Tort Claims Act Utility Exception Causation Failure to Remediate
Metropolitan Edison Co. v. City of Reading, PICS Case No. 17-1118 (Pa. June 20, 2017) Donohue, J., Mundy, J. (concurring), Saylor, C.J. (dissenting) (26 pages).
Commonwealth court erred in finding that appellant failed to establish a claim under the utility exception to the tort claims act because, under the exception, the focus had to be on whether the injuries alleged were caused by a dangerous condition which had its source in the local agency's utility service facility. Reversed.
Appellant's electrical wires were buried in the city's right-of-way. City sewer department workers excavated the right-of-way and exposed part of appellant's conduit bank. Concrete fell from the conduit bank into the excavation and appellant retained a contractor to make repairs. The contractor made the repairs and noted that the soil in the excavation was loose and unstable and there was no shoring to stabilize the hole. City resumed its excavation work, called contractor with concerns about erosion and contractor found that the conduit bank was intact but that the hole was deeper and the walls were falling in. Contractor warned city that hole needed to be backfilled and stabilized to provide support for the conduit bank. City continued widening and deepening the hole, never installed shoring and took no steps to prevent rain water from entering. A heavy weekend rain washed away the soil supporting the conduit and it collapsed into the hole. Appellant sued the city for negligence. City sought summary judgment arguing that it was immune from liability under the tort claims act. Appellant countered that its claim fell under the utility exception in 8542(b)(5) of the act. The trial court denied the summary judgment motion and found for appellant, determining that city performed its excavations in a manner that created a dangerous condition and that city had notice of the dangerous condition. City appealed and the Commonwealth Court reversed, finding that city was immune from liability because the dangerous condition did not arise from the sewer system but from the manner in which the excavation was carried out.
Appellant argued the Commonwealth Court erred in finding that the utility exception did not apply because the city's employees created the dangerous condition. City argued that the holding was consistent with Metro. Edison Co. v. Reading Area Water Auth., 937 A.2d 1173. The court found that the trial court correctly identified a dangerous condition of the city's facilities and located within its right-of-way, the unstable soil in the excavation hole that did not support the conduit bank. The trial court further found that the city had notice of the dangerous condition, understood the risk of collapse and breached its duty to appellant by failing to take remedial measures. The Commonwealth Court misconstrued the utility exception and erred in focusing on the cause of the dangerous condition, the negligent excavation, rather than on the cause of the collapse, the failure to remediate the dangerous condition. The originating cause of the dangerous condition was irrelevant to the proper application of the exception. The negligent act necessary to trigger the utility exception was the failure of a local agency to remediate a dangerous condition of which it had notice. The court additionally noted that Reading Water Authority was inapposite.