Govan v. Philadelphia Housing Authority

DISSENTING OPINION BY

Judge SMITH-RIBNER.

I respectfully dissent from the majority’s decision to reverse the order of the Court of Common Pleas of Philadelphia County (trial court), which entered a $50,000 judgment against the Philadelphia Housing Authority (PHA) in the negligence lawsuit filed by Latif Wheeler Govan (Govan), through his parents, for injuries that he sustained as a result of a pit bull dog attack on PHA’s premises. Govan alleged several theories of negligence, including a failure to control a dog secured on PHA’s premises, a failure to adhere to its duties under a pet policy that it devised for PHA residents and for violations of the Dog Law, Act of December 7, 1982, P.L. 784, as amended, 3 P.S. 459-101 — 459-1205. PHA’s pet policy requires tenants, among other things, to register, restrain and control their pets. It further empowers the PHA to impound any pets left unattended in the common areas and to remove any pet that threatens the health, safety or welfare of residents or employees.

PHA moved for summary judgment on the grounds that, as a Commonwealth agency, it was entitled to sovereign immunity from Govan’s action pursuant to Sections 8501-8521 of Judicial Code, 42 Pa. C.S. 8501-8521. PHA further argued, among other things, that Govan was not entitled to rely upon the immunity exception set forth at 42 Pa.C.S. 8522(b)(6) relating to the “[e]are, custody or control of animals.”¹ PHA asserted that it did not own or possess the dog, nor was the dog under PHA control, constructive or otherwise, at the time of the incident. The trial court denied PHA’s motion without a supporting opinion. Following the trial court’s denial of PHA’s motions for reconsideration and certification to allow an interlocutory appeal, the parties requested the trial court to hold an expedited bench trial. The trial court did not analyze the sovereign immunity issue but instead applied the doctrine of coordinate jurisdiction, which precluded the trial court from altering the previously-determined legal issue of immunity by another judge of the same court.

PHA appealed, contending that the trial court erred by denying PHA’s motion for summary judgment. PHA argues that the exception to sovereign immunity pertaining to the care, custody, and control of animals does apply as a matter of law. PHA does not argue that Govan failed to plead an action seeking damages recoverable under common law or statute and does not contest the award against it except on the grounds of immunity. Nor does PHA contest any factual matter. The trial court did not set forth any formal findings of fact, except for the general description of the dog attack on Govan. However, PHA did not introduce evidence disputing the factual narration provided by the president of the resident’s council at Cambridge Plaza, Claudette Bennett, regarding the keeping of the dog in the common areas of Cambridge Plaza; her notification to the PHA manager of complaints regarding the behavior of a black pit bull or pit bull mix owned by a tenant, Peggy Skinner; or her statement of facts surrounding the dog attack against Govan.² The evidence showed that Skinner tied the dog to a tree in a common area of the Plaza where she left it unattended each day until she returned from work.

The majority has reversed the trial court based on its conclusion that the care, custody and control of animals exception to sovereign immunity does not apply because PHA did not have direct control over the dog when the incident occurred. Govah did not simply allege that PHA was in control of the dog at the' time of the attack only because of PHA’s authority under its pet policy; he also alleged that PHA had control over the dog by virtue of the fact that the dog was secured on property owned and controlled by PHA with PHA’s knowledge.

The record clearly supports Govan’s position when reviewed in a light most favorable to Govan as the non-moving party. For approximately several months, the dog was tied each work day to a tree in the common area of Cambridge Plaza while its owner or keeper was at work. The dog reportedly barked, jumped at passersby and behaved erratically. PHA was directly informed of this circumstance on two occasions, the first occurring one and one-half months before the attack. Although PHA did not take actual physical control of the dog and secure it elsewhere, the fact remains that the dog was deposited on PHA property and remained there each work day with PHA’s actual knowledge. This undisputed evidence establishes that PHA had possession of or control over the dog for purposes of the sovereign immunity exception for care, custody, or control of animals. The provisions related to sovereign immunity do not define “control,” but a common definition of the noun is the “[pjower or authority to manage, direct, superintend, restrict, regulate, govern, administer, or oversee [and tjhe ability to exercise a restraining or directing influence over something.” Black’s Law Dictionary, 329 (6th ed.1990). Clearly, PHA as the owner and direct manager 'of the property had the authority to take such action regarding a pit bull attached to the property with or without its consent.

There are few cases that interpret the care, custody, or control of animals exception to immunity, particularly where a wild animal is not involved. In Jenkins v. McDonald, 92 Pa.Cmwlth. 140, 498 A.2d 487 (1985); the plaintiff was attacked on a city sidewalk by a stray dog. The Court rejected the plaintiffs argument that the city was liable pursuant to the care, custody, or control of animals exception to local governmental immunity set forth at 42 Pa.C.S. 8542(b)(8),³ and it determined that a stray dog could not be considered in the care, custody or control of a municipality. Further, the Dog Law, which authorizes municipalities to seize and detain stray dogs, does not bring stray dogs under the care, custody or control of the municipality for purposes of the exception to immunity. The present case, however, is quite dissimilar. Here, the dog was not a stray that wandered onto the property of PHA one day to attack a- child. Rather, the dog was on the premises every work day and leashed to a tree on PHA’s property with actual knowledge that its property was being used for such purposes.

In Herman v. Greene County Fair Board, 112 Pa.Cmwlth. 615, 535 A.2d 1251 (1988), the plaintiff was injured when a team of horses broke loose while in the direct control of their owner during a horse-pulling contest at a county fair. This Court rejected the plaintiffs argument that the county was liable pursuant to the care, custody or control of animals exception to local governmental immunity, on the grounds that the horses were within the direct control of a third party, not the county, at the time of the incident. Citing Mascaro v. Youth Study Center, 514 Pa. 351, 523 A.2d 1118 (1987), the Court noted that negligent acts of third parties cannot be imputed to government agencies under immunity provisions. Herman, however, does not support PHA’s contentions. First, the dog that attacked Govan was arguably in direct control of PHA at the time of the incident as it was leashed to PHA property with actual knowledge. Second, the Supreme Court has “refined” Mascaro to confirm that an agency may be liable despite the presence of third-party negligence if the facts establish that the agency is jointly negligent. Jones v. Chieffo, 549 Pa. 46, 700 A.2d 417 (1997).

PHA also argues that the immunity exception is unavailable to Govan pursuant to Palermo by Palermo v. Nails, 334 Pa.Super. 544, 483 A.2d 871 (1984), wherein the Superior Court held that a landlord out of possession is not responsible for attacks by animals kept by his or her tenant on leased premises where the tenant has exclusive control over such premises. This argument would more closely relate to the issue that PHA has not specifically raised: whether Govan met the first prong of the test for waiver of sovereign immunity, that is, whether damages would be recoverable under statute or common law if the party were not protected by sovereign immunity. Even if PHA had not waived this issue for failure to raise it in the Statement of Questions on Appeal, Palermo would be of no support to PHA in any event. PHA was not a landlord out of possession at the time of the incident. The attack did not take place in Skinner’s apartment or on premises within her exclusive control. Rather, it took place on common ground in control of PHA, which had an on-site manager on the premises. Thus, PHA, as landowner, owed Govan, as invitee, the duty of protection from foreseeable harm. Carrender v. Fitterer, 503 Pa. 178, 469 A.2d 120 (1983).⁴

Being ever mindful of the fact that exceptions to immunity provisions must be strictly construed, Kiley v. City of Philadelphia, 537 Pa. 502, 645 A.2d 184 (1994), I nonetheless am convinced that the facts in this case clearly show that PHA had control of the dog at the time of its vicious attack against Govan. It matters not that the dog belonged to a tenant or to a stranger. PHA permitted an individual to leash a dog with obviously dangerous and vicious tendencies on its property on a daily basis for a period of months. The foreseeability of ham to a young child playing in the common area was evident, and because PHA had direct and actual knowledge that the dog was being deposited and leashed to a tree on its property PHA assumed control over the animal.

The majority cites no conclusive case authority to support its holding that PHA cannot be held liable under the exception to immunity for care, custody and control of animals based on the undisputed facts presented. Instead, the majority merely infers as much from cases, inter alia, pertaining to injuries caused by a stray dog, Jenkins, or holding that a state agency lacked control over an uninsured motorist’s vehicle for purposes of the personal property exception to immunity because the agency’s authority to revoke the driver’s license did not involve physical possession or actual control. Walters v. Department of Transportation, 81 Pa.Cmwlth. 478, 474 A.2d 66 (1984). A proper application of well-settled summary judgment principles dictates that the trial court did not err in denying PHA’s motion for summary judgment.

President Judge COLINS joins in this dissenting opinion.

1 . Section 8522(b)(6) provides:

(b) Acts which may impose liability. — The following acts by a Commonwealth party may result in the imposition of liability on the Commonwealth and the defense of sovereign immunity shall not be raised to claims for damages caused by:

(6) Care, custody or control of animals. — The care, custody or control of animals in the possession or control of a Commonwealth party, including but not limited to police dogs and horses and animals incarcerated in Commonwealth agency laboratories. Damages shall not be recoverable under this paragraph on account of any injury caused by wild animals, including but not limited to bears and deer, except as otherwise provided by statute.

2 . This Court’s review of a trial court order disposing of a motion for summary judgment is limited to whether the court committed an error of law or abused its discretion. Downingtown Area School District v. International Fidelity Ins. Co., 671 A.2d 782 (Pa.Cmwlth. 1996). Summary judgment may be granted only when the moving party demonstrates that there are no genuine issues of material fact and that the moving party is entitled to favorable judgment as a matter of law. Id. The record must be reviewed in a light most favorable to the non-moving party. Zablow v. Board of Education of the School District of Pittsburgh, 729 A.2d 124 (Pa.Cmwlth.1999).

3 . The Supreme Court has held that the sovereign immunity and local governmental immunity statutes would be interpreted consistently where they deal with similar subject matter. Crowell v. City of Philadelphia, 531 Pa. 400, 613 A.2d 1178 (1992).

4 . I also note that a dog in this Commonwealth does not enjoy "one free bite” before liability for its actions may attach to its owner or caretaker. Villaume v. Kaufman, 379 Pa.Super. 561, 550 A.2d 793 (1988); Snyder v. Milton Auto Parts, Inc., 285 Pa.Super. 559, 428 A.2d 186 (1981). See also Commonwealth v. Hake, 738 A.2d 46 (Pa.Cmwlth.1999).