Immunity • Utility Services Facilities Exception • Proof of Causation

Crouse v. Foltz et al, PICS Case No. 17-1205 (C.P. Adams July 6, 2017) George, J. (10 pages).

Defendants could not maintain their joinder complaint against Littlestown Borough in this action arising out of injuries plaintiff suffered on defendants’ property where they failed to demonstrate that the utility services facilities exception to governmental immunity applied. The court granted the defendant municipality’s motion for summary judgment.

Plaintiff Ruth Crouse fell and broke her ankle on July 24, 2012, while walking across property owned by defendants, Patrick and Michelle Foltz. Due to construction on the street by which plaintiff accessed her property, she had been parking in a lot behind her residence, which required her to cross the Foltz property to get to her own residence. Plaintiff sued seeking to recover damages for the injury she suffered on their property. Defendants then joined Littlestown Borough to the action, alleging that a clogged storm water sewer located at the rear of the Foltz property caused the ground erosion which resulted in the hole in which plaintiff tripped. Defendants also claimed that while performing maintenance on a storm water service line, the Borough negligently conducted repairs. The Borough moved for summary judgment, arguing that the utility services facilities exception to governmental immunity did not apply in this case and, therefore, the Borough was immune from suit. The court noted that at the time the Borough filed its motion, controlling precedent set forth in Metro. Edison Co. v. City of Reading, 125 A.3d 499 (Pa. Commw. 2015), provided that the sewer facilities exception did not apply to dangerous conditions resulting from the conduct of government employees. However, the Pennsylvania Supreme Court reversed the lower court’s decision in Metro. and opined that “the originating cause of the dangerous condition … is irrelevant to a proper application of the utility exception.” Rather, the negligence act necessary to trigger the exception is the failure of the local agency to remediate a dangerous condition of which it has notice, the Metro. court reasoned. In light of the Metro. decision, the court found that both of defendants’ theories, if otherwise supported by the record, were sufficient to trigger the utility exception. Defendants theorized that an alleged blockage in the storm water sewer system caused flooding on their property. However, there was no evidence of record that any such flooding was the cause of the hole or uneven ground on defendants’ property upon which plaintiff fell. Absent some evidence on this issue, denial of the Borough’s motion for summary judgment would result in the fact-finder being asked to determine the existence of constructive notice of a dangerous condition caused by another dangerous condition without any proof that the later caused the earlier, the court reasoned. A jury cannot be permitted to reach a verdict based on such speculation or conjecture. As such, the court found that defendants could not maintain their joinder complaint against the Borough due to its governmental immunity.