Gardner v. Consolidated Rail Corp. SEPTA

OPINION OF THE COURT

FLAHERTY, Justice.

These cases, consolidated for appeal, raise the question of whether a city may be held liable when children going to or from holes in city-owned fences are injured on neighboring land through instrumentalities not created by the city and not in the city’s control.

In Gardner, a seven year old boy was injured by a train on land owned by a third party after he climbed through a hole in a fence bordering railroad tracks and attempted to cross the tracks on his way to another hole in a fence on the other side of the tracks next to a municipal playground. Gardner’s theory of recovery was that the city, which owned one fence, and SEPTA and Conrail, which owned the other, all contributed to his injury by allowing holes to exist in the fences, and that these holes constituted an attractive nuisance in the form of a “tunnel” which invited children to crawl through it and thereby risk injury on the train tracks.¹ In Lynch, an eleven year old boy was also injured by a train when he and a companion climbed through a hole in a city-owned fence situated alongside railroad tracks in order to cross the tracks on their way to a hole in another city-owned fence bordering a vacant lot on the other side of the tracks where they intended to play. The vacant lot was also owned by the city.

Lynch was dismissed on preliminary objections in the nature of a demurrer, and the dismissal was affirmed by Commonwealth Court,² 115 Pa.Cmwlth. 474, 540 A.2d 635.

In Gardner, the city’s motion for summary judgment was granted and Commonwealth Court affirmed on appeal.³ Although there are procedural differences in these cases, the substantive question and the reason for the allowance of appeal is the same: viz., whether the city may be found liable for failing to maintain its fences in these circumstances.

The statutory scheme governing the city’s liability in this case is as follows:

§ 8541. Governmental immunity generally

Except as 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.

§ 8542 Exceptions to governmental immunity

(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)____

(b) Acts which may impose liability. The following acts by a local agency or any of its employees may result in the imposition of liability on a local agency:

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(3) Real property. The care, custody or control of real property in the possession of the local agency, except that the local agency shall not be liable for damages on account of any injury sustained by a person intentionally trespassing on real property in the possession of the local agency----

42 Pa.C.S. §§ 8541, 8542(a) and (b). In sum, in order for the appellants herein to recover, there must be, as a threshold matter, a cause of action at common law allowing the recovery of damages on these facts against a person not protected by governmental immunity, and the agency or its employees must have been negligent with respect to the care, custody or control of real property.⁴

Only four months ago, this Court in Scarborough v. Lewis, 523 Pa. 30, 565 A.2d 122 (1989) decided a case which is virtually identical to the present cases. In Scarborough a nine year old boy was playing basketball on a city playground which was situated alongside railroad tracks. When the ball went over the playground fence, the boy climbed though a hole in the fence and down an embankment to retrieve the ball. Upon retrieving the ball, he threw it under the fence into the playground, but then went back down the embankment towards a train which he heard coming. He hopped aboard the train, as he had done before, but when he tried to get off the train, his pant leg got caught and his legs were severed below the knees.

In addressing arguments very similar to those raised in these cases, we held that the city had no duty to repair the fence or to erect a barrier in order to contain the unsupervised activity of a minor child; that there is no duty upon a possessor of adjacent land to erect a fence or provide warnings to deter persons from entering a third party’s property on which there exists a dangerous condition not created or maintained by the landowner and over which the landowner has no control; and that it would not be inappropriate to hold as a matter of law that the “defective gateway” or hole in the fence was not the proximate cause of the injuries sustained. 523 Pa. at 40, 565 A.2d at 125-26.

Scarborough holds, then, that the city has no common law duty to erect or repair its fences, at least as to plaintiffs who are injured on neighboring land, not on or by city property. Absent a duty at common law requiring the city to repair its fences, appellants herein cannot prevail.

Nonetheless, appellants would have us create a duty where none presently exists. For the following reasons, we decline to do so. First, there is strong indication that it was the intent of the General Assembly that the requirement in the Political Subdivision Tort Claims Act of a common law basis for an action against government agencies be construed so as to prohibit the creation of any new causes of action:

The intention here [requiring a common law or statutory basis of recovery against a governmental unit] is to prohibit the creation of any new causes of action and merely to remove the bar from suit where the cause of action already exists in the enumerated areas.

Sovereign Immunity, The Joint State Government Commission, (Harrisburg, Pa., 1978), ll.⁵ Secondly, even if this were not clear, it would be jurisprudentially unsound and in violation of the fundamental principle of stare decisis for this Court to unsettle an area of law which we settled only four months ago. And finally, even if we were free to consider expanding the common law duty of cities to repair their fences without regard to legislative intent or our former precedent, the arguments in favor of such expansion are without merit.

Various sections of the Restatement (Second) of Torts are cited as authority for the view that the city has a duty with respect to those who cross through defective fences and are subsequently injured on neighboring property. Section 365, for example, provides:

Section 365. Dangerous Disrepair

A possessor of land is subject to liability to others outside of the land for physical harm caused by the disrepair of a structure or other artificial condition thereon, if the exercise of reasonable care by the possessor____

(a) would have disclosed the disrepair and the unreasonable risk involved therein, and

(b) would have made it reasonably safe by repair or otherwise.

The claim that this section of the restatement may serve as the basis for holding that the city has a duty to appellants is without merit because the defective fence did not proximately cause the injury in this or similar cases. The children were not injured by the fence; they merely passed through it. Accord, Scarborough v. Lewis, supra.

Next, appellants argue that Section 343 of the Restatement (Second) of Torts imposes a duty on the city to protect against dangerous conditions on its premises:

Restatement (Second) of Torts, Section 343.

A possessor of land is subject to liability for physical harm caused to his invitees by a condition on the land if, but only if, he

(a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees, and

(b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and

(c) fails to exercise reasonable care to protect them against the danger.

Again, the harm to these appellants was not proximately caused by a condition on the land. The fence did not cause the injury. This section of the restatement, therefore, is of no help in creating a duty.

Next, appellants refer to Restatement (Second) of Torts, Section 339, which provides:

A possessor of land is subject to liability for physical harm to children trespassing thereon caused by an artificial condition upon the land if

(a) the place where the condition exists is one upon which the , possessor knows or has reason to know that children are likely to trespass, and

(b) the condition is one of which the possessor knows or has reason to know and which he realizes or should realize will involve an unreasonable' risk of death or serious bodily harm to such children, and

(c) the children because of their youth do not discover the condition or realize the risk involved in intermeddling with it or in coming within the area made dangerous by it, and

(d) the utility to the possessor of maintaining the condition and the burden of eliminating the danger are slight as compared with the risk to children involved, and

(e) the possessor fails to exercise reasonable care to eliminate the danger or otherwise to protect the children.

Assuming that this section applies to children who are invitees or licensees as well as trespassing children, the argument in favor of finding a duty as against the city assumes that the unrepaired fences are themselves the instrumentalities of harm. They were not. As stated earlier, there is no proximate causal connection between the fences and the injuries that were suffered.

Next appellants seek to impose a duty of care by reference to Section 323 of the Restatement (Second) of Torts, which provides:

One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of the other’s person or things, is subject to liability to the other for physical harm resulting from his failure to exercise reasonable care to perform his undertaking, if

(a) his failure to exercise such care increases the risk of such harm, or

(b) the harm is suffered because of the other’s reliance upon the undertaking.

In Scarborough v. Lewis we stated:

In Morena v. South Hills Health System, 501 Pa. 634, 462 A.2d 680 (1983), we stated that:

This section [323 of Restatement (Second) of Torts] has previously been adopted by this Court as representing an accurate statement of the law. See Gradel v. Inouye, 491 Pa. 534, 421 A.2d 674 (1980). It does not, however, change the burden of a plaintiff to establish the underlying elements of an action in negligence nor can it be invoked to create a duty where one does not exist.

523 Pa. at 38, 565 A.2d at 125. (Emphasis in original). Moreover, Section 323 does not apply to government, for government does not act either gratuitously or for consideration, as is required by Section 323, but pursuant to its required or discretionary duties in the process of governing. Section 323, therefore, cannot be used to create a duty that did not heretofore exist.

Appellants properly point out that the concept of duty, and, as the foregoing should indicate, the related concept of proximate causation,⁶ are ultimately policy considerations. This was also expressed by Mr. Chief Justice Nix in the following often quoted passage from Sinn v. Burd:

In determining the existence of a duty of care, it must be remembered that the concept of duty amounts to no more than “the sum total of those considerations of policy which led the law to say that the particular plaintiff is entitled to protection” from the harm suffered. Leong v. Takasaki, 55 Haw. 398, 520 P.2d 758, 764 (1974). To give it any greater mystique would unduly hamper our system of jurisprudence in adjusting to the changing times. The late Dean Prosser expressed this view as follows:

These are shifting sands, and no fit foundation. There is a duty if the court says there is a duty; the law, like the Constitution, is what we make it. Duty is only a word with which we state our conclusion that there is or is not to be liability; it necessarily begs the essential question. When we find a duty, breach and damage, everything has been said. The word serves a useful purpose in directing attention to the obligation to be imposed upon the defendant, rather than the causal sequence of events; beyond that it serves none. In the decision whether or not there is a duty, many factors interplay: The hand of history, our ideas of morals and justice, the convenience of administration of the rule, and our social ideas as to where the loss should fall. In the end the court will decide whether there is a duty on the basis of the mores of the community, “always keeping in mind the fact that we endeavor to make a rule in each case that will be practical and in keeping with the general understanding of mankind.”

486 Pa. 146, 164, 404 A.2d 672, 681 (1979).

We acknowledge that this Court’s view of proximate cause, like our view of duty, is necessarily rooted in public policy considerations, i.e., our ideas of history, morals, justice and society in general in determining where the loss should fall. Even so, we must be guided by our recently decided cases on the same subject matter and by our best information as to legislative intent as well as by our sense of history, morals and justice. But even if we were free to decide the issue of proximate causation and duty without reference to our past cases or legislative intent, we would hold that the city has no duty of care with respect to the injuries suffered in these cases and that the poorly maintained fences did not proximately cause the injuries complained of.

Had the children been injured by the fences in these cases, our view might well be different, but where the injury is on the land of another and is produced by voluntary exposure to an obvious hazard over which the city had no control, and the only connection between the injury and the allegedly poorly maintained fences is that those injured passed through or walked towards holes in the fences, the holes in the fence are not the proximate cause of the injuries. It follows that the city owes no duty of care to persons who crawl through or walk toward holes in city fences bordering city land and are injured on neighboring land by instrumentalities over which the city has no control and which the city did not maintain or bring into being.⁷

The lower courts were correct, therefore, in holding, as a matter of law, that recovery in both cases was barred by the Political Subdivision Tort Claims Act.

Affirmed.

McDERMOTT and PAPADAKOS, JJ., concur in the result only. LARSEN, J., files a dissenting opinion.

1 . There is a dispute as to whether the city owns both fences or only one. Because of our disposition of this case, the disputed ownership of the second fence is a moot question.

2 . Commonwealth Court in Lynch held that the city owed no common law duty to the injured child to protect him from dangers on adjacent land; that the city had no duty to maintain the fence around the playground; and that the facts alleged did not fall within the real estate exception the Political Subdivision Tort Claims Act, 42 Pa.C.S. § 8542(b)(3).

3 . Commonwealth Court in Gardner held that an adjacent property owner is not liable for injuries not occurring on his property because such injuries are not causally related to the adjacent property owner’s actions; that the plaintiffs do not have a cause of action at common law, and therefore that the city is insulated from liability by the Political Subdivision Tort Claims Act.

4 . Moreover, as this Court held in Mascaro v. Youth Study Center, Section 3 is to be narrowly construed in order to give effect to the legislative intent to insulate political subdivisions from tort liability. 514 Pa. 351, 361, 523 A.2d 1118, 1123 (1987).

5 . This booklet was published as a recommendation to the General Assembly prior to passage of the act.

6 . As Prosser suggests, the concepts of duty and proximate cause ultimately involve similar policy considerations:

The ordinary usage of the courts has been to confine the word "duty” to questions of the existence of some relation between the defendant and the plaintiff which gives rise to the obligation of conduct in the first instance, and to deal with the connection between that obligation, once it has arisen, and the consequences which have followed in the language of "proximate cause.” The usage is no doubt well enough, so long as it is not allowed to obscure the fact that identical questions are often still involved, and buried under the two terms, sometimes so deeply that a good deal of digging is called for to uncover them.

The Law of Torts (Fourth ed.) § 42, p. 245.

7 . Gardner argues that it was error to grant summary judgment because there remain material issues of fact, such as actual ownership of the two fences, ownership of the playground, the extent to which the city was on notice of the use of the holes in the fences by neighborhood children and facts concerning the maintenance and repair of the fences. This argument is without merit because no matter how these questions are answered, the city would have no duty of care with respect to its fences in the context of the injuries suffered by Gardner, and thus, would be immune under the Tort Claims Act.