Opinion
No. 1095 C.D. 2012
03-20-2013
James Murray and Jennifer Murray, h/w, Appellants v. Borough of Quakertown, A. F. Callan and Co., Inc., United States Restoration, Inc., Quakertown Community School District and Quakertown Area Joint School Authority
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY SENIOR JUDGE FRIEDMAN
James and Jennifer Murray (Plaintiffs) appeal from the November 30, 2011, order of the Court of Common Pleas of Bucks County (trial court), which granted the motions for summary judgment filed by the Quakertown Community School District (School District) and the Borough of Quakertown (Borough) (together, Defendants). We affirm.
Although Plaintiffs also appealed from the December 6, 2011, order granting the summary judgment motion filed by United States Restoration, Inc. (USR), Plaintiffs only challenge the November 30, 2011, order granting Defendants' summary judgment motions in their brief. USR has filed a statement of non-involvement to clarify that it has no interest in the outcome of this appeal. Because Plaintiffs have effectively abandoned their appeal from the trial court's December 6, 2011, order, we need not address that decision.
On August 23, 2005, Mr. Murray was working for ARC Roofing (ARC), the subcontractor on a roofing project at Neidig Elementary School in the Borough, when he slipped on wet paint, slid off the roof, and fell onto equipment on the ground. Mr. Murray fractured his ankle, requiring restorative surgery, and sustained nerve damage.
In August 2007, Plaintiffs filed suit against the School District and the Borough, alleging that they negligently failed to: provide safety equipment for roofers; properly supervise the worksite; use proper fall protection measures; and warn Mr. Murray of an unspecified dangerous condition.
In June 2009, Defendants filed motions for summary judgment on the ground that they are immune from suit under section 8541 of the Judicial Code, commonly known as the Political Subdivision Tort Claims Act (Tort Claims Act), 42 Pa. C.S. §8541. In November 2009, the trial court denied the motions without prejudice to Defendants' right to re-file them after the completion of discovery.
Six depositions took place between March and October 2010. No party requested additional discovery after October 2010. In December 2010, the Borough's counsel sent Plaintiffs' counsel a letter asking if any other discovery would be required on the issue of liability. Plaintiffs neither responded to the letter nor requested additional discovery.
Thereafter, in February and March 2011, Defendants re-filed their motions for summary judgment. Plaintiffs responded to the motions, alleging that discovery was ongoing and genuine issues of fact existed. On November 30, 2011, the trial court entered summary judgment in Defendants' favor, concluding that they are immune from suit under the Tort Claims Act. Plaintiffs timely appealed to this court.
Our scope of review of a trial court's order granting summary judgment is plenary. We will reverse the trial court's order only if we determine that the trial court committed an error of law or abused its discretion. Jones v. Southeastern Pennsylvania Transportation Authority, 565 Pa. 211, 216-17, 772 A.2d 435, 438 (2001). --------
Plaintiffs argue that the trial court erred in arbitrarily and prematurely deciding that discovery was complete when Plaintiffs stated in their response to Defendants' 2011 summary judgment motions that discovery was ongoing. We disagree.
The trial court did not arbitrarily decide that discovery was complete. Rather, Plaintiffs demonstrated that no additional discovery was needed by failing to request additional discovery for more than one year and by failing to respond to the Borough's December 2010 letter inquiring about additional discovery. As the trial court noted, Plaintiffs had ample opportunity to pursue additional discovery throughout the course of the litigation, yet they made no specific requests for discovery any time after the October 2010 depositions aside from their general responses in opposition to Defendants' 2011 motions. (Trial Ct. Op., 3/20/12, at 7-8.)
Next, Plaintiffs argue that the trial court erred in concluding that Defendants are immune from suit under the Tort Claims Act. Plaintiffs claim that genuine issues of fact remain regarding the applicability of the real property exception to governmental immunity, the duty Defendants owed to Mr. Murray, and Defendants' control over the property where the accident occurred. We disagree.
The real property exception provides an exception to governmental immunity for injuries arising out of:
[t]he care, custody or control of real property in the possession of the local agency, except that the local agency shall not be liable for damages on account of any injury sustained by a person intentionally trespassing on real property in the possession of the local agency.Section 8542(b)(3) of the Tort Claims Act, 42 Pa. C.S. §8542(b)(3). The statutory exceptions to governmental immunity must be strictly construed. Finn v. City of Philadelphia, 541 Pa. 596, 601, 664 A.2d 1342, 1344 (1995).
Here, the evidence established that Defendants were not in control of the property when the accident occurred. Only ARC employees were working on the roof at the time of Mr. Murray's fall. ARC had entered into a contract with the general contractor, Weatherproofing Technologies, Inc. (WTI), to perform roofing repairs at the school, and ARC employees were responsible for repairing the roof. WTI hired its subcontractors with no involvement from Defendants; ARC did not contract with either the Borough or the School District. A property owner has no duty to protect the employees of an independent contractor from risks arising from defects or hazards that the contractor has undertaken to repair or that are created by the job. Celender v. Allegheny County Sanitary Authority, 222 A.2d 461, 463 (Pa. Super. 1966); see also Beil v. Telesis Construction, Inc., 608 Pa. 273, 289, 11 A.3d 456, 466 (2011) (stating the general rule that a landowner is not responsible for the acts or omissions of an independent contractor or the contractor's employees). Therefore, Defendants owed no duty to ARC or its employees. See Thomas v. City of Philadelphia, 668 A.2d 292, 297 (Pa. Cmwlth. 1995) (holding that under the Tort Claims Act's real property exception, the city could not be held liable for the negligent acts of an independent contractor).
Moreover, the real property exception does not apply when a third party performed the negligent act that caused the injury, as in this case. The exception applies only if an employee of the local agency performed the negligent act. See Nardo v. City of Philadelphia, 988 A.2d 740, 746 (Pa. Cmwlth. 2010) (holding that the city was immune under section 8541 of the Tort Claims Act because the plaintiff failed to prove that a city employee caused the dangerous condition or the plaintiff's injuries). Here, the condition that caused the injuries—failure to warn Mr. Murray about wet paint—was created by ARC's employees, not by Defendants' employees. In fact, ARC's owner, David Thornton, testified that his company was solely responsible for safety measures at the Neidig site. (Thornton Dep., 3/23/10, at 13.) As such, Defendants cannot be held liable for Mr. Murray's injuries.
With regard to the Borough, Plaintiffs' only theory of liability is based on their allegation that the Borough had an inspector on the premises. However, the deposition testimony of the Borough employees conclusively established that the Borough never issued a permit for roofing work at the site and, as such, no inspector ever visited the site. Thus, even assuming that liability could attach had an inspection been performed, no inspection occurred here.
Accordingly, we affirm the entry of summary judgment in Defendants' favor.
/s/_________
ROCHELLE S. FRIEDMAN, Senior Judge
ORDER
AND NOW, this 20th day of March, 2013, we hereby affirm the November 30, 2011, order of the Court of Common Pleas of Bucks County.
/s/_________
ROCHELLE S. FRIEDMAN, Senior Judge