 Pa.C.S. Section 8541 regardless of whether it is engaged in fire fighting activities. Plavi v. Nemacolin Volunteer Fire Co., 151 Pa. Commw. 587 (1992). However, there is an exception to 97-1761 CIVIL TERM this immunity relating to dangerous conditions of real property at 42 Pa.C.S Section 8542(b)(3), that provides: (b) Acts which may impose liability.--The following acts by a local agency or any of its employees may result in the imposition of liability on a local agency: (c) Real property.--The care, custody or control of real property in the possession of the local agency, except that the local agency shall not be liable for damages on account of any injury sustained by a person intentionally trespassing on real property in the possession of the local agency. (Emphasis added.) Two conditions must be met before liability can be imposed: (1) the damages would be recoverable under common law or a statute if the injury was caused by a person not having available a defense of governmental immunity, 42 Pa.C.S. Section 8542(a)(1); and (2) the injury was caused by the negligent act of the local agency or an employee thereof acting within the scope of his office or duties with respect to an act for which immunity has been waived. 42 Pa.C.S. Section 8542(a)(2). A private party can be held liable under common law to an invitee for the failure to properly maintain its premises. Blackman v. Federal Realty Investment Trust, 444 Pa. Super. 411 (1995). Operating a bingo game is within the scope of a volunteer fire company's office or duties. Kniaz v. Benton Borough, 642 A.2d 551 (Pa. Commw. 1994). In Mascaro v. Youth Study Center, 514 Pa. 351 (1987), the Supreme Court of Pennsylvania interpreted the real property exception to waive governmental immunity when an injury resulted from a defect "of" the real property, but upheld the immunity -2- 97-1761 CIVIL TERM when the defect was "on" the real property. However, in Grieff v. Reisinger. 548 Pa. 13 (1997), the Supreme Court departed from reliance on the "on/of" distinction. In Grieff, a fire association employee poured paint thinner on the floor of the fire hall which then ignited and engulfed the plaintiff in flames resulting in severe injuries. The Court stated: [G]rieff's care of the Fire Association's property caused the fire that injured Reisinger. While he was removing paint from the floor, therein caring for the real property, it ignited causing the resultant injuries to Reisinger. Under the real property exception's plain language, Grieff and the Fire Association are not immune from suit. In Snyder v. North Allegheny School District, 722 A.2d 239 (Pa. Commw. 1998), plaintiff slipped and fell on a stair landing that was covered with ice and snow. The School District claimed it was immune under the Political Subdivision Tort Claims Act because the fall resulted from the ice and snow located "on" the landing rather than from a dangerous condition "of" the landing. The plaintiff asserted that because the School District failed to remove the ice and snow it was negligent in its care, custody and control of the real property within its possession creating an exception to governmental immunity. The Commonwealth Court of Pennsylvania agreed, that: [T]he School District's negligence in failing to remove the ice and snow from the concrete landing fell within the real property exception making it liable for Plaintiff's injuries. (Emphasis added.) See also Abella v. City of Philadelphia, 703 A.2d 547 (Pa. Commw. 1997). Based on these authorities, liability can attach to a local agency under the real property exception to governmental immunity when a foreign substance on the -3- 97-1761 CIVIL TERM property that makes the property dangerous is the cause of an injury. In the case sub judice, plaintiff's claim that defendant was negligent in failing to remove the meat from the floor of its bingo hall that caused her to fall is within the real property exception to governmental immunity. Defendant also seeks summary judgment on its claim that there is insufficient evidence to submit plaintiff's case to a jury. In Washington v. Baxter, 719 A.2d 733 (Pa. 1998), the Supreme Court of Pennsylvania set forth the standard for deciding a motion for summary judgment: [w]e must view the record in the light most favorable to the non- moving party, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party. Pennsylvania State University v. County of Centre, 532 Pa. 142, 143-145, 615 A.2d 303, 304, (1992). In order to withstand a motion for summary judgment, a non-moving party 'must adduce sufficient evidence on an issue essential to his case and on which he bears the burden of proof such that a jury could return a verdict in his favor. Failure to adduce this evidence establishes that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.' Ertel v. Patriot-News Co., 544 Pa. 93, 101-102,674 A.2d 1038, 1042 (1996). Finally, we must stress that summary judgment will be granted only in those cases which are free and clear from doubt. Marks v. Tasman, 527 Pa. 132, 589 A.2d 205 (1991). (Emphasis added.) As an invitee of the Silver Springs Fire Co., plaintiff was entitled to a duty of care set out in Section 343 of the Restatement (Second) of Torts. Estate of Swift v. Northeastern Hospital of Philadelphia, 690 A.2d 719 (Pa. Super. 1997). In Swift, the Superior Court of Pennsylvania stated that: 97-1761 CIVIL TERM [a] party is subject to liability for physical harm caused to an invitee only if: he knows of or reasonably should have known of the condition and the condition involves an unreasonable risk of harm, he should expect that the invitee will not realize it or will fail to protect themselves against it, and the party fails to exercise reasonable care to protect the invitees against the danger. Blackman v. Federal Realty Investment Trust, 444 Pa. Super. 411,415, 664 A.2d 139, 142 (1995). An invitee must prove either the proprietor of the land had a hand in creating the harmful condition, or he had actual or constructive notice of such condition. Moultrey v. Great Atlantic & Pacific Tea Co., 281 Pa. Super. 525, 535, 422 A.2d 593, 598 (1980). (Emphasis added.) In Myers v. Penn Traffic Co., 414 Pa. Super. 181 (1992), the Superior Court of Pennsylvania restated that in a slip/fall premises liability case: Where... the evidence indicates that the transitory condition is traceable to persons other than those for whom the owner is, strictly speaking, ordinarily accountable, the jury may not consider the owner's ultimate liability in the absence of other evidence which tends to prove that the owner had actual notice of the condition or that the condition existed for such a length of time that in the exercise of reasonable care the owner should have known of it. (Emphasis added.) In the present case, factual discrepancies exist among several witnesses as to how long the meat that plaintiff slipped on was on the floor. One witness estimated that it was fifteen minutes. Another thought that it was right after the meat had fallen on the floor. Plaintiff maintains that during that time most of the persons operating the event for the fire company were involved in the sale of bingo cards, small games of chance, and other activities that kept them from inspecting the premises. In Coxey v. Guala, -5- 97-1761 CIVIL TERM 112 Pa. Super. 460 (1934), the Superior Court stated with respect to constructive notice of a dangerous condition: This was, therefore, a clear question of fact for the jury as to whether or not the steps were in a proper condition on the date of the accident and, if defective, whether that condition had existed for a sufficient length of time to amount to give constructive notice to the defendants. What length of time would be sufficient is entirely a question for the jury, varying according to the circumstances and particularly the use which was being made of the steps. Given the conflicting evidence regarding the issue of constructive notice of the dangerous condition which plaintiff alleges caused her to fall we will deny defendant's motion for summary judgment. ORDER OF COURT AND NOW, this ~"'~ day of June, the motion of defendant for summary judgment, IS DENIED. By the C ~ Edgar B. Bayley, J. ~' Michael E. Kosik, Esquire For Plaintiff Robert A. Lerman, Esquire For Defendant :saa -6-