estate exception in Pennsylvania

2026The Parking Authority emphasizes that the real estate exception to the rule of governmental immunity can be applied “only to those cases where it is alleged that the artificial condition or defect of the land itself causes the injury, not merely when it facilitates the injury by acts of others[.]” Parking Authority’s Brief at 13-14 (quoting Snyder v. Harmon, 562 A.2d 307, 312 (Pa. 1989)).

2026According to [the Authority], [Logan’s] claim does not fall within the real estate exception “ . . . because the exception can only apply where the dangerous condition at issue derives or originates from the property itself—here, the external staircase[.]” (Snyder v. Harmon, 562 A.2d 307, 311 (Pa. 1989). ([The Authority’s] Brief in Support of Post-Trial Motion [at 10])[] (emphasis added).

2026Citing the Supreme Court’s opinion in Mascaro v. Youth Study Center, 523 A.2d 1118, 1124-25 (Pa. 1987), the trial court recognized that the real estate exception does not apply when a defect or condition of the land does not cause, but merely facilitates, a third party’s harmful action.

2021We further held that immunity will be waived under the real estate exception “where it is alleged that the artificial condition or defect of the land itself causes an injury to occur.” Id. at 312 (relying upon Mascaro v. Youth Study Center, 523 A.2d 1118, 1124 (Pa. 1984) (interpreting the real estate exception to local agency immunity under the PSTCA, 42 Pa.C.S. § 8542(b)(3), to apply “only to those cases where it is alleged that the artificial condition or defect of the land itself causes injury, not merely when it facilitates injury by acts of others, whose acts are outside [the PSTCA’s] sco

2026Further, the Authority analogizes the facts of the instant case to those in Dean v. Department of Transportation, 751 A.2d 1130 (Pa. 2000), where our Supreme Court held that the absence of a guardrail could not fall within the real estate exception to sovereign immunity.

2025Significantly, the Supreme Court distinguished its previous decision in Dean v. Department of Transportation, 751 A.2d 1130 (Pa. 2000), where it held the real estate exception did not permit the lawsuit of an injured passenger who contended the Department of Transportation should have installed a guardrail along a highway near a steep embankment: In Dean, we held only that a “dangerous condition of Commonwealth agency real estate” must be an artificial condition or defect of the land itself, as opposed to the absence of such a condition. . . .

2021Id. at 443 (explaining further that the distinction was “problematic,” “of little or no use,” and “incorrect, because it works to exclude claims that fall within the parameters of the Act’s real estate exception”).

2021HACH submits that, pursuant to the real estate exception, immunity will only be waived when the negligence alleged arises from a dangerous condition that “derived, originated or had as its source the Commonwealth realty itself.” HACH’s Brief at 12 (quoting Jones, 772 A.2d at 441 ).

2005See, e.g., Finn v. City of Philadelphia, 541 Pa. 596 , 664 A.2d 1342 (1995) (relying on sovereign immunity precedent to evaluate a real estate exception claimed in a governmental immunity case) and Downing v. Philadelphia Housing Authority, 148 Pa.Cmwlth. 225 , 610 A.2d 535 (1992) (relying on governmental immunity precedent to evaluate real estate exception in a sovereign immunity case). 10 .In her complaint, Williams asserted that the City, by express and unequivocal legislative declaration, “owned, operated, leased, possessed, maintained and/or controlled” the Housing Project through the Cit

2005See, e.g., Finn v. City of Philadelphia, 541 Pa. 596 , 664 A.2d 1342 (1995) (relying on sovereign immunity precedent to evaluate a real estate exception claimed in a governmental immunity case) and Downing v. Philadelphia Housing Authority, 148 Pa.Cmwlth. 225 , 610 A.2d 535 (1992) (relying on governmental immunity precedent to evaluate real estate exception in a sovereign immunity case). 10 .In her complaint, Williams asserted that the City, by express and unequivocal legislative declaration, “owned, operated, leased, possessed, maintained and/or controlled” the Housing Project through the Cit

2021See Kiley, 645 A.2d at 186 (permitting concurrent liability for the Commonwealth under the real estate exception). 14 Maj.

2003Kiley v. City of Philadelphia, 537 Pa. 502 , 645 A.2d 184, 185-86 (1994).” Dean v. PennDOT, 561 Pa. 503, 507-508 , 751 A.2d 1130, 1132 (2000). 1 In this case, we must determine whether plaintiffs’ claim is actionable under the real estate exception to sovereign immunity, the only potentially relevant exception to this claim.

2024In holding that the real estate exception did not apply, we explained that the inmate’s “injuries were caused by slipping on a wet, waxed floor, and nothing indicates that the floor of [the prison] was constructed defectively or that the substances that caused his fall . . . had as its source the floor of [the prison] itself.” Raker, 844 A.2d at 662 (emphasis added).

2015“For an injury to be caused by a ‘dangerous condition of the real estate’ and fall within the real estate exception, the actual defect or flaw in the real estate itself must cause the injury, not some substance on the real property such as ice, snow, grease, or debris, unless such substances are there because of a design or construction defect.” Raker, 844 A.2d at 662 .

2011Additionally, Ms. Nardella relies on, inter alia, Kilgore v. City of Philadelphia, 553 Pa. 22 , 717 A.2d 514 (1998), Grieff v. Reisinger, 548 Pa. 13 , 693 A.2d 195 (1997), and Martin v. City of Philadelphia, 696 A.2d 909 (Pa.Cmwlth.1997), as further support for her contention that SEPTA’s failure to properly maintain the platform falls within the real estate exception to sovereign immunity.

2011Additionally, Ms. Nardella relies on, inter alia, Kilgore v. City of Philadelphia, 553 Pa. 22 , 717 A.2d 514 (1998), Grieff v. Reisinger, 548 Pa. 13 , 693 A.2d 195 (1997), and Martin v. City of Philadelphia, 696 A.2d 909 (Pa.Cmwlth.1997), as further support for her contention that SEPTA’s failure to properly maintain the platform falls within the real estate exception to sovereign immunity.

2025In this respect, Wise’s claim is akin to the claim 6 addressed in Cagey [v. Commonwealth, 179 A.3d 458 (Pa. 2018)], which was based upon the presence of a defective guardrail as part of the Commonwealth realty, rather than the absence of one, and determined to fit within the real estate exception.

2021After Jones, we decided Cagey, another case addressing guardrails, where we held that the Commonwealth’s immunity is waived under the real estate exception for “damages caused by dangerous guardrails affixed to Commonwealth real estate.” Cagey, 179 A.3d at 460 .

2026The authority argued that the only exception to sovereign immunity applicable to the appellant’s claim was the real estate exception, which requires that a dangerous condition “derive, originate from or have a[s] its source the Commonwealth realty.” Id.

2023The “real estate exception” waives the Commonwealth’s immunity in cases involving “[a] dangerous condition of Commonwealth agency real estate . . . . ” Id.9 8 42 Pa. C.S. §§ 8521-8528. 9 Specifically, the statute provides: (4) A dangerous condition of Commonwealth agency real estate and sidewalks, including Commonwealth-owned real property, leaseholds in the possession of a Commonwealth agency and Commonwealth-owned real property leased by a Commonwealth agency to private persons, and highways under the jurisdiction of a (Footnote continued on next page…) 26 The Pennsylvania Supreme Court rece

2011In a case involving the real estate exception to sovereign immunity where the sufficiency of constructive notice was at issue, our Supreme Court agreed with this Court’s analysis that " 'the notice that is required under the real estate exception [42 Pa.C.S. § 8522(b)(4)] is co-extensive with that required under a common law cause of action in negligence.’ ” Department of Transportation v. Patton, 546 Pa. 562, 565-66 , 686 A.2d 1302, 1304 (1997) rev'g Patton v. Department of Transportation, 669 A.2d 1090, 1097 (Pa.Cmwlth.1996) (quoting Patton, 669 A.2d at 1097 (alteration in original)).

2011In a case involving the real estate exception to sovereign immunity where the sufficiency of constructive notice was at issue, our Supreme Court agreed with this Court’s analysis that " 'the notice that is required under the real estate exception [42 Pa.C.S. § 8522(b)(4)] is co-extensive with that required under a common law cause of action in negligence.’ ” Department of Transportation v. Patton, 546 Pa. 562, 565-66 , 686 A.2d 1302, 1304 (1997) rev'g Patton v. Department of Transportation, 669 A.2d 1090, 1097 (Pa.Cmwlth.1996) (quoting Patton, 669 A.2d at 1097 (alteration in original)).

2025Our Supreme Court rejected the plaintiff’s attempt to invoke the real estate exception to immunity, which applies “only to those cases where it is alleged that the artificial condition or defect of the land itself causes the injury, not merely when it facilitates the injury by the acts of others, whose acts are outside the statute’s scope of liability.” Id. (emphasis in original).

1994We granted further review to examine this case in light of our recent decision in Crowell v. Philadelphia, 531 Pa. 400 , 613 A.2d 1178 (1992), which held that pursuant to the Political Subdivision Tort Claims Act a municipality can be held liable in damages only for its acts of active negligence, and Snyder v. Harmon, 522 Pa. 424 , 562 A.2d 307 (1989), where we concluded that the real estate exception to the rule of immunity is applicable only in those cases where it is alleged that the dangerous conditions of the land itself causes an injury and not merely when it facilitates injury by acts o

2000The court noted that “[f]or purposes of deciding the applicability of the real estate exception to sovereign immunity, it is the cause of the accident — the event that set the accident in motion — that is determinative.” Id. at 842 n. 8. 3 The common pleas court agreed that Rothermel controlled the instant case and granted PennDOT’s motion for summary judgment.

2000The court noted that "[f]or purposes of deciding the applicability of the real estate exception to sovereign immunity, it is the cause of the accident—the event that set the accident in motion—that is determinative." Id. at 842 n. 8. [3] The common pleas court agreed that Rothermel controlled the instant case and granted PennDOT's motion for summary judgment.

2021Because we must narrowly construe the exceptions to sovereign immunity, see Cowell, 883 A.2d at 709 , we decline to extend the real estate exception to a situation where the alleged dangerous condition did not derive or originate from Commonwealth-owned realty and was located outside of DOT’s right-of-way.

2021In response, DOT asserts that, insofar as the Poleskys abandoned their original claim that the tree was located within DOT’s right-of-way, their claim that the tree was located within DOT’s slope easement constitutes a new cause of action that is barred by the two-year statute of limitations.7 DOT further asserts that, even if the 5 This Court has stated that “[t]he question of what constitutes a dangerous condition [for purposes of the real estate exception] is a question of fact . . . [;] [h]owever, the determination of whether an action is barred by sovereign immunity is entirely a matter o

2011In a case involving the real estate exception to sovereign immunity where the sufficiency of constructive notice was at issue, our Supreme Court agreed with this Court’s analysis that " 'the notice that is required under the real estate exception [42 Pa.C.S. § 8522(b)(4)] is co-extensive with that required under a common law cause of action in negligence.’ ” Department of Transportation v. Patton, 546 Pa. 562, 565-66 , 686 A.2d 1302, 1304 (1997) rev'g Patton v. Department of Transportation, 669 A.2d 1090, 1097 (Pa.Cmwlth.1996) (quoting Patton, 669 A.2d at 1097 (alteration in original)).

2011In a case involving the real estate exception to sovereign immunity where the sufficiency of constructive notice was at issue, our Supreme Court agreed with this Court’s analysis that " 'the notice that is required under the real estate exception [42 Pa.C.S. § 8522(b)(4)] is co-extensive with that required under a common law cause of action in negligence.’ ” Department of Transportation v. Patton, 546 Pa. 562, 565-66 , 686 A.2d 1302, 1304 (1997) rev'g Patton v. Department of Transportation, 669 A.2d 1090, 1097 (Pa.Cmwlth.1996) (quoting Patton, 669 A.2d at 1097 (alteration in original)).

2024Snyder, 562 A.2d at 312 ; Marker, 677 A.2d at 348 ; Clark, 962 A.2d at 697 ; Polesky, slip op. at 14-16.

2024Therefore, the Supreme Court has instructed that “courts must strictly construe the legislatively specified exception to sovereign immunity.” Brooks, 259 A.3d at 371; Dean, 751 A.2d at 1132 ; Snyder, 562 A.2d at 312 ; Clark v. Pa. Dep’t of Transp., 962 A.2d 692, 694 (Pa. Cmwlth. 2008); Marker v. Dep’t of Transp., 677 A.2d 345, 348 (Pa. Cmwlth. 1996). 2.

2011Additionally, Ms. Nardella relies on, inter alia, Kilgore v. City of Philadelphia, 553 Pa. 22 , 717 A.2d 514 (1998), Grieff v. Reisinger, 548 Pa. 13 , 693 A.2d 195 (1997), and Martin v. City of Philadelphia, 696 A.2d 909 (Pa.Cmwlth.1997), as further support for her contention that SEPTA’s failure to properly maintain the platform falls within the real estate exception to sovereign immunity.

2011Additionally, Ms. Nardella relies on, inter alia, Kilgore v. City of Philadelphia, 553 Pa. 22 , 717 A.2d 514 (1998), Grieff v. Reisinger, 548 Pa. 13 , 693 A.2d 195 (1997), and Martin v. City of Philadelphia, 696 A.2d 909 (Pa.Cmwlth.1997), as further support for her contention that SEPTA’s failure to properly maintain the platform falls within the real estate exception to sovereign immunity.

1993“We may not reverse the grant of summary judgment unless there has been an error of law or clear and manifest abuse of discretion.” Wellons v. SEPTA, 141 Pa.Commonwealth Ct. 622, 624, 596 A.2d 1169, 1170 , petition for allowance of appeal denied, 529 Pa. 643 , 600 A.2d 1260 (1991). *21 Fitchett argues that the real estate exception set forth at 42 Pa.C.S. § 8522(b)(4) applies to her claim, because the grease and debris would not have been present if SEPTA had not altered the natural condition of the real estate by erecting the train station.

1993“We may not reverse the grant of summary judgment unless there has been an error of law or clear and manifest abuse of discretion.” Wellons v. SEPTA, 141 Pa.Commonwealth Ct. 622, 624, 596 A.2d 1169, 1170 , petition for allowance of appeal denied, 529 Pa. 643 , 600 A.2d 1260 (1991). *21 Fitchett argues that the real estate exception set forth at 42 Pa.C.S. § 8522(b)(4) applies to her claim, because the grease and debris would not have been present if SEPTA had not altered the natural condition of the real estate by erecting the train station.

2015Dist., 722 A.2d 239, 245 (Pa.Cmwlth.1998).

2010Id. [3] The Association also contends that the Port Authority was subject to liability for negligence under the real estate exception to governmental immunity found at Section 8542(b)(3) of the act commonly referred to as the Political Subdivision Tort Claims Act (Tort Claims Act), 42 Pa. C.S. § 8542(b)(3).

1992Although Mascaro was decided under the real estate exception, its rationale has been employed in other factual scenarios. 2 See Chevalier v. City of Philadelphia, 516 Pa. 316 , 532 A.2d 411 (1987) (no liability for criminal acts of third parties under street lighting exception, 42 Pa.C.S. § 8522(b)(4)).

1992Although Mascaro was decided under the real estate exception, its rationale has been employed in other factual scenarios. 2 See Chevalier v. City of Philadelphia, 516 Pa. 316 , 532 A.2d 411 (1987) (no liability for criminal acts of third parties under street lighting exception, 42 Pa.C.S. § 8522(b)(4)).

1991In McCloskey v. Abington School District, 115 Pa. Commw. 289 , 539 A.2d 946 (1988), the court applied the Mascaro test and found that the school district in the case was immune from liability under section 8541 et seq., despite plaintiffs’ argument that the real estate exception applied.

1991In McCloskey v. Abington School District, 115 Pa. Commw. 289 , 539 A.2d 946 (1988), the court applied the Mascaro test and found that the school district in the case was immune from liability under section 8541 et seq., despite plaintiffs’ argument that the real estate exception applied.

1991Frank v. SEPTA, 96 Pa. Commw. 221 , 506 A.2d 1015 (1986); Fezzano v. Borough of Ridley Park, 94 Pa. Commw. 179 , 503 A.2d 157 (1986).” (emphasis supplied) In construing this saving exception for common-law liability, the court further stated: “We believe those cases to have been decided correctly and they persuade us to hold that the real estate exception can be applied only to those cases where it is alleged that the artificial condition or defect of the land itself caused the injury, not merely when it facilitates the injury by the acts of others, whose acts are outside the statute’s scope o

1988Frank v. SEPTA, 96 Pa.Commonwealth Ct. 221, 506 A.2d 1015 (1986); Fezzano v. Borough of Ridley Park, 94 Pa.Commonwealth Ct. 179, 503 A.2d 57 (1986). *54 We agree that the real estate exception to governmental immunity is a narrow exception and, by its own terms, refers only to injuries arising out of the care, custody or control of the real property in the possession of the political subdivision or its employees.

2025We found that allegation insufficient to invoke the real estate exception, even though it identified a specific physical quality of the land (the security devices) that was involved, because the injuries “were caused by a bullet, not by a physical feature of the [h]ousing [p]roject.” Id. at 88 .

2006Miller v. Commonwealth, Department of Transportation, 690 A.2d 818, 819 (Pa.Cmwlth.1997). .In Williams v. Philadelphia Housing Authority, 873 A.2d 81 (Pa.Cmwlth.2005), this Court explained the essentials of the real estate exception to sovereign immunity: The negligence must make the real property itself unsafe for its intended use ...