 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
Pennsylvania State Police v. Klimek4/15/2002
issal of a plaintiff's claim against Allegheny County and the Allegheny County Police due to that plaintiff's failure to allege facts that fell within any of the exceptions to governmental immunity articulated in Section 8542(b) of the Judicial Code.
Secondly, the Police argued before the trial court that, for the personal property exception to sovereign immunity to apply, the boot laces themselves must be inherently dangerous or defective.
The Police's theory that the boot lace was not in the possession or control of the Police, and the Police's reliance upon Mascaro and Harding as excluding the exceptions at issue, were not raised or addressed before the trial court. Therefore, these theories are deemed to be waived. Kimmel; Borough of Edgewood.
Under the general rubric of the Police's first issue, one issue has been tangentially preserved for our review by the Police that was advanced before the trial court: whether the boot lace with which Klimek hanged himself caused Klimek's death. The Police assert that Bufford v. Department of Transportation, 670 A.2d 751 (Pa. Cmwlth. 1996) stands for the proposition that the personal property exception of Section 8522(b)(3) does not apply to the instant facts because Klimek's own actions, and not the boot lace itself, caused Klimek's death. We fail to read Bufford as standing for this principle. In Bufford, this Court held that the personal property exception did not apply to the Department of Transportation's alleged negligence in inaccurately maintaining a driver's records, which alleged negligence was advanced as the cause of the driver's arrest. The Department's actions in that precedent were too remote and unrelated to that driver's subsequent arrest to fall within the exception as a cause of the driver's injury. We held that the personal property exception "only applies in cases where the personal property itself causes the plaintiff's injuries; the personal property must be involved in the chain of causation." Bufford at 753 (emphasis supplied). In the instant case, we conclude that any assertion that the boot lace recovered by Klimek, and subsequently used in his suicide, was not within the chain of causation of his death is without merit. We agree with the trial court that Klimek's allegations that the boot lace was used by Klimek to hang himself constitutes that boot lace's involvement in the chain of causation, and therefore may fall within the personal property exception to the Police's sovereign immunity.
The Police's second issue of the instant appeal addresses the applicability of the real property exception of Section 8522(b)(4) to sovereign immunity. Before the trial court, the Police asserted that: 1.) Klimek's allegations of negligence alone are insufficient, absent an allegation that an existing in-place, artificial condition of real property caused Klimek's death, and; 2.) Jones v. Southeastern Pennsylvania Transportation Authority, 565 Pa. 211, 772 A.2d 435 (2001), requires the court to inquire whether the dangerous condition alleged by Klimek derived, originated, or had its source in the Commonwealth realty in question, namely, the barracks and cell. Before this Court, however, the Police again rely on Mascaro and Harding, and again raise an argument that was not presented to the trial court.
In the instant appeal, the Police argue that Mascaro precludes the application of the real estate exception in cases where, as here, a plaintiff alleges negligence in the form of a failure to properly supervise. Alternatively, the Police argue that Harding construes the real estate exception articulated within Sections 8541-8542 of the Political Subdivision Tort Claims Act to exclude claims based on de
Page 1 2 3 4 5 Pennsylvania DUI Attorneys
DUI Lawyers
|
| |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|