Local Gov’t Not Responsible For Slip And Fall In Icy Conditions
Written by: Alan Nochumson
As we move through the winter season, snow will, in all likelihood, soon be factored into our daily lives. Among other things, property owners will be busy shoveling and placing salt on their sidewalks. If they fail to do so, they risk that a pedestrian walking by their property will slip and fall onto their sidewalk, and, if that happens, they could be embroiled in a lawsuit.
The same holds true for local governmental agencies throughout the commonwealth, to a degree. Unlike private property owners, however, these local governmental agencies enjoy special protections from liability under the Political Subdivision Tort Claims Act, 42 Pa. C.S. Section 8541 et seq.
In Moon v. Dauphin County, 2015 Pa. Commw. LEXIS 536 (Dec. 10, 2015), the Commonwealth Court explained why a pedestrian was prohibited from suing a local governmental agency for injuries he sustained when he slipped and fell on governmental property during an ice storm.
In the winter of 2008, Doral Moon resided at a work release center operated by Dauphin County in Harrisburg, the opinion said. At the time, access to and from the center was limited to a fenced-in walkway, according to the opinion. One night, when Moon left the center, it was raining and parts of the walkway began getting icy, the opinion said. At the end of the walkway, he slipped and fell onto the post that held the chain that separated the walkway from the adjacent grass area, the opinion said.
Moon filed a complaint against Dauphin County, alleging negligence based on the faulty design and configuration of the center. In the complaint, Moon claimed the design flaw consisted of the restricted access to and from the center.
Under the Tort Claims Act, local agencies like Dauphin County are immune from liability for damages caused to persons or property, except as otherwise provided in the Tort Claims Act.
According to the Commonwealth Court, a plaintiff is required under the Tort Claims Act to establish that: (1) “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 of governmental immunity or official immunity,” and (2) the injury was caused by the negligent acts of the local agency with respect to one of the limited sovereign immunity exceptions.
In response to the complaint, Dauphin County denied that a design flaw or any other condition of the center caused Moon’s injuries or that “it was aware of any icy condition that it did not properly address.” Dauphin County further stated that it “did not have any notice of the alleged defective condition of the premises” and that Moon’s “claims are barred by the hills and ridges doctrine.”
Dauphin County subsequently filed a summary judgment motion in the trial court proceedings.
The trial court judge granted the summary judgment motion and dismissed the lawsuit, stating that, “Viewing the record in a light most favorable to Moon, the facts establish that the slip and fall occurred while the wintery weather was ongoing. Consequently, Dauphin County cannot be shown to have actual or constructive notice of the existence of a dangerous condition; thus, Moon’s claims fail under the hills and ridges doctrine [and] … that Moon’s claims are barred by the real estate exception under 42 P.S. Section 8522(b)(4). We find that the lack of additional walkways does not constitute a dangerous condition of real estate; thus, Moon’s claims are barred by sovereign immunity.”
Moon then appealed the trial court’s ruling to the Commonwealth Court.
The Commonwealth Court first addressed whether the trial court erred by holding that his claims fell under the hills and ridges doctrine.
Quoting Morin v. Traveler’s Rest Motel, 704 A.2d 1085 (Pa. Super. Ct. 1997), the Commonwealth Court noted that “the hills and ridges doctrine, as defined and applied by the courts of Pennsylvania, is a refinement or clarification of the duty owed by a possessor of land and is applicable to a single type of dangerous condition, i.e., ice and snow” and “it ‘protects an owner or occupier of land from liability for generally slippery conditions resulting from ice and snow where the owner has not permitted the ice and snow to unreasonably accumulate in ridges or elevations.'”
According to the Commonwealth Court, under the doctrine, “in order to recover for a fall on ice or snow, an injured party must prove the following factual elements: (1) that snow and ice had accumulated on the sidewalk in ridges or elevations of such size and character as to unreasonably obstruct travel and constitute a danger to pedestrians traveling thereon; (2) that the property owner had notice, either actual or constructive, of the existence of such a condition; and (3) that it was the dangerous accumulation of snow and ice which caused the plaintiff to fall.”
The Commonwealth Court did not believe that Moon met his burden under the doctrine based upon its review of the record even in the light most favorable to Moon.
As pointed out by the Commonwealth Court, on the night of the incident, when Moon left the center, it was raining and he observed the walkway was wet and, when he sensed that the rain was changing to ice, he watched and carefully placed his feet as he traveled along the walkway, did not lose traction, and he did not observe any ice accumulated on the walkway, and, by the time he returned to the center later that evening, the walkway had been salted.
Since, in the Commonwealth Court’s opinion, Moon was aware of the slippery conditions and Dauphin County did not permit ice to unreasonably accumulate in ridges or elevations that caused Moon to fall, the Commonwealth Court concluded that Dauphin County is protected by the hills and ridges doctrine and, therefore, is not liable to Moon upon those grounds alone.
The Commonwealth Court then addressed whether Moon even satisfied the second condition of the Tort Claims Act; namely, whether Dauphin County was liable under one of the listed immunity exceptions.
In Section 8542(b)(3) of the Tort Claims Act, liability may be imposed for damages caused by a local agency’s care, custody or control of real property in its possession.
Such liability is commonly known as the real estate exception of the Tort Claims Act.
Relying upon a litany of previously-handed-down rulings, the Commonwealth Court noted that liability will not be imposed under the real estate exception of the Tort Claims Act for injuries sustained as a result of a local agency’s failure to remove a foreign substance from real property, including ice and/or snow. Rather, according to the Commonwealth Court, the local agency may only be liable under that exception if the ice or snow on the real property is there because of a design or construction defect. In Moon, the Commonwealth Court reiterated that “the focus must be on whether there is proof of a defect in the real property itself” and “the exception to the immunity rule does not apply where ‘the dangerous condition merely facilitates injury.'”
On appeal, Moon contended that “the improper construction here [wa]s … the conscious decision to maintain a single exit,” and, as a result, he had no alternative but to pass through that gate into the icy/slippery conditions, forcing him into a dangerous situation. In other words, Moon alleged that this lack of choice was the design flaw in the walkway.
The Commonwealth Court held that, “because the law requires proof of a defect of the walkway on which Moon fell, his claim that the center’s single exit constituted a dangerous condition of the real estate is without merit.” As, according to the Commonwealth Court, Moon readily admitted that the weather, not a defect in the property, caused his fall, his negligence claim did not fall within the real estate exception to the Tort Claims Act.
Although the local government in Moon was found immune from liability, it still will behoove local governments throughout the state to remain vigilant the next time there is an event of precipitation in order to minimize the potential of litigation.
Reprinted with permission from the January 12, 2016 edition of The Legal Intelligencer © 2016 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited. For information, contact 877-257-3382, firstname.lastname@example.org or visit www.almreprints.com.