Hamiter v. Consolidated Rail Corp.

Opinion by Judge Rogers, The parents of Yahan Hamiter, a minor, have sued the City of Philadelphia (city) and others for themselves and in behalf of their son (appellants) in trespass for personal injuries sustained when a train ran over their sons leg. They appeal from an order of Judge Alfred J. DiBona, Jr, of the Court of Common Pleas of Philadelphia County which granted the city’s motion for summary judgment based on the immunity conferred by the Judicial Code at 42 Pa. C. S. §8541. The evidence shows that on June 9, 1982, young Hamiter, then eight years old, was playing at a city-owned vacant lot, formerly a lumberyard. He and his friends were amusing themselves for a time throwing rocks. They then left the lot and proceeded down a hill and onto property owned either by the Consolidated Rail Corporation (Conrail) or the Southeastern Pennsylvania Transportation Authority (SEPTA). They were looking for uninflated basketballs. Young Hamiter crossed the railroad tracks and got a basketball, which was in bushes. He was walking to retrieve another bas [256] ketball when he caught his foot in the track and could not dislodge it. He was injured by a train. The appellants alleged in their complaint that the city “by its agents, servants, employees and workmen, acting within the course and scope of their employment, owned, controlled, possessed, maintained and policed a vacant lot located at 3901-13 N. 13th Street, adjacent to the accident site, from which the minor plaintiff gained access to Conrads and SEPTAs right of way”; that the city was “liable for damages on account of the serious and permanent injuries suffered” by him; and “that the defense of governmental immunity is inapplicable by reason of the exceptions recognized in 42 Pa. C. S. §8542.” They further alleged that the city was negligent because it foiled to warn “neighborhood children of the dangers involved in using its premises as a means of ingress and egress from Conrads right of way” and failed “to repair the retaining wall and embankment adjacent to their premises so that neighborhood children would not be able to gain access to Conrads right of way by trespassing across the city’s property.” As first noted, Judge DiBona granted the city’s motion for summary judgment. The Judicial Code provides at 42 Pa. C. S. §8541 that, subject to exceptions, a local agency shall not be liable for damages on account of an injury to a person or property caused by an act of the agency or its employees. The eight exceptions to immunity are found in 42 Pa. C. S. §8542(b). However, to surmount the bar to liability by recourse to the eight exceptions, the plaintiff must, pursuant to 42 Pa. C. S. §8542(a)(l), first satisfy the condition that the damages claimed would be recoverable under common law or a statute creating a cause of action if the injury were caused by a person not enjoying governmental immunity. [257] The appellants rely on the exception to immunity at 42 Pa. C. S. §8542(b)(3) for negligent care, custody, or control of the local agency’s real property. The city contends, however, that the appellants may not invoke the exception because they have not stated a cause for which damages could be recovered under common law. We agree with the city. Our recent case of Kearns v. Rollins Outdoor Advertising, Inc., 89 Pa. Commonwealth Ct. 596, 492 A.2d 1204 (1985), is directly on point and controlling. There, a fourteen year-old boy crossed a field of a city playground, passed through a hole in the chain link fence around the playground, and went to a billboard owned by an advertising enterprise located on land owned either by SEPTA or Conrail. The boy climbed the billboard, fell, was injured, and sued the City of Philadelphia. In affirming the order of the trial court granting the city’s motion for summary judgment, we held that a plaintiff seeking damages for injuries suffered by an encounter with a hazardous artificial condition of land cannot recover damages at law from the owner of land over which he passed to reach the land on which the dangerous condition existed. Young Hamiter claims injury by a train on land other than the city’s lot and cannot under the law recover damages from the city over whose land he passed to reach either SEPTAs or Conrads land on which the train ran. He therefore did not satisfy the condition upon which the application of the exception depended. Order affirmed. Order And Now, this 19th day of June, 1986, the order of the Court of Common Pleas of Philadelphia County in the above-captioned matter is affirmed.