White v. School District of Philadelphia

NIGRO, Justice,

dissenting.

I dissent from the majority’s conclusion that the School District is immune from liability in this case. The School District’s alleged negligence with respect to the operation of its motor vehicle falls squarely within the motor vehicle exception to governmental immunity.

*222Under the Political Subdivision Tort Claims Act, the School District is not immune from liability if Appellees’ damages would be recoverable from a person without an immunity defense and their injuries were caused by the School District’s negligent acts with respect to the operation of a motor vehicle in its possession or control. See 42 Pa. Cons.Stat. § 8542(a),(b)(1)(setting forth the exceptions to governmental immunity).

The issue raised here is whether the School District was allegedly negligent with respect to the operation of a motor vehicle. The Court addressed when an agency “operates” a vehicle for purposes of governmental immunity in Love v. City of Philadelphia, 518 Pa. 370, 543 A.2d 531 (1988). In Love, the plaintiff required help boarding and exiting a City-owned van that transported her to an adult center run by the City. The driver typically parked the van, placed a portable step at the van door, and assisted the plaintiff in and out. The plaintiff fell one afternoon when exiting the van.

In considering whether the motor vehicle exception to governmental immunity applied to the plaintiffs subsequent lawsuit, the Court strictly construed the term “operation” in accordance with its common usage and held that it means putting a vehicle in motion. Id. at 375, 543 A.2d at 533. Since the van was parked and thus not in operation when the plaintiff exited, the City was immune from suit. Id.

Consistent with Love, the Commonwealth Court held in Vogel v. Langer, et al, 131 Pa. Commw. 236, 569 A.2d 1047 (1990), that the motor vehicle exception applied where a transit authority bus driver waved another motorist into an intersection and allegedly caused an accident. In Vogel, a car and a truck collided at an intersection after a municipal bus driver, who was stopped in traffic at the intersection, signaled to the truck driver with his hand to proceed into the intersection. The court held that the motor vehicle exception to immunity applied since the bus driver was not parked and had only momentarily stopped the bus in traffic. Id. at 239, 569 A.2d at 1048. The court stated that the operation of a motor vehicle entails temporary stops and communication with other *223drivers. Id. It found signals like waving to be acts normally related to the operation of a vehicle. Id.1

Similarly, an accident occurred in the present case after the School District’s bus driver, while temporarily stopped on the roadway with the motor running, checked his mirrors and then waved to Vernon White, who had alighted from the bus, to cross the street. Like in Vogel, the driver’s actions were normally related to the operation of the bus. Along with using mirrors and checking traffic, the Pennsylvania School Bus Driver’s Manual requires drivers to give a signal to alighted passengers. As recognized by the Commonwealth Court, whether a signal is to a motorist as in Vogel, or a pedestrian as in this case, is a distinction without a difference. Both acts are integral to the operation of a motor vehicle.

The majority apparently accepts the Commonwealth Court’s decision in Vogel but declines to apply it to the similar facts of this case. The majority does not explain, however, how a driver’s signal to a pedestrian while driving is any less integral to the operation of the vehicle than a driver’s signal to another motorist.2

Consistent with Vogel, the Commonwealth Court properly held that the School District is not immune from liability. This result is also consistent with a recent decision of this Court recognizing that the plain language of the motor vehicle exception encompasses negligent acts related to the operation of a vehicle. See Mickle v. City of Philadelphia, 550 Pa. 539, 707 A.2d 1124 (1998) (City not immune where plaintiff was *224injured while riding in a City-owned vehicle due to negligent maintenance of the vehicle). For these reasons, I dissent.

CAPPY and NEWMAN, JJ., join in the dissenting opinion.

. Vogel involved the Sovereign Immunity Act, which similar to the Political Subdivision Tort Claims Act, provides that Commonwealth agencies are not immune from claims for damages caused by the operation of a motor vehicle in the possession or control of a Commonwealth party. See 42 Pa. Cons.Stat. § 8522(b)(1).

. In an unpersuasive attempt to distinguish Vogel, the majority states that the action complained of here is not the physical operation of the bus but rather the driver’s act of attempting to supervise the student after he alighted. To the contrary, Appellees argue that while operating his vehicle, the bus driver negligently checked his mirrors and waved Vernon White into the path of an oncoming car.