Assessing liability for a municipality under the Real Property Exception of the Tort Claims Act (TCA) can sometimes be as clear as mud.
In the recent past, a municipality could reasonably figure out if they would be faced with liability for real estate under their care, custody or control. If an injury was not caused by the real estate itself, no liability generally existed. For example, if an individual tripped on an object on the ground, such as a broken chair, there would be no liability as the dangerous condition must be a (physical) part of the real estate. Lawsuits were then filed to determine exactly what was part of the land and what was not. For example, unsecured bleachers at a ball field was not part of the land nor were folded tables stacked up against a gymnasium wall which fell injuring a student.
The standard seemed simple enough, “of” vs.“on,” but then came along a case holding that an injury caused by fluid on a township building floor being cleaned by a township employee created liability because it arose from the care of the real property (the Grieff case). This seemed to represent a more expansive approach rather than the “narrow construction” standard set earlier by the PA Supreme Court.
Where does that leave us?
With two apparently conflicting theories. Furthermore, starting with the wrong analysis could end up with the wrong result. That claim we thought fit neatly in the Blocker analysis (bleacher on the land), might actually be a Grieff analysis (liquid on a floor).
Confused yet? Join the crowd. Here’s why:
In a case decided just a few months ago, a three-judge panel of Pennsylvania’s Commonwealth Court found that an individual who tripped over a computer cable laying on the floor could not sue the County which owned and maintained the building, because the cable was not affixed to the floor; it was merely an object on its surface. The Blocker approach used to its logical conclusion. But wait, we’re not done yet. That decision was not unanimous. One judge disagreed, arguing that a jury should determine whether the cable was arranged in a fashion that impeded her ability to walk away from that location without falling, which she thought could reasonably be characterized as maintenance of the real property – the Grieff approach, in an incorrect application. Fortunately, this disagreeing or “dissenting opinion” is not controlling, but it is lurking. Thus, the quagmire. Which theory and analysis any given judge will use, is as clear as mud.
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