Real Estate Exception to Sovereign Immunity Act

Wise v. Huntingdon Cty. Hous. Dev. Corp., 212 A.3d 1156 (Pa. Cmwlth. 2019), allocatur granted Dec. 27, 2019, appeal docket 97 MAP 2019

The Pennsylvania Supreme Court granted allocatur in this case to consider whether the real estate exception to the Pennsylvania Sovereign Immunity Act applies to a public housing authority’s failure to provide adequate outside lighting of a sidewalk in a public housing complex at night.

Sharon Wise fell while walking on a sidewalk at night in the Housing Authority of the County of Huntingdon’s (HACH)’s public housing complex . In her Complaint, Wise alleged that the insufficient lighting and demarcation of the sidewalk caused her to trip and fall, resulting in a broken ankle, and that HACH breached its duty by not providing adequate outside lighting at night.

HACH filed a summary judgment motion, arguing that Wise’s action was barred by the Sovereign Immunity Act (Act), which provides that Commonwealth agencies are immune from a negligence action unless the plaintiff meets one of the Act’s enumerated exceptions. Specifically at issue was the real estate exception to the Sovereign Immunity Act, which provides:

… 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:

(4) Commonwealth real estate, highways and sidewalks.–A dangerous condition of Commonwealth agency real estate and sidewalks, including Commonwealth-owned real property, leaseholds in the possession of a Commonwealth agency and Commonwealth owned real property leased by a Commonwealth agency to private persons, and highways under the jurisdiction of a Commonwealth agency, except conditions described in paragraph (5) [(relating to potholes and other dangerous conditions)].

42 Pa.C.S. § 8522 (emphasis added). HACH argued that because the lighting defect at issue did not come about due to a defect in HACH’s property but was due to a natural condition (i.e., the dark), Wise’s claim did not satisfy the exception. Wise contended that her case was analogous to Peterson v. Philadelphia Housing Authority, 623 A.2d 904 (Pa. Cmwlth. 1993), and Floyd v. Philadelphia Housing Authority, 623 A.2d 901 (Pa. Cmwlth. 1993), in which Commonwealth Court found actions based on allegedly defective lighting on Commonwealth property were not barred by the Act.

The trial court granted HACH’s motion, dismissed the action and entered judgment in HACH’s favor. Wise appealed, and the trial court filed its memorandum opinion pursuant to Pa. R.A.P. 1925(a) holding that the Act shields HACH from liability for Wise’s negligence claims and that the real estate exception to the Act did not apply because the darkness – a natural condition, not a defect of the sidewalk – caused Wise’s injury, which was not in HACH’s control, and was therefore not a “dangerous condition of Commonwealth property.”

Wise appealed to Commonwealth Court, arguing that the trial court erred when it concluded that the Act shields HACH from liability based on an erroneous distinction between inside and outside lighting. Additionally, Wise argued that, in accordance with Peterson and Floyd, whether inadequate lighting constitutes a dangerous condition of Commonwealth property is a question for the fact finder, and, accordingly, the trial court erred when it granted summary judgment.

Commonwealth Court disagreed with Wise’s arguments, first emphasizing that the Pennsylvania Supreme Court clarified the application of the real property exception in Snyder v. Harmon, 562 A.2d 307 (Pa. 1989) in the context of whether the absence of lighting constituted an artificial condition or a defect of the land itself, reasoning that: “These key words [dangerous condition of Commonwealth agency real estate] indicate that a dangerous condition must derive, originate from or have as its source the Commonwealth realty.” Slip Op. at 6, quoting Snyder, 562 A.2d at 311. Commonwealth Court then explained the distinction between the “duty of care a Commonwealth agency owes to those using its property, and the sovereign immunity defense”:

Sovereign immunity bars an action against the Commonwealth even where the Commonwealth has breached its duty to those using its property, so long as an exception to sovereign immunity does not apply. Thus, Wise may credibly argue that the Commonwealth breached its duty because the “condition of the property [was not] safe for the activities for which it [was] regularly used, intended to be used or reasonably foreseen to be used[,]” since it was foreseeable that the property would be used at night. Snyder, 562 A.2d at 312. Nonetheless, even assuming arguendo that such is true, the Commonwealth’s breach of its duty does not remove the sovereign immunity bar precluding Wise’s action against the Commonwealth, unless she establishes that her claim comes within one of the exceptions. See Manning [v. Dep’t of Transp., 144 A.3d 252 (Pa. Cmwlth. 2016).]

Slip Op. at 13 (emphasis in original). The court found Peterson and Floyd were inapposite, explaining that those cases involved factual questions  – whether a missing bannister and defective lights were fixtures, and if so, were a dangerous condition of Commonwealth realty – whereas Wise claimed that the natural darkness caused her fall. The court further disagreed with Wise’s attempts to characterize the darkness as a defect, explaining:

Wise’s characterization of the defect as insufficient lighting due to a tree on the property obstructing the pole light’s illumination, ignores that, but for the natural nighttime darkness, there is no alleged defect, i.e., the property only becomes allegedly defective when there is insufficient natural light. In other words, Wise’s complaint is that the Commonwealth failed to alter the natural state of nighttime darkness which, thereby, caused her fall. Thus, Peterson and Floyd are also distinguishable in that, here, Wise asserts that either a defect existed because an allegedly necessary fixture – additional lighting – should have been installed, or a tree (that was not itself defective) should have been removed since, according to Wise, it obstructed artificial light from illuminating a naturally dark exterior area at midnight.

Slip Op. at 14-15 (emphasis in original). The court went on to emphasize that sovereign immunity is waived pursuant to Section 8522(b)(4) of the Act only when it is alleged that “the artificial condition itself caused the injury to occur.” Slip Op. at 16 (citations omitted). Commonwealth Court affirmed the trial court’s grant of summary judgment, concluding:

Wise acknowledged that she saw no physical defect in the sidewalk. Contrary to Wise’s contention, the significantly distant pole light and the tree situated between the pole light and her fall location did not create the already existing natural darkness. There was no artificial change to the Commonwealth’s realty from the day to nighttime. Given the earth’s natural rotation from light to darkness, the alleged dangerous condition – darkness – did not “derive, originate from or have as its source the Commonwealth realty.” Snyder, 562 A.2d at 311. Like falling snow, nighttime darkness visits Commonwealth property naturally. Also like snow, the Commonwealth’s failure to properly or completely ameliorate natural exterior nighttime darkness does not create an artificial condition. Therefore, HACH’s alleged failure to adequately illuminate the sidewalk area during hours of darkness did not create an artificial condition or defect of Commonwealth realty for which HACH may be held liable.

Slip Op. at 17-18.

The Pennsylvania Supreme Court granted allocatur as to the following issue:

Whether the Commonwealth Court, in affirming the Huntingdon County Trial Court’s grant of Summary Judgment, has unwarrantedly expanded sovereign immunity under 42 Pa.C.S.A. § 8521 et. seq., and hence, continued the dwindling applicability of the real estate exception under 42 Pa.C.S.A. § 8522(b)(4) to a dangerous level in its continued disregard of the legislative intent of the Sovereign Immunity Act and enumerated exceptions, and also advances existing conflict and confusion within an already unclear legal history?

Allocatur grants present an excellent opportunity for your group or association to advance your legal and policy goals by filing an amicus brief. Participating as an amicus has proven to be an effective method of advising and influencing courts and often can involve far fewer resources than traditional lobbying.

If you are interested or would like more information, contact Kevin McKeon or Dennis Whitaker.