IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Michael and Roxanne Gohrig, : Husband and Wife, : Appellants :

:

v. : No. 159 C.D. 2018

: SUBMITTED: July 20, 2018 County of Lycoming and City : of Williamsport :

BEFORE: HONORABLE MARY HANNAH LEAVITT

, President Judge

HONORABLE RENÉE COHN JUBELIRER , Judge HONORABLE ELLEN CEISLER, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY JUDGE CEISLER FILED: September 21, 2018

Appellants Michael and Roxanne Gohrig ( collectively Appell ants) appeal from the Court of Common Pleas of Lycoming County’s (Trial Court) December
21, 2017 Order, which granted the City of Williamsport’s (City) and County of Lycoming’s (County) ( collectively Appellees ) respective M otions for S ummary

J udgment . The Trial Court concluded that the City and the County were both

immune from suit under what is commonly known as the Political Subdivision Tort

Claim s Act (Tort Claims Act), 42 Pa. C.S. §§ 8541

- 8564 , and that Appellants failed
to establish the applicability of the real property exception to governmental immunity

. 1 After careful review, we affirm the Trial Court’s Order.

1 Section 8542(b) of the Tort Claims Act states, in pertinent part: Acts which may impose liability.

-- The following acts by a local agency or any of its employees may result in the imposition of liability on a local
agency

. . .2 B ackground This appeal involves negligence claim s by Appellan ts against the City and
County stemming from injuries Mr. Gohrig sustained while cycling on the Susquehanna Riverwalk and Timber Trail (Trail) . This Tr a i l is open to the public and “consists of a paved pathway on top of the [Susquehanna River] levee and sidewalks and access ramps on various bridges throughout [its] course.” Am. Compl.
at 2. The County owns the Trail and is responsible for its long

- term maintenance,

whi le the City is responsible for trash removal and routine maintenance for certain
portions of the Trail that are relevant to the instant appeal

. On July 24, 2010, Mr. Gohrig was cycling on the Trail when he encountered a hairpin turn after riding through a flat , straight section

. Appellants’ Br

. at 8; Gohrig
Dep

. , 5/9/16, at 143, 149

- 51. As described by Mr. Gohrig, this section of the Trail was “paved down the center” with “loose gravel on both sides.” Gohrig Dep. , 5/9/16,

at 154. Mr. Gohrig notice d that some of this gravel had “ washed down from the
straightaway and [had] accumulated” in the curved part of the Trail, when he got

(3) Real property.

-- The care, custody or control of real property in the possession of th e local agency, except that the local agency shall not be liable for damages on account of any injury sustained by a person intentionally trespassing on real property in the possession of the local agency. As used in this paragraph, “real property” shall

n ot include: (i) trees, traffic signs, lights and other traffic controls,

street lights and street lighting systems; (ii) facilities of steam, sewer, water, gas and electric systems owned by the local agency and located within rights

- of

- way; (iii) streets; or (iv) sidewalks. 42 Pa. C.S. § 8542(b)(3).3

within 15 to 20 feet of where the displaced gravel had settled

. Id. at 150

- 5 2

. Mr. Gohrig a ttempted to navigate through this grav el, but hi s bicycle tires lost traction

and he fel l onto the paved surface. Id. at 154

- 55. Mr. Gohrig was able to get up and walk approximately one mile to where his

car was pa rked . He did not seek medical attention despite having a sore hip,

numerous bruises and scrapes, and per sistent discomfort when attempting to relieve

himself. Id. at 154

- 58. Approximately one month after the accident, when his pain did not relent, Mr. Gohrig went to see a physician , who discovered that Mr. Gohrig

had fractured his right greater trochanter 2 in multiple places. Id. at 161, 169. Appellants subsequently filed a Complaint against the City and County on July 19, 2012, and an Amended Complaint on Decemb er 4, 2012. Therein,
Appellants claim that both the City and County w ere negligent in failing to properly maintain the Trail and were consequently liable for his injuries. Am

. Compl

. at 3

- 8. Appellants also aver that the County had acted negligently by “utilizing stones when
it knew or should have known that stones would accumulate on the paved portion of the [Trail.]” Id. at 4. In addition, Mrs. Gohrig assert s a loss of consortium claim against Appellees. Id. a t 9. Appellees filed P reliminary O bjections to the Amended Complaint

, which the

Trial Court overruled. The City and County then filed their respective A nswer with

N ew M atter and C ross C laim

, asserting numerous defenses therein. T he City averred
that Appe llants’ lawsuit was barred by “ sovereign immunity

, ” 3 while the County

2 The trochanter is “ a rough prominence at the upper part of the femur of many vertebrates serving usually for the attachment of muscles .” Trochanter

, Merriam

- Webster

, https://www.merriam

- webster.com/dictionary/trochanter (last visited July 31, 2018).

3 Given that the City argued at the summary judgment stage that it was shielded by governmental immunity, we believe that its invoc ation of “ sovereign ” immunity in its Answer4

argued it was immun e from the suit by virtue of the Tort Claims Act and the
Recreational Use of Land and Water Act ( Recreational Use Act). 4 City’s Answer

with New Matter and Crossclaim at 5; County’s Answer with New Matter and

Crossclaim at 6. Both Appellees subsequently filed M otions for J udgment on the

P leadings, which the Trial Court denied.
Upon completion of discovery, the City and County each filed M otions for

S ummary J udgment, a verring that they were immun e from suit under both the Tort

Claims Act and the Recreational Use Act. See City’s Mot

. for Summ

. J

. at 7

- 23 ; County’s Mot

. for Summ

. J

. at 1

- 4

. In response, Appellants argued that granting summary judgment was improper because there were genuine issues of material fact regarding whether their allegations satisfied the requirements of the Tort Claim s

with New Matter and Crossclaim was likely an inadvertent error. Even if this was not the case, t he City’s failure t o raise governmental immunity in its Answer with New Matter and Crossclaim is immaterial , as it is a non

- waivable defense

. See In re Upset Sale of Prop s. Against Which Delinquent 1981 Taxes Were Returned to Tax Claim Unit On or About First Monday of May, 1982 (SKIBO Prop.) , 560 A.2d 1388, 1389 (Pa. 1989).

4 Act of February 2, 1966, P.L. 1860

, as amended

, 68 P.S. §§ 477

- 1

- 477

- 8

. The [Recreational Use Act] protects landowners from liability by expressly negating ordinary common law duties to keep the land safe or to warn of dangerous conditions. The purpose of the [Recreational Use Act] “is to encourage owners of land to make land and water areas available to the public for recreational purposes by limiting their liability toward persons entering thereon for such purposes.” 68 P.S. § 477

- 1.

Murtha v. Joyce , 875 A.2d 1154, 1156 (Pa. Super. 2005 ). “The need to limit owner liability derives from the impracticality of keeping large tracts of largely undeveloped land safe for public use.” Rivera v. Phila. Theological Seminary of St. Charles Borromeo, Inc. , 507 A.2d 1, 8 n. 17 ( Pa. 1986). However, the Recreational Use Act’s liability limitations do not extend to “land devoted to recreational purposes [which] has been improved in such a manner as to require regular maintenance in order for it to be used and enjoyed safely, [for which the Recreational Us e Act does not exempt] the owner [from their] duty to maintain the improvements.” Stone v. York Haven Power Co. , 749 A.2d 452, 455 (Pa. 2000).5

Act’s real property exception . Appellants also argued that the Recreational Use Act did not shield either the City or the C ounty from li ability under the circumstances

. See Appellants’ Br

. in Opp’n to Appellees’ Mot s. for Summ

. J

. at 5

- 9. After oral argument

, the Trial Court granted both Motions for Summary Judg ment, stating that Appellants neither satisfied the requirements of the real
property exception to governmental immunity , nor present ed any evidence of negligence

. Tr

. C t

. Order, 12/21/17, at 1

- 2; Tr. Ct. Op., 3/27/18, at 2; Reproduced
Record (R.R. ) at 3a. 5 This appeal followed.

Issue

In this appeal, Appellants claim that the Trial Court erred in holding that the real property exception was inapplicable

, because they produced evidence establishing genuine issues of material fact regarding Appellees’ “ negligence in the care, custody and control of real property [ i.e.
, g ravel on the Trail at the site of Mr. Gohrig’s accident

. ]” Appellants’ Br. at 3.
Analysis
When ruling upon a motion for summary judgment, the t rial c ourt must resolve all doubts against the movant, examining the record in the light most

favorable to the non

- moving party, and “may grant summary judgment only where

5 The Trial Court also held, [w]ith respect to the [Recreational Use Act], that legislation applies only to lands that are largely unimproved in character and where no admission fee is charged. In this case, the [Trail] is a highly developed recreational area [,] although [admission is] provided free of charge . U nder the circumstances[,] either the [Recreational Use] Act does not apply or a reasonable [factual] issue exists for resolution by a jury [pertaining to its applicability].

Tr. Ct

. Order, 12/21/17, at 1. None of the parties have challenged this portion of the Trial Court’s ruling and, therefore, we will not address it s substantive merit herein.6

the right to such a judgment is clear and free from doubt.” Fine v. Checcio , 870
A.2d 850, 857 (Pa. 2005). Our review of an o rder granting summary judgment is
limited to determining whether th e trial c ourt’s decision constituted an abuse of

discretion or an error of law. Salerno v. LaBarr , 632 A.2d 1002, 1003 (Pa. Cmwlth.
1993). Local agencies

, such as the City and County

, are vested with broad governmental immunity from negligence

- based lawsuit s. However, pursuant to

Section 8542(a) of the Tort Claims Act, such governmental agencies can still be held
liable for damages under the following circumstances:

Liability imposed.

-- A local agency shall be liable for damages on account of an injury to a person or property within the limits set forth in this subchapter if both of the following conditions are satisfied and the injury occurs as a result of one of the acts set forth in [42 Pa. C.S. § 8542 (b)] : (1) The damages would be re coverable under common law or a statute creating a cause of action if the injury were caused by a person not having available a defense under section 8541 (relating to governmental immun ity generally) or section 8546 (relating to defense of official immunity); and (2) The injury was caused by the negligent acts of the local agency or an employee thereof acting within the scope of his office or duties with respect to one of the categories listed in subsection (b). As used in this paragraph, “negligent acts” shall not include acts or conduct which constitutes a crime, actual fraud, actual malice or willful misconduct.

42 Pa. C.S. § 8542 (a). B ecause of the General Assembly’s clear intent to i nsulate government from exposure to tort liability, the exceptions to immunity are to be
strictly construed. Lockwood v. City of Pittsburgh , 751 A.2d 1136, 1139 ( Pa. 2000)

.7

In their respective Motions for Summary Judgment, Appellees assert that

there a re no genuine issue s of material fact as to whether they were negligent or
whether they breached their duty of care owed to Mr. Gohrig

. See City’s Br. In
Support of Mot. For Summ. J. at 8

- 13; County’s Br. In Support of Mot. For Summ.

J. at 5

- 10. Appellees d iffer as to Mr. Gohrig’s status on th e Trail at the time of his

fall. The City suggests that Mr. Gohrig was a “ gratuitous licen see ”

. See City’s Br. In Support of Mot. For Summ. J. at 10

. The C ounty suggests that Appellant was

either a “ non

- business invitee or a licensee

. ” County’s Br. In Support of Mot. For

Summ. J. at 6

. 6 However, we need not settle this issue , because Appellants did not

6 “A licensee is a person who is privileged to enter or remain on land only by virtue of the possessor’s consent.” Restatement (Second) of Torts § 330 (Am. Law Inst. 1965)

.

A possessor of land is subject to liability for physical harm caused to licensees by a condition on the land if, but only if, (a) the possessor knows or has reason to know of the condition and should realize that it involves an unreasonable risk of harm to such licensees, and should expect that they will not discover or realize the danger, and (b) he fails to exercise reasonable care to make the condition safe, or to warn the licensees of the condition and the risk involved, and (c) the licensees do not know or have reason to know of the

co ndition and the risk involved. Rossino v. Kovacs , 718 A.2d 755, 757 (Pa. 1998) (quoting Restate ment (Second) of Torts § 342 ((Am. Law Inst. 196 5) ). By contrast, “[a] public [ i.e.
, non

- business] invitee is a person who is invited to enter or remain on land as a member of the public for a purpose for which the land is held open to the public.” Restatement (Second) of Torts § 332 (Am. Law Inst. 1965)

.

Possessors of land owe a duty to protect invitees from foreseeable harm. [Restatement (Second) of Torts §§ 34 1A, 343, & 343A (Am. Law Inst. 1965) .] With respect to conditions on the land which are known to or discoverable by the possessor, the possessor is subject to liability only if he,8

present evidence that would support a negligence finding under any duty of care

standard

. In its Opinion, the Trial Court explained that Appellants bore the burden of proof on the applicability of the real property exception to immunity under the Tort Claims Act. Finn v. City of Philadelphia

, [ 664 A.2d 1342 , 1346] (Pa. 1995). Exceptions to immunity must be strictl y construed. Id. For the real property exception to apply, the dangerous condition must be in the property itself, not a foreign substance on the property and not simply a facilitation of another’ s negligence. Id

. . . . at 1344

- 46. As the Pennsylvani a Sup reme Court has explained, “ F or the limited waiver of 42 Pa. C.S. § 8542(b)(3) to apply, thereby wa iving the political subdivision’ s immunity for negligent care of real property, there must be negligence which makes the real property itself unsafe for a ctiv ities for which it is used.” Snyder v. Harmon

, . . . 562 A.2d 307, 312 (Pa. 1989) (citation omitted)

. . . . [Appellants] point to nothing in the record to establish negligence by t he local agencies [nor do they] contend any design defect caused the accumul ation [of gravel on the Trail] . Instead [Appellants] point to the mere presence of

(a) knows or by the exercise of reasonable care would discover the conditio n, and should realize that it involves an unreasonable risk of harm to such invitee s , and (b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and (c) fails to exercise reasonable care to prote ct them against the danger. [Restatement (Second) of Torts § 343]. Thus . . . a possessor of land is not liable to his invitees for physical harm caused to them by any activity or condition on the land whose danger is known or obvious to them, unless the possessor should anticipate the harm despite such knowledge or obviousness. [Restatement (Second) of Torts § 343A]. Carrender v. Fitterer , 469 A.2d 120, 123 (Pa. 1983) (quotation marks and punctuation omitted).9 the foreign substance itself [as justification for finding the real property exception to be applicable] . Accordingly, [the Trial] Court concluded that liability could not b e imposed under the real property exception to th e Tort Claims Act, 42 Pa. C.S. § [8542(b)(3)] , and that therefore summary judgment against [Appellants] was required.

Tr. Ct. Op., 3/27/18, at 3

- 5

. We agree.

While Appellants argue that Appellees negligently constructed and/or

main tained the Trail, A ppellant s did not present a scintilla of evidence to support

those assertion s at the conclusion of discovery . For example, Appellant s did not provide depositions of Appellees’ agents or employees regarding the co nstruction or

maintenance of the trail . There was no evidence regarding the adequacy and frequency of Appellees’ maintenance of the Trail , such as maintenance logs , or information regarding upkeep protocols and practices. Appellant s offered no expert
reports , construction blueprints, topographical maps, or other pertinent evidence t o
demonstrate how the Trail was negligent ly constructed or defectively designed

. There was no evidence regarding how long, or how much

, gravel was on the T rail,

or w hether Appellees were aware of the Trail condition s when Mr. Gohrig fell

. There

was no evidence describing what caused the gravel to be present on the section of

the Trail where Mr. Gohrig fell.
A thorough review of the entire record reveals that Appellants’ claims are predicated entirely upon Mr. Gohrig’s personal , subjective belief that the mere

presence of the gravel he encountered on the Trail constituted negligence by the City

and C ounty

. See Gohr ig Dep., 5/9/16, at 150

- 52, 154. See Appellants ’ Br. In
Opposition to Mots. for Summ. J. at 6

. If this matter went to trial, the fact

- finder

would have no choice but to speculate about essential factual issues in order to find
either the City or County negligent. “A plaintiff cannot survive summary judgment when mere speculation would be required for the jury to find in [their] favor. ” Krauss10

v. Trane U.S. Inc. , 104 A.3d 556, 568 ( Pa. Super. 2014). As our Supreme Court has explained, [t] he mere happening of an accid ent

. . . does not establish

negligen ce on the part of the defendant. In order for the issue of neg ligence to be a jury question, the evidence presented must be such that by reasoning from it, without resort to prejudice or guess, a jury can reach the conc lusion sought by plaintiff

. Hardy v. Clover Leaf Mills , 232 A.2d 755, 757 ( Pa. 1967) (internal citations and punctuation omitted); accord Lear v. Shirk’s Motor Exp ress Corp. , 152 A.2d 883,
886 ( Pa. 1959) (“ Evidence sufficient to warrant recovery must describe, picture or
visualize what actually happened sufficiently to enable the fact

- finding tribunal reasonably to conclude that the defendant was guilty of negligence and that his negligence was the p roximate cause of the accident.”).

As Appellants have failed to establish that genuine issues of material fact exist regarding whether Appellee s were negligent

, the City and County are entitled to summary judgment in their favor

. Consequently, we affirm the Trial Court ’s
December 21, 2017 Order

.

__________________________________ ELLEN CEISLER, JudgeIN THE COMMONWEALTH COURT OF PENNSYLVANIA

Michael and Roxanne Gohrig, : Husband and Wife, :

Appellants :

:

v. : No. 159 C.D. 2018

: County of Lycoming and City : of Williamsport :

O R D E R

AND NOW, this 21 st day of September, 201 8

, the O rder of the Court of

Common Pleas of Lycoming County , dated December 21, 2017, is hereby

AFFIRMED

.

________________________________ ELLEN CEISLER, Judge