Defense Digest

The Pennsylvania Supreme Court case of Walker v. Eleby, (842 A.2d 389, Pa. Supreme Court 2004) eliminated uncertainty for determining the application of the "sidewalk exception" to governmental immunity as contained in 42 Pa.C.S. §8542(b)(7) to a sidewalk abutting a street designated as a "state highway" under 36 P.S. §670-542 of the State Highway Law. Fortunately or unfortunately, as the case may be, the Court limited the application of the Walker case to cities of the first or second class for no apparent reason. (See footnote 10 at page 402.)

The Supreme Court's limiting of the holding in Walker to cities of the first and second class is perplexing in view of the rationale underlying the Walker decision which, to a large extent, is based upon the concept that just because a street has been designated as a state highway does not mean that the street is then owned by the Commonwealth. To reach this conclusion, the Walker Court looked at 36 P.S. §670-542 and its lack of any language evincing an intent to transfer ownership to conclude that a street designated as a state highway pursuant to the State Highway Law does not mean that ownership of the street has been transferred to the state. As there is no reference in §670-542 to a transfer of ownership, the Court reasoned that ownership remains with the first or second class city through which the street runs. That conclusion enabled the Court to hold that the sidewalk exception to tort immunity does apply since the first or second class city would own the street in question, despite the fact that it had been designated as a state highway under the State Highway Law. Ownership is critical due to the language of the sidewalk exception, which requires that the street abutting the sidewalk be owned by the municipality in order for the exception to apply.

There is a parallel section of the State Highway Law contained at 36 P.S. §670-522 that applies to streets in second A and third class cities. Like §670-542, §670-522 contains no reference to ownership of the streets and, therefore, on its face, §670-522 provides the Court the same basis to hold that the sidewalk exception to tort immunity does apply to sidewalks which abut streets in second A and third class cities designated as state highways. However, as aforementioned, footnote 10 of the Walker decision specifically limits its application to cities of the first and second class. At first glace, §670-522 and §670-542 are identical and would not justify a differentiation in the application of the underlying reasoning of the Walker Court as between first and second class cities on the one hand and second A and third class cities on the other.

One possible distinction that may support the limitation of the application of the holding in Walker to first and second class cities is that §670-542 contains a specific clause stating that ". . . nothing in this section shall be construed to place upon the Commonwealth any obligation to repair and maintain the curbing and footways of any such street, . . . " Emphasis added.

While §670-522 does not include the identical language, it does state, "The obligation of the Commonwealth . . . shall be limited to that part of the street, or section thereof, between curb lines . . . " Section 670-522 goes on to state, "Maintenance . . . shall be limited to the portion of the street between existing curb lines available to vehicular traffic."

Therefore, while there is technically a difference between the literal language of §670-522 and §670-542, it is clear that neither section contemplates the Commonwealth being responsible for sidewalks. Section 670-542 achieves this by way of excluding "the curbing and footways of any such street." Section 670-522 achieves this by limiting the obligation of the Commonwealth "to that part of the street . . . between curb lines" and " . . . the portion of the street between existing curb lines available to vehicular traffic." The area between curb lines is not intended for pedestrian traffic and, therefore, cannot be considered a sidewalk. Obviously, a sidewalk is not "available to vehicular traffic." Therefore, §670-522 does not apply to sidewalks. Likewise, §670-542's use of the phrase "curbing and footways" to describe areas of the street where the Commonwealth has no obligation to repair or maintain would exclude sidewalks.

Given the extreme similarity between the areas described in §670-542 and §670-522, on what basis would the Court limit its holding to cities of the first and second class as per footnote 10 of the Walker opinion? The Walker Court specifically stated:

Because the General Assembly has not expressly provided that the Commonwealth acquires an ownership interest in a city roadway designated as a state highway nor has it indicated any legislative intent to create such an ownership interest, we find that the Commonwealth does not "own" the roadways so designated for purposes of §8542(b)(7). Walker at 401.

The Court goes on to cite §670-541 and §670-542 to state that "The General Assembly has established that city roads are designated as state highways 'for maintenance and improvement'," and it has specifically exempted the Commonwealth from "any obligation to maintain the curbing or footways of any such street or to remove snow or keep streets clean." The court goes on to say, "Given the limited scope of the Commonwealth's 'takeover' of a city road designated as a state highway, we hold that the Commonwealth does not 'own' such a road for purposes of determining Tort Claims Act immunity." The aforementioned quote ends in footnote 10, which limits the Walker decision to sidewalks abutting designated state highways located in cities of the first or second class.

Thus, it appears that the sidewalk exception to tort immunity as contained in 42 Pa.C.S. §8542(b)(7) would technically still apply to shield all municipalities, with the exception of Philadelphia and Pittsburgh, from liability arising out of the care and maintenance of a sidewalk abutting a street which has been designated a state highway. However, as pointed out, a very strong argument can be made that the Walker rationale applies as strongly to second A and third class cities as it does to first and second class cities.

*Mark is an associate in the Pittsburgh, Pennsylvania, office. He can be reached at (412) 803-1157 or mjneff@mdwcg.com.