Wade Clark Mulcahy LLP

So, you’ve been sued because someone was injured, or possibly damaged their personal property, due to a defect in the road or street next to your property. Are you responsible?

While the specific circumstances of any given case will always be the factors that determine the ultimate answer, as a general matter, a property owner does not own the public street or road, and the municipality might be the real party at fault.

Pennsylvania’s Political Subdivision Tort Claims Act states that “no local agency shall be liable for any damages on account of any injury to a person or property caused by an act of the local agency or an employee thereof or any other person.” 42 Pa.C.S. § 8541. There are exceptions however. See e.g. 42 Pa.C.S. § 8542(b)(6) (enumerating the street related exception).

There is a body of caselaw concerning various iterations of the municipality’s responsibility for a public street. For example, the Pennsylvania Supreme Court stated that [u]nder Pennsylvania law “a municipality is required to construct and maintain its highways in such a manner as to protect travelers from dangers which, by the exercise of normal foresight, careful construction and reasonable inspection, can be anticipated and avoided.” Mitchell v. Rochester Borough, 395 Pa. 373, 378, 150 A.2d 338, 340 (1959). A municipality owes this duty not only to motor vehicles, but to pedestrians who, in the absence of sidewalks, have rights “equal” to those of motor vehicles on roadways. Neidlinger v. Haines, 331 Pa. 529, 532, 200 A. 581, 582 (1938).

The type of precautions that are to be taken by a municipality in the construction and the maintenance of a safe highway is ascertained by examining the nature of the traffic which uses a roadway. Rodgers v. Shaler Township, 164 Pa.Super. 558, 560, 67 A.2d 806, 808 (1949). A municipality's duty “is not confined to maintaining the bed of . . . (a) road in a solid and safe condition and clear of obstructions, but extends to the erection of barriers or other devices for guarding unsafe and dangerous places on or along . . . (a) road.” Rodgers, supra. The question of whether a municipality has taken the requisite precautions which it owes to travelers is one for the jury. Mitchell, supra.

Drew v. Laber, 477 Pa. 297, 300–01, 383 A.2d 941, 943 (1978).

Another example would be Leiphart v. City of Philadelphia, 972 A.2d 1239 (Pa. Cmwlth. 2009) (in which the court found the municipality to be liable for the plaintiff’s injuries under the street exception because the municipality owned the street, oversaw work performed on the street, and inspected the work, thus making the risk of a fall reasonably foreseeable and giving the municipality actual notice of the dangerous condition); see also Redmond v. Dep't of Transportation, 194 A.3d 229, 231 (Pa. Commw. Ct. 2018).

In a more recent case, the Pennsylvania Supreme Court handed down a ruling in Degliomini v. ESM Prods., Inc., 253 A.3d 226, 228 (Pa. 2021). In Degliomini, a bicyclist was injured after he rode his bicycle into an unmarked and un-barricaded sinkhole “which measured sixteen square feet in area and six inches deep” during a charity ride; thereafter bringing an action in negligence against Philadelphia and other parties. Id. at 229. Though the Degliomini Court’s holding was focused on the enforceability of an exculpatory clause found in a release, the court stated the following with regard to the municipality (specifically Philadelphia in this case):

[t]he common law cause of action for negligent breach of a municipality's non-delegable duty to repair dangerous street conditions is perhaps older than most of Philadelphia's streets themselves; recognized and enforced for over a century, the duty withstood the evolution of governmental immunity in Pennsylvania throughout the late-nineteenth and twentieth centuries, which otherwise shielded municipalities and their employees from tort liability in most circumstances as a rule with few exceptions. See, e.g., Drew v. Laber, 477 Pa. 297, 383 A.2d 941, 943 (1978) (“Under Pennsylvania law a municipality is required to construct and maintain its highways in such a manner as to protect travelers from dangers which, by the exercise of normal foresight, careful construction and reasonable inspection, can be anticipated and avoided.”) (internal quotation omitted); Good v. Philadelphia, 335 Pa. 13, 6 A.2d 101, 102 (1939) (“[T]he liability of a municipality for injuries suffered as a result of defects in the highway arises only when it has notice, actual or constructive, of the existence of a dangerous condition.”); Lawrence v. City of Scranton, 284 Pa. 215, 130 A. 428, 430 (1925) (“The primary duty of keeping its streets in travelable condition is on the city. When public safety is concerned, this duty cannot be delegated to others.”) (internal quotation and citation omitted); Harvey v. City of Chester, 211 Pa. 563, 61 A. 118, 118 (1905) (“The primary duty of keeping its streets in travelable condition is on the city, and, while it may turn over their control to an independent contractor for specified purposes and limited time, it cannot by contract relieve itself indefinitely from its duty in that regard.”)

Id. at 240–41. Though the common law cause of action referenced above has been replaced by Pennsylvania’s Political Subdivision Tort Claims Act (see above), the exception for street related claims remains and a municipality cannot in every circumstance avoid liability by way of immunity. Further, the Pennsylvania Supreme Court “has interpreted the Tort Claims Act Subsection 8542(b)(6) exception to immunity for dangerous conditions of municipally-owned streets consistently with Subsection 8522(b)(4) of the Sovereign Immunity Act (relating to waiver of immunity for Commonwealth real estate, highways and sidewalks), and held a municipality owes a duty of care to those using its property ‘to make its highways reasonably safe for their intended purpose,’ ‘such as to require that the condition of the property is safe for the activities for which it is regularly used, intended to be used or reasonably foreseen to be used[.]’” Degliomini at, 243 (citing McCalla v. Mura, 649 A.2d 646, 649 (Pa. 1994)).

The takeaway from all this then, is that a public street defect alleged by a plaintiff might very well be the responsibility of the municipality and not (circumstances depending) on an adjacent property owner. Likewise, just because the municipality enjoys the benefit of immunity for some lawsuits in negligence, does not mean that it will be immune in every case and close attention to immunity exceptions must be paid and examined.