R. Laroe v. K. Sandow & Endless Mountains Trans. Auth. d/b/a Best Transit

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Rosemary Laroe, Individually and :
as Administratrix of the Estate of :
John F. Laroe, :
Appellant :
:
v. : No. 906 C.D. 2021
: ARGUED: June 23, 2022
Kathleen Sandow and Endless :
Mountains Transportation Authority :
d/b/a Best Transit :
BEFORE: HONORABLE RENÉE COHN JUBELIRER, President Judge
HONORABLE STACY WALLACE, Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
SENIOR JUDGE LEADBETTER FILED: July 18, 2022
Plaintiff/Appellant Rosemary Laroe, in her individual capacity and as
administratrix of the estate of her husband, John F. Laroe, appeals from the order of
the Court of Common Pleas for the 44th Judicial District, Sullivan County Branch,
Civil Division, granting summary judgment in favor of Defendants/Appellees
Kathleen Sandow and her employer, the Endless Mountains Transportation
Authority d/b/a Best Transit. We affirm.
On February 13, 2019, Ms. Sandow pulled her bus in front of the Laroe
residence, where it was stopped at all relevant times. Prior to the fall at issue, Mr.
Laroe, who was 69 years of age, was disabled with several infirmities. 1 Mr. Laroe
used a walker to walk to a wheelchair, then rode the wheelchair three quarters of the
way down his driveway and stopped because his path was impeded by unshoveled
snow. Ms. Sandow and Mrs. Laroe shoveled the remaining snow while Mr. Laroe
stayed in his wheelchair. Ms. Sandow2 then assisted Mr. Laroe out of his wheelchair
and went to place the wheelchair on the bus, which was ten to fifteen feet away.
While Ms. Sandow loaded the wheelchair onto the bus, Mr. Laroe fell. No one saw
the fall occur.
Thereafter, Mr. Laroe spent a few days in the hospital where he
underwent surgery on his right hip and femur prior to being transferred to skilled
nursing care for four to five weeks. After being discharged and returning home, Mr.
Laroe fell again. Sometime in April 2019, Mr. Laroe entered hospice, dying on May
9, 2019, with his cause of death listed as heart disease.
In January 2020, Mrs. Laroe filed suit against Appellees. Appellant’s
suit alleged that Ms. Sandow was negligent in not pulling her bus into the driveway
at the Laroe residence, which caused Mr. Laroe to fall resulting in his injury and
ultimate death. After discovery, Appellees filed their motion for summary judgment.
The trial court entered an order granting summary judgment and a supporting
1
Mr. Laroe suffered a work-related back injury in 1991, which left him unable to work outside
the home; he later developed diabetic neuropathy and vascular dementia. Between 2013 and the
date of the fall at issue, he had fallen a number of times and been hospitalized three to four times.
A previous fall caused him to fracture his foot and ribs, requiring him to remain in skilled nursing
care for six to eight weeks. He suffered from wound care issues and had been in physical therapy
for six months. He was taking several medications.
2
Ms. Sandow testified during her deposition that it was Mrs. Laroe that helped Mr. Laroe
from his wheelchair. Because in the context of a summary judgment motion the trial court must
take all facts of record and reasonable inferences therefrom in a light most favorable to the non-
moving party, we will assume that it was Ms. Sandow rather than Mrs. Laroe that helped Mr. Laroe
from his wheelchair.
2
opinion. Of relevance to this appeal, the trial court concluded (1) that Appellant had
failed to show a causal link between the accident and injury because she had not
presented expert testimony showing such a link and (2) that Appellant had failed to
establish that Appellees were liable under the motor vehicle exception to
governmental immunity.
On appeal, Mrs. Laroe raises two issues:
1. Whether the trial court abused its discretion and
committed an error of law by granting summary
judgment and concluding that her claims are not
excepted from governmental immunity under the
motor vehicle exception; and
2. Whether the trial court abused its discretion and
committed an error of law in concluding that expert
testimony was required to establish a causal link
between the fall at issue and the injury.
(Appellant’s Br. at 5.)
Appellant focuses her arguments with respect to the first issue on
whether a vehicle needs to be in motion for the motor vehicle exception to apply.
Appellant argues that Ms. Sandow had a duty to get Mr. Laroe onto the bus safely
and that that duty falls within the “continuum of activity” of operating a motor
vehicle; Appellant further argues that Ms. Sandow’s decision of where to park (i.e.,
on the street rather than in the driveway) also falls within the continuum of activity.
(Appellant’s Br. at 16.) However, we do not believe that this adequately addresses
the conclusion of the trial court, which was that “Mr. Laroe’s fall was not caused by
the bus, moving or not, whatsoever.” (Trial Ct. Op. at 5.) As discussed below, such
a causal relationship between operation of the bus and the injury suffered was
necessary to meet the requirements of the motor vehicle exception.
3
Generally, Section 8541 of the Judicial Code (this and subsequent
sections are referred to as the Tort Claims Act) codified the doctrine of governmental
immunity, shielding local agencies from liability for damages from injuries upon
another person caused by such agencies and their employees. 42 Pa.C.S. § 8541.
Section 8542 of the Tort Claims Act provides an exception in relevant part as
follows:
(a) Liability imposed.—A local agency shall be liable for
damages on account of an injury to a person . . . 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) . . . ; 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:
(1) Vehicle liability.--The operation of any motor
vehicle in the possession or control of the local agency
....
42 Pa.C.S. § 8542(a), (b)(1) (emphasis added). As Appellant points out, in Balentine
v. Chester Water Authority, 191 A.3d 799 (Pa. 2018), our Supreme Court overruled
longstanding precedent that to “operate” a vehicle “means to actually put [it] in
motion,” Love v. City of Philadelphia, 543 A.2d 531, 533 (1988) (overruled by
4
Balentine). In Balentine, the Supreme Court adopted the definition of “operate”
endorsed by Justice Newman in her dissent in Warrick v. Pro Cor Ambulance, Inc.,
739 A.2d 127 (Pa. 1999):
The process of operating a vehicle encompasses more than
simply moving the vehicle. When a person “operates” a
vehicle, he makes a series of decisions and actions, taken
together, which transport the individual from one place to
another. The decisions of where and whether to park,
where and whether to turn, whether to engage brake lights,
whether to use appropriate signals, whether to turn lights
on or off, and the like, are all part of the “operation” of a
vehicle.
....
The term “operation” reflects a continuum of activity, the
boundaries of which this Court should define. “Operation”
does not mean simply moving forward or backwards, but
instead includes the decision[-]making process that is
attendant to moving the vehicle.
Balentine, 191 A.3d at 810 [quoting Warrick, 739 A.3d at 128-29 (Newman, J.,
dissenting)].
However, neither the Supreme Court majority in Balentine nor Justice
Newman in her dissent in Warrick dispensed with the statutory requirement that for
liability to attach to a local government agency, the plaintiff must establish that
“[t]he 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),” 42 Pa.C.S. § 8542(a)(2) (emphasis added),
which includes the motor vehicle exception. To the contrary, Balentine, which
reversed our affirmance of a grant of summary judgment, endorsed an approach that
required such causation to be shown:
5
Under the Tort Claims Act, before a court may address the
underlying merits of an action against the government, the
plaintiff must first state a claim upon which relief may be
granted by pleading facts alleging: (1) that the government
would have been liable under common law or statute for
the injury; (2) that the injury was caused by the negligent
act of the government or its agent acting within the scope
of his duties; and (3) that the negligent act falls within one
of the exceptions to immunity enumerated in subsection
8542(b) of the Judicial Code, 42 Pa.C.S. § 8542(b).
Balentine, 191 A.3d at 809.
Given the record before us, we agree with the trial court that there was
no basis to find the causal nexus required to qualify for recovery under the motor
vehicle exception. This is not a case where some act or omission of an agency with
respect to any function of a motor vehicle resulted in harm; it is one where Mr. Laroe
fell on his own property standing away from a still bus. Compare with Balentine
(stationary water authority vehicle parked in roadway hit by another vehicle,
resulting in water authority vehicle striking and killing person), Warrick (transit
agency bus discharging students at wrong stop on street and blocking passengers’
view of oncoming traffic resulted in death of student), and Podejko v. Dep’t of
Transp., 236 A.3d 1216 (Pa. Cmwlth. 2020) (en banc) (fire department pumper truck
flooded property). Simply put, there is nothing to show that Ms. Sandow’s
“negligent acts . . . acting within the scope of [her] . . . duties with respect to . . .
operation of [a] motor vehicle”3 caused Mr. Laroe to fall.
The only allegation of negligence is that Ms. Sandow parked in the
street rather than in the Laroes’ driveway, which would require Mr. Laroe to “cross
3
42 Pa.C.S. § 8542(a)(2).
6
a snow[-]and[-]ice[-]covered area to get to the bus.” (Appellant’s Br. at 8.)4 This,
Appellant urges, means that Ms. Sandow’s decision about where to park resulted in
the fall. However, there is no evidence that Mr. Laroe slipped and fell on snow
and/or ice, let alone evidence that Ms. Sandow’s decision regarding where to park
caused Mr. Laroe to fall. If, indeed, there was any negligence on the part of Ms.
Sandow, it might have been in leaving Mr. Laroe alone while she put the wheelchair
in the bus rather than helping him to the bus first, but even this theory is questionable
in the absence of any evidence, expert or otherwise, that he could not safely be left
standing alone for a brief period. Moreover, no one saw the fall or was able to testify
how it occurred. At all events, any such negligence would have nothing whatsoever
to do with the bus or where it was parked.
With regard to Appellant’s second issue, as she cannot establish a
causal relationship between operation of the bus and Mr. Laroe’s fall, we do not
believe it is of any moment that expert testimony was not submitted to show a causal
connection between the fall and injury.
In light of the foregoing, we affirm the order of the trial court.
_____________________________________
BONNIE BRIGANCE LEADBETTER,
President Judge Emerita
4
Furthermore, if there had been any evidence that Mr. Laroe slipped on snow or ice, such a
condition would, as Appellees suggest, fall within the ambit of premises liability, with the fall
occurring on property not owned or controlled by the local agency.
7
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Rosemary Laroe, Individually and :
as Administratrix of the Estate of :
John F. Laroe, :
Appellant :
:
v. : No. 906 C.D. 2021
:
Kathleen Sandow and Endless :
Mountains Transportation Authority :
d/b/a Best Transit :
ORDER
AND NOW, this 18th day of July, 2022, the order of the Court of
Common Pleas for the 44th Judicial District, Sullivan County Branch, Civil Division,
is AFFIRMED.
_____________________________________
BONNIE BRIGANCE LEADBETTER,
President Judge Emerita