Walker v. Eleby

842 A.2d 389, 577 Pa. 104, 2004 Pa. LEXIS 644
CourtSupreme Court of Pennsylvania
DecidedFebruary 18, 2004
Docket16 EAP 2002
StatusPublished
Cited by126 cases

This text of 842 A.2d 389 (Walker v. Eleby) is published on Counsel Stack Legal Research, covering Supreme Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Walker v. Eleby, 842 A.2d 389, 577 Pa. 104, 2004 Pa. LEXIS 644 (Pa. 2004).

Opinions

OPINION OF THE COURT

JUSTICE CASTILLE.

The issue on appeal is whether, under Section 8542(b)(7) of the Political Subdivision Tort Claims Act, 42 Pa.C.S. § 8541 et [106]*106seq. (“Tort Claims Act” or “Act”), a municipality is responsible for the maintenance of public sidewalks abutting state highways located within that municipality and, therefore, may be liable for injuries occurring on those sidewalks. The Commonwealth Court held that where, as here, the Commonwealth’s Department of Transportation (“Department” or “Penn DOT”) is responsible for maintaining a state highway located within a municipality, the municipality is relieved of any responsibility to maintain the sidewalks abutting that state highway. Because we find that the municipality is responsible for sidewalks within the municipality, irrespective of state ownership of the roadway, we reverse.

The facts underlying this appeal are simple and undisputed. On January 10,1998, appellant, Ruth Walker, fell on a cracked sidewalk adjacent to 5119 Chestnut Street in Philadelphia, injuring her wrist and shoulder and losing four teeth. Appellant and her husband, Charles Walker, filed suit against the owners of the premises at 5119 Chestnut Street, Pauline Eleby, Zakiya Eleby, Madalyn Janeen Eleby and Clarence Eleby (the “Elebys”) as well as the City of Philadelphia, seeking damages for personal injuries caused by the fall. Appellant alleged that the Elebys were primarily liable as the adjacent property owners for the condition of the sidewalk and that the City was liable because it is responsible for the condition of all public sidewalks located within the City. Neither party disputes that Chestnut Street, including the block in which appellant fell, is designated as a state highway.1

The City filed preliminary objections and three separate motions for summary judgment, claiming that, because the Commonwealth owns Chestnut Street, the City is immune from liability under Section 8542(b) of the Tort Claims Act. The trial court overruled the preliminary objections and de[107]*107nied the motions for summary judgment. The matter then proceeded to arbitration where the arbitration panel found in favor of appellant and against the Elebys and the City.2 The City appealed to the Court of Common Pleas of Philadelphia County.

Following a bench trial, the trial court found in favor of appellant against the Elebys, but in favor of the City on the claims against it.3 Appellant filed a motion for post-trial relief, requesting that the trial court vacate the verdict and grant a new trial or enter judgment notwithstanding the verdict on her claims against the City. Appellant argued that the trial court had erred in concluding that the City was not secondarily liable for an injury occurring on the sidewalk because Chestnut Street is a state highway. Citing the Commonwealth Court’s recent decision in Sherman v. City of Philadelphia, 745 A.2d 95 (Pa.Cmwlth.2000) (en banc) (plurality), the trial court denied the motion.

In Sherman, the Commonwealth Court plurality explained the distinction between primary and secondary liability as follows:

At common law there were two types of liability which could be imposed. The first, primary liability, is imposed on a party who is directly negligent. See Vattimo v. Lower Bucks Hospital, Inc., 502 Pa. 241, 465 A.2d 1231 (1983). Primary liability flows from the duty imposed on an individual or entity who owns or controls property. An example is the duty imposed upon a property owner to keep the sidewalks in front of his property in good repair.
Conversely, secondary liability “rests upon a fault that is imputed or constructive only, being based on some legal relationship] 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 respon[108]*108sible.” Builders Supply v. McCabe, 366 Pa. 322, 328, 77 A.2d 368, 371 (1951). Our Supreme Court in Builders Supply further distinguished between primary and secondary liability as follows:
The difference between primary and secondary liability is not based on a difference in degrees of negligence or on any doctrine of comparative negligence.... It 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. Secondary liability exists, for example, ... when a pedestrian is injured by falling in a hole in the pavement of a street; in such a case the abutting property owner is primarily liable because of his failure to maintain the pavement in proper condition, but the municipality is secondarily liable because of its having neglected to perform its duty of policing the streets and seeing to it that the property owners keep them in repair; if therefore the injured person chooses to bring suit against the municipality the latter can recover indemnity from the property owner for the damages which it has been called upon to pay.

Id. at 328, 77 A.2d at 370.

Sherman, 745 A.2d at 99 (emphases deleted).4 The Sherman plurality held that a municipality bore no secondary liability for an injury where the Commonwealth, rather than the municipality, owned the street abutting the sidewalk on which the injury occurred.5 In this case, since the City did not own the premises at 5119 Chestnut Street, it could only be second[109]*109arily liable. The trial court found that the City enjoyed complete immunity because Chestnut Street is a Commonwealth highway and thus the City had no duty to police the condition of the abutting sidewalk. The trial court expressed concern that this construct could lead to “inequitable results” because, in the court’s view, the City’s exposure to liability for injuries suffered on sidewalks in the City should not depend upon ownership of the roadways, but it deemed itself bound by the Sherman plurality and related cases.

On appeal, the Commonwealth Court affirmed, holding that the plain language of the Tort Claims Act confers immunity on the City in this instance. The Court noted that local agencies in Pennsylvania generally are immune from suit for damages caused by an act of the local agency or the negligence of the agency’s employees. Id. § 8541. Section 8542 lists eight exceptions to governmental immunity, however, the seventh of which applies to sidewalks. That exception to immunity only applies to dangerous conditions of sidewalks “within the rights-of-way of streets owned by the local agency.” 42 Pa.C.S. § 8542(b)(7). The Commonwealth Court found that, because Chestnut Street has been designated as a state highway, the sidewalk where appellant fell is not within the right of way of a street owned by the City. Therefore, the Commonwealth Court held, the City remains immune from tort liability in this instance. In support of its holding, the Commonwealth Court cited both to the Sherman

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Com. v. Foreus, J.
Superior Court of Pennsylvania, 2024
McWilliams, C. v. McWilliams, M.
Superior Court of Pennsylvania, 2024
Lamarr, D. v. Delaware County Memorial Hosp.
Superior Court of Pennsylvania, 2023
Shell, I. v. Shell, B.
2023 Pa. Super. 195 (Superior Court of Pennsylvania, 2023)
Turnpaugh Chiropractic Health v. Erie Ins. Exch.
2023 Pa. Super. 99 (Superior Court of Pennsylvania, 2023)
Eastern Steel Const. v. International Fidelity
2022 Pa. Super. 149 (Superior Court of Pennsylvania, 2022)
Kuharchik Construction, Inc. v. Com. of PA
Commonwealth Court of Pennsylvania, 2021
Neshaminy S.D. v. PHRC
Commonwealth Court of Pennsylvania, 2021
L. Havelka v. Retirement Board of Allegheny County
Commonwealth Court of Pennsylvania, 2020
Watts Twp. Board of Auditors v. P. Gutheil, Watts Twp Supervisor
200 A.3d 129 (Commonwealth Court of Pennsylvania, 2018)
R.J. Marshall, Jr. v. Com Com. v. R.J. Marshall, Jr.
197 A.3d 294 (Commonwealth Court of Pennsylvania, 2018)
S. Straub Schneider, Elk County Prothonotary v. Elk County Board of Commissioners
189 A.3d 1120 (Commonwealth Court of Pennsylvania, 2018)
Mission Funding Alpha v. Commonwealth, Aplt.
173 A.3d 748 (Supreme Court of Pennsylvania, 2017)
Green Acres Contracting Company, Inc. v. Commonwealth of PA
163 A.3d 1147 (Commonwealth Court of Pennsylvania, 2017)
Harmon v. Unemployment Compensation Board of Review
163 A.3d 1057 (Commonwealth Court of Pennsylvania, 2017)
Com. v. Knight, D.
Superior Court of Pennsylvania, 2017
Com. v. Merritts, T.
Superior Court of Pennsylvania, 2017
Martin, S. v. Holy Spirit Hospital
154 A.3d 359 (Superior Court of Pennsylvania, 2017)

Cite This Page — Counsel Stack

Bluebook (online)
842 A.2d 389, 577 Pa. 104, 2004 Pa. LEXIS 644, Counsel Stack Legal Research, https://law.counselstack.com/opinion/walker-v-eleby-pa-2004.