Johnson v. Southeastern Pennsylvania Transportation Authority

Opinion by Judge Rogers, The appellants, Esther Powell Johnson and William D. Johnson, sued the City of Philadelphia and the Southeastern Pennsylvania Transportation Authority (SEPTA) in trespass for damages on account of injuries to Mrs. Johnson. The Court of Common Pleas of Philadelphia County granted the city’s Motion for Judgment on the ground that the Johnsons’ claim was barred by the city’s governmental immunity 'Conferred by the Political Subdivision Tort Claims Act (Act).1 SEPTA is not involved in this appeal. While leaving the Broad Street subway concourse at the Tasker-Morris Station on July 11, 1980, Mrs. [589] Johnson was assaulted, thrown against a subway wall and injured by a person bent on stealing her purse. The appellants averred that the city and SEPTA owned, possessed, maintained and controlled jointly or severally the place where she was injured; that Mrs. Johnson was a business invitee of the defendants ; that the defendants were on notice of the prevalence in the concourse of criminal activity, including molestation and assault of passengers; and that the defendants negligently faded to provide protection for passengers. Section 201 of the Act provided political subdivisions with immunity from damages on account of any injury to persons or property caused by acts or omissions of the political subdivision or its employes. Section 202 of the Act created exceptions to the provision of immunity on the condition, mter alia, that the damages would be such as “would be recoverable at common law.” Section 202(a). The appellants contend that they have stated a cause of action which brings them within an exception to the rule of immunity created by Section 202(b) (3) of the Act which provides as follows: Section 202. Exceptions to governmental immunity. (b) Actions or activities which may impose liability. — The following acts or activities by a political subdivision or any of its employees may result in the imposition of liability on a political subdivision: (3) The care, custody or control of real property in the possession of the political subdivision, — We agree with the appellants. [590] In the recent ease of Mascaro v. Youth Study Center, 89 Pa. Commonwealth Ct. 388, 492 A.2d 786 (1985), we held that the exception provided by the successor to Section 202(b) (3), to be found at 42 Pa. C. iS. §8542¡(b),(3), was intended iby the Legislature to waive immunity in all cases where the political subdivision’s negligent care, custody and control of real property results in injuries to others for which damages would be recoverable at common law. Hence, the question becomes that of whether the facts pleaded by the instant appellants described a cause for which damages would be recoverable at common law or a statute creating a cause of action. Clearly they did. Section 344 of the Bestatement (Second) of Torts (1965), provides that A possessor of land who holds it open to the public for entry for his business purposes is subject to liability to members of the public while they are upon the land for isuch a purpose, for physical harm caused by the accidental, negligent, or intentionally harmful acts of third persons or animals, and by the failure of the possessor to exercise reasonable care to (a) discover that such acts are being done or are likely to be done, or (b) give a warning adequate to enable the visitors to avoid the harm, or otherwise to protect them against it. In Moran v. Valley Forge Drive-In Theater, Inc., 431 Pa. 432, 246 A.2d 875 (1968), the Supreme Court approved jury instructions submitting to the jury under Section 344 the case of a person injured by the explosion of a firecracker set off by rowdy teenagers in a movie theater rest room. Although the case of Carswell v. Southeastern Pennsylvania Transportation Authority, 259 Pa. Superior Ct. 167, 393 A.2d 770 (1978), another case founded on Section 344, went off [591] on an evidentiary question, the proven facts — an injury to a transit passenger caused by third parties at a station where acts of rowdyism had occurred in the past — were held to be a sufficient basis for a jury’s verdict. In Murphy v. Penn Fruit Company, 274 Pa. Superior Ct. 427, 418 A.2d 480 (1980), the Superior Court affirmed a judgment entered on a jury verdict for plaintiffs on account of injuries suffered in the defendant’s parking lot at the hands of purse snatchers and approved jury instructions submitting the case under Section 344. These cases establish Section 344 as the common law of the Commonwealth. The facts of this case as pleaded by the appellants, it can be seen, are materially identical to those of the cases cited. We therefore reverse the judgment entered in favor of the city and we remand the record to the trial court for further proceedings. Order And Now, this 11th day of September, 1985, we reverse the judgment entered in favor of the City of Philadelphia and remand the record to the trial court for further proceedings. Judge Williams, Jr. did not participate in the decision in this case. Footnotes [1] The Political Subdivision Tort Claims Act, Act of November 26, 1978, P.L. 1399, as amended, 53 P.S. §§5311.01-5311.S03 was repealed by Act of October 5, 1980, P.L. 693. Sections of the Act relevant to this appeal were recodified with little substantive change in Sections 8541 and 8542 of the Judicial Code, 42 Pa. C. S. §§8541, 8542. Because Mrs. Johnson was attacked on July 11, 1980, prior to the December 4, 1980 effective date of the Judicial Code, the Act of November 26, 1978 applies to the appellants’ claims.