Moore v. PA. DEPT. OF JUSTICE
Moore v. PA. DEPT. OF JUSTICE
Concurring Opinion
Concurring Opinion by
This excellent majority opinion reaches a result in which I fully concur, but I am constrained to write a concurring opinion because of my concern with the majority’s attempt to distinguish Allentown State Hospital v. Gill, 88 Pa. Commonwealth Ct. 331, 488 A.2d 1211 (1985). The effort to distinguish it reaffirms this court’s decision in Gill, and with that I cannot agree. I believe the holding in Gill has been effectively reversed by recent decisions of our Supreme Court.
In Gill, the plaintiff brought suit against a state mental hospital and three of its doctors for injuries she incurred as the result of an assault by Arthur Metzer, a former patient of the hospital. Ms. Gill filed a complaint in trespass alleging the hospital and doctors had negligently released and supervised Mr. Metzer. The hospital and doctors raised sovereign immunity as an affirmative defense, and then sought judgment on the pleadings, asserting that immunity barred the suit.
We affirmed the common pleas court’s denial of judgment on the pleadings, holding that sovereign im
Section 8522 provides as follows:
Liability Imposed—The General Assembly, pursuant to Section 11 of Article I of the Constitution of Pennsylvania, does hereby waive, in the instances set forth in subsection (b) only and only to the extent set forth in this subchapter and within the limits set forth in section 8528 (relating to limitations on damages), sovereign immunity as a bar to an action against Commonwealth parties, for damages arising out of a negligent act where damages would be recoverable under the common law or a statute creating a cause of action if the injury were caused by a person not having available the defense of sovereign immunity.
(b) Acts which may impose liability—The following acts by a Commonwealth party may result in the imposition of liability on the Commonwealth and the defense of sovereign immunity shall not be raised to claims for damages caused by:
(2) Medical-professional liability.—Acts of health care employees of Commonwealth agency medical facilities or institutions or by a Commonwealth party who is a doctor, dentist, nurse or related health care personnel.
Based on this language, the Gill court concluded that the legislature had waived the immunity of the sovereign in cases where the acts of a third party caused the harm complained of.
When faced with the same issue, although with a different exception; in Mascaro v. Youth Study Center,
This court then went on to state:
The recent case of Allentown State Hospital v. Gill, 88 Pa. Commonwealth Ct. 331, 488 A.2d 1211 (1985), in which a suit was brought by third persons injured by a mental patient, who the plaintiffs alleged had been negligently released from custody by Commonwealth health employees and agencies, is consistent with our present holding. The Commonwealth defendants contended that 42 Pa.C.S. §8522(b)(2), waiving the Commonwealth’s sovereign immunity as a bar to actions for damages arising out of negligent acts of Commonwealth health care employees or institutions, was intended to confer the right to recover damages only upon direct consumers of the services of Commonwealth health care employees and institutions. We held in Gill that the legislature, having limited the waiver to damages recoverable at common law intended to extend the right to recover to all persons, including the plaintiffs in this case, whose damages would be recoverable under the common law. As we have earlier noted, the Act under consideration in the instant case similarly limits and, in so limiting, extends its waiver to all cases where damages are recoverable at common law.
Id., 492 A.2d at 789-90.
Except as otherwise provided in this subchapter, no local agency shall be liable for any damages on account of any injury to a person or property caused by any act of the local agency or an employee thereof or any other person.
514 Pa. at 361, 523 A.2d at 1123. After noting that exceptions must be narrowly interpreted, the court went on to státe: “Acts of others . . . are. specifically excluded in the general immunity section (42 Pa. C. S. §8541), and are nowhere discussed in the eight exceptions. On this basis alone, we must conclude that any harm that others cause may not be imputed to the local agency or its employees.” 514 Pa. at 362, 523 A.2d at 1124 (emphasis in original). The Supreme Court reinforced this holding in Chevalier v. City of Philadelphia, 516 Pa. 316, 319, 532 A.2d 411, 413 (1987), wherein the court stated:
In Mascaro, we held that the Tort Claims Act, specifically 42 Pa.C.S. §8541, clearly precludes the imposition of liability on the Commonwealth or its local agencies for the acts of third parties, and the Legislature has not seen fit to waive immunity for such actors or their acts in any of the eight exceptions.
Since Appellees injuries were caused by the criminal acts of a third party, the City is insulated from all liability for the harm caused by such a party.
Because of the clarity of these Supreme Court mandates, I object to an attempt to distinguish Gill. The majority makes a distinction based on fine points of causation. Although the Mascaro Supreme Court decision does contain some discussion of intervening and super
Accordingly, I would recognize that Gill is no longer a precedent in this Commonwealth, and make clear that a complaint based on Gill cannot survive Supreme Court review.
Opinion of the Court
Opinion by
Joseph Moore appeals a Philadelphia County Common Pleas Court order granting the defendants Com
Moore was shot five times by Andre Huett following Huetts release on a home furlough from the State Correctional Institution at Graterford (SCIG).
Previously, Moore had been an eyewitness to an armed robbery committed by Huett and was prepared to testify as a prosecution witness. Huett pleaded guilty to the crime and was incarcerated at SCIG. Huett had served ten months of his sentence when Cuyler, the Superintendent of SCIG, Reid, the Director of Treatment at SCIG, and Dillman and Zelles, correctional counselors, voted to approve Huetts application for a two-day home furlough. When Huett failed to return from the furlough, SCIG officials reported him to state and local authorities as an escapee. One month later Huett shot Moore, causing Moore to suffer paraplegia arid loss of hearing.
Moore’s complaints against the Commonwealth and the individual defendants
The common pleas court concluded that the Commonwealth was entitled to sovereign immunity under
This Court can sustain a grant of summary judgment only if the pleadings and discovery material show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Muncy Area School District v. Gardner, 91 Pa. Commonwealth Ct. 406, 497 A.2d 683 (1985).
Complaint Against the Commonwealth
Initially, we must reject Moores contention that the allegations against the Commonwealth fall within Act 152s statutory waiver of immunity for medical-professional liability.
In Mascaro, the Court strictly construed the governmental immunity act and concluded that its express statutory language does not waive immunity for damages caused by the acts of others. Mascaro, 514 Pa. at 362, 523 A.2d at 1124. It further noted that this legislative judgment, as evidenced by the language of the statute, is consistent with the general rule that criminal and negligent acts of third parties are superseding causes which absolve the defendant from liability for the harm caused by such third parties. Id. This reasoning is applicable to the medical-professional liability immunity exception in Section 5110(a)(2) of Act 152, which waives immunity only for “[djamages caused by Commonwealth health care employees ... or by a doctor, dentist, nurse and related health care personnel.” (Emphasis added.) Since Moores injuries were caused by criminal acts of a third party, Huett, the Commonwealth is “insulated from all liability for the harm caused by such a party.” Chevalier, 516 Pa. at 319, 532 A.2d at 413 (emphasis in original).
A state prison furlough of an inmate pursuant to a statutorily authorized program is not comparable to a state hospitals release of a diagnosed mental patient. A prison does not have the expertise and facilities which would enable it to foresee that a furloughed inmates psychiatric deficiencies could cause him to harm another. This being so, the furloughed inmates acts in this case were not foreseeable nor could they have been incidents normally considered by the prison authorities. For these reasons, Gill is not controlling.
Complaint Against Superintendent Cuyler
Likewise, we conclude that Superintendent Cuyler is entitled to immunity. Section 2310 of Act 152, 1 Pa. C. S. §2310, provides:
Pursuant to section 11 of Article I of the Constitution of Pennsylvania, it is hereby declared to be the intent of the General Assembly that the Commonwealth, and its officials and employees acting icithin the scope of their duties, shall continue to enjoy sovereign and official immunity and remain immune from suit except as the General Assembly shall specifically waive the immunity. When the General Assembly specifically waives sovereign immunity, a claim against the Commonwealth and its officials and employees shall be brought only in such manner and in such courts and in such cases as directed by the provisions of Title 42. . . .
The provisions of Title 42, specifically Section 5110(a) of Act 152, provided:
Limited waiver of sovereign immunity
(a) General rule.—The General Assembly, pursuant to section 11 of Article I of the Consti*63 tution of Pennsylvania, does hereby waive, in the following instances only and only to the extent set forth in this section . . . sovereign immunity as a bar to an action against Commonwealth agencies, and their officials and employees acting within the scope of their duties, for damages arising out of a negligent act or omission where the damages would be recoverable under the common law or a statute creating a cause of action if caused by a person not having available the defense of sovereign immunity.[6 ]
(Emphasis added.)
We believe that these statutory provisions are clear and unambiguous in stating that the Commonwealth, and its officials and employees, enjoy the same statutory sovereign immunity. In other' words, if the Commonwealth is entitled to sovereign immunity under Act 152, then its officials and employees acting within the scope of their duties are likewise immune. The fact that the General Assembly saw fit to statutorily retain the common law defense of official immunity in Section 5110(b) does not mean that it never intended to grant statutory sovereign immunity to officials and employees. Rather, the statutory retention of this common law defense means merely that an official may additionally assert common law official immunity in cases where the individual is precluded from asserting sovereign immunity under Section 5110(a). Although this Courts prior case law suggested that Act 152 did not affect official liability as it existed under the common law, see Estate of Armstrong v. Pennsylvania Board of Probation and Parole, 46 Pa. Commonwealth Ct. 33, 405 A.2d 1099 (1979), we can after diligent research find no case
Superintendent Cuyler is a Commonwealth employee acting within the scope of his duties
Moore cannot maintain the remaining tort claim against the individual defendants Reid, Dillman' and Zelles unless the law imposes a duty upon these defendants to Moore. Boyce v. United States Steel Corp., 446 Pa. 226, 285 A.2d 459 (1971). Thus, we must address the issue of whether these individual defendants owed Moore a duty of care when they treated Huett and when they decided to approve Huetts pre-release furlough. This is an issue of first impression in this Commonwealth.
Moores complaint alleges that the defendants breached duties in approving Huetts furlough (a) when they knew, or should have known, that he failed to meet regulatory criteria and that he constituted a public danger; (b) without utilizing predictive scales or tests that would have disclosed Huetts dangerous propensities; and (c) without properly utilizing Huetts psychiatric records or seeking psychiatric re-evaluation. The complaint further alleges that the defendants failed to properly diagnose, treat or recognize Huetts alleged psychiatric disorders which rendered him dangerous.
Moore contends that the alleged duty exists by virtue of certain language contained in the preliminary provision of a Bureau of Correction Administrative Directive concerning pre-release furloughs. That directive
This sweeping statement purportedly imposes a duty upon the Bureau in favor of the public at large. It does not impose a duty upon the individual employees of the Bureau to protect specific individuals such as Moore. Our Courts have been reluctant to impose a general duty of care upon government employees to specific persons where the alleged duty is simply the protection of the public at large—i.e., society—from third-party criminal acts. In Melendez v. City of Philadelphia, 320 Pa. Superior Ct. 59, 466 A.2d 1060 (1983), the Superior Court addressed a police officers duty to protect society and held that it does not create a specific duty to individuals.
Our courts recognize that when assessing the duties of public servants who protect the public from criminals, we must be mindful that actions taken in this context actually affect the broad spectrum of society. Our brothers in the federal judiciary recognized this need in Rieser v. District of Columbia, 563 F.2d 462, 477 (D.C. Cir. 1977), where that Court spoke to the problems as
[B]ecause of the large number of persons who could be injured as a result of the defective provision of public services ...[,] [governmental units are sometimes held to owe no duty to members of the general public for injuries arising out of the negligent provision of services designed to benefit the community at large.
In order to impose a duty in Rieser, the Court required a special relationship between the defendant parole officer and the particular plaintiff by which the parole officer would necessarily have awareness of a specific and unreasonable risk to that plaintiff.
Other jurisdictions which impose a duty of care in the context of released or escaped inmates who subsequently harm others, do so where the prisoner possesses known dangerous propensities and where the release creates a foreseeable risk of injury to foreseeable victims of the inmate.
We must also recognize that the pre-release furlough of inmates by Correction employees is legislatively authorized by Sections 1-4 of the Act of July 16, 1968, P.L. 351, as amended, 61 P.S. §§1051—1054 and, being so, such furloughs are deemed to benefit society and advance public policy. Our Supreme Court has 'written that “the concept of duty amounts to no more than ‘the sum total of those considerations of policy which led the law to say that a particular plaintiff is entitled to protection.’ ” Sinn v. Burd, 486 Pa. 146, 164, 404 A.2d 672, 681 (1979) (quoting Leong v. Takasaki, 55
The pleadings and discovery material in this case disclose no allegation or indication that the individual defendants knew or even had reason to know of Moores existence. The closest allegation of such knowledge was that Moore was “prepared to testify” against Huett at the prior criminal prosecution. Furthermore, it cannot be said that Huett was so dangerous as to be likely to harm every member of the public he contacted while on furlough. Hence, at the time they participated in the furlough decision, the individual defendants could not possibly have known it would result in particular harm to Moore. We conclude that the law does not entitle Moore to protection. Sinn. .
Moore alternatively contends that a duty exists under Restatement (Second) of Torts §§315 and 319 (1965). Section 315(a) imposes a duty to. control a third persons conduct so as to prevent harm to another where there is a special relationship between the defendant and the third person who harms another. Section 315(b) imposes the same duty where there is a special relationship between the defendant and the plaintiff. Section 319 is a special application of Section 315 and imposes a duty to control a third person who is under the charge of a defendant and who possessed known dangerous propensities.
Moore also contends that a duty existed because the defendants’ participation in the furlough decision constituted an affirmative act which in itself created a corresponding duty of care owing to Moore. Moore cites Restatement (Second) of Torts §302 as supporting this proposition. We disagree.
Section 302 does not in itself create a duty. Rather, it defines what acts may constitute negligence, assuming that a duty is independently established. See Rich v. United States Lines, Inc., 596 F.2d 541 (3d Cir. 1979).
We affirm the judgments in favor of the Commonwealth and Superintendent Cuyler on the grounds of immunity. Also, we affirm judgment in favor of the individual defendants Reid, Dillman and Zelles on the ground that they owed no duty to Moore.
Order
The order of the Philadelphia County Common Pleas Court, per Goldman, J., dated August 8, 1985, at Nos. 4480 and 4481 November Terms 1981 and No. 377 December Term 1980, is affirmed.
Moore' filed three separate complaints in trespass against (a) the Commonwealth, (b) Superintendent Cuyler, and (c) Director of Treatment Reid and counselors Dillman and Zelles. The common pleas courts orders entering judgment in favor of the defendants in the latter two complaints were originally appealed to the Superior Court of Pennsylvania, which transferred the matters to this Court. Orders of November 4, 1985 at No. 2368 Phila. 1985 and November 1, 1985 at' No. 2367 Phila. 1985 (Pa. Superior Court). All three appeals were consolidated for argument in this Court.
Act of September 28, 1978, P.L. 788, repealed by the Act of October 5, 1980, P.L. 693, and replaced by the Act of October 5, 1980, P.L. 693, as amended, 42 Pa. C. S. §§8521—8528. Although the 1980 Act is not significantly different from Act 152 for our purposes, Act 152 controls this case since it was effective at the time Moores cause of action accrued.
Section 5110(a)(2) of Act 152 provided an exception to immunity as follows:
(2) Medical-professional liability.—Damages caused by Commonwealth health care employees of medical facilities or institutions or by a doctor, dentist, nurse and related health care personnel.
This provision has subsequently been replaced without significant change by 42 Pa. C. S. §8522(b)(2).
42 Pa. C. S. §§8541—8542.
Since we have concluded that Act 152s medical-professional liability exception does not permit Moores cause of action against
Also, inasmuch as Act 152 contains no special immunity waiver for alleged willful misconduct by the Commonwealth, such allegations do not create a basis for recovery against the Commonwealth.
Act 152 then enumerated certain exceptions to this immunity. Sections 5110(a)(1) through (8).
Our Supreme Court in DuBree set forth the standard for determining the immunity of officials. However, that decision was entered just one week after Act 152 became law and made no mention of the effect of Act 152.
Plaintiffs Reply to New Matter of Defendant Julius T. Cuyler admitted that, at all times material to this case, Cuyler was a Commonwealth employee acting within the scope of his employment.
Our decision renders it unnecessary for Cuyler to satisfy the common law defense of official immunity under the standards set forth in DuBree. Nonetheless, were we to reach that decision, we would agree with the common pleas court that Cuyler is immune under DuBree. Contrary to Moores contentions, the record contains sufficient evidence revealing that Cuyler is a public official for immunity purposes. He had ultimate supervisory authority over all departments within SCIG. The record also reveals that Cuyler exercised decision-making authority over the approval or disapproval of an inmates furlough release into the general public. Cuyler Deposition at 66, 88. Cuyler also exercised authority to determine the point at which a furloughed inmate is deemed to be an escapee. Id. at 73, 78.
In deciding whether an individual is officially immune under DuBree, the Court must examine whether the grant of such immunity would promote the public policy considerations related to ensuring unfettered decision making by public officials. This Court has recognized that furlough decisions are a matter of skilled administrative discretion dependent upon subjective examinations by prison staff members concerning an inmates individual characteristics, problems and needs. Reider v. Bureau of Corrections, 93 Pa. Commonwealth Ct. 326, 502 A.2d 272 (1985). Such decisions are
Substantially similar regulatory provisions concerning prerelease furloughs appear at 37 Pa. Code §§95.111—95.118.
See also Casey v. Geiger, 346 Pa. Superior Ct. 279, 499 A.2d 606 (1985); Morris v. Musser, 83 Pa. Commonwealth Ct. 620, 478 A.2d 927 (1984); Caldwell v. City of Philadelphia, 358 Pa. Superior Ct. 406, 517 A.2d 1296 (1986) (cases following Melendez).
Many of these cases rely on Sections 315 and 319 of the Restatement (Second) of Torts, which are discussed below. The case law of other jurisdictions addressing this and related issues is aptly summarized in 1, Speiser, The American Law of Torts, §4:11 (1983 and January 1987 Supplement).
In Gill, we cited Section 319 to support our conclusion that a person assaulted by a state mental hospital patient could recover damages under the common law against the hospital and its physicians for their alleged negligence in releasing and supervising the patient. However, a hospital’s decision to release a mental patient does not implicate the same policy considerations as are involved in the temporary home furlough of an inmate pursuant to a legislatively authorized program. A mental patient and its doctors are especially capable and indeed may well be obliged to determine whether a patient’s mental instability may cause him to harm himself or others if released. Vattimo, 502 Pa. at 258, 465 A.2d at 1240 (Nix, J., concurring and dissenting opinion) (relied upon in Gill).
Reference
- Full Case Name
- Joseph P. Moore, III, Appellant v. Commonwealth of Pennsylvania, Department of Justice, Now Office of General Counsel, Appellee; Joseph P. Moore, III, Appellant v. Lawrence Reid, Francis Dillman and Counselor Zelles, Appellees; Joseph P. Moore, III, Appellant v. Julius T. Cuyler, Appellee
- Cited By
- 57 cases
- Status
- Published