OPINION
McDERMOTT, Justice.
Appellants come to us by allowance from an order of the Commonwealth Court which,
inter alia,
entered judgments
non obstante veredicto,
in favor of the City of Philadelphia and against appellants, 131 Pa.Cmwlth. 418, 570 A.2d 626. The basis of the Commonwealth Court ruling was that the City was immune from suit under provisions of the Governmental Immunity Act,
42 Pa.C.S. § 8541
et seq.
The germane facts of this case are uncontested. On May 17, 1981, Robert F. Crowell, his wife Linda Crowell, and their three year old son, Marc Ethan Crowell, were travelling in their car. They were proceeding west on University Avenue, which is located in the western section of Philadelphia. Henry Lewis was also travelling in his car, but he was proceeding east on University Avenue. The respective lanes were separated by a low rise concrete medial strip.
The two cars approached a curve in the road. The curve turned to the right for eastbound traffic and to the left for westbound traffic. Facing Mr. Lewis’ vehicle was a large directional arrow directing traffic to turn left. Unfortunately, the directional arrow was wrongly placed, for the road turned to the right. Mr. Lewis nonetheless followed the arrow, thereby crossing into the Crowell’s lane of traffic, striking their vehicle, and causing injuries which eventually resulted in the death of Marc Ethan Crowell.
The Crowells subsequently brought survival and wrongful death actions against Henry Lewis and the City of Philadelphia. The causes of action against Henry Lewis were ground
ed in traditional tort law, whereas the causes of action against the City were brought under an exception to the Governmental Immunity Act, specifically the fourth exception which provides:
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.
, (4) Trees, traffic controls and street lighting. — A dangerous condition of trees, traffic signs, lights or other traffic controls, street lights or street lighting systems under the care, custody or control of the local agency, except that the claimant to recover must establish that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred and that the local agency had actual notice or could reasonably be charged with notice under the circumstance of the dangerous condition at a sufficient time prior to the event to have taken measures to protect against the dangerous condition.
42 Pa.C.S. § 8542(b)(4).
At the time of the accident Mr. Lewis was legally intoxicated and ultimately pled guilty to driving while intoxicated. Despite this evidence of intoxication, there was ample evidence, which was believed by the jury, that the incorrectly placed directional sign was a substantial factor in causing the accident. The jury, ruling on the parties’ multiple counts, returned a verdict in the aggregate amount of $1,650,000.00 in favor of the Crowells and against Mr. Lewis and the City of Philadelphia. The jury apportioned the comparative negligence of the defendants thusly: Henry B. Lewis 80%, City of Philadelphia 20%.
Following post-trial motions the trial judge, the Honorable Paul Ribner, denied the respective defendants’ motions for judgment
non obstante veredicto
and, after molding the verdict to reflect the limitation of the Governmental Immunity Act, and adding delay damages, entered judgment for plaintiffs as follows: 1) against the City and in favor of Robert and Linda Crowell — $202,594.50; 2) against the City and in favor
of the Estate of Marc Ethan Crowell — $311,655.50; 3) against Henry Lewis and in favor of Robert and Linda Crowell— $520,000.00; and 4) against Henry Lewis and in favor of the Estate of Marc Ethan Crowell — $800,000.00.
The defendants appealed these judgments and, as noted above, the Commonwealth Court reversed the judgments which had been entered against the City, and proceeded to enter judgment,
non obstante veredicto,
in favor of the City and against the Crowells.
Upon petition for review filed by the Crowells we granted allocatur, for the limited purpose of examining the Commonwealth Court’s “interpretation of 42 Pa.C.S. § 8542(b)(4) in light of our decision in
Mascaro v. Youth Study Center,
514 Pa. 351, 523 A.2d 1118 (1987).”
For the reasons set forth below, we now reverse that part of the order of the Commonwealth Court which granted the City relief.
In
Mascaro
this Court examined whether liability attached to the City under the real estate exception
to the Governmental Immunity Act in a situation where the defect in the City’s real estate facilitated the ultimate injuries but the injuries did not occur on or near the real estate. The facts of
Mascaro
were that the plaintiffs family had been grievously injured by a person who had escaped from the City’s Youth Study Center, a correctional facility. The injuries to the plaintiffs family occurred well away from City owned property.
We concluded that the City could not be sued under the real estate exception and held:
that the real estate exception can be applied only to those cases where it is alleged that the artificial condition or defect of the land
itself
causes the injury, not merely when it facilitates the injury by the acts of others, whose acts are outside the statute’s scope of liability.
Id.
514 Pa. at 363, 523 A.2d at 1124 (emphasis in original). In support of this holding we further stated:
We believe the Legislature has clearly precluded the imposition of liability on itself or its local agencies for acts of third parties by its language in § 8541,
supra,
and that it has not seen fit to waive immunity for these actors in their acts in any of the eight exceptions.
Id.
These latter comments were based on the Court’s interpretation of section 8541 of the Immunity Act which provides:
Except as otherwise provided in this subchapter, no local agency shall be liable for any damages on account of any injury to a person or property caused by any act of the local agency or an employee thereof
or any other person.
42 Pa.C.S. § 8541 (emphasis supplied in
Mascaro
but not in original statute).
In the present case the Commonwealth Court relied on the above quoted statutory language to conclude that the City cannot be liable for
any
injury caused jointly with another tortfeasor. This conclusion went far beyond that intended by
Mascaro.
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OPINION
McDERMOTT, Justice.
Appellants come to us by allowance from an order of the Commonwealth Court which,
inter alia,
entered judgments
non obstante veredicto,
in favor of the City of Philadelphia and against appellants, 131 Pa.Cmwlth. 418, 570 A.2d 626. The basis of the Commonwealth Court ruling was that the City was immune from suit under provisions of the Governmental Immunity Act,
42 Pa.C.S. § 8541
et seq.
The germane facts of this case are uncontested. On May 17, 1981, Robert F. Crowell, his wife Linda Crowell, and their three year old son, Marc Ethan Crowell, were travelling in their car. They were proceeding west on University Avenue, which is located in the western section of Philadelphia. Henry Lewis was also travelling in his car, but he was proceeding east on University Avenue. The respective lanes were separated by a low rise concrete medial strip.
The two cars approached a curve in the road. The curve turned to the right for eastbound traffic and to the left for westbound traffic. Facing Mr. Lewis’ vehicle was a large directional arrow directing traffic to turn left. Unfortunately, the directional arrow was wrongly placed, for the road turned to the right. Mr. Lewis nonetheless followed the arrow, thereby crossing into the Crowell’s lane of traffic, striking their vehicle, and causing injuries which eventually resulted in the death of Marc Ethan Crowell.
The Crowells subsequently brought survival and wrongful death actions against Henry Lewis and the City of Philadelphia. The causes of action against Henry Lewis were ground
ed in traditional tort law, whereas the causes of action against the City were brought under an exception to the Governmental Immunity Act, specifically the fourth exception which provides:
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.
, (4) Trees, traffic controls and street lighting. — A dangerous condition of trees, traffic signs, lights or other traffic controls, street lights or street lighting systems under the care, custody or control of the local agency, except that the claimant to recover must establish that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred and that the local agency had actual notice or could reasonably be charged with notice under the circumstance of the dangerous condition at a sufficient time prior to the event to have taken measures to protect against the dangerous condition.
42 Pa.C.S. § 8542(b)(4).
At the time of the accident Mr. Lewis was legally intoxicated and ultimately pled guilty to driving while intoxicated. Despite this evidence of intoxication, there was ample evidence, which was believed by the jury, that the incorrectly placed directional sign was a substantial factor in causing the accident. The jury, ruling on the parties’ multiple counts, returned a verdict in the aggregate amount of $1,650,000.00 in favor of the Crowells and against Mr. Lewis and the City of Philadelphia. The jury apportioned the comparative negligence of the defendants thusly: Henry B. Lewis 80%, City of Philadelphia 20%.
Following post-trial motions the trial judge, the Honorable Paul Ribner, denied the respective defendants’ motions for judgment
non obstante veredicto
and, after molding the verdict to reflect the limitation of the Governmental Immunity Act, and adding delay damages, entered judgment for plaintiffs as follows: 1) against the City and in favor of Robert and Linda Crowell — $202,594.50; 2) against the City and in favor
of the Estate of Marc Ethan Crowell — $311,655.50; 3) against Henry Lewis and in favor of Robert and Linda Crowell— $520,000.00; and 4) against Henry Lewis and in favor of the Estate of Marc Ethan Crowell — $800,000.00.
The defendants appealed these judgments and, as noted above, the Commonwealth Court reversed the judgments which had been entered against the City, and proceeded to enter judgment,
non obstante veredicto,
in favor of the City and against the Crowells.
Upon petition for review filed by the Crowells we granted allocatur, for the limited purpose of examining the Commonwealth Court’s “interpretation of 42 Pa.C.S. § 8542(b)(4) in light of our decision in
Mascaro v. Youth Study Center,
514 Pa. 351, 523 A.2d 1118 (1987).”
For the reasons set forth below, we now reverse that part of the order of the Commonwealth Court which granted the City relief.
In
Mascaro
this Court examined whether liability attached to the City under the real estate exception
to the Governmental Immunity Act in a situation where the defect in the City’s real estate facilitated the ultimate injuries but the injuries did not occur on or near the real estate. The facts of
Mascaro
were that the plaintiffs family had been grievously injured by a person who had escaped from the City’s Youth Study Center, a correctional facility. The injuries to the plaintiffs family occurred well away from City owned property.
We concluded that the City could not be sued under the real estate exception and held:
that the real estate exception can be applied only to those cases where it is alleged that the artificial condition or defect of the land
itself
causes the injury, not merely when it facilitates the injury by the acts of others, whose acts are outside the statute’s scope of liability.
Id.
514 Pa. at 363, 523 A.2d at 1124 (emphasis in original). In support of this holding we further stated:
We believe the Legislature has clearly precluded the imposition of liability on itself or its local agencies for acts of third parties by its language in § 8541,
supra,
and that it has not seen fit to waive immunity for these actors in their acts in any of the eight exceptions.
Id.
These latter comments were based on the Court’s interpretation of section 8541 of the Immunity Act which provides:
Except as otherwise provided in this subchapter, no local agency shall be liable for any damages on account of any injury to a person or property caused by any act of the local agency or an employee thereof
or any other person.
42 Pa.C.S. § 8541 (emphasis supplied in
Mascaro
but not in original statute).
In the present case the Commonwealth Court relied on the above quoted statutory language to conclude that the City cannot be liable for
any
injury caused jointly with another tortfeasor. This conclusion went far beyond that intended by
Mascaro.
We begin our analysis by noting that the jury in this case found by its verdict that the City’s action did not merely facilitate the injuries but was in fact a substantial contributing
cause
of them: the liability of the City here was found to be joint as opposed to merely vicarious.
Vicarious liability, sometimes referred to as imputed negligence, “means in its simplest form that, by reason of some
relation existing between A and B, the negligence of A is to be charged against B although B has played no part in it, has done nothing whatever to aid or encourage it, or indeed has done all that he possibly can to prevent it.” Prosser and Keeton on Torts (5th Ed.1984) § 69, p. 499. “The modern justification for vicarious liability is a rule of policy, a deliberate allocation of risk.”
Id.
at p. 500.
Joint tortfeasor liability, on the other hand, arises when two or more persons acting together injure another. It is distinguished from vicarious liability in that liability attaches by virtue of the actions of each person as opposed to by operation of law. See Prosser and Keeton,
supra
§ 52, p. 346.
In
Mamalis v. Atlas Van Lines Inc.,
522 Pa. 214, 560 A.2d 1380 (1989), we addressed the compensatory concept behind each theory of recovery, and adopted the following Superior Court explanation of the distinction:
The rules of vicarious liability respond to a specific need in the law of torts: how to fully compensate an injury caused by the act of a single tortfeasor. Upon a showing of agency, vicarious liability increases the likelihood that an injury will be compensated, by providing two funds from which a plaintiff may recover. If the ultimately responsible agent is unavailable or lacks the ability to pay, the innocent victim has recourse against the principal. If the agent is available or has means to pay, invocation of the doctrine is unnecessary because the injured party has a fund from which to recover.
The system of contribution among joint tortfeasors, of which the Uniform Act’s
apportionment rules are a key component, has arisen completely apart from the system of vicarious liability and indemnity and meets an entirely distinct problem: how to compensate an injury inflicted by the acts of more than one tortfeasor. Unlike the liability of a principal, the liability of a joint tortfeasor is direct (because the tortfeasor actually contributed to the plaintiffs
injury) and divisible (since the conduct of at least one other also contributed to the injury).
Id.
522 Pa. at 220-221, 560 A.2d at 383, citing
Mamalis v. Atlas Van Lines, Inc., et al.,
364 Pa.Super. 360, 365-366, 528 A.2d 198, 200-201 (1987).
Thus, succinctly stated, vicarious liability imposes liability on a person by virtue of his relation to the tortfeasor, whereas joint liability
is imposed on a person by virtue of actions taken in concert with another tortfeasor.
Turning this analysis to
Mascaro,
the Court in interpreting the language of section 8541 stated:
Acts of
others,
however are specifically excluded in the general immunity section (42 Pa.C.S. § 8541), and are nowhere discussed in the eight exceptions. On this basis alone, we must conclude that any harm that others cause may not be imputed to the local agency or its employees. This, of course, is a difference from the duties and liabilities of a private landowner who can be held accountable for the foreseeable criminal conduct of others under
Ford v. Jeffries,
[474 Pa. 588, 379 A.2d 111 (1977)]
Id.
514 Pa. at 362, 523 A.2d at 1124 (emphasis in original).
The
Mascaro
Court then went on to note the consistent refusal of Pennsylvania Courts to allow a cause of action under the real estate exception against “those whose claims of negligence consists of a failure to supervise the conduct of students or persons adequately.”
Id.
The Court cited the following cases in support of its position:
Davies v. Barnes,
94 Pa.Cmwlth. 145, 503 A.2d 93 (1986);
Messina v. Blairsville-Saltsburg School District,
94 Pa.Cmwlth. 100, 503 A.2d 89 (1986);
Johnson v. City of Philadelphia,
93 Pa.Cmwlth. 87, 500 A.2d 520 (1985);
Acker v. Span
gler,
92 Pa.Cmwlth. 616, 500 A.2d 206 (1985);
Usher v. Upper St. Clair School District,
87 Pa.Cmwlth. 461, 487 A.2d 1022 (1985);
Robson v. Penn Hills School District,
63 Pa.Cmwlth. 250, 437 A.2d 1273 (1981);
Wimbish v. School District of Penn Hills,
59 Pa.Cmwlth. 620, 430 A.2d 710 (1981). In each of these cases the plaintiff was attempting to bring the negligence of the governmental employee within the real estate exception; the courts refused because there was not shown to exist a causal connection between the injury and the real estate within the governmental unit’s control.
The
Mascaro
Court used these cases to support its conclusion that “the Legislature has clearly precluded the imposition of liability on itself or its local agencies for acts of third parties.”
Mascaro, supra,
514 Pa. at 363, 523 A.2d at 1124.
Thus the Court’s reliance in
Mascaro
upon section 8541 was a recognition that the statute precludes the imposition of liability upon a governmental unit based upon a theory of vicarious liability.
In summary, the
Mascaro
decision was grounded in statutory interpretation, and was intended to be applied to like
situated cases.
The Court’s holding is embodied in the following sentence:
“[We] hold that the real estate exception can be applied only to those cases where it is alleged that the artificial condition or defect of the land
itself
causes the injury, not merely when it facilitates the injury by the acts of others, whose acts are outside the scope of liability.”
Mascaro, id.
514 Pa. at 363, 523 A.2d 1118.
The question which remains is the theoretical framework from which to analyze those situations which will fall within the exceptions and those which will not. In this regard, Judge Byer in his concurring opinion in
Buschman v. Druck,
supra, 139 Pa.Cmwlth. at 198 fn. 12, 590 A.2d at 61 (1991), astutely recognized that this Court’s decision in
Builders Supply v. McCabe,
366 Pa. 322, 77 A.2d 368 (1951), can be helpful.
The Court in
Builders Supply, per
then Justice, later Chief Justice Horace Stern, explained the situations in which a right of indemnification would accrue, to wit:
The right of
indemnity
rests upon a difference between the primary and secondary liability of two persons each of whom is made responsible by the law to an injured party. It is a right which enures to a person who, without active fault on his own part, has been compelled, by reason of some legal obligation, to pay damages occasioned by the initial negligence of another, and for which he himself is
only secondarily liable. The difference between primary and secondary liability is not based on a difference in degrees of negligence or on any doctrine of
comparative
negligence, ... [I]t depends on a difference in the
character
or
kind
of the wrongs which cause the injury and in the nature of the legal obligation owed by each of the wrongdoers to the injured person.
[I]t is clear that the right of a person vicariously or secondarily liable for a tort to recover from one primarily liable has been universally recognized. But the important part to be noted in all the cases is that secondary as distinguished from primary liability rests upon a fault that is imputed or constructive only, being based on some legal relation between the parties, or arising from some positive rule of common or statutory law or because of a failure to discover or correct a defect or remedy a dangerous condition caused by the act of the one primarily responsible. In the case of
concurrent
or
joint
tortfeasors, having no legal relation to one another, each of them owing the same duty to the injured party, and involved in an accident in which the injury occurs, there is complete unanimity among the authorities everywhere that no right of indemnity exists on behalf of either against the other; in such a case, there is only a common liability and not a primary and secondary one, even though one may have been very much more negligent than the other. The universal rule is that when two or more contribute by their wrongdoing to the injury of another, the injured party may recover from all of them in a joint action or he may pursue any one of them and recover from him, in which case the latter is not entitled to indemnity from those who with him caused the injury.
Id.
366 Pa. at 325-328, 77 A.2d at 370-71 (emphasis in original).
Consequently, as applied to cases where a plaintiff is injured and brings an action against á governmental unit, the governmental unit can be subjected to liability despite the presence of an additional tortfeasor if the governmental unit’s actions would be sufficient to preclude it from obtaining
indemnity from another for injuries rendered to a third person. Cf
. Sirianni v. Nugent,
509 Pa. 564, 506 A.2d 868 (1986) (indemnification claim denied on grounds that City was joint tortfeasor). This assumes, of course, that the specific facts fall squarely within one of the exceptions. Alternatively, if the claim against the governmental unit is dependent merely upon the unit’s status, as opposed to the action fitting within one of the statutory exceptions, then the language of § 8541 would preclude the imposition of liability.
Turning back to the facts of this case, the jury here found unequivocally that the actions of the City’s employee were a substantial contributing cause of the action. Thus, since the basis of the jury’s verdict was the active negligence of the City’s employee misplacing the directional sign,
and not merely the City’s status along the chain of causation, the verdict against the City was proper, and this Court’s decision in
Mascaro
is not a basis for the City’s assertion of immunity.
Accordingly, the order of the Commonwealth Court is reversed and this case is remanded to the Court of Common Pleas of Philadelphia for proceedings consistent with this opinion.
LARSEN, J., joins in this Opinion and files a Concurring Opinion.
CAPPY, J., concurs in the result.
LARSEN, Justice.
I join in the majority opinion which reverses the order of the Commonwealth Court and sustains the liability of the City of Philadelphia for injuries and damages suffered by the appellants as was found by a jury. I write separately to reiterate that I remain convinced that the Political Subdivisions Tort Claims Act (42 Pa.C.S. § 8541, et seq.) violates the Constitution of Pennsylvania in denying and/or limiting the recovery of damages, justice and the right of remedy to those injured by the negligence of local agencies and municipalities.
See e.g. Mascaro v. Youth Study Center,
514 Pa. 351, 523 A.2d 1118 (1987) (Larsen, J. dissenting);
Smith v. City of Philadelphia,
512 Pa. 129, 516 A.2d 306 (1986) (Larsen, J. dissenting);
James v. SEPTA,
505 Pa. 137, 477 A.2d 1302 (1984) (Larsen, J. dissenting);
Carroll v. County of York,
496 Pa. 363, 437 A.2d 394 (1981) (Larsen, J. dissenting). Additionally, although the majority opinion in
Mascaro
necessitates the analysis in the instant case, I remain of the belief that
Mascaro
was wrongly decided and that the real estate exception (§ 8542(b)(3)) should have been construed to permit recovery to the injured plaintiffs in
Mascaro.
As I stated in
Mayle v.
Pennsylvania Department of Highways,
479 Pa. 384, 388 A.2d 709 (1978) and restated in
Mascaro,
“I can think of no greater function or more honorable pursuit than for the [government] to care for those whom it has injured or maimed.”
Mayle,
479 Pa. at 407, 388 A.2d at 720;
Mascaro,
514 Pa. at 370-71, 523 A.2d at 1128.