Chevalier v. City of Philadelphia

Dissenting Opinion by

Judge Palladino:

■Because I would affirm the decision of the Court of Common Pleas of Philadelphia County (trial court), I must respectfully dissent.

'" The trial ’ court dismissed Appellants’ action against the City on the City’s motion for judgment on *41the pleadings because Appellants failed to plead that the City had sufficient notice of the “dangerous condition” in the parking lot as required by Section 8542(b)(4) of the Political Subdivision .Tort Claims Apt, 42 Pa. C. S. §8542(,b) (4), (Act). I would,.affirm this dismissal, because Appellants do not meet, any of the conditions necessary to remove the City’s, immunity.

Appellants contend that the City failed to provide adequate illumination of the parking lot, and that this inaction falls within the exception to immunity, which imposes liability for dangerous conditions of trees, traffic signs, lights, or other traffic controls, street lights or street lighting systems under the care, custody or control of the local agency. 42 Pa. C. S. 8542(b)(4). ' ' ' '

As the majority opinion correctly points out, the immunity question is two-tiered. The initial' inquiry under Section 8542 is whether the asserted cause of action exists at common law.1 Appellants, unfortunately, do not address the question of the existence of a cause of action at common law which'would impose liability for inadequate illumination of a parking lot. In fact, the City has no duty at common law to illuminate streets, much less parking lots. Wecksler v. City of Philadelphia, 178 Pa. Superior Ct. 496, 115 A.2d 898 (1955). Therefore, Appellants have not satisfied the first condition of §8542(a).

Turning to the second tier of the immunity determination,, it is apparent that the facts alleged by Appellants do not fit within §8542(b) (4) ’s exception for *42dangerous conditions of trees, traffic lights and street lights. This exception specifically delineates the items it covers. Light or absence of light in a parking lot is not one of the specified areas of coverage.2 To so hold would be to expand this exception far beyond the scope intended by the Legislature.

Therefore, because Appellants meet neither of the two levels of inquiry necessary to impose liability on the,City, I would affirm the decision of the trial court which dismissed Appellants’ claim against the City of Philadelphia.

If this Court were to hold that inadequate illumination of an area in which criminal activity occurred was actionable under §8542 (b) (4), then an enormous burden would be placed on the City to light all areas, alleys, footpaths, etc. I do not believe this is the result the Legislature intended under §8542(b) (4).