Davis v. Brennan

698 A.2d 1382, 1997 Pa. Commw. LEXIS 351
CourtCommonwealth Court of Pennsylvania
DecidedAugust 6, 1997
StatusPublished
Cited by27 cases

This text of 698 A.2d 1382 (Davis v. Brennan) is published on Counsel Stack Legal Research, covering Commonwealth Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Davis v. Brennan, 698 A.2d 1382, 1997 Pa. Commw. LEXIS 351 (Pa. Ct. App. 1997).

Opinion

DOYLE, Judge.

James W. Davis appeals from an order of the Court of Common Pleas of Susquehanna County which granted the motion for summary judgment filed by Susquehanna County on the basis that the County was immune from liability pursuant to Section 8541 of the Judicial Code, 42 Pa.C.S. § 8541, commonly known as the Political Subdivision Tort Claims Act (Act).

On March 4, 1994, while incarcerated at the Susquehanna County Correctional Facility, Davis, while taking a shower, allegedly slipped and fell when the “grab bar” in the shower stall broke free from the shower unit, causing Davis to strike his head. Thereafter, on September 6,1994, Davis filed a complaint against the County for the injuries he sustained as a result of the March 4, 1994 incident.

On June 14, 1996, the County filed a motion for summary judgment, and oral argument on the motion was held before the Court of Common Pleas on July 30, 1996. By order dated July 31, 1996, the Court of Common Pleas granted the County’s motion on the basis of governmental immunity under Section 8541 of the Act, 42 Pa.C.S. § 8541. This appeal ensued.1

The County’s principal argument on appeal is that we should affirm the trial court’s grant of summary judgment because “the instant record establishes that the shower stall in question was a free standing piece of personal property.” (County’s Brief at 8.)

Section 8541 of the Act provides that:

Except as otherwise provided in this sub-chapter, 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. Limited exceptions to this immunity are enumerated in Section 8542 of the Act, which provides in relevant part:

(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:
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(3)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....

42 Pa.C.S. § 8542(b)(3). This “real property exception” to governmental immunity includes articles of personal property or chattels which have been affixed to real property so as to become realty itself-namely, fixtures. See Kelly v. Curwensville Area High School, 141 Pa.Cmwlth. 449, 595 A.2d 787 (1991).

The term “fixture” is defined in Black’s Law Dictionary as “[a]n article in the nature of personal property which has been so annexed to the realty that it is regarded as a part of the real property.”2 Black’s [1384]*1384Law Dictionary at 638 (6th ed. 1990). Whether or not a chattel or article of personal property has become a fixture or realty necessarily involves factual considerations, i.e., the manner in which the chattel was physically attached or installed, the extent to which the chattel is essential to the permanent use of the building or other improvement, and the intent of the parties who attached or installed the chattel.3 Noll v. Harrisburg Area YMCA, 537 Pa. 274, 643 A.2d 81 (1994). Furthermore, “[a] thing is deemed to be affixed to real property when it is attached to it by its roots, imbedded in it, permanently resting upon it, or permanently attached to what is thus permanent, as by means of cement, plaster, nails, bolts or screws.” Black’s Law Dictionary at 638.

As noted above, this case is before us on appeal from a trial court’s grant of summary judgment, and the Pennsylvania Rules of Civil Procedure relating to summary judgment, as amended in 1996, provide:

After the relevant pleadings are closed, but within such time as not to unreasonably delay trial, any party may move for summary judgment in whole or in part as a matter of law
(1) whenever there is no genuine issue of any material fact as to a necessary element of the cause of action or defense which could be established by additional discovery or expert report, or
(2) if, after the completion of discovery relevant to the motion, including the production of expert reports, an adverse party who will bear the burden of proof at trial has failed to produce evidence of facts essential to the cause of action or defense which in a jury trial would require the issue to be submitted to a jury.

Pa. R.C.P. No. 1035.2.4 Our Supreme Court has stated that: “Summary judgment is granted only in the clearest of cases, where the right is clear and free from doubt.” Cooper v. Delaware Valley Medical Center, 539 Pa. 620, 632, 654 A.2d 547, 553 (1995). The burden is on the party moving for summary judgment to prove that no genuine issue of material fact exists, Ack v. Carroll Township Authority, 661 A.2d 514 (Pa.Cmwlth.1995), petition for allowance of appeal denied, 543 Pa. 731, 673 A.2d 336 (1996), and we must review the record in the light most favorable to the nonmoving party, resolving all doubts as to the existence of a genuine issue of material fact against the moving party. Ertel v. Patriot-News Co., 544 Pa. 93, 674 A.2d 1038, cert. denied, — U.S. -, 117 S.Ct. 512, 136 L.Ed.2d 401 (1996).

With these principles in mind, and after a careful review of the record in this case, we conclude that a genuine issue of material fact exists regarding the nature of the shower stall in question and whether the real property exception to governmental immunity is therefore applicable in this case.

[1385]*1385Contrary to the Appellee’s assertion, the record is devoid of any indication that the shower stall was, in fact, portable or possessed any other characteristic of personal property. The only indication which would shed any light on the nature of the shower structure is a photocopied photograph, marked as Exhibit “A,” which the County attached to its motion for summary judgment.

The County asserts that “[the shower stall’s] only connection to the real property was that plumbing pipes containing hot and cold water were clamped to the stall in order to introduce the water to the stall,” and that “this was illustrated by [the] photograph attached to the motion.” (County’s Brief at 8.) However, the photograph does not indicate that this was the shower’s “only connection” to real property, and it is not evident from the photograph whether the shower stall is screwed, plastered, cemented, or otherwise affixed to the floor or wall of the prison, or whether it is truly “freestanding” as the County contends.

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Bluebook (online)
698 A.2d 1382, 1997 Pa. Commw. LEXIS 351, Counsel Stack Legal Research, https://law.counselstack.com/opinion/davis-v-brennan-pacommwct-1997.