Summary Judgment Affirmed Against School Board Where Exception to Immunity Applied Commonwealth Court of Pennsylvania, January 25, 2017

The plaintiffs filed suit against 40 defendants and the Pittsburgh School District Board of Public Education (PBE). The plaintiffs contended the defendants were responsible for Ms. Geier contracting mesothelioma while she worked as a school teacher at South Hill High School from 1959-59. During discovery, Ms. Geier stated in an affidavit that she was occupationally exposed to 1) pipe coverings, 2) floor tile, 3) drywall, and 4) joint compound.

At the close of discovery, PBE moved for summary judgment and asserted the defense of governmental immunity under the Torts Claims Act. Specifically, PBE argued that it was immune from the plaintiff’s claim under the Utility Service Facilities section of the Tort Claims Act. Exceptions applied when: A dangerous condition of the facilities of steam, sewer, water, gas, or electric systems owned by the local agency and located within the rights of way, except that the claimant to recover must establish the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred. Also, that the local agency had actual notice or could reasonably be charged with notice under the circumstances of the dangerous condition at a sufficient time prior to the event to have taken measures to protect against the dangerous condition. The court honed in on the implied argument by the plaintiff that the real property exception was also at issue. With that exception, immunity may not be asserted where the property was  “a facilities of steam, sewer, water, gas and electric systems owned by the local agency and located within the rights of way.” The trial court denied summary judgment.

On appeal, PBE argued that as a “local government agency”, it was immune to suit under the Tort Claims Act. Plaintiff on the other hand, argued that PBE breached its common law duty of care in creating a safe work place for Ms. Geier. However, none of the eight exceptions to immunity applied. Therefore, it was immune according to PBE. Moreover, even if the utility services exception applied, the plaintiff had not proved that PBE had knowledge of a dangerous condition. According to PBE, the trial court erred in denying summary judgment.

The plaintiff countered and took the position that PBE, under common law and as a property owner, owed a duty of care to keep Ms. Geier safe from dangers. Further, PBE had a duty to discover those dangers according to the plaintiff.

In its analysis, the court stated it rejected “PBE’s defense that the Plaintiffs failed to identify the rights of way that contain utility service facilities in question.” Specifically, the court noted that the utility services were found within PBE’s building. However, the court agreed that the exception only applied if the plaintiff put forth evidence that PBE had knowledge of the dangerous condition. Here, Ms. Geier had testified that she “had no knowledge that any PBE employee or representative was aware of the potential hazards of asbestos at South High School during the 1958-1959 school year.”

The court examined the real property exception and found that “dangerous condition” was not written into the exception for real property. Instead, the exception applies a standard of negligence in real property. Relying on the recent Tooey decision, the court concluded that PBE owed Ms. Geier the duty of a business invitee which is the highest duty owed for entry upon land. Here, Ms. Geier had testified that she saw men mixing bags of powder with water from the school water fountains. She recalled seeing joint compound and asbestos on the bags. Also, men installed floor tiles to repair old cracked tiles. Of note, the court pointed out that it was unclear from the record whether the issue of notice of a dangerous condition was before the trial court. Although PBE raised that issue on appeal, the court was not “convinced the notice issue was part of the trial court’s denial of summary judgment.” Accordingly, the court declined to reverse on the issue of notice.

Based on the holding in Tooey, the court found that it  “is possible for a local agency to be liable to an employee for workplace exposure to asbestos dust, if the condition causing the exposure falls within one of the exceptions to governmental immunity. Here, the evidence was sufficient that the plaintiff had alleged a dangerous condition from PBE’s use of asbestos containing products within its utility services and real property. Denial of summary judgment was affirmed.

Read the full decision here.


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