Esbensen v. SEPTA

29 Pa. D. & C.4th 385
CourtPennsylvania Court of Common Pleas, Philadelphia County
DecidedJune 10, 1996
Docketno. 3494; no. 1341
StatusPublished

This text of 29 Pa. D. & C.4th 385 (Esbensen v. SEPTA) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Philadelphia County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Esbensen v. SEPTA, 29 Pa. D. & C.4th 385 (Pa. Super. Ct. 1996).

Opinion

DiNUBILE, J,

This opinion arises from a grant of summary judgment in favor of the defendants, SEPTA and Cornell & Co. Inc., against the plaintiffs in these two consolidated lead paint cases. Summary judgment is granted in favor of SEPTA for two reasons. First, there exists sovereign immunity. Secondly, even if sovereign immunity did not bar this action, there can be no liability based on the theory of peculiar risk or special danger because the work performed by the plaintiffs did not pose a risk or danger different from that normally associated with the work of lead paint removal. The grant of summary judgment in favor of Cornell is predicated on the grounds that it was the plaintiffs’ statutory employer and is therefore immune from suit under the Pennsylvania Workers’ Compensation Act.

The basic undisputed facts which have been established through affidavits, depositions and various supporting documents are as follows. The plaintiffs, Esbensen and Rawlings, instituted these suits against the defendants for personal injuries allegedly sustained from lead poisoning arising from the abrasive blasting of lead paint from SEPTA bridges in the course of SEPTA’s Frankford Elevated reconstruction project. Their wives brought concomitant actions for loss of consortium. The plaintiffs were employed by Coastal Steel Construction Co. Inc., a subcontractor retained by the general contractor, defendant Cornell, to remove lead paint from and paint the bridges as well as to perform miscellaneous structural steel work. Plaintiffs stated in their depositions

[387]*387they were specifically trained and certified by their union as knowledgeable and competent in the removal of lead-based paint. The general contract for reconstruction of the Frankford Elevated was awarded to Cornell. Under the terms of this contract, among other things, Cornell was to clean and paint existing steel after removing all lead-based paint. This general contract, the subcontract between Cornell and plaintiffs’ employer, and all specifications pertaining to both are part of this record. (See specifications entitled “Frank-ford Elevated reconstruction project,” Part 3 — Execution B7 entitled Existing Steel, pages 9A-7 — 9A-8. See also, B7(c), page 9A-8.)

As stated, plaintiffs alleged lead poisoning arising from the abrasive blasting of lead paint from the bridges involved in SEPTA’s Frankford Elevated project. Suit was commenced by them against both defendants under the following theories of liability. The negligence theory against SEPTA is twofold: (1) SEPTA, owner of the bridges and employer of the independent contractor which hired plaintiffs, is liable for failure to warn and take adequate precautions as the work of lead paint removal constituted a peculiar risk or special danger under Restatement (Second) of Torts, §§416 and 427; or, in the alternative, (2) SEPTA had on-site supervisors who observed the so-called dangerous work and took no precautions to protect plaintiffs or advise them of a safe manner for removing the lead paint. Plaintiffs’ theory as to Cornell is based on failure to warn and/or take adequate precautions to protect them during the abrasive blasting process.

Plaintiffs’ claims against SEPTA are barred under the doctrine of sovereign immunity as their allegations of negligence do not come within any of the exceptions to the Sovereign Immunities Act, 42 Pa.C.S. §8522; [388]*388more particularly, the real estate, highway and sidewalk exceptions, section 8522(b)(4). The “real estate exception” provides, in pertinent part, that the defense of sovereign immunity will be waived where a plaintiff’s damages are caused by “[a] dangerous condition of Commonwealth agency real estate and sidewalks____”1 [I]t is well established... exceptions to the rule of absolute governmental immunity ‘must be narrowly interpreted’ . . . .” Lory v. City of Philadelphia, 544 Pa. 38, 43, 674 A.2d 673, 675 (1996).

In Finn v. City of Philadelphia, 541 Pa. 596, 664 A.2d 1342 (1995), the Supreme Court held the real property exception to governmental immunity was inapplicable where a plaintiff slipped on grease covering a municipal sidewalk. The court quoted Snyder v. Harmon, 522 Pa. 424, 562 A.2d 307 (1989), for its interpretation of the phrase “dangerous condition of Commonwealth agency real estate”:

“These key words indicate that a dangerous condition must derive, originate from or have as its source the Commonwealth realty. Snyder, 522 Pa. at 433, 562 A.2d at 311. [Tjhere must be negligence which makes the real property itself unsafe for activities for which it is used. Id. at 434, 562 A.2d at 312.” Finn, supra at 601, 664 A.2d at 1344-45.

The Finn court went on to quote Mascaro v. Youth Study Center, 514 Pa. 351, 523 A.2d 1118 (1987):

“[T]he real estate exception can be applied only to those cases where it is alleged that the artificial condition [389]*389or 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. [Mascaro] at 363, 523 A.2d at 1124.” Finn, supra at 601-602, 664 A.2d at 1345. (emphasis in original)

It is clear from a reading of Finn that the alleged facts upon which plaintiffs’ theory of recovery is based do not come within any exception to sovereign immunity. The alleged dangerous condition, namely, the lead paint coating the SEPTA bridges, did not make the bridges themselves unsafe for their intended use. Plaintiffs’ alleged injuries occurred only after the abrasive blasting was commenced and the lead paint dust emitted. In addition, the lead paint coating the bridges did not itself cause plaintiffs’ injuries. It merely facilitated the injury which was brought about by the acts and/or failure to act of others, namely, the general contractor Cornell and/or plaintiffs’ employer, Coastal. The lead paint became dangerous only as a result of the abrasive blasting process, and the alleged harm to plaintiffs arose only during or after this process. Consequently, the allegations of negligence against SEPTA in this case do not fall within the real estate exception to sovereign immunity. See Rothermel v. PennDOT, 672 A.2d 837 (Pa. Commw. 1996).

Thomas v. City of Philadelphia, 668 A.2d 292 (Pa. Commw. 1995) supports the court’s decision in the instant case. The facts in Thomas are similar to those presented here: Plaintiff brought suit against PECO, the City of Philadelphia, and the general contractor; the latter was absolved from liability as a result of a statutory employer defense. Plaintiff’s decedent was electrocuted as he worked on a scaffold, stuccoing a wall adjacent to a vacant lot which the city had owned and previously demolished. Plaintiff, in the complaint, [390]

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Related

Steiner v. Bell of Pennsylvania
626 A.2d 584 (Superior Court of Pennsylvania, 1993)
Mascaro v. Youth Study Center
523 A.2d 1118 (Supreme Court of Pennsylvania, 1987)
Finn v. City of Philadelphia
664 A.2d 1342 (Supreme Court of Pennsylvania, 1995)
Dougherty v. Conduit & Foundation Corp.
674 A.2d 262 (Superior Court of Pennsylvania, 1996)
Lory v. City of Philadelphia
674 A.2d 673 (Supreme Court of Pennsylvania, 1996)
Lorah v. Luppold Roofing Co., Inc.
622 A.2d 1383 (Superior Court of Pennsylvania, 1993)
Snyder v. Harmon
562 A.2d 307 (Supreme Court of Pennsylvania, 1989)
Donaldson v. Com., Dept. of Transp.
596 A.2d 269 (Commonwealth Court of Pennsylvania, 1991)
Peffer v. Penn 21 Associates
594 A.2d 711 (Superior Court of Pennsylvania, 1991)
Zizza v. Dresher Mechanical Contractors, Inc.
518 A.2d 302 (Supreme Court of Pennsylvania, 1986)
McDonald v. Levinson Steel Co.
153 A. 424 (Supreme Court of Pennsylvania, 1930)
Thomas v. City of Philadelphia
668 A.2d 292 (Commonwealth Court of Pennsylvania, 1995)
Rothermel v. Commonwealth, Department of Transportation
672 A.2d 837 (Commonwealth Court of Pennsylvania, 1996)

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Bluebook (online)
29 Pa. D. & C.4th 385, Counsel Stack Legal Research, https://law.counselstack.com/opinion/esbensen-v-septa-pactcomplphilad-1996.