Contractual Immunity from Liability for Negligent Road Repair
Degliomini v. ESM Productions, Inc., 2019 WL 2587696 (Pa. Cmwlth. 2019) (unreported), allocatur granted Jan. 28, 2020, appeal docket 5 EAP 2020
The Pennsylvania Supreme Court granted allocatur to determine whether the City of Philadelphia (City) can contractually immunize itself from liability for breaching a mandatory public safety duty to repair road hazards and whether an exculpatory release of liability for an organized bike riding event immunizes the City from liability for negligently repairing a road hazard before the parties drafted or entered into the release.
Under Pennsylvania law, if an exculpatory release of liability meets the following three conditions, the release is generally valid and enforceable:
First, the clause must not contravene public policy. Secondly, the contract must be between persons relating entirely to their own private affairs and thirdly, each party must be a free bargaining agent to the agreement so that the contract is not one of adhesion.
Chepkevich v. Hidden Valley Resort, L.P., 2 A.3d 1174, 1189 (Pa. 2010).
In May 2015, Degliomini participated “in a charity bicycle ride through the streets of Philadelphia (the Ride) sponsored by the Philadelphia Phillies (Phillies) and ESM Productions, Inc. (ESM).” Slip Op. at 1. In order to partake in this event, Degliomini e-signed an exculpatory release of liability (the “2015 Phillies Charities Bike Ride Release”), which released the Phillies, ESM, and the City of liability of injuries (the Release). Slip Op. at 1-2. During the bicycle ride, Degliomini fell of his bicycle and “suffered extensive physical injuries.” Slip Op. at 1. In April 2016, Degliomini and his wife filed a lawsuit against the City and other defendants, seeking loss of consortium and damages for Degliomini’s injuries. The City responded that the Release absolved it of liability. After the trial, during which the trial judge refused to permit evidence concerning the Release, the jury found in favor of the Degliominis. The trial court denied the City’s motion for judgment notwithstanding the verdict and the City appealed..
The Commonwealth Court reversed, reasoning that exculpatory releases applicable to private, voluntary events are private agreements that individual participants are not obligated to enter and that in this case, the Release did not violate public policy:
The trial court’s reliance on Section 5-500 of the Philadelphia Home Rule Charter (Home Rule Charter) to justify invalidating the Release is misplaced. [Citation omitted]. Contrary to the trial court’s position, Section 5-500 is not a regulation that establishes a non-waivable standard of care as would a health or safety regulation. Home Rule Charter Section 5-500 is instead an organizational section that mandates the creation of the Department of Streets and delineates the functions of the Department upon its creation, which are to include the design, construction, repair and maintenance of City’s streets. [Citation omitted]. In establishing the Department of Streets, Section 5-500 provides no standard of care or guidelines for how the Department must accomplish its road repair duties. [Citation omitted]. Certainly, the Home Rule Charter established an obligation to maintain City’s streets that would be carried out by the Department of Streets. However, the Department’s and, therefore, City’s, duty of care to repair streets arising under Section 5-500 was no different than any common law duty of reasonable care, which may be waived. [Citation omitted].
Slip Op. at 7-8.
The Supreme Court granted allocatur to determine:
(1) Can the City of Philadelphia contractually immunize itself from tort liability for breaching a mandatory public safety duty which has existed for decades under common law, and which is now codified and /or imposed under Pennsylvania’s Tort Claims Act and Philadelphia’s Home Rule Charter?
(2) Does The Phillies’ exculpatory Release immunize the City from liability for negligently repairing its road hazard before the parties drafted or entered the Release, and long before the event covered by the Release.