PRINTER'S NO. 1538
No. 1335 Session of 1991
INTRODUCED BY SAURMAN, SEMMEL, FARGO, TANGRETTI, VROON, JAROLIN,
HERSHEY, NAHILL, MERRY, CARN, FARMER, GAMBLE, BUNT, GEIST,
E. Z. TAYLOR, WOZNIAK, SCHEETZ, LANGTRY, FLICK, MURPHY,
TULLI, HASAY, GODSHALL AND LEE, MAY 7, 1991
REFERRED TO COMMITTEE ON JUDICIARY, MAY 7, 1991
AN ACT
1 Amending Title 42 (Judiciary and Judicial Procedure) of the
2 Pennsylvania Consolidated Statutes, further providing for
3 exceptions to governmental immunity and limitations on
4 damages in actions against local parties.
5 The General Assembly of the Commonwealth of Pennsylvania
6 hereby enacts as follows:
7 Section 1. Sections 8542 and 8553 of Title 42 of the
8 Pennsylvania Consolidated Statutes are amended to read:
9 § 8542. Exceptions to governmental immunity.
10 (a) Liability imposed.--A local agency shall be liable for
11 damages on account of an injury to a person or property within
12 the limits set forth in this subchapter if both of the following
13 conditions are satisfied and the injury occurs as [a result of
14 one of the acts] set forth in subsection (b):
15 (1) The damages would be recoverable under common law or
16 a statute creating a cause of action if the injury were
17 caused by a person not having available a defense under
18 section 8541 (relating to governmental immunity generally) or
1 section 8546 (relating to defense of official immunity); and
2 (2) The injury was caused by the [negligent acts] gross
3 negligence of the local agency or an employee thereof acting
4 within the scope of his office or duties [with respect to one
5 of the categories listed in subsection (b). As used in this
6 paragraph, "negligent acts" shall not include acts or conduct
7 which constitutes a crime, actual fraud, actual malice or
8 willful misconduct].
9 (b) Acts which may impose liability.--[The following acts]
10 Gross negligence by a local agency or any of its employees may
11 result in the imposition of liability on a local agency[:] and
12 the defense of sovereign immunity shall not be raised to claims
13 for damages caused by the gross negligence. Acting or failing to
14 act in reckless disregard of the consequences as affecting the
15 life or property of another constitutes gross negligence.
16 [(1) Vehicle liability.--The operation of any motor
17 vehicle in the possession or control of the local agency. As
18 used in this paragraph, "motor vehicle" means any vehicle
19 which is self-propelled and any attachment thereto, including
20 vehicles operated by rail, through water or in the air.
21 (2) Care, custody or control of personal property.--The
22 care, custody or control of personal property of others in
23 the possession or control of the local agency. The only
24 losses for which damages shall be recoverable under this
25 paragraph are those property losses suffered with respect to
26 the personal property in the possession or control of the
27 local agency.
28 (3) Real property.--The care, custody or control of real
29 property in the possession of the local agency, except that
30 the local agency shall not be liable for damages on account
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1 of any injury sustained by a person intentionally trespassing
2 on real property in the possession of the local agency. As
3 used in this paragraph, "real property" shall not include:
4 (i) trees, traffic signs, lights and other traffic
5 controls, street lights and street lighting systems;
6 (ii) facilities of steam, sewer, water, gas and
7 electric systems owned by the local agency and located
8 within rights-of-way;
9 (iii) streets; or
10 (iv) sidewalks.
11 (4) Trees, traffic controls and street lighting.--A
12 dangerous condition of trees, traffic signs, lights or other
13 traffic controls, street lights or street lighting systems
14 under the care, custody or control of the local agency,
15 except that the claimant to recover must establish that the
16 dangerous condition created a reasonably foreseeable risk of
17 the kind of injury which was incurred and that the local
18 agency had actual notice or could reasonably be charged with
19 notice under the circumstances of the dangerous condition at
20 a sufficient time prior to the event to have taken measures
21 to protect against the dangerous condition.
22 (5) Utility service facilities.--A dangerous condition
23 of the facilities of steam, sewer, water, gas or electric
24 systems owned by the local agency and located within rights-
25 of-way, except that the claimant to recover must establish
26 that the dangerous condition created a reasonably foreseeable
27 risk of the kind of injury which was incurred and that the
28 local agency had actual notice or could reasonably be charged
29 with notice under the circumstances of the dangerous
30 condition at a sufficient time prior to the event to have
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1 taken measures to protect against the dangerous condition.
2 (6) Streets.--
3 (i) A dangerous condition of streets owned by the
4 local agency, except that the claimant to recover must
5 establish that the dangerous condition created a
6 reasonably foreseeable risk of the kind of injury which
7 was incurred and that the local agency had actual notice
8 or could reasonably be charged with notice under the
9 circumstances of the dangerous condition at a sufficient
10 time prior to the event to have taken measures to protect
11 against the dangerous condition.
12 (ii) A dangerous condition of streets owned or under
13 the jurisdiction of Commonwealth agencies, if all of the
14 following conditions are met:
15 (A) The local agency has entered into a written
16 contract with a Commonwealth agency for the
17 maintenance and repair by the local agency of such
18 streets and the contract either:
19 (I) had not expired or been otherwise
20 terminated prior to the occurrence of the injury;
21 or
22 (II) if expired, contained a provision that
23 expressly established local agency responsibility
24 beyond the term of the contract for injuries
25 arising out of the local agency's work.
26 (B) The injury and dangerous condition were
27 directly caused by the negligent performance of its
28 duties under such contract.
29 (C) The claimant must establish that the
30 dangerous condition created a reasonably foreseeable
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1 risk of the kind of injury which was incurred and
2 that the local agency had actual notice or could
3 reasonably be charged with notice under the
4 circumstances of the dangerous condition at a
5 sufficient time prior to the event to have taken
6 measures to protect against the dangerous condition.
7 (7) Sidewalks.--A dangerous condition of sidewalks
8 within the rights-of-way of streets owned by the local
9 agency, except that the claimant to recover must establish
10 that the dangerous condition created a reasonably foreseeable
11 risk of the kind of injury which was incurred and that the
12 local agency had actual notice or could reasonably be charged
13 with notice under the circumstances of the dangerous
14 condition at a sufficient time prior to the event to have
15 taken measures to protect against the dangerous condition.
16 When a local agency is liable for damages under this
17 paragraph by reason of its power and authority to require
18 installation and repair of sidewalks under the care, custody
19 and control of other persons, the local agency shall be
20 secondarily liable only and such other persons shall be
21 primarily liable.
22 (8) Care, custody or control of animals.--The care,
23 custody or control of animals in the possession or control of
24 a local agency, including but not limited to police dogs and
25 horses. Damages shall not be recoverable under this paragraph
26 on account of any injury caused by wild animals, including
27 but not limited to bears and deer, except as otherwise
28 provided by statute.
29 (c) Limited definition.--As used in this section the amount
30 of time reasonably required to take protective measures,
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1 including inspections required by law, shall be determined with
2 reference to the actual equipment, personnel and facilities
3 available to the local agency and the competing demands
4 therefor.]
5 § 8553. Limitations on damages.
6 (a) General rule.--Actions for which damages are limited by
7 reference to this subchapter shall be limited as set forth in
8 this section.
9 (b) Amounts recoverable.--Damages arising from the same
10 cause of action or transaction or occurrence or series of causes
11 of action or transactions or occurrences shall not exceed
12 $500,000 in the aggregate.
13 (c) Types of losses recognized.--Damages shall be
14 recoverable only for:
15 (1) Past and future loss of earnings and earning
16 capacity.
17 [(2) Pain and suffering in the following instances:
18 (i) death; or
19 (ii) only in cases of permanent loss of a bodily
20 function, permanent disfigurement or permanent
21 dismemberment where the medical and dental expenses
22 referred to in paragraph (3) are in excess of $1,500.
23 (3)] (2) Medical and dental expenses, including the
24 reasonable value of reasonable and necessary medical and
25 dental services, prosthetic devices and necessary ambulance,
26 hospital, professional nursing[,] and physical therapy
27 expenses accrued and anticipated in the diagnosis, care and
28 recovery of the claimant.
29 [(4) Loss of consortium.
30 (5) Loss of support.
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1 (6)] (3) Property losses.
2 (d) Insurance benefits.--If a claimant receives or is
3 entitled to receive benefits under a policy of insurance other
4 than a life insurance policy as a result of losses for which
5 damages are recoverable under subsection (c), the amount of such
6 benefits shall be deducted from the amount of damages which
7 would otherwise be recoverable by such claimant.
8 (e) Attorney fees.--In addition to the damages provided in
9 subsection (c), the court may direct the defendant to pay
10 reasonable attorney fees.
11 Section 2. This act shall take effect in 60 days.
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