dissenting.
I respectfully dissent to the majority’s conclusion that the trial court did not err in its refusal to grant the City’s motion for judgment n.o.v. I believe that “willful or malicious failure to guard or warn” is synonymous with “willful misconduct” and therefore disagree with the majority’s conclusion that Section 8542(a) of the Judicial Code (Code), 42 Pa.C.S. § 8542(a), does not bar suit in the present matter against the City.
Section 3 of the Recreational Use of Land and Water Act (Recreation Act),1 68 P.S. § 477-3, provides:
Except as specifically recognized or provided in section 6 of this act, [68 P.S. § 477-6], an owner of land owes no duty of care to keep the premises safe for entry or use by others for recreational purposes, or to give any warning of a dangerous condition, use, structure, or activity on such premises to persons entering for such purposes. (Emphasis added.)
Section 6 of the Recreation Act, 68 P.S. § 477-6, states that owners will not incur liability for injury to persons entering their land for recreational purposes unless the owner willfully or maliciously fails “to guard or warn against a dangerous condition, use, structure, or activity.” The majority concludes, and I agree, that the City is liable under the Recreation Act because the evidence supports a finding that they willfully or maliciously failed to warn or guard against the dangerous conditions of Devil’s Pool. However, as noted by the majority, the immunity provision of the Recreation Act must be read in pari materia with the immunity provision of the Code. Majority Opinion at 1380. (Citation omitted.)
Pursuant to the Code a local agency will be liable for injury to a person only if “the injury was caused by the negligent acts of the local agency or an employee thereof....” 42 Pa.C.S. § 8542(a)(2). (Emphasis added.) “Willful misconduct” does not constitute a “negligent act” for purposes of this section of the Code. Id. Thus, the question of whether the City is immune from suit hinges upon whether the City’s “willful or malicious failure to guard or warn” is considered a “negligent act” or “willful misconduct”.
The majority attempts to distinguish “willful or malicious failure to guard or warn” from “willful misconduct” by assigning to each phrase a different state of mind.
Willful denotes an act of commission, requiring proof “that the actor [affirmatively] desired to bring about the result that followed, or at least [knew that] it was substantially certain to follow.” (Citation omitted.) On the other hand, a willful failure to guard or warn denotes an actor’s failure to act or an intentional omission rather than an actor’s intentional desire to harm, kill, or maim.
Majority opinion at 1381. The implication of the majority’s interpretation is that one who willfully fails to guard or warn of a dangerous condition has no desire to bring about harm, or no knowledge that harm is substan*1384tially certain to be the result of his/her inaction. With this distinction I do not agree. Further, the majority’s own analysis does not support this conclusion.
In determining that the City is liable under the Recreation Act, the majority relies on a Superior Court case which equates the standard of “willful or malicious failure to guard or warn” to the standard owing to gratuitous licensees at common law, that being, liability for willful or wanton injury. Majority opinion at 1379 (citing Baran v. Pagnotti Enterprises, Inc., 402 Pa. Superior Ct. 298, 302-03, 586 A.2d 978, 980-81 (1991)). The Superior Court states that Section 342 of the Restatement (Second) of Torts, entitled “Dangerous Conditions Known to Possessor”, should be relied upon “[i]n defining the wilful and wanton standard applicable in the cases involving gratuitous licensees.” Id. Restatement (Second) of Torts § 342 (1964) provides:
§ 342. Dangerous Conditions Known to Possessor
A possessor of land is subject to liability for physical harm caused to licensees by a condition of the land if, but only if,
(a) the possessor knows or has reason to know of the condition and should realize that it involves an unreasonable risk of harm to such licensees, and should expect that they will not discover or realize the danger, and
(b) he fails to exercise reasonable care to make the condition safe, or to warn the licensees of the condition and the risk involved, and
(c) the licensees do not know or have reason to know of the condition and the risk involved. (Emphasis added.)
According to the majority’s analysis, in order to make a determination that the City “willfully or maliciously failed to guard or warn” pursuant to Section 6 of the Recreation Act, which the majority did, the court must conclude that the City: (1) had knowledge of the dangerous condition of Devil’s Pool; (2) should have realized that such condition involved an unreasonable risk of harm to the public; and (3) failed to exercise reasonable care to make the condition safe, or to warn the public. These elements are consistent with those in the majority’s definition of willful misconduct, that being, “that the actor [affirmatively] desired to bring about the result that followed, or at least [knew that] it was substantially certain to follow.” Majority opinion at 1381 (citing Diaz v. Houck, 159 Pa.Commonwealth Ct. 274, 283-4, 632 A.2d 1081, 1085 (1993)). (Emphasis added.) However, the majority also states that “willful or malicious failure to guard or warn” is not synonymous with “willful misconduct” because the City did not possess the “desire to harm, kill, or maim”. Majority opinion at 1381. In making this conclusion, the majority disregards the fact that a desire to harm is not necessarily required for conduct to rise to the level of willful misconduct. The definition of willful misconduct upon which the majority relies states that as long as the actor knows that harm will most likely follow, the conduct is willful misconduct. In the present case, the evidence supports a conclusion that the City knew of the dangerous conditions of Devil’s Pool, and knew that someone would most likely be injured as a result of their failure to guard or warn.
I disagree also because the majority’s conclusion that suit against the City is not barred by Section 8542(a) of the Code implies a finding that the City’s failure to guard or warn was a “negligent act”. Although not defined in the Recreation Act, courts have consistently found the term willful to denote acts “done voluntarily or intentionally or knowingly, as distinguished from accidental.” Jones v. Cheltenham Township, 117 Pa.Commonwealth Ct. 440, 444-45, 543 A.2d 1258, 1260 (1988) (citing Rosa v. United States, 613 F.Supp. 469, 476 (M.D.Pa.1985)). Further, our Court has previously held that the phrase “negligent acts” in Section 8542(a)(2) does not include a willful or malicious failure to act. See, Jones v. Cheltenham Township, 117 Pa.Commonwealth Ct. 440, 543 A.2d 1258 (1988); Zlakowski v. Commomvealth, Department of Transportation, 154 Pa.Com*1385monwealth Ct. 528, 624 A.2d 259 (1993). In addition, the portion of the majority’s opinion which equates “willful or malicious failure to guard or warn” with the “willful or wanton injury” standard owing to gratuitous licensees does not support a conclusion that the City’s acts were negligent.
Negligence consists of inattentiveness or inadvertence, whereas wantonness exists where the danger to the plaintiff, though realized, is so recklessly disregarded that, even though there be no actual intent, there is at least a willingness to inflict injury, a conscious indifference to the perpetration of the wrong.
Kasanovich v. George, 348 Pa. 199, 203, 34 A.2d 523, 525 (1943).
Based upon the above, I disagree with the majority’s conclusion that Section 8542(a) of the Code does not bar suit because the City possessed no “intentional desire to harm, kill, or maim.” Accordingly, I would reverse the decision of the trial court and grant the City’s motion for judgment n.o.v.
DOYLE, J., joins in this dissent.
. Act of February 2, 1966, P.L. (1965) 1860, 68 P.S. §§ 477-1-477-8.