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 Appellants) 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 Motions for Summary 

Judgment. 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 

Claims 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.

 

1Section 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

Background

This appeal involves negligence claims by Appellants against the City and 

County stemming from injuries Mr. Gohrig sustained while cycling on the

Susquehanna Riverwalk and Timber Trail (Trail). This Trail 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, 

while 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 noticed 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 the 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 

not 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 150-52. Mr. 

Gohrig attempted to navigate through this gravel, but his bicycle tires lost traction

and he fell 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 parked. He did not seek medical attention despite having a sore hip, 

numerous bruises and scrapes, and persistent 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 trochanter2in 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 December 4, 2012. Therein, 

Appellants claim that both the City and County were 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 asserts a loss of consortium claim 

against Appellees. Id. at 9.

Appellees filed Preliminary Objections to the Amended Complaint, which the 

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

New Matter and Cross Claim, asserting numerous defenses therein. The City averred

that Appellants’ 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 invocation of “sovereign” immunity in its Answer 
4

argued it was immune 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 Motions for Judgment on the 

Pleadings, which the Trial Court denied.

Upon completion of discovery, the City and County each filed Motions for 

Summary Judgment, averring that they were immune 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 Claims

 

with New Matter and Crossclaim was likely an inadvertent error. Even if this was not the case, the 

City’s failure to 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 Props. 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 Use 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 County from liability under the circumstances. 

See Appellants’ Br. in Opp’n to Appellees’ Mots. for Summ. J. at 5-9.

After oral argument, the Trial Court granted both Motions for Summary 

Judgment, stating that Appellants neither satisfied the requirements of the real 

property exception to governmental immunity, nor presented any evidence of 

negligence. Tr. Ct. 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., gravel 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 trial court 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. Under 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 its 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 order granting summary judgment is 

limited to determining whether the trial court’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 lawsuits. 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 recoverable 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 immunity 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). Because of the General Assembly’s clear intent to insulate 

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 are no genuine issues 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 differ as to Mr. Gohrig’s status on the Trail at the time of his 

fall. The City suggests that Mr. Gohrig was a “gratuitous licensee”. See City’s Br. 

In Support of Mot. For Summ. J. at 10. The County 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 

condition and the risk involved.

Rossino v. Kovacs, 718 A.2d 755, 757 (Pa. 1998) (quoting Restatement (Second) of Torts § 342 

((Am. Law Inst. 1965)).

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 §§ 341A, 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 strictly 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 Pennsylvania Supreme Court has explained, “For 

the limited waiver of 42 Pa. C.S. § 8542(b)(3) to apply, 

thereby waiving the political subdivision’s immunity for 

negligent care of real property, there must be negligence 

which makes the real property itself unsafe for activities 

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 the local agencies [nor do they] contend any 

design defect caused the accumulation [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 condition, and should realize that it involves an 

unreasonable risk of harm to such invitees, 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 protect 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 be 

imposed under the real property exception to the 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 

maintained the Trail, Appellants did not present a scintilla of evidence to support 

those assertions at the conclusion of discovery. For example, Appellants did not 

provide depositions of Appellees’ agents or employees regarding the construction 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. Appellants offered no expert 

reports, construction blueprints, topographical maps, or other pertinent evidence to

demonstrate how the Trail was negligently constructed or defectively designed. 

There was no evidence regarding how long, or how much, gravel was on the Trail, 

or whether Appellees were aware of the Trail conditions 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 County. See Gohrig 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.” Krauss 
10

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 accident . . . does not establish 

negligence on the part of the defendant. In order for the 

issue of negligence 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 conclusion 

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 Express 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 proximate cause of the accident.”). 

As Appellants have failed to establish that genuine issues of material fact exist 

regarding whether Appellees 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, Judge
IN 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 21st day of September, 2018, the Order of the Court of 

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

AFFIRMED.

________________________________

ELLEN CEISLER, Judge