T.B. Fry v. City of Philadelphia

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Taylor Beth Fry, :
Appellant :
:
v. : No. 356 C.D. 2022
: SUBMITTED: November 14, 2022
City of Philadelphia :
BEFORE: HONORABLE ANNE E. COVEY, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
SENIOR JUDGE LEADBETTER FILED: December 7, 2022
Taylor Beth Fry appeals from an order of the Court of Common Pleas
of Philadelphia County granting the City of Philadelphia’s motion for summary
judgment. We affirm.1
The relevant background of this matter is as follows. Following an
October 2017 car accident in the City of Philadelphia, Fry filed a one-count civil
complaint against the City and the Commonwealth of Pennsylvania. The
Commonwealth is no longer part of the lawsuit.2
1
The entry of summary judgment is proper where the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show that there is no
genuine issue of material fact and that the moving party is entitled to judgment as a matter of law.
Marks v. Tasman, 589 A.2d 205, 206 (Pa. 1991). The record must be viewed in the light most
favorable to the non-moving party, and all doubts as to the existence of a genuine issue of material
fact must be resolved against the moving party. Our review of an order granting summary
judgment involves only an issue of law. Hence, our review is plenary. Bourgeois v. Snow Time,
Inc., 242 A.3d 637 (Pa. 2020).
2
In February 2020, the trial court granted the Commonwealth’s motion for judgment on the
pleadings as uncontested, entering judgment on the pleadings in favor of the Commonwealth, and
(Footnote continued on next page…)
On the day of the accident, Fry was traveling by car on the Henry
Avenue bridge in the direction of Valley Avenue. (Sept. 30, 2021 Fry Dep., Notes
of Test. “N.T.” at 18 and 22; App. at P-55 - P-56.) She testified that she had visibility
even though it was drizzling and the car’s headlights and windshield wipers were
activated. (N.T. at 17-18; App. at P-54 - P-56.) She noted that it had been raining
earlier in the day and that there were flooding conditions at the accident site. (N.T.
at 17 and 22; App. at P-54 and P-56.) Describing the mechanics of the accident, Fry
testified:
We were driving in the left lane so closer to the center. We
were driving and a car drove past us in the left-hand lane
and that [sic] was an excess of water from the sewer that
came like a tidal wave over my windshield and the
windshield [of] the car in front of me so the car abruptly
had stopped in front of me so I couldn’t – my inability to
see from the water on the windshield caused me to go head
first [sic] into her car.
(N.T. at 22; App. at P-56.) Fry stated that she braked when the splash occurred but
that the car in front of her braked harder such that Fry’s car collided with the car in
front of her. (N.T. at 25-26; App. at P-56 - P-57.)
Alleging the existence of a dangerous and defective condition, Fry
averred that there was “a defect in the roadway” at or near the intersection of Henry
and Valley Avenues causing water to accumulate on rainy days thereby creating a
flooding hazard and a danger to travelers. (Aug. 15, 2019 Compl., ¶ 7; App. at P-
3.) Fry alleged that she lost control of her car “when the roadway, which was flooded
as a result of the aforementioned defect, caused a motor vehicle collision as a result
dismissing Fry’s complaint against the Commonwealth only. In addition, the trial court dismissed
all claims and cross-claims against the Commonwealth, with prejudice. Neither the City nor Fry
appealed from that order. (Trial Ct.’s Docket Entries at 7; App. at P-185.)
2
of the aforementioned dangerous and hazardous condition . . . .” (Compl., ¶ 9; App.
at P-3 - P-4.) She averred that “[t]he accident . . . was caused solely by the negligent
act and/or omission of the . . . City . . . and a failure to maintain the roadway in a
safe condition . . . .” (Compl., ¶ 10; App. at P-3 - P-4.) She averred that the
negligence consisted of the following:
a. Permitting the existence of a dangerous and defective
condition on a public roadway;
b. Failing to warn the Plaintiff and the public at large of
the dangerous and defective condition;
c. Failing to correct the said dangerous and defective
condition;
d. Failing to properly supervise and instruct employees in
the care and maintenance of the roadway;
e. Failing to exercise due care with regard to the rights and
safety of the Plaintiff under the circumstances, by failing
to either warn or remove the defective and dangerous
condition, and by allowing the condition to exist after
receiving either actual or constructive knowledge of it[;]
f. The improper design, construction and deterioration of
the roadway at the location of the accident;
g. Allowing the aforesaid dangerous condition to remain
for an unreasonable amount of time;
h. Failing to maintain said roadway in a condition which
would protect and safeguard persons lawfully walking
over same;
i. Permitting said roadway to become and remain in a
dangerous condition as to constitute a menace, danger,
nuisance, snare and trap for persons lawfully walking over
same; and
j. Failing to have said roadway inspected at reasonable
intervals in order to determine condition of the same.
(Compl., ¶12; App. at P-4 - P-5.)
3
Following several depositions, including the September 2021
depositions of Fry and James Rice, Jr., Assistant Manager of the Customer Field
Unit of the City’s Water Department, the City filed a motion for summary judgment.
The trial court granted the City’s November 2021 motion and Fry’s appeal
followed.3
Pursuant to Section 8541 of the Judicial Code, “no local agency shall
be liable for any damages on account of any injury to a person or property caused
by an act of the local agency or an employee thereof or any other person.” 42 Pa.C.S.
§ 8541. However, “a local agency shall be liable for damages if: (1) the damages
would be recoverable under common law or a statute creating a cause of action if
caused by a person without immunity; (2) the injury was caused by a local agency or
employee thereof; and (3) the negligent act falls within an exception enumerated in
[S]ection 8542(b) of the Judicial Code[, 42 Pa.C.S. § 8542(b)].” Lacava v. Se. Pa.
Transp. Auth., 157 A.3d 1003, 1009 (Pa. Cmwlth. 2017). See also 42 Pa.C.S. §
8542(a). Given the express legislative intent to insulate political subdivisions from tort
liability, the exceptions to immunity must be narrowly interpreted. Mascaro v. Youth
Study Ctr., 523 A.2d 1118, 1123 (Pa. 1987).
In the present case, there are two potentially applicable exceptions to
immunity from liability for acts by the City or any of its employees—the “utility
service facilities” exception and the “streets” exception. However, in Fry’s brief filed
with this Court, she argues only that the “utility service facilities” exception applies
without mentioning the “streets” exception.4 Consequently, she has waived raising
3
In March 2022, Fry’s appeal was transferred from the Superior Court to the Commonwealth
Court.
4
The “streets” exception provides:
(Footnote continued on next page…)
4
any issue as to the “streets” exception on appeal. Tracy v. Unemployment Comp.
Bd. of Review, 23 A.3d 612, 616 n.3 (Pa. Cmwlth. 2011) (failure to address issue in
appellate brief constitutes abandonment and waiver). Accordingly, beyond stating
(6) Streets.
(i) A dangerous condition of streets owned by the local
agency, except that the claimant to recover must establish that the
dangerous condition created a reasonably foreseeable risk of the
kind of injury which was incurred and that the local agency had
actual notice or could reasonably be charged with notice under the
circumstances of the dangerous condition at a sufficient time prior
to the event to have taken measures to protect against the dangerous
condition.
(ii) A dangerous condition of streets owned or under the
jurisdiction of Commonwealth agencies, if all of the following
conditions are met:
(A) The local agency has entered into a written
contract with a Commonwealth agency for the maintenance and
repair by the local agency of such streets and the contract either:
(I) had not expired or been otherwise terminated
prior to the occurrence of the injury; or
(II) if expired, contained a provision that
expressly established local agency responsibility beyond the term of
the contract for injuries arising out of the local agency’s work.
(B) The injury and dangerous condition were directly
caused by the negligent performance of its duties under such
contract.
(C) The claimant must establish that the dangerous
condition created a reasonably foreseeable risk of the kind of injury
which was incurred and that the local agency had actual notice or
could reasonably be charged with notice under the circumstances of
the dangerous condition at a sufficient time prior to the event to have
taken measures to protect against the dangerous condition.
42 Pa.C.S. § 8542(b)(6).
5
that we agree with the trial court that there was no basis for the applicability of the
“streets” exception,5 we turn to the “utility service facilities” exception.
The “utility service facilities” exception provides:
(5) Utility service facilities. — A dangerous
condition of the facilities of steam, sewer, water, gas or
electric systems owned by the local agency and located
within rights- of-way, except that the claimant to recover
must establish that the dangerous condition created a
reasonably foreseeable risk of the kind of injury which was
incurred and that the local agency had actual notice or
could reasonably be charged with notice under the
circumstances of the dangerous condition at a sufficient
time prior to the event to have taken measures to protect
against the dangerous condition.
42 Pa.C.S. § 8542(b)(5).
As an initial mater, Fry specifically averred that a “defect in the
roadway caused water to accumulate on rainy days, causing a flooding hazard . . . .”
(Compl., ¶ 7; App. at P-3.) As the trial court observed, the referenced “defect”
“could just as easily have been a dip or indentation in the road having nothing to do
with a sewer.” (June 14, 2022 Trial Ct. Op. at 18.) Further, Fry never amended her
complaint to encompass the particulars of the “utility service facilities” exception.
5
As the trial court concluded, the local agency must own the street or have a contract with the
Commonwealth in order for the “streets” exception to apply. 42 Pa.C.S. § 8542(b)(6)(i) and (ii).
Fry did not challenge the City’s assertion that the Henry Avenue bridge is State Route 67055
pursuant to Section 2 of what has been referred to as the State Highway Act of 1941, Act of May
7, 1937, P.L. 589, as amended by the Act of July 10, 1941, P.L. 345, 36 P.S. § 961-2. (See Nov.
8, 2021 City’s Mot. for Summ. J., “Laws of Pennsylvania, Session of 1941,” Ex. C at 1-7; App. at
P-73 - P-79.) In addition, there was no evidence of a contract between the Commonwealth and
the City pursuant to which the City was responsible to maintain the route. In any event, even if
the City had responsibility for the route, the dangerous condition had to arise from the street itself
rather than from something that had fallen on it, such as rain. See Page v. City of Phila., 25 A.3d
471, 480 (Pa. Cmwlth. 2011) (affirming grant of summary judgment in favor of the City where
plaintiff could not show that ice on a street was a defect of the street).
6
As the trial court observed, the application of the “utility service
facilities” exception requires an allegation as to the existence of a dangerous
condition inherent in the utility service facility itself. Falor v. Sw. Pa. Water Auth.,
102 A.3d 584, 588 (Pa. Cmwlth. 2014). After closely examining the complaint, the
trial court determined that it
shows the absence of any pleading that [Fry’s] injuries
were caused by a defect in, or a dangerous condition
caused by, a sewer or other “utility” or “service.” Plaintiff
Fry does not plead that a sewer system itself was
dangerous or unsafe for its intended purpose or that it
caused a dangerous or hazardous condition. Nowhere in
the Complaint is the word “sewer” even mentioned or
suggested; nowhere are the words “utility,” “drain” or
“drainage” mentioned.
(June 14, 2022 Trial Ct. Op. at 18.) In addition, Fry failed to plead that the City had
actual or constructive notice of any dangerous condition of the sewer inlet thereby
creating a foreseeable risk of harm. Such allegations are also required for application
of the exception. Falor, 102 A.3d at 589 [citing Le-Nature’s, Inc. v. Latrobe Mun.
Auth., 913 A.2d 988, 993 (Pa. Cmwlth. 2006)].
Moreover, even if Fry had amended her complaint to allege facts
pertinent to the “utility service facilities” exception, no evidence was adduced that
the flooding was caused by the City’s negligent maintenance of the sewer inlet, as
opposed to the inadequacy of the sewer, or that the City had notice of any dangerous
conditions, such as debris buildup. Rice testified as to the City’s inspection and
maintenance schedule near the accident site and what process employees undertake
to unclog a sewer inlet once they are aware that it is clogged. As part of the regular
cleaning schedule, Rice testified that sewer inlets near the accident site were cleaned
in the month before the accident. (Sept. 30, 2021 Rice Dep. at 12-13; App. at P-95.)
7
In addition, what appeared to be a regularly scheduled cleaning occurred on the night
after the accident. (N.T. at 14; App. at P-96.) Rice admitted that he did not know
whether the sewer inlets near the accident site were clogged on the day of the
accident but observed that most sewer inlets in the City flood during periods of
significant rainfall. (N.T. at 10 and 16; App. at P-95 and P-96.) As he explained,
the sewer inlets are designed to handle normal rainfall and residential use. (N.T. at
21; App. at P-97.) He confirmed that there were no standing orders requiring a crew
to service the inlets near the accident site after every significant rainfall. (N.T. at
16; App. at P-96.)
Pennsylvania is a fact pleading state. Unified Sportsmen of Pa. v. Pa.
Game Comm’n, 950 A.2d 1120, 1134 (Pa. Cmwlth. 2008). As the trial court
observed, Fry alleged only a “defect in the roadway.” However, it was up to Fry to
plead specific material facts in her complaint in support of her legal claims and
theories of recovery. Com. ex rel. Pappert v. TAP Pharma. Prods., Inc., 868 A.2d
624, 635 (Pa. Cmwlth. 2005) (Pennsylvania Rule of Civil Procedure 1019(a),
Pa.R.Civ.P. 1019(a), “requires a plaintiff to plead all the facts that he must prove in
order to achieve recovery on the alleged cause of action.”). Given the fact that we
must narrowly construe the immunity exceptions, Mascaro, we conclude that the
trial court did not err in granting summary judgment in the City’s favor.
Accordingly, we affirm.
_____________________________________
BONNIE BRIGANCE LEADBETTER,
President Judge Emerita
8
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Taylor Beth Fry, :
Appellant :
:
v. : No. 356 C.D. 2022
:
City of Philadelphia :
ORDER
AND NOW, this 7th day of December, 2022, the order of the Court of
Common Pleas of Philadelphia County is hereby AFFIRMED.
_____________________________________
BONNIE BRIGANCE LEADBETTER,
President Judge Emerita