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HomeMy WebLinkAbout2004-4171 SCOTT SHANE, Plaintiff v. IN THE COURT OF COMMON PLEAS OF THE NINTH JUDICIAL DISTRICT COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF CORRECTIONS STATE CORRECTIONAL INSTITUTE AT ROCKVIEW, Defendant 2004-04171 CIVIL TERM IN RE: DEPARTMENT OF CORRECTIONS MOTION FOR SUMMARY JUDGMENT BEFORE GUIDO AND PLACEY, J.J. OPINION and ORDER OF COURT Placey, CPJ, 19 April 2013. In this civil action, Plaintiff alleges Defendant was negligent in allowing a dangerous condition to exist on government property and requiring Plaintiff to complete disassembly work on a rooftop without adequate safety protection. For disposition at this time is Defendant Complaint. For the reasons stated in this opinion, Motion for Summary Judgment will be granted in part and denied in part. STATEMENT OF FACTS The facts viewed in the light most favorable to Plaintiff as the non-moving party are summarized as follows: Plaintiff was an inmate at the State Correctional Institution 1 at Rockview (SCI-Rockview). Defendant, the Commonwealth of Pennsylvania 2 Department of Corrections, operates the facility located at SCI-Rockview. Plaintiff was 3 assigned to a carpentry work detail while incarcerated at SCI-Rockview. On 9 September 2011, Plaintiff was instructed by SCI-Rockview personnel to climb on the roof of a structure connected to the main boiler house of SCI-Rockview in order to 4 remove four sheets of four-by-eight foot (4 x 8) OSB plywood. The plywood had been exposed to the elements for a long period of time without adequate protection, 5 causing them to be weathered, grayish in color, and decrepit. Plaintiff climbed onto the roof of the structure, which was approximately sixteen 6 feet off of the ground. While standing on a sheet of plywood still attached to the structure, Plaintiff removed two of the four sheets with a battery-operated screw gun 7 and passed the boards to a fellow inmate. The sheet of plywood that Plaintiff was standing on broke loose, causing Plaintiff to fall to the ground and land on his feet and 8 right wrist. Plaintiff was brought to the SCI-Rockview infirmary where an x-ray was performed, which showed that both of as a result of the 1 Second Amended Complaint, filed 17 Feb. 2011, ¶ 5 (hereinafter Cmplt. ¶ __). 2 Cmplt. ¶ 4. 3 Cmplt. ¶ 7. 4 Cmplt. ¶¶ 9-12. The court is aware that oriented strand board, , sheets, ,ctly manufactured wood products and the court shall refer comes from the parties. 5 Cmplt. ¶ 22. 6 Cmplt. ¶ 15. 7 Cmplt. ¶ 18. 8 Cmplt. ¶¶ 26-7. 2 9 fall. On 12 September 2002, SCI-Rockview staff transported Plaintiff to the Nittany Valley Foot and Ankle Center of Centre County where Christine Weikert, M.D. placed 10 Plaintiff was given more permanent casts on 24 11 September 2002, and again on 31 October 2002. The casts were removed and 12 Plaintiff was provided with orthopedic boots on 19 November 2002. Plaintiff was 13 required to use a wheelchair from 9 September 2002 through 23 January 2003. Subsequently, Plaintiff required the use of crutches from 23 January 2003 through 31 1415 March 2003. As a result of the fall, Plaintiff has undergone multiple surgeries and 16 has been provided several injections of steroids to both his ankles and wrist. Plaintiff 17 has also been prescribed pain medication and continues to soak in hot water nightly to 1819 relieve the pain. Defendant has reassigned Plaintiff to light-duty janitorial work. that Defendant was negligent in Defendant knew or should have known created a hazard; (b) failing to maintain adequate observation of the dangerous condition; (c) failing to maintain the surface and 9 Cmplt. ¶¶ 28-30. 10 Cmplt. ¶¶ 31-2. 11 Cmplt. ¶¶ 34, 36. 12 Cmplt. ¶ 37. 13 Cmplt. ¶ 33. 14 Cmplt. ¶ 38. 15 Cmplt. ¶ 49. 16 Cmplt. ¶¶ 39, 43-5. 17 Cmplt. ¶ 42. 18 Cmplt. ¶ 46. 19 Cmplt. ¶ 47. 3 roof of the structure in accordance with building codes and ordinances; (d) failing to provide fall protection for those working on the roof of the structure; (e) failing to act with due care and regard for the safety of others; (f) failing to exercise reasonable care to protect Plaintiff from the dangers of working from heights of about six feet; and (g) failing to properly clean, clear, and maintain the sidewalk adjacent to SCI-Rockview to 20 keep them free from ice and hazardous conditions. Plaintiff further alleges that Defendant had express and constructive knowledge that the roof was not properly 21 protected and was in a dangerous and defective condition. Summary Judgment states that Plaintiff failed to allege the necessary averments to satisfy the standard under the real estate exception to sovereign immunity; specifically, Plaintiff failed to prove that Defendant had actual or constructive notice of the defective 22 condition. incident, Eugene Figurelle, Michael Sidorick, and Michael Wenrick, have been filed with the court as P Motion for Summary Judgment. Additionally, Plaintiff filed an expert report completed by registered architect Julius Pereira III. Defendant has also filed portions of Plaintiff anexpert report, along with a one-page 20 Cmplt. ¶ 61(a)-(g). 21 Cmplt. ¶¶ 56, 58. 22 -6., filed 22 May 2012. 4 incident report authored by Mr. Figurelle as additional exhibits attached to its motion for summary judgment. Both Mr. Sidorick and Mr. Figurelle were assigned to deconstruct the boiler house structure and agreed that the structure was constructed about a year prior to the 23 incident at issue. Mr. Sidorick stated that the building was constructed to be a 24 Mr. Sidorick also related that the roof was covered only by tar 25 paper, which is similar to a thick felt material; however, Mr. Figurelle did not believe 26 the roof was covered with any protective material. Mr. Figurelle stated that the OSB 27 looked weathered and grayish. expert made several findings in his report, most p been left exposed to the weather for at least six months, extra care and precautions should have been taken to prevent the unexpected 28 failure of the OSB while there were workers on DISCUSSION Summary judgment, generally. The procedural rules governing motions for summary judgment, specifically Pennsylvania Rules of Civil Procedure 1035.1 through 1035.5, instruct the court to enter judgment when no genuine issue of material fact exists as to a necessary element of a claim or defense, entitling the moving party to 23 or Summary Judgment, Ex. C, p. 18, filed 9 Apr. 2012 (hereinafter Ex. C, at __); Second Motion for Summary Judgment, Ex. D, p. 14, filed 9 Apr. 2012 (hereinafter Ex. D, at __). 24 Ex. D, at 15. 25 Ex. D, at 14-5. 26 Ex. C, at 27. 27 Ex. C, at 27. 28 x. G, § F, filed 9 Apr. 2012. 5 judgment as a matter of law. Pa.R.C.P. No. 1035.2. Pursuant to Rules 1035.1 and 1035.2, a party is entitled to move for summary judgment when the pleadings, depositions, answers to interrogatories, admissions, affidavits, and expert reports fail to present any issue of material fact or, rather, fail to provide sufficient facts essential to the cause of action or defense asserted. Pa.R.C.P. No. 1035.1-1035.2. The non-moving party is not permitted to rely upon mere allegations or denials found in the pleadings. Pa.R.C.P. No. 1035.3 (a). To prevail, the non-moving party must identify at least one or more issues of fact arising from the evidence of record or cite to evidence that establishes the essential facts or elements to which the opposing . party alleges were not produced. Id at (a)(1)-(2). In essence, the non-moving party must adduce sufficient evidence on which they have the burden, showing that a jury could return a verdict in their favor. Ertel v. Patriot-News Co., 674 A.2d 1038, 1042 (Pa. 1996). The purpose of granting summary judgment is to preclude cases from going to trial when a party cannot substantiate a claim or defense after the relevant discovery is closed. Miller v. Sacred Heart Hospital, 753 A.2d 829, 833 (Pa. Super. 2000). In evaluating a motion for summary judgment, the court must view the record in the light most favorable to the non-moving party and resolve any doubt against the moving party. Hughes v. Seven Springs Farm, Inc., 762 A.2d 339, 340-1 (Pa. 2000). Summary judgment is appropriate only in those cases that are free and clear from doubt. Marks v. Tasman, 589 A.2d 205, 206 (Pa. 1991); Basile v. H & R Block, Inc., 761 A.2d 1115, 1118 (Pa. 2000). 6 Real estate exception to sovereign immunity. The Commonwealth of Pennsylvania enjoys sovereign immunity, subject to specific exceptions outlined under 42 Pa. C.S. § 8522(b). As the exceptions are clearly delineated, the court must strictly construe the exceptions that have been outlined by the general assembly. Snyder v. Harmon, 562 A.2d 307, 311 (Pa. 1989). Sovereign immunity is waived in certain circumstances, one scenario being the real estate exception which states that sovereign immunity shall not be raised as a defense when a claim for damages is caused by a dangerous condition found on Commonwealth agency real property or real estate. 42 Pa. C.S. § 8522(b)(4). dangerous condition must derive, originate from or have as its source the Commonwealth realty. Snyder, 562 A.2d at 311. Further, the Pennsylvania Supreme Court has held t . condition or defect of the land itself causes injury . Id In other words, assuming all other requirements of the statutory exception at 42 Pa.C.S. § 8522(b)(4) are met, the Commonwealth may not raise the defense of sovereign immunity when a plaintiff alleges, for example, that a substance or an object on Commonwealth realty was the result of a defect in the property or in its construction, maintenance, repair or design.Jones v. SEPTA, 772 A.2d 435, 443-4 (Pa. 2001). An actual defect or flaw in the real property itself is necessary, and a substance that happens to be present on the property such as snow does not constitute a dangerous condition, unless the substance is present due to a design or construction defect. Raker v. Pa. Dept. of Corr., 844 A.2d 659, 662 (Pa. Cmwlth. 2004). 7 The Commonwealth property must be maintained in a condition that is safe for activities for which it is regularly used, intended to be used, or reasonably foreseen to be used. Snyder, 562 A.2d at 312. Similar to common law negligence, this exception requires that the Commonwealth had actual or constructive notice of the dangerous condition. Commonwealth, Dept. of Trans. v. Patton, 686 A.2d 1302, 1304 (Pa. 1997). Constructive notice is established when the dangerous condition is apparent . through reasonable inspection. IdWhether a dangerous condition exists and whether a defendant had actual or constructive notice of such a condition are questions of fact and are to be determined by a jury; however, when reasonable minds cannot differ as to . the existence of a dangerous condition, the court may decide the issue. Idat 1305. If . there is any dispute based upon the evidence, it is improper for the court interject. Id (emphasis added). Application of law to facts. Defendant states that Plaintiff cannot successfully plead a cause of action under the real estate exception concerning to provide fall protection because it does not constitute a defect or dangerous condition Pennsylvania case law is clear that to satisfy the real estate exception to sovereign immunity, the dangerous condition must derive, originate from, failure to provide fall protection is not a dangerous condition that derives, originates from, or has as its source the Commo, it is clear that Plaintiff cannot prevail under this theory. As such, the Motion for Summary Judgment as it 8 Defendant also avers that there is no evidence of record to prove that there was actual or constructive notice of the defective condition of the wood panel that caused l. To the contrary, a review of the record reveals some evidence that could support a conclusion by a jury that Defendant had, at the very least, constructive notice of the defective condition. In his deposition, Mr. Sidorick stated that the building was supposed to be a temporary structure and the roof was protected only by a thick, felt- like material. Mr. Figurelle did not believe there to be any protective covering on the roof and stated that, upon visual inspection, the wood panel looked weathered and grayish. wood panels that are exposed to the elements for a period over six months should be protected to prevent a dangerous condition from arising. It could logically follow that a building constructed by Defendant to be temporary without proper weather-proofing materials on the roof, resulting in constant exposure to the elements, could produce a dangerous condition over a period of time. Accordingly, lack of actual or constructive notice of the defective condition will be denied. For the foregoing reasons, the following order will be entered: 9 ORDER OF COURT AND NOWApril 2013 , this ___ day of Motion for Summary Judgment, briefs submitted by both parties, and argument on the GRANTED issues, the motion is DENIED fall protection, but as it relates to Defend the alleged defective condition. BY THE COURT, _________________________ Thomas A. Placey C.P.J. Distribution: Daniel R. Goodemote, Esq. William J. Fox, Esq. 10