Degliomini, A., et ux., Aplts. v. ESM - 5 EAP 2020

• Court: Supreme Court of Pennsylvania
• Decided: June 22, 2021
• Status: Published

Opinion

[J-69-2020] IN THE SUPREME COURT OF PENNSYLVANIA EASTERN DISTRICT

BAER, C.J., SAYLOR, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.

ANTHONY DEGLIOMINI AND KAREN : No. 5 EAP 2020 DEGLIOMINI, : : Appeal from the Order of Appellants : Commonwealth Court dated : 06/25/2019 at No. 1573 CD 2018, : reversing the 10/24/2018 Order of v. : the Court of Common Pleas, : Philadelphia County, Civil Division at : No. 01601 April Term, 2016. ESM PRODUCTIONS, INC. AND CITY OF : PHILADELPHIA, : ARGUED: September 15, 2020 : Appellees :

OPINION

JUSTICE DOUGHERTY DECIDED: June 22, 2021 We granted discretionary review to consider the validity of an exculpatory release

signed by a participant in a charity bike ride that purports to immunize the City of

Philadelphia from liability for breaching its duty to repair and maintain public streets. We

hold such a release is unenforceable because it violates public policy, and we therefore

reverse.

I. Factual and Procedural Background

Appellant Anthony Degliomini participated in the May 2015 Philadelphia Phillies

Charity Bike Ride (Bike Ride), a twenty-mile ride along a designated route through the

streets of South and Center City Philadelphia. During the Bike Ride, Degliomini crashed

when he rode into an unmarked and un-barricaded sinkhole on Pattison Avenue in South

Philadelphia, which measured sixteen square feet in area and six inches deep. As a result of the crash, Degliomini suffered severe and extensive injuries, including spinal cord

injuries leading to incomplete quadriplegia,1 and multiple bone fractures which required

surgical procedures and extensive and ongoing medical treatment. Complaint at ¶¶3-4.

Degliomini and his wife, Karen Degliomini (appellants), filed a negligence action against

the City of Philadelphia (the City), event planner ESM Productions, and several other

defendants.2

The parties litigated pre-trial motions seeking, inter alia, to dismiss appellants’

claims against the City due to governmental immunity pursuant to the Political Subdivision

Tort Claims Act, 42 Pa.C.S. §§8541-8564 (Tort Claims Act), and to bar appellants’ claims

of negligence on the basis of the 2015 Phillies Charities Bike Ride Release (the Release),

an exculpatory contract prepared by ESM Productions and signed by Mr. Degliomini. The

Release states, in relevant part:

I know that participating in an organized bike ride such as the 2015 Phillies Charities Bike Ride is a potentially hazardous activity. I should not enter and bike unless I am medically able and properly trained. I understand that bicycle helmets must be worn at all times while participating in the event and I agree to comply with this rule. I further understand and agree that consumption of alcoholic beverages while operating a bicycle is a violation of the law and strictly prohibited. I know that there will be traffic on the course route and I assume the risk of biking in traffic. I also assume any and all other risks associated with participating in the event, including but not limited to falls; contact with other participants; the effects of the weather; the condition of the roads; and unsafe actions by other riders, drivers, or non-participants. I consent to emergency medical

1 Incomplete quadriplegia is a condition defined by partial damage to the spinal cord

resulting in weakness and decreased sensation in the arms and legs, but the injured person retains some function below the level of the injury. See N.T. 2/26/2018 at 123, 140. 2 Prior to trial, appellants settled with ESM and dismissed the additional defendants; the

trial proceeded against the City as the sole remaining defendant. See Degliomini. v. Philadelphia Phillies, No. 1601, 2018 WL 11243021 at *1 (C.P. Philadelphia, Oct. 24, 2018).

[J-69-2020] - 2 care and transportation in the event of injury, as medical professionals deem appropriate.

All such risks being known and appreciated by me, and in consideration of the acceptance of my entry fee, I hereby, for myself, my heirs, executors, administrators and anyone else who might claim on my behalf, promise not to sue and I release and discharge The Phillies, Phillies Charities, Inc., any and all sponsors of the event, the City of Philadelphia, Philadelphia Authority for Industrial Development, Philadelphia Industrial Development Corporation, ESM Productions, and each of their respective affiliates, owners, partners, successors and assigns and each of their respective officers, employees, agents, and anyone acting for or on their behalf, and all volunteers (collectively, the “Releasees”), from any and all claims of liability for death, personal injury, other adverse health consequence, theft or loss of property or property damage of any kind or nature whatsoever arising out of, or in the course of, my participation in the event even if caused by the negligence of any of the Releasees. This Release extends to all claims of every kind or nature whatsoever.

* * *

I, intending to be legally bound, represent that I am at least eighteen years old; either I am registering to enter this event for myself or as a parent or guardian of a minor who is at least thirteen years old; I have carefully read and voluntarily agree to this Release on behalf of myself and, if applicable, the minor who is being registered to participate, and I understand its full legal effect.

Trial Court Exhibit D-4. Appellants responded the City was not entitled to statutory

immunity because an exception for dangerous conditions on City-owned streets applied;3

3 The Tort Claims Act provides, in relevant part, as follows:

(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: * * * (6) Streets. -- (i) A dangerous condition of streets owned by the local agency, except that the claimant to recover must establish that the dangerous condition created a reasonably foreseeable risk of

[J-69-2020] - 3 the City breached its duty to maintain and repair City streets as provided in Philadelphia’s

Home Rule Charter;4 the Release should not apply to bar their claims because the

sinkhole existed well before the Bike Ride and therefore the City’s negligence occurred

before the Release was ever signed; and the Release was unenforceable because it

violates public policy by improperly immunizing the City from any consequence of

breaching its duty of public safety imposed by the Home Rule Charter.

The trial court rejected the City’s argument that the negligence action was barred

by the Release, and the matter proceeded to a jury trial. Appellants presented civil

engineering and roadway management expert testimony from Richard Balgowan, a

forensic engineer and certified public works manager, who stated the sinkhole existed in

October 2014, approximately eight months prior to the Bike Ride. See N.T. 2/27/2018 at

26, 45-47. Appellants’ evidence further demonstrated the City had knowledge of the

sinkhole as it had previously applied patching material to fill it months prior to the Bike

the kind of injury which was incurred and that the local agency had actual notice or could reasonably be charged with notice under the circumstances 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)(6)(i). 4 Philadelphia’s Home Rule Charter provides, in pertinent part, as follows:

The Department of Streets shall have the power and its duty shall be to perform the following functions: (a) City Streets. It shall . . . repair and maintain: (1) City streets, which shall include highways, roads, streets, alleys . . . owned, controlled or operated by the City or designated in accordance with law as streets of the City; * * * Philadelphia Home Rule Charter §5-500(a)(1).

[J-69-2020] - 4 Ride, but did not block the area or complete the repair to the subterranean void causing

the pavement to sink. See id. at 30-35 (expert testimony discussing different texture and

color of material in sinkhole indicated someone from streets department attempted to

temporarily fill the sinkhole but did not complete a standard repair). The jury concluded

the City was negligent and awarded $3,086,833.19 in damages to Mr. Degliomini and

$100,000 to Mrs. Degliomini for her loss of consortium.5

The parties filed post-trial motions. Appellants sought and were awarded delay

damages; the City moved for judgment notwithstanding the verdict (JNOV) based on the

Release, which was denied. The trial court explained the Tort Claims Act specifically

imposes an exception to immunity when the City has actual or constructive notice of a

dangerous condition of the streets, and, under the Home Rule Charter, the City has a

mandatory duty to maintain and repair City streets, which was breached and caused

damages to appellants. Degliomini v. Philadelphia Phillies, 2018 WL 11243021 at *2-4.

Specifically, relying on appellants’ unrebutted expert evidence that the City placed patch

material in an attempt to fill the sinkhole without repairing the underground void that

created the sinkhole, the trial court determined the City’s actions in negligently

undertaking to repair the sinkhole resulted in a non-waivable “catalyst for liability” which

existed months prior to preparations for the Bike Ride. Id. at *3 (internal quotations and

citation omitted). The court thereby concluded the Release was not valid as it violated

public policy by exculpating the City from liability for conduct that breaches its

exclusive duty to the public set forth in the Home Rule Charter. See id. at *6-8, quoting

Chepkevich v. Hidden Valley Resort, L.P., 2 A.3d 1174, 1189 (Pa. 2010) (“It is generally

accepted that an exculpatory clause is valid where three conditions are met. First,

5 The jury allocated 90% of the negligence to the City and 10% to ESM. See Degliomini

v. Philadelphia Phillies, 2018 WL 11243021 at *1.

[J-69-2020] - 5 the clause must not contravene public policy.”). The trial court entered judgment on

the verdict which was molded to include delay damages, and a reduction to reflect

the statutory cap.6 The City filed an appeal.

A three-judge panel of the Commonwealth Court reversed. Degliomini v. ESM

Prods., Inc., No. 1573 C.D. 2018, 2019 WL 2587696 (Pa. Cmwlth., June 25, 2019)

(unpublished memorandum). Though the panel agreed the dispositive issue regarding

the validity of the Release was whether it contravenes public policy, it also observed

Pennsylvania courts have consistently upheld exculpatory releases pertaining to

recreational activities as non-violative of public policy, and therefore valid and

enforceable. See id. at *3 (collecting cases). Rather than considering Section 5-500 of

the Philadelphia Home Rule Charter as establishing a mandatory duty, the panel

regarded it instead as an “organizational section” mandating the creation of the

Department of Streets to perform certain functions, but providing no standard of care or

guidelines for how the Department must accomplish its road repair duties; thus, the panel

reasoned the City’s street maintenance obligation under the Charter was no different than

any common law duty of reasonable care, which can be waived via a valid release. Id. at

*4. The panel relied on its decisions in Vinikoor v. Pedal Pa., Inc., 974 A.2d 1233, 1240

(Pa. Cmwlth. 2009) (release precluded recovery against self-inflicted injuries caused by

known risks on road during bike race and did not violate public policy), and Scott v.

Altoona Bicycle Club, No. 1426 C.D. 2009, 2010 WL 9512709 at *4-5 (Pa. Cmwlth.,

July 16, 2010) (unpublished memorandum) (exculpatory agreement between bike race

participant and municipality was a private agreement and did not violate public policy), to

6 See 42 Pa.C.S. §8553(b) ($500,000 limitation on damages against local agencies). The

final judgment entered was $521,544.52 in damages against the City. Degliomini v. Philadelphia Phillies, No. 1601, 2018 WL 11243022 at *1 (C.P. Philadelphia, Nov. 20, 2018) (amended order).

[J-69-2020] - 6 conclude: the Release was a private agreement between appellant Degliomini and

various entities including the City; appellant was under no obligation to sign the Release

or participate in the Bike Ride; and the Bike Ride was a private event on public roads and

the City’s involvement was akin to that of a private property owner. Id. The

Commonwealth Court therefore held, because the Release did not violate public policy,

it was valid and enforceable to bar appellants’ claims against the City, and the trial court

erroneously denied the City’s request for JNOV. Id.

Upon appellants’ petition, we granted review of the following questions:

1. Can the City of Philadelphia contractually immunize itself from tort liability for breaching a mandatory public safety duty which has existed for decades under common law, and which is now codified and/or imposed under Pennsylvania’s Tort Claims Act and Philadelphia’s Home Rule Charter?

2. Does the Phillies’ exculpatory Release immunize the City from liability for negligently repairing its road hazard before the parties drafted or entered the Release, and long before the event covered by the Release?

Degliomini v. ESM Prods., Inc., 223 A.3d 670 (Pa. 2020) (per curiam). These are pure

questions of law over which our standard of review is de novo and our scope of review is

plenary. See Reott v. Asia Trend, Inc., 55 A.3d 1088, 1093 (Pa. 2012). For the most part,

the parties treat the two issues as intertwined, and we proceed to consider their

arguments mindful of the applicable standard.

II. Arguments

In support of the trial court’s determination the Release is unenforceable as against

public policy, appellants argue that only the legislature has the authority to confer

immunity upon political subdivisions and, by enacting the Tort Claims Act, the legislature

expressly determined cities “shall be liable for damages” resulting from known dangerous

[J-69-2020] - 7 street conditions; therefore, according to appellants, the City cannot immunize itself by

contract for conduct where the legislature has expressly waived its immunity. Appellants’

Brief at 12-17, quoting 42 Pa.C.S. §8542(a). See id., citing, inter alia, Carroll v. York Cty.,

437 A.2d 394, 396 (Pa. 1981) (extent of a municipality’s powers is determined by the

legislature); Dorsey v. Redman, 96 A.3d 332, 340 (Pa. 2014) (legislature is the exclusive

body with authority to confer immunity upon political subdivisions); City of Philadelphia v.

Gray, 633 A.2d 1090, 1093-94 (Pa. 1993) (city ordinance cannot waive immunity

conferred by Tort Claims Act). Recognizing the purpose of the Tort Claims Act’s immunity

provision is to protect against public fiscal risks, appellants observe the Judicial Code

explicitly provides both a statutory limitation on damages against a local agency, and the

authority for local agencies to purchase liability insurance and enter joint insurance

contracts in order to mitigate risk exposure. Appellants further note, however, the Code

does not mention exculpatory contracts. Id. at 16-17 n.5. See 42 Pa.C.S. §§8553, 8564.

Appellants contend there is an important distinction between permissible indemnity

contracts wherein another party agrees to bear cost of damages if the government is held

liable, and exculpatory contracts wherein the government would be immunized from being

held liable at all, which is not permissible under these circumstances because the

legislature foreclosed the defense of tort immunity via the Act’s exception for known

dangerous street conditions. Id. at 17.

In addition, appellants indicate exculpatory clauses have been found to violate

public policy when, inter alia, they release a party charged with a duty of public service,

release a party for violating a statute or regulation designed to protect human life, or

“‘would jeopardize the health, safety, and welfare of the people by removing any incentive

[J-69-2020] - 8 for parties to adhere to minimal standards of safe conduct.’” Id. at 19-22, quoting Tayar

v. Camelback Ski Corp., Inc., 47 A.3d 1190, 1203 (Pa. 2012). See id., citing, inter alia,;

Boyd v. Smith, 94 A.2d 44, 45-46 (Pa. 1953) (lease contract exculpating landlord from

liability “caused by any fire” violated public policy where landlord did not comply with fire

safety legislation “intended for the protection of human life”); Leidy v. Deseret Enters.,

Inc., 381 A.2d 164, 167-68 (Pa. Super. 1977) (“courts have found contracts against

liability contrary to public policy . . . in situations where one party is charged with a duty

of public service”) (additional citations omitted). They assert the City has a mandatory,

non-delegable “public safety” duty to repair street hazards upon actual or constructive

notice of them, and this duty has existed at common law for decades. See id. at 18, citing,

inter alia, Drew v. Laber, 383 A.2d 941, 943 (Pa. 1978) (“Under Pennsylvania law a

municipality is required to construct and maintain its highways in such a manner as to

protect travelers from dangers which, by the exercise of normal foresight, careful

construction and reasonable inspection, can be anticipated and avoided.”) (internal

quotation omitted). They further assert this duty was later preserved and codified in the

Philadelphia Home Rule Charter — which has the force of statute and expressly states

the City’s Department of Streets has the duty to repair and maintain city streets — and

the Tort Claims Act — which contains the exception to governmental immunity for

dangerous street conditions. See id. at 27-29, citing Harrington v. Carroll, 239 A.2d 437,

438 (Pa. 1968) (“That the [Philadelphia Home Rule] Charter constitute[s] legislation no

less than does a statute of the legislature to like end is too plain for even cavil.”);

Philadelphia Home Rule Charter §5-500(a)(1); 42 Pa.C.S. §8542(b)(6)(i). Appellants

indicate this duty is not a sweeping source of liability for all dangerous street conditions,

[J-69-2020] - 9 but, per the statutes, is instead a bare minimum duty of care that attaches to liability only

when the City “‘had actual notice or could reasonably be charged with notice under the

circumstances of the dangerous condition at a sufficient time prior to the event to have

taken measures to protect against the dangerous condition.’” Id. at 21-22, quoting 42

Pa.C.S. §8542(b)(6)(i). They argue that allowing ad hoc contract exceptions to the

legislative waiver of immunity would disincentivize the City from discharging its bare

minimum duty of care at the precise time when the City’s known or reasonably knowable

street hazards pose the most danger — i.e., during events, when streets are congested

with onlookers and event participants — and would thereby “jeopardize the health, safety,

and welfare of the people[.]” Id. at 22, quoting Tayar, 47 A.3d at 1203.

Appellants further emphasize the City’s duty to maintain public streets is distinct

from the duty of owners of private property such as a race track or ski resort hosting a

non-essential sporting event, contending the legislature stripped the City of tort immunity

for breaching this specific duty under the Tort Claims Act streets exception. And, in

contrast to other cases where exculpatory contracts conditioning recreational use of

private property upon the execution of a release did not violate public policy, the City’s

duty to maintain and repair the street does not arise from use of the property conditioned

upon execution of the Release, but exists independently from the Release and the Bike

Ride event to ensure public safety. As a result, argue appellants, the duty cannot be

waived by contract. See id. at 23-25, comparing Boyd, 94 A.2d at 45-46 (liability for

breaching public safety duty to provide fire escape could not be waived by contract

between a landlord and tenant) with, e.g., Chepkevich, 2 A.3d 1174 (alleged duty arose

[J-69-2020] - 10 from plaintiff’s use of defendant’s ski facility which was conditioned upon her first signing

an exculpatory release); Appellants’ Reply Brief at 10.

Lastly, appellants argue that exculpatory releases are strictly construed against

the party seeking immunity, and the text of this Release is not sufficiently clear to

immunize the City for negligence that occurred before the Bike Ride and before the parties

entered the Release. See id. at 29-30, citing, inter alia, Emp’rs Liability Assur. Corp. v.

Greenville Bus. Men’s Assoc., 224 A.2d 620, 623-24 (Pa. 1966) (exculpatory clauses

construed against party seeking immunity; “If a party seeking immunity from liability for

negligent conduct intends exculpation for past as well as future negligent conduct it is his

obligation to express in the agreement such intent in an unequivocal manner; absent a

clear expression of intent, the clause of exculpation will not be so construed.”). Appellants

focus on language in the second paragraph, which releases the City of liability from

“claims of liability for . . . personal injury . . . arising out of, or in the course of, . . .

participation in the event even if caused by the negligence of any of the Releasees.” Id.

at 30, quoting the Release (emphasis added by appellants). Appellants view the City’s

negligence as occurring long before the Bike Ride, when the City patched but failed to

complete repair of the sinkhole. Though recognizing the Release contains language that

participants assume risks associated with “the condition of roads,” appellants contend the

phrase cannot reasonably be construed to cover hazardous road conditions for which the

City was on notice and which were caused by the City’s prior negligent repair of a known

dangerous condition that, at a minimum, should have been marked with paint or barriers

along the route, consistent with Mr. Degliomini’s experience in similar charity bike ride

events. See id. at 31-32.

[J-69-2020] - 11 In response, the City concedes it has a longstanding duty to maintain its streets

for ordinary and essential use, such as everyday walking, bicycling, or driving, but

emphasizes the duty was created by common law, not the Tort Claims Act or Home Rule

Charter, and — just as any private landowner would be able to do — the City can release

itself from liability for breach of that duty by an exculpatory contract involving non-

essential, recreational use of the streets. See City’s Brief at 18-19, 24-25. In support of

this position, the City raises two key elements to its argument. First, it argues not enforcing

such a release would be contrary to the overriding purpose of the Tort Claims Act, which

is to limit municipal liability and preserve the public fisc by providing absolute immunity

for acts of negligence subject to a few, narrowly-construed exceptions. Id. at 19, 21

(emphasis provided by the City); see id. at 22-23, citing Dorsey, 96 A.3d at 341

(“exceptions to the absolute rule of immunity expressed in the statute must be narrowly

interpreted given the expressed legislative intent to insulate political subdivisions from tort

liability”) (internal citations and quotations omitted). Second, by the express terms of the

Act, the General Assembly deliberately placed municipalities on equal footing with private

defendants, allowing for liability only if “[t]he damages would be recoverable under

common law or a statute creating a cause of action if the injury were caused by a person

not having available a defense under [governmental or official immunity].” See id. at 24,

quoting 42 Pa.C.S. §8542(a)(1). The City contends these public policy principles are

evident from the explicit text of the Act as well as its legislative history. It was enacted to

codify the principle of governmental immunity shortly after this Court abrogated its

[J-69-2020] - 12 common law predecessor.7 The enactment was based upon recommendations of the

Joint State Government Commission tasked with the study of sovereign immunity laws,

which described, inter alia, the rejection of a general waiver of immunity in favor of the

enumeration of limited specific waivers, the difficulty municipalities face in obtaining

insurance against risks, the intention to retain immunity as the rule while specific waivers

would be the exception, and the intention that these waivers “‘merely [ ] remove the bar

from suit where the cause of action already exists in the enumerated areas,’” to allow

existing causes of action to play out before the courts just as they would against a private

defendant. Id. at 22-24, 26 quoting “Sovereign Immunity,” Pennsylvania General

Assembly, Joint State Government Commission at 11 (May 1978). As there is no explicit

statutory text prohibiting municipalities from limiting their liability through exculpatory

contracts, the City contends the Release is consistent with the Tort Claims Act’s central

goal of limiting liability, and not antagonistic to public policy. See id. at 20-21, 25-26.

The City further argues Pennsylvania courts express “great reluctance” to disrupt

parties’ freedom of contract on public policy grounds, having consistently upheld waivers

of liability for ordinary negligence in connection with recreational events like the Bike Ride,

and invalidating private contractual agreements only when a “‘dominant public policy’”

found in “‘long governmental practice or statutory enactments, or [ ] obvious ethical or

moral standards,’” id. at 12-14, quoting Williams v. GEICO Gov’t Emps. Ins. Co., 32 A.3d

1195, 1200 (Pa. 2011), sufficiently justifies invalidating the contract, and this is not the

case when a policy is merely consistent with one of several competing goals of a statute,

7 See Ayala v. Philadelphia Bd. of Pub. Educ., 305 A.2d 877, 881-83 (Pa. 1973) (abolishing common law defense of governmental immunity).

[J-69-2020] - 13 but rather demands “‘a public policy overriding every other consideration in contract

construction.’” Id. at 26, quoting Heller v. Pa. League of Cities & Muns., 32 A.3d 1213,

1221 (Pa. 2011) (internal quotation omitted). See id. at 13-14, citing, inter alia, Tayar, 47

A.3d at 1200 (“exculpatory clauses that release a party from negligence generally are not

against public policy”). The City emphasizes that liability waivers for recreational activities

do not concern public policy because such activities are voluntary and the signer is under

no obligation to participate in the activity. Id. at 14-15, citing, inter alia, Chepkevich, 2 A.3d

at 1191 (“signer is under no compulsion, economic or otherwise, to participate, much less

to sign the exculpatory agreement, because it does not relate to essential services, but

merely governs a voluntary recreational activity. . . . The signer is a free agent who can

simply walk away without signing the release and participating in the activity”) (citations

omitted).8 In the City’s view, Mr. Degliomini had complete freedom to reject the Release,

and the City was not performing an essential service by hosting the Bike Ride, which did

not involve the public’s ordinary, essential use of the streets such as an everyday bicycle

commute — instead, the Bike Ride was a time-limited event involving hundreds of cyclists

moving steadily in a pack without having to stop for traffic lights or stop signs, making it

8 The City additionally references a collection of intermediate appellate court cases which

uphold the validity of releases of liability for ordinary negligence in connection with recreational activities, including the two cases relied upon by the Commonwealth Court below relating specifically to organized bicycling events. See City’s Brief at 14, citing Toro v. Fitness Int’l LLC, 150 A.3d 968, 974 (Pa. Super. 2016) (using a fitness club); McDonald v. Whitewater Challengers, Inc., 116 A.3d 99, 120-21 (Pa. Super. 2015) (whitewater rafting); Wang v. Whitetail Mountain Resort, 933 A.2d 110, 113-14 (Pa. Super. 2007) (snow tubing); Nissley v. Candytown Motorcycle Club, Inc., 913 A.2d 887, 891 (Pa. Super. 2006) (motorcycle riding); Seaton v. E. Windsor Speedway, Inc., 582 A.2d 1380, 1383 (Pa. Super. 1990) (working in pit crew at auto racing track); Valeo v. Pocono Int’l Raceway, Inc., 500 A.2d 492, 493 (Pa. Super. 1985) (automobile racing); Scott, 2010 WL 9512709 at *4-5 (bicycling event); Vinikoor, 974 A.2d at 1240 (same).

[J-69-2020] - 14 more difficult to see and avoid road hazards. Id. at 15-16. The City submits its role in the

Bike Ride was identical to that of a host of a private recreational, non-essential event.

See id. at 16.

The City further asserts there is no broad public policy exception against contracts

affecting public safety or reducing incentives to act with due care, and such an exception

would cause nearly all exculpatory clauses to violate public policy. Instead, according to

the City, non-waivable essential duties or entities “charged with a duty of public service”

includes employer-employee relationships and the essential, ordinary use of public

utilities, common carriers, and hospitals, but not recreational use of grounds for events

such as charity bike rides. See id. at 15, citing RESTATEMENT (THIRD) OF TORTS:

APPORTIONMENT OF LIABILITY §2 cmt. e (2000); id. at 16-18 & 17 n. 4, citing Toro, 150 A.3d

at 973; RESTATEMENT (SECOND) OF CONTRACTS §195 cmt. a (1981). Additionally, the City

suggests non-waivable violations of health and safety statutes apply only to regulations

setting specific standards of care such that violation of the statute would constitute

negligence per se. See id. at 17 n.5, citing, inter alia, Boyd, 94 A.2d at 46; Warren City

Lines, Inc. v. United Ref. Co., 287 A.2d 149 (Pa. Super. 1971) (violation of Fire Marshal’s

regulation was negligence per se and could not be waived by contract’s exculpatory

clause). The City argues enforcing the Release does not implicate any of these public

safety concerns; further, cases that have held exculpatory agreements were invalid as

violative of public policy for “jeopardiz[ing] the health, safety, and welfare of the people

by removing any incentive for parties to adhere to minimal standards of safe conduct” —

Tayar, supra, and Feleccia v. Lackawanna Coll., 215 A.3d 3, 20 (Pa. 2019) — involved

claims of recklessness or gross negligence rather than ordinary negligence which is at

[J-69-2020] - 15 issue here, and the City’s incentive to repair its roads remains intact because an individual

can still sue for a sinkhole-related injury arising from ordinary use of the street outside the

parameters of the Release. See City’s Brief at 18.

Regarding appellants’ reliance on the Home Rule Charter, the City argues the

Charter is merely organizational and provides the City with the role of repairing roads, but

does not create any duty to users of the roads or streets. See id. at 27. Because the

Home Rule Charter is silent with respect to the question of tort liability and contractual

waivers of liability, the City argues the Release does not conflict with any express or

implicit policy set forth in the Home Rule Charter. Rather, the City suggests the Release

is enforceable because it is an exculpatory contract associated with a voluntary

recreational activity.

Finally, the City argues the language of the Release is unambiguous and plainly

applies to any personal injury that occurred during the Bike Ride due to a “condition of

the roads.” Id. at 28. Disclaiming appellants’ reliance on Employers Liability, the City

distinguishes its central holding — i.e., a residential lease’s language was not sufficiently

clear to waive liability for a hidden defect that existed prior to the contract — as limited to

the context of leases, in which parties are contemplating a status which will be created in

the future after the lessee receives a property free of defects; in contrast, the City argues

no reasonable cyclist would expect to receive a public road in perfect condition. See id.

at 29-30, citing Employers Liability, 224 A.2d at 622-24. Moreover, the City indicates the

Release does contain specific language that participants waived “‘any and all claims of

liability . . . even if caused by the negligence of any of the Releasees’” and that participants

assumed all risks relating to the “‘condition of the roads,’” including all road defects. Id. at

[J-69-2020] - 16 31-32, quoting the Release. The City asserts it is unreasonable to interpret “condition of

the roads” to pertain only to potholes that formed after the Release was signed. Id. at 32.9

III. Legal Background

We now turn to our analysis of the issues presented within the context of the

applicable legal principles. Importantly, the City does not contest it has a duty derived

from common law to maintain its streets for ordinary use by the public; therefore the

primary operative question is whether the City may contractually immunize itself against

consequences of breaching that duty when the use of the street is a non-essential,

voluntary, recreational function. And, because our answer to this question is dispositive,

we need not reach the second issue on appeal, regarding the sufficiency of the Release’s

language to immunize the City from liability for negligence that pre-existed execution of

the Release.

A valid exculpatory contract fully immunizes a person or entity from any

consequences of its negligence. See 57A Am. Jur. 2d Negligence §47; Valhal Corp. v.

Sullivan Assocs., Inc., 44 F.3d 195, 202 (3d Cir. 1995), citing, e.g., Topp Copy Prods.,

9 The position articulated by Chief Justice Baer in his dissenting opinion aligns substantially with the arguments advanced by the City, specifically: a municipality may be liable only to the extent that a private defendant would be liable, and a private defendant is free to execute an exculpatory release to limit its risk, see Dissenting Opinion at 3; the purpose of the Tort Claims Act is to limit, not expand, municipal liability, see id. at 3-4; it is the immunity, not the liability, that is non-waivable, see id. at 4; the Home Rule Charter is organizational and expresses no dominant public policy or standard of care nor does it have a remedial purpose, see id.; the City’s general duty to repair and maintain streets is not akin to a non-waivable health and safety regulation, see id. at 5; and, because the City otherwise has a common law duty to maintain and repair its streets, and would remain liable for reckless or grossly negligent conduct, exculpation under the Release for particular enumerated conduct during the event does not jeopardize public safety and welfare, see id. at 5-6. There are several points made by the dissent and the City with which our analysis may coexist, and given the similarity of their positions, we primarily address them together.

[J-69-2020] - 17 Inc. v. Singletary, 626 A.2d 98, 99 (Pa. 1993). Disfavored under Pennsylvania law,

exculpatory contracts are subject to close scrutiny, strictly construed against the party

seeking their protection, and enforced only provided certain criteria are met. See

Employers Liability, 224 A.2d at 623 (“[C]ontracts providing for immunity from liability for

negligence must be construed strictly since they are not favorites of the law . . . such

contracts must be construed with every intendment against the party who seeks the

immunity from liability[.]”) (internal quotations and citations omitted); Tayar, 47 A.3d at

1199, 1200 & n.8 (exculpatory clauses “enforceable provided certain criteria are met”),

citing, inter alia, Topp Copy, 626 A.2d at 99; Feleccia, 215 A.3d at 16. Our courts have

recognized that “lying behind these contracts is a residuum of public policy which is

antagonistic to carte blanche exculpation from liability[.]” Phillips Home Furnishings, Inc.

v. Cont’l Bank., 331 A.2d 840, 843 (Pa. Super. 1974), rev’d on other grounds, 354 A.2d

542 (Pa. 1976); see also, e.g., Soxman v. Goodge, 539 A.2d 826, 828 (Pa. Super. 1988)

(contracts providing “carte blanche” exculpation from liability are disfavored as contrary

to public policy and must be strictly construed). Thus, our longstanding precedent

explains that an exculpatory provision is enforceable, but only if it “does not contravene

public policy, is between parties relating entirely to their private affairs, and where each

party is a free bargaining agent so that the contract is not one of adhesion.” Chepkevich,

2 A.3d at 1177, citing Topp Copy, 626 A.2d at 99; see also Feleccia, 215 A.3d at 19;

Tayar, 47 A.3d at 1199.

Generally speaking, an exculpatory clause withstands a challenge based on public

policy if “‘it does not contravene any policy of the law, that is, if it is not a matter of interest

to the public or State.’” Employers Liability, 224 A.2d at 622-23, quoting Dilks v. Flohr

[J-69-2020] - 18 Chevrolet, Inc., 192 A.2d 682, 687 (Pa. 1963); see also RESTATEMENT (SECOND) OF TORTS

§496B (1965) (“A plaintiff who by contract or otherwise expressly agrees to accept a risk

of harm arising from the defendant’s negligent or reckless conduct cannot recover for

such harm, unless the agreement is invalid as contrary to public policy.”). An exculpatory

contract contravenes public policy when it violates an obvious, “overriding public policy

from legal precedents, governmental practice, or obvious ethical or moral standards.”

Tayar, 47 A.3d at 1199, citing Williams, 32 A.3d at 1200. An otherwise valid contract will

not be voided in favor of a vague public policy goal; rather, this Court requires that to

support such a heavy-handed result, the alleged public policy must be:

ascertained by reference to the laws and legal precedents and not from general considerations of supposed public interest. . . . [T]here must be found definite indications in the law of the sovereignty to justify the invalidation of a contract as contrary to that policy[.] . . . Only dominant public policy would justify such action. In the absence of a plain indication of that policy through long governmental practice or statutory enactments, or of violations of obvious ethical or moral standards, the Court should not assume to declare contracts . . . contrary to public policy. The courts must be content to await legislative action.

Williams, 32 A.3d at 1200 (citation omitted).

This Court has observed that pre-injury exculpatory clauses releasing a party from

ordinary negligence generally are not against public policy, see Tayar, 47 A.3d at 1199-

1200, citing, e.g., Chepkevich; however, we have also held that pre-injury exculpatory

releases immunizing parties from liability for their reckless or grossly negligent conduct

firmly violate public policy — and are therefore not enforceable — because “such releases

would jeopardize the health, safety, and welfare of the people by removing any incentive

for parties to adhere to minimal standards of safe conduct.” Id. at 1203 (relating to

reckless conduct); Feleccia, 215 A.3d at 20 (relating to gross negligence).

[J-69-2020] - 19 An exculpatory clause is similarly void as against public policy where it immunizes

a party from the consequences of violating a statute or regulation intended to preserve

health or safety. In Boyd, we determined the General Assembly’s enactment of a statute

requiring tenements to be equipped with fire escapes avoided an exculpatory provision in

a residential lease that purported to relieve the landlord, who did not supply a fire escape,

of liability for negligence when the building’s residents were severely burned in a fire.

Boyd, 94 A.2d 44. The Court stated,

in such event public policy does not permit an individual to waive the protection which the statute is designed to afford him. . . . “Statutes grounded on public policy are those which forbid acts having a tendency to be injurious to the public good. . . . Where public policy requires the observance of a statute, it cannot be waived by an individual or denied effect by courts, since the integrity of the rule expressed by the Legislature is necessary for the common welfare.” . . . “Where the legislature has, by definite and unequivocal language, determined the public policy of this Commonwealth with regard to a particular subject, that pronouncement cannot be set aside and rendered unenforceable by a contract between individuals.”

Id. at 46, quoting, respectively, In re McCurdy’s Estate, 154 A. 707, 709 (Pa. 1931) and

Bell v. McAnulty, 37 A.2d 543, 544 (Pa. 1944); see also Warren City Lines, Inc. v. United

Refining Co., 287 A.2d 149, 151-52 (Pa. Super. 1971) (negligent violation of a regulation

intended for the protection of the public renders an exculpatory clause invalid against

public policy; contract could not, as a matter of law, relieve oil and gas company of liability

for alleged negligent equipment maintenance performed in violation of State Fire

Marshal’s safety regulations).

In Leidy, the Superior Court, incorporating a survey of jurisdictions, further

identified several categories of exculpatory contracts where releases of liability for

negligent conduct violate public policy, including: “[i]n the employer-employee

[J-69-2020] - 20 relationship[;]” “in situations where one party is charged with a duty of public

service,” e.g., public utilities, common carriers, hospitals, airports; in “agreements which

attempt to exculpate one from liability for the violation of a statute or regulation designed

to protect human life”; and in contracts involving “the limitation of consequential damages

for injury to the person in the case of consumer goods[.]” Leidy, 381 A.2d at 167-68

(internal quotations and citations omitted); see also Hinkal v. Pardoe, 133 A.3d 738, 747-

49 (Pa. Super. 2016) (Lazarus, J., dissenting) (emphasizing duty of public service,

expressing the view that a gym membership contract involving personal training services

implicated public health and safety concerns such that exculpatory release violated public

policy); State Farm Fire & Cas. Co. v. PECO, 54 A.3d 921, 931-35 (Pa. Super. 2012)

(Wecht, J., concurring and dissenting) (viewing public utility tariff’s limitation of liability as

an exculpatory clause that was void as against public policy where utility was “charged

with a duty of public service”).

The view that parties charged with a duty of public service cannot contractually

exculpate themselves from liability for negligent conduct is consistent with both our

precedent generally upholding releases of liability for the ordinary negligence of private

parties, and the law across other jurisdictions recognizing a clear public policy violation

where the party seeking exculpation is engaged in performing a service of significant

importance or practical necessity to members of the public. See RESTATEMENT (SECOND)

OF TORTS §496B cmt. g (“Where the defendant is a common carrier, an innkeeper, a public

warehouseman, a public utility, or is otherwise charged with a duty of public service, and

the agreement to assume the risk relates to the defendant’s performance of any part of

that duty, it is well settled that it will not be given effect. Having undertaken the duty to the

[J-69-2020] - 21 public, which includes the obligation of reasonable care, such defendants are not free to

rid themselves of their public obligation by contract, or by any other agreement.”); 17A

C.J.S. Contracts §73 (1963) (“The rule invalidating contracts exempting from liability for

negligence is frequently limited to the principle that parties cannot stipulate for protection

against liability for negligence in the performance of a legal duty or a duty of public service,

where a public interest is involved or a public duty owed, or, when the duty owed is a

private one, where public interest requires the performance thereof.”); 57A Am. Jur. 2d

Negligence §56 (“No person can, by agreement, exempt himself or herself from liability

for negligence in the performance of a duty imposed upon him or her by law, especially a

duty imposed upon him or her for the benefit of the public.”); 8 Williston on Contracts

§19:31 (4th ed.) (“Generally, whenever there is a relationship involving a necessary public

service, an agreement exempting the provider from its duties in that role is invalid.”).

The parties agree the City has a duty, derived from common law, to repair and

maintain its streets for their ordinary and necessary use by the public, and the City

concedes it may be held liable for injuries caused by its negligent failure to do so. See

City’s Brief at 18. The common law cause of action for negligent breach of a municipality’s

non-delegable duty to repair dangerous street conditions is perhaps older than most of

Philadelphia’s streets themselves; recognized and enforced for over a century, the duty

withstood the evolution of governmental immunity in Pennsylvania throughout the late-

nineteenth and twentieth centuries, which otherwise shielded municipalities and their

employees from tort liability in most circumstances as a rule with few exceptions. See,

e.g., Drew v. Laber, 383 A.2d 941, 943 (Pa. 1978) (“Under Pennsylvania law a

municipality is required to construct and maintain its highways in such a manner as to

[J-69-2020] - 22 protect travelers from dangers which, by the exercise of normal foresight, careful

construction and reasonable inspection, can be anticipated and avoided.”) (internal

quotation omitted); Good v. Philadelphia, 6 A.2d 101, 102 (Pa. 1939) (“[T]he liability of a

municipality for injuries suffered as a result of defects in the highway arises only when it

has notice, actual or constructive, of the existence of a dangerous condition.”); Lawrence

v. City of Scranton, 130 A. 428, 430 (Pa. 1925) (“The primary duty of keeping its streets

in travelable condition is on the city. When public safety is concerned, this duty cannot be

delegated to others.”) (internal quotation and citation omitted); Harvey v. City of Chester,

61 A. 118, 118 (Pa. 1905) (“The primary duty of keeping its streets in travelable condition

is on the city, and, while it may turn over their control to an independent contractor for

specified purposes and limited time, it cannot by contract relieve itself indefinitely from its

duty in that regard.”); see also Ayala v. Philadelphia Bd. of Pub. Educ., 305 A.2d 877,

879-81 (Pa. 1973) (describing evolution of common law governmental immunity doctrine).

In 1973, this Court categorically abolished the common law defense of

governmental immunity to tort liability in Ayala, 305 A.2d at 878, and similarly abrogated

the companion doctrine of sovereign immunity regarding claims against Commonwealth

entities in Mayle v. Pa. Dep’t of Highways, 388 A.2d 709, 720 (Pa. 1978). But, in response,

the General Assembly enacted the Tort Claims Act, 42 Pa.C.S. §§8541-8564, and the

Sovereign Immunity Act, 42 Pa.C.S. §§8521-8528, reinstating the general rule of

governmental and sovereign immunity from tort liability with the force of legislation, and

enumerating a limited number of exceptions where the protection was waived, including

such an exception for certain known or reasonably knowable dangerous conditions of the

streets. In its current form, the Tort Claims Act provides, in its first section, “Except as

[J-69-2020] - 23 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. The Act’s second section, titled

“Exceptions to governmental immunity,” provides for nine enumerated exceptions to

immunity, stating, in relevant part:

(a) Liability imposed.--A local agency shall be liable for damages on account of an injury to a person or property within the limits set forth in this subchapter if both of the following conditions are satisfied and the injury occurs as a result of one of the acts set forth in subsection (b): (1) The damages would be recoverable under common law or a statute creating a cause of action if the injury were caused by a person not having available a defense under section 8541 (relating to governmental immunity generally) or section 8546 (relating to defense of official immunity); and (2) The injury was caused by the negligent acts of the local agency or an employee thereof acting within the scope of his office or duties with respect to one of the categories listed in subsection (b). As used in this paragraph, “negligent acts” shall not include acts or conduct which constitutes a crime, actual fraud, actual malice or willful misconduct. (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: * * * (6) Streets.-- (i) A dangerous condition of streets owned by 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 circumstances of the dangerous condition at a sufficient time prior to the event to have taken measures to protect against the dangerous condition. Id. §8542. Where an exception to governmental immunity applies, the Act additionally

provides a limitation on damages, see id. §8553(b) (damages “shall not exceed $500,000

[J-69-2020] - 24 in the aggregate”), and permission and parameters for the purchase and use of liability

insurance policies by municipalities and their employees, see id. §8564.

We have interpreted the Tort Claims Act’s immunity provision broadly as an

“absolute” and “not waivable” shield to liability, which in turn necessitates the narrow

construction of the enumerated, “exclusive” exceptions. Gray, 633 A.2d at 1093; see

Dorsey, 96 A.3d at 341 (“[I]n interpreting the Tort Claims Act, exceptions to the absolute

rule of immunity expressed in the statute ‘must be narrowly interpreted given the

expressed legislative intent to insulate political subdivisions from tort liability.’”) (quoting

Mascaro v. Youth Study Ctr., 523 A.2d 1118, 1123 (Pa. 1987)). In ascertaining the Act’s

legality and legislative intent, we have repeatedly observed its provisions were based on

the report and recommended text prepared by the General Assembly’s Joint State

Government Commission tasked with analyzing the benefits and costs of the sovereign

immunity defense. See Sovereign Immunity, Pennsylvania General Assembly, Joint State

Government Commission (May 1978), http://jsg.legis.state.pa.us/resources/documents/

ftp/publications/1978-05-01%201978%20Sovereign%20Immunity.pdf (last visited June

21, 2021); see Carroll, 437 A.2d at 397 (quoting Sovereign Immunity); Zauflik v.

Pennsbury Sch. Dist., 104 A.3d 1096, 1121, 1124, 1130 (Pa. 2014) (discussing Sovereign

Immunity). The Commission’s report makes clear the Act’s provisions are intended to

“assure[] that the Commonwealth will not be required to process and defend various

litigation brought against it in areas where risk management is totally uncertain” and

“prohibit the creation of any new causes of action and merely [ ] remove the bar from suit

where the cause of action already exists in the enumerated areas.” Sovereign Immunity

at 10-11.

[J-69-2020] - 25 We have also considered the interplay between the Tort Claims Act and Sovereign

Immunity Act with other laws.10 In Dorsey, though mindful of the strictures of the Tort

Claims Act’s exclusive immunity exceptions, this Court determined that another statute,

depending upon its particular construction and the timing of its enactment, might

permissibly allow governmental liability for circumstances outside of Section 8542.

Dorsey, 96 A.3d at 341-42 (holding the Tort Claims Act does not provide immunity for

cause of action arising from breach of Section 3172 of the Probate, Estates and

Fiduciaries Code, which confers liability upon the register of wills). And, in Dep’t of Envtl.

Res. v. Auresto, 511 A.2d 815 (Pa. 1986), a case relied upon by the City, the Court

considered whether the Recreational Use of Land and Water Act, 68 P.S. §§477-1 - 477-

8, which provides tort immunity for landowners who allow public use of their property free

of charge, could protect the Commonwealth from liability notwithstanding the Sovereign

Immunity Act’s waiver of immunity for injuries caused by a dangerous condition on

Commonwealth-owned real estate. Noting the Recreation Act was enacted prior to the

Sovereign Immunity Act, at which time sovereign immunity was the blanket rule at

common law, the Auresto Court reasoned the legislature would not have anticipated the

possibility of Commonwealth liability; in addition, because the Sovereign Immunity Act

10 Because of the similarities of their provisions, the Tort Claims Act and Sovereign Immunity Act are interpreted consistently. Finn v. City of Philadelphia, 664 A.2d 1342, 1344 (Pa. 1995) (“[T]his court has held that the two statutes dealing with governmental and sovereign immunities, viz., the Political Subdivision Tort Claims Act and the Sovereign Immunity Act, are to be interpreted consistently, as they deal with indistinguishable subject matter.”), citing, inter alia, Kiley by Kiley v. City of Philadelphia, 645 A.2d 184, 186 (Pa. 1994), Snyder v. Harmon, 562 A.2d 307, 312 n.7 (Pa. 1989); see also McCalla v. Mura, 649 A.2d 646, 648-49 (Pa. 1994) (analogizing the Court’s interpretation of Sovereign Immunity Act Subsection 8522(b)(4), regarding waiver of immunity for Commonwealth real estate, highways and sidewalks, to interpret Tort Claims Act Subsection 8542(b)(6), regarding waiver of immunity for municipality-owned streets).

[J-69-2020] - 26 was intended to expose the Commonwealth to the same liability as a private citizen, and

a private citizen would have a statutory immunity defense, the Court determined the

Commonwealth also had the protection of the particular immunity defense. Auresto, 511

A.2d at 817.

In contrast to these decisions in Dorsey and Auresto, where this Court approved

of particular liability and immunity provisions supplied by other statutes which fell outside

the parameters of, but were read in pari materia with, the governmental immunity acts,

we have refused to adjust those boundaries to accommodate a local government

ordinance: in Gray, we invalidated a Philadelphia ordinance which waived immunity for

the negligent acts of police, finding it authorized the imposition of damages in situations

not within Section 8542 of the Tort Claims Act, and “[t]herefore, the ordinance permits

what the Act expressly prohibits, and it is thus invalid.” Gray, 633 A.2d at 1093; see also

Dorsey, 96 A.3d at 340 (“[O]ur Court has recognized that the legislature is the exclusive

body with authority to confer immunity upon political subdivisions.”), citing Gray, 633 A.2d

at 1093; Carroll, 437 A.2d at 396 (“[M]unicipal corporations are agents of the state,

invested with certain subordinate governmental functions for reasons of convenience and

public policy. They are created, governed, and the extent of their powers determined by

the [l]egislature and subject to change, repeal or total abolition at its will.”) (citations and

quotations omitted).

Furthermore, this Court has interpreted the Tort Claims Act Subsection 8542(b)(6)

exception to immunity for dangerous conditions of municipally-owned streets consistently

with Subsection 8522(b)(4) of the Sovereign Immunity Act (relating to waiver of immunity

for Commonwealth real estate, highways and sidewalks), and held a municipality owes a

[J-69-2020] - 27 duty of care to those using its property “to make its highways reasonably safe for their

intended purpose,” “such as to require that the condition of the property is safe for the

activities for which it is regularly used, intended to be used or reasonably foreseen to be

used[.]” McCalla v. Mura, 649 A.2d 646, 649 (Pa. 1994), citing Bendas v. White Deer, 611

A.2d 1184, 1186 (Pa. 1992); see also supra n.9.

We further note that, with specific regard to the streets of Philadelphia, the City’s

Home Rule Charter provides, in relevant part:

The Department of Streets shall have the power and its duty shall be to perform the following functions: (a) City Streets. It shall itself, or by contract, design construct, repair and maintain: (1) City streets, which shall include highways, roads, streets, alleys, footways, bridges, tunnels, overpasses and underpasses, including approaches and viaducts, owned, controlled or operated by the City or designated in accordance with law as streets of the City[.] Philadelphia Home Rule Charter §5-500(a)(1). A home rule charter, as defined by the

Home Rule Charter and Optional Plans Law, 53 Pa.C.S. §§2901-2984, is “[a] written

document defining the powers, structures, privileges, rights and duties of the municipal

government and limitations thereon.” 53 Pa.C.S. §2902. This Court has recognized the

Home Rule Charter “emanated from the relevant provision of the State Constitution . . .

and was duly adopted (i.e., enacted) by the affirmative vote of the electors of the City as

the organic law of the corporate municipal body.” In re Addison, 122 A.2d 272, 275-76

(Pa. 1956). “That the Charter constituted legislation no less than does a statute of the

legislature to like end is too plain for even cavil. . . . Wherefore, upon its due adoption,

Philadelphia’s Home Rule Charter took on the force and status of a legislative enactment.”

Id. at 275-76.

IV. Analysis

[J-69-2020] - 28 There is a well-defined public interest in the maintenance and safe repair of

dangerous conditions existing on government-owned streets, and the municipal owners

are thus charged with a duty of public service to perform such maintenance and repairs

as a matter of necessity to members of the public. This dominant public policy is derived

from over one hundred years of common law, is codified by statute within the Tort Claims

Act, and is reflected by the organizational assignment of explicit duties within the

Philadelphia Home Rule Charter.

While the clearly established policy of the Tort Claims Act is to provide an absolute

rule of governmental immunity from negligence subject to its few, explicit exceptions

without creating new causes of action, it is likewise the clear policy of the Act to codify

and define the parameters of those excepted, permissible causes of action. Relevant

here, the Tort Claims Act provides “[a] local agency shall be liable for damages on

account of an injury to a person” where “damages would be recoverable under common

law or a statute” if caused by a non-government entity, for “negligent acts of the local

agency” consisting of “[a] dangerous condition of streets owned by the local agency” when

the condition created a “reasonably foreseeable risk” of the kind of injury suffered, and

when “the local agency had actual notice or could reasonably be charged with notice

under the circumstances.” 42 Pa.C.S. §8542(a), (b)(6) (emphasis added). Similarly,

though whether the Philadelphia Home Rule Charter creates a duty giving rise to a cause

of action, or expresses a dominant public policy, is not squarely before us, what it certainly

does do is “define” — with the same legal force as a statute, see In re Addison, 122 A.2d

at 275-76 — the City’s mandatory and exclusive responsibility, through its Department of

Streets, to “design construct, repair and maintain [ c]ity streets[.]” 53 Pa.C.S. §2902

[J-69-2020] - 29 (definition of “home rule charter”); Philadelphia Home Rule Charter §5-500(a)(1). In

furtherance of the Tort Claims Act’s expression of policy to protect the public fisc by

limiting municipalities’ exposure to liability, for instances where immunity is waived, the

General Assembly provided a statutory cap on the amount of damages recoverable,

defined the circumstances under which damages shall be recoverable, authorized local

agencies to purchase or administer liability insurance, and prescribed permissible

payment planning for judgments not fully indemnified by insurance. 42 Pa.C.S. §§8553,

8559, 8564.11 What the General Assembly did not provide, however, is a mechanism for

a municipality to immunize itself, through exculpatory contracts or any other means.

The City is a municipality, an agent of the state, “invested with certain subordinate

governmental functions for reasons of convenience and public policy[,] . . .and the extent

of [its] powers [is] determined by the [l]egislature[.]” Carroll, 437 A.2d at 396 (citations and

quotations omitted). “[T]he legislature is the exclusive body with authority to confer

immunity upon political subdivisions” for claims arising out of exceptions to the Tort

11 Though the dissent suggests we have not identified statutory language expressing an

“intent to prevent the City from limiting its liability by contractual release[,]” Dissenting Opinion at 2, we conclude these provisions of the Act prescribing both the terms of payment plans and limitations on liability via a damages cap and indemnity agreements, in conjunction with the Act’s pronouncement a municipality “shall be liable for damages” resulting from certain known conditions of the roads, indicate the General Assembly has considered the parameters for limiting municipal liability “in areas where risk management is totally uncertain[,]” and applied them; the provisions thus do express an intent to prevent a municipality from complete exculpation of liability by release. 42 Pa.C.S. §8542; see id. §§8553, 8559, 8564; Sovereign Immunity at 10. Furthermore, in holding the fully exculpatory release in this case is invalid, we do not foreclose the possibility the City may devise some other valid limitation on liability, the contours of which are not implicated here. See, e.g., State Farm, 54 A.3d at 933, 939-40 (Wecht, J., concurring and dissenting) (in accordance with RESTATEMENT (SECOND) OF CONTRACTS §195, party charged with duty of public service may not be exempted from tort liability; however a limitation on liability may be valid, but must be reasonable “‘and not so drastic as to remove the incentive to perform with due care’”), quoting Valhal Corp., 44 F.3d at 204 (emphasis added).

[J-69-2020] - 30 Claims Act. Dorsey, 96 A.3d at 340 (citation omitted). Because the Release would allow

the City to confer immunity upon itself for such claims, the Release prohibits what the Act

expressly allows, and would achieve for the City what our jurisprudence plainly prohibits.

Id.; cf. Gray, 633 A.2d at 1093-94. “Where the legislature has, by definite and unequivocal

language, determined the public policy of this Commonwealth with regard to a particular

subject,” — here, the definitive policy to remove the shield of immunity for a municipality’s

negligence in the maintenance or repair of dangerous street conditions for which they

have proper notice — “that pronouncement cannot be set aside and rendered

unenforceable by a contract between individuals.” Boyd, 94 A.2d at 46 (internal quotations

omitted). Thus, the Release is invalid because it contravenes public policy.12

We disagree with the City’s position its role is identical to any private host of a

recreational or non-essential event that may immunize itself from liability for breach of its

duty to maintain safe premises. Though we recognize a plaintiff’s ordinary negligence

claims may generally be barred where he voluntarily executes an exculpatory contract in

12 The dissent observes, consistent with our decision in Williams, it is the General Assembly’s role “to determine what policy aims are important enough to justify overturning a private contract.” Dissenting Opinion at 2, citing Williams, 32 A.3d at 1200. We agree, and acknowledge the aims of the Tort Claims Act are not the same as a mandatory health and safety statute the violation of which constitutes negligence per se. See id. at 4-5. However, contrary to the dissent and as explained in greater detail throughout this analysis, the General Assembly has conferred limited powers to municipalities, and prescribed limitations on both municipal liability and municipal immunity. Thus, rather than “conflat[ing] statutory governmental immunity with a private contractual release of liability” as the dissent describes, id. at 3, we conversely view the immunity afforded by the exculpatory release in this case as impermissibly conflating a private contract with the status of those statutory provisions defining the parameters of governmental immunity. See supra n.11; see also Valhal Corp., 44 F.3d at 206-07 (under Pennsylvania law, party’s charge with duty to the public would “elevate its private contracts to matters of public concern” and therefore violate public policy).

[J-69-2020] - 31 order to participate in such activities, the recreational, non-essential nature of the event

is not dispositive in this instance. A private host is not assigned the same mandatory duty

of public service as is the City, to maintain its public streets in a condition that is

“reasonably safe for their intended purpose,” that is, “safe for the activities for which [they

are] regularly used, intended to be used or reasonably foreseen to be used” by the

travelling public under the conditions specified by the Tort Claims Act. McCalla, 649 A.2d

at 648-49.13 Though the event’s use of the City’s streets may have been time-limited and

non-essential, the City’s duty to exercise reasonable care in discharging its

independently-derived and essential function of street repair arose long before the Bike

Ride. The City’s duty materialized when the City had actual notice or could reasonably be

charged with notice of the existence of the sinkhole. Under these circumstances — where

the City was charged with an essential public-service duty, and the fact-finder determined

the requisite elements of the statutory exception to immunity (including proper notice of a

dangerous condition and a reasonably foreseeable risk of injury) had been established

— enforcing the Release to immunize the City would jeopardize health, safety, and

13 To the extent the City argues its duty related to the Bike Ride is not in the same category

as entities found to be charged with a duty of public service, see City’s Brief at 15, it draws our attention to RESTATEMENT (THIRD) OF TORTS: APPORTIONMENT OF LIABILITY §2 comment e (2000), presumably to indicate the category is limited to the entities expressly listed therein. More completely, comment e states, “An agreement purporting to exculpate a person charged with the public duty to perform a service — such as a common carrier, an innkeeper, a public warehouse, or a public utility — is normally not effective unless the terms of the agreement have been approved by a public regulatory body.” Id. (emphasis added). The Reporter’s Note to comment e further provides, “In some situations, exculpatory contracts are against public policy and are unenforceable. The most common situation is when the defendant is performing a public-service duty.” Id. We do not view these examples as providing a complete list of types of entities charged with public duty. Nor do we herein adopt this restatement of the law, but note it supports the proposition that an entity performing a duty of public service cannot exculpate itself by contract.

[J-69-2020] - 32 welfare of the people by removing any incentive for parties to exercise minimal standards

of care due to maintain public streets in reasonably safe condition for their reasonably

foreseeable uses, such as a planned charity bike ride, where known or knowable

dangerous conditions pose great and reasonably preventable risks.14 See Tayar, 47 A.3d

at 1203; Feleccia, 215 A.3d at 21; McCalla, 649 A.2d at 648-49; 42 Pa.C.S. §8542(b)(6).

V. Conclusion

Accordingly, we hold it is contrary to public policy to enforce an exculpatory

contract immunizing the City from its essential duty of public service, which exists

notwithstanding the context of a recreational event. Any other application of the Release

would elevate the City’s private exculpatory contract over the public duties assigned to it

and the authority afforded to it by the General Assembly. Under these discrete

circumstances, enforcement of the Release would jeopardize the health, safety and

welfare of the public at large, and the Release is thus rendered invalid as it violates public

policy principles. We therefore reverse the decision of the Commonwealth Court.

Order reversed. Jurisdiction relinquished.

Justices Donohue, Wecht and Mundy join the opinion.

Chief Justice Baer files a dissenting opinion in which Justices Saylor and Todd

join.

14 We do not herein address injuries related to risks associated with the event itself, but

only those related to the particular conditions of the streets for which the City “had actual notice or could reasonably be charged with notice under the circumstances 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)(6)(i).

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