Sovereign Immunity

July 23rd, 2019 by Rieders Travis in Sovereign Immunity

SOVEREIGN IMMUNITY-INTERNATIONAL-ORGANIZATIONS-IMMUNITY

Jam v. International Finance Corp. 2019, U.S. Supreme Ct. (________, 2018) Roberts, J-This case concerns an international organization called an International Finance Committee. American legislation grants international organizations privileges and immunities. Indian farmers sued the IFC because of pollution and the IFC claimed immunity under United States law. The United States Supreme Court reversed the D.C. Circuit which threw the case out and said that the Federal Act, the IOIA grants international organizations “the same immunity” from suit that foreign governments enjoy. Immunity is not as tight currently as it was in 1945. The IFC gives no more immunity than is currently granted to foreign countries. The president has power to modify otherwise applicable immunity rules. This is perfectly compatible with the notion that those rules might themselves might change over time in light of developments in the law governing foreign sovereign immunity.

SOVEREIGN IMMUNITY-POLITICAL SUBDIVISION TORT CLAIMS ACT-EXCEPTIONS-MOTOR VEHICLES-MOVEMENT OF VEHICLES

Balentine v Chester Water Auth., 2018 LEXIS 4299 Supreme Ct of PA (August 21, 2018) Mundy J.  We granted allowance of appeal in this matter to consider whether the Commonwealth Court erred in holding that the involuntary movement of a vehicle does not constitute operation of a motor vehicle for purposes of the vehicle liability exception to governmental immunity under 42 Pa. C.S. § 8542(b)(1). As explained herein, because we determine that movement of a vehicle, whether voluntary or involuntary, is not required by the statutory language of the vehicle liability exception, we reverse the order of the Commonwealth Court thereby allowing this matter to proceed in the trial court. Mathues activated the four-way flashers and the amber strobe light on the roof of the vehicle, which he then exited. He walked to the front of the vehicle where he laid some blueprints on the hood. Approximately five minutes later, a vehicle owned by Michael Roland and driven by Wyatt Roland, struck the rear of the CWA vehicle causing it to move forward. Mathues was rolled up onto the hood and thrown into the roadway. The right front bumper of the CWA vehicle then struck Medina-Flores as he stood in the ditch. The undercarriage dragged him out of the ditch, pinning Medina-Flores under the vehicle when it came to a stop.

SOVEREIGN IMMUNITY-COMMONWEALTH IMMUNITY-EXCEPTIONS-ROADS AND HIGHWAYS-BICYCLE ACCIDENT ON HUMP IN ROADWAY

Carletti v. Commonwealth, 2018 Pa. Cmwlth. LEXIS 317 (July 17, 2018) Pellegrini, S.J.  This case was a bicycle accident involving a hump in the roadway.  The question is whether the bicycle rider applied his front brakes and went over the handlebars or whether he applied the brakes properly but instead was injured because of the hump in the road.  The court found that there was adequate constructive notice because the Commonwealth knew of the hump in the road.  The court therefore said there was constructive knowledge.  The government can be charged with constructive notice of a dangerous condition of a roaday, but it has to be apparent upon reasonable inspection.  The language explains that constructive notice can be just the fact that the problems was there for a while and was noticeable.  The court then says that the expert testimony was sufficient that it was the bump that caused the injury, not the biker hitting his front brakes only.  However, the problem was that the jury was not sufficiently instructed concerning deposition testimony that was never admitted into evidence.  There was a Mr. Kauffman who testified.  The judge let it in, based upon the fact that the deposition was going to be admitted.  The deposition never was admitted, and the instruction to the jury to disregard the evidence was not sufficient.  Therefore the very substantial verdit was reversed and remanded for trial.

SOVEREIGN IMMUNITY-SOVEREIGN IMMUNITY ACT-DAMAGES-WRONGFUL DEATH-DECEDENT’S FUTURE SERVICES AND FINANCIAL SUPPORT

Ewing, et al. v. Potkul, et al., No. 1471 CD 2016 (Pa. Cmwlth. September 27, 2017) Leavitt, P.J.  The Pennsylvania Department of Transportation (PennDOT) appeals an order of the Court of Common Pleas of Fayette County (trial court) that sustained in part, and overruled in part, PennDOT’s preliminary objections to a six-count complaint filed on behalf of the Estate of Trudy J. Zooner (Estate). At issue here is the trial court’s ruling upon PennDOT’s demurrer to Count VI of the complaint, which asserted a claim under the statute commonly known as the Wrongful Death Act on behalf of the husband, mother, and three adult daughters of Trudy J. Zooner (Decedent). The trial court held that Decedent’s mother and daughters could not seek “non-pecuniary” damages but could seek “pecuniary damages” under the Wrongful Death Act for the loss of Decedent’s future services and financial contributions. PennDOT argues that these so-called pecuniary damages are barred by the provisions of the Judicial Code commonly known as the Sovereign Immunity Act.  We agree and reverse the trial court’s order holding otherwise.

In short, when considering a wrongful death claim brought against a Commonwealth agency, we examine the claim through the lens of the Sovereign Immunity Act. To recover against a Commonwealth agency, the damages sought must be authorized by the Wrongful Death Act and by Section 8528(c) of the Sovereign Immunity Act.

The same is true for a survival action brought against the Commonwealth or its agencies. Section 8302 of the Judicial Code, commonly known as the Survival Act, authorizes a decedent’s estate to assert claims that the decedent could have asserted had he lived. Specifically, the Survival Act states that “all causes of actions․real or personal, shall survive the death of the plaintiff.” 42 Pa. C.S. § 8302.

As with a wrongful death claim, damages sought in a survival action against the Commonwealth must be authorized by both the Survival Act and the Sovereign Immunity Act.

The services and financial support a decedent would provide a child or parent do not constitute the “earnings” or the “earning capacity” of the recipient. This loss is more accurately characterized as the “loss of support.” The Legislature could have listed “loss of support” as one of the “types of damages recoverable” from a Commonwealth agency, as it did in the Tort Claims Act. But it did not do so. The only inference to be drawn is that the omission was intentional. We hold that damages for loss of the value of a decedent’s services and financial contributions are not damages authorized in Section 8528(c)(1) of the Sovereign Immunity Act as “loss of earnings and earning capacity.” 42 Pa. C.S. § 8528(c)(1).

For the above reasons, we hold that the Sovereign Immunity Act bars a parent or child of a decedent from recovering damages in a wrongful death action for the loss of the decedent’s future services and financial support. Accordingly, we reverse the trial court’s order insofar as it overruled PennDOT’s preliminary objection to the claims of Decedent’s mother and daughters for such damages. The trial court’s order is affirmed in all other respects.

 

SOVEREIGN IMMUNITY-POLITICAL SUBDIVISION TORT CLAIMS ACT-EXCEPTIONS-UTILITY EXCEPTION

Metropolitan Edison Co. v. City of Reading, 2017 Pa. LEXIS 1387 (S. Ct. June 20, 2017) Donohue, J. In this appeal, we are required to construe the language of the utility service facilities exception (“Utility Exception”) to governmental immunity contained in the Political Subdivision Tort Claims Act (“Tort Claims Act”), 42 Pa.C.S. § 8542(b)(5). The Commonwealth Court concluded that where a dangerous condition of the facilities of a utility system is created by the negligent action or inaction of a local agency or its employees, the Utility Exception does not apply. Because the Commonwealth Court misconstrued both the Utility Exception and the gravamen of the lawsuit in question, we reverse.

Metropolitan Edison Company (“Met-Ed”) provides electricity service to residents of the City of Reading (“City”) and surrounding areas within Berks County. As part of Met-Ed’s electric utility system, electrical wires are buried underground, along with other private and municipal utilities, within the City’s right-of-way. The wires are encased in sections of terra cotta piping which are cemented together, or Schedule 40 PVC conduit, depending on the age of the installation.

The City resumed its excavation work. On July 15, 2009, Homan received a call from the City raising some concerns about erosion. Homan returned to the site and found that the excavation hole was deeper and the walls were falling in, but Met-Ed’s conduit bank was still intact. Homan noted that there was no shoring in place to prevent the walls from collapsing and displacing the dirt underneath the conduit bank. Homan informed the City’s officials that the excavation hole had to be backfilled and stabilized as soon as possible to provide sufficient support for the conduit bank.

The City continued excavating, further widening and deepening the hole. The City never installed shoring to support the walls and took no measures to prevent rain water from entering. Over the weekend, the area experienced heavy rainfall, causing the earth around and underneath the conduit bank to wash away. On July 20, 2009, Met-Ed was notified by the City that the conduit bank had fully collapsed and was laying at the bottom of the excavation hole.  Homan conducted an extensive repair of approximately fifty feet of conduit bank, which involved the removal of the collapsed portions and installation of a new a conduit bank. Id.

Met-Ed filed a single-count complaint, alleging negligence against the City and seeking $53,000 in damages.

For the foregoing reasons, the Commonwealth Court erred in reversing the trial court and concluding that Met-Ed failed to establish a claim under the Utility Exception. We find that, contrary to the Commonwealth Court’s analysis, under the Utility Exception the focus must be on whether the injuries alleged were caused by a dangerous condition which derived from, originated from or had its source in the local agency’s utility service facility and located within its right-of-way, not on the genesis of the dangerous condition. It must also be established that the local agency had sufficient advance notice, or could reasonably be charged with notice under the circumstances, of the dangerous condition, and the foreseeable risks presented by those dangerous conditions to permit it to take timely remedial measures. Here, Met-Ed’s evidence established that the City had sufficient advance notice of the dangerous condition of the excavation site as a result of a lack of adequate ground support and the foreseeable risks presented by those dangerous conditions to permit it to take timely action to install shoring or otherwise stabilize the dirt, rocks and soil. The City failed to remediate the dangerous condition, causing the collapse resulting in Met-Ed’s injuries.

The Commonwealth Court’s decision is hereby reversed.

Justices Baer, Todd, Dougherty and Wecht join the opinion. Justice Mundy files a concurring opinion in which Justice Baer joins. Chief Justice Saylor files a dissenting opinion.

SOVEREIGN IMMUNITY-INDEMNIFICATION

Lewis v. Clarke, 2017 U.S. LEXIS 2796, 581 U.S. ___ (April 25, 2017) Sotomayor, J. We have never before had occasion to decide whether an indemnification clause is sufficient to extend a sovereign immunity defense to a suit against an employee in his individual capacity. We hold that an indemnification provision cannot, as a matter of law, extend sovereign immunity to individual employees who would otherwise not fall under its protective cloak.

This case arose in the context of an Indian tribe with gaming authority.

We have never before treated a lawsuit against an individual employee as one against a state instrumentality.  A civil rights suit under 1983 against a state officer in his official capacity does not implicate the Eleventh Amendment and a state’s sovereign immunity from suit.  Federal appellate courts that have considered the indemnity question have rejected the argument that an indemnity statute brings the Eleventh Amendment into play in 1983 actions.

In sum, although tribal sovereign immunity is implicated when the suit is brought against individual officers in their official capacities, it is simply not present when the claim is made against those employees in their individual capacities. An indemnification statute such as the one at issue here does not alter the analysis. Clarke may not avail himself of a sovereign immunity defense.

SOVEREIGN IMMUNITY-POLITICAL SUBDIVISION TORT CLAIMS ACT-EXCEPTIONS-REAL PROPERTY-FALL OVER COMPUTER CABLES

Gillingham v. County of Delaware, No. 2532 C.D. 2015 (February 14, 2017) Brobson, J.  It was claimed that a cause of action could be brought for a fall over computer cables because this was an exception under the real estate exception of the Political Subdivision Tort Claims Act.  The trial court dismissed the case.  An appeal followed.  If an injury is caused by personalty that is merely on the real property, the Political Subdivision remains immune.  In view of the fact that the real property exception applies only to real property, the injury from computer cables does not fall within the exception.  Immunity applies.

SOVEREIGN IMMUNITY-MANDAMUS-DECLARATORY JUDGMENT ACTIONS-EMPLOYMENT

Brimmeier v. Pennsylvania Turnpike Commission, 147 A.3d 954 (Pa. Cmwlth. 2016).  The law is clear that sovereign immunity does not bar either mandamus or declaratory judgment action.  Therefore, to the extent that the Commission objects to mandamus and/or declaratory judgment actions, their preliminary objections should have been overruled.  Claim of contract breach and promissory estoppel upon employment agreement are barred by sovereign immunity.  The Commission is immune from claim of intentional misrepresentation and negligent misrepresentation claims.  PO’s to those claims should have been sustained.  Mandamus is not applicable in this particular case.  There is no claim under the Declaratory Judgment Act.  There is no viable breach of contract claim set forth.  Promissory estoppel was properly dismissed.

SOVEREIGN IMMUNITY-COMMONWEALTH IMMUNITY-EXCEPTIONS-VEHICLE LIABILITY

Here, the vehicle was stopped at the time that Commonwealth defendants purportedly possessed the keys.  The state people did not operate the vehicle as a matter of law, and the vehicle liability exception therefore did not apply.  The court threw the case out on this basis.  Ward, the plaintiff, was engaged as a traffic controller.  She was struck by a vehicle operated by DeSimone.  DeSimone was convicted of a DUI.  DeSimone was under the supervision of the Delaware County Adult Probation authorities.  The county person permitted DeSimone to drive home, which apparently he should not have done knowing of DeSimone’s condition.  Ward suffered significant injuries as a result of the accident.  The lawsuit was against the county probation people.  That was the claim that was thrown out.

SOVEREIGN IMMUNITY-POLITICAL SUBDIVISION TORT CLAIMS ACT-EXCEPTIONS-MOTOR VEHICLE-TRAFFIC CONTROL DEVICE

Balentine v. Chester Water Authority, 140 A.3d 69 (Pa. Cmwlth. 2016).  Decedent’s estate brought action claiming Chester Water Authority and an individual were liable for decedent’s death.  The question in this case was application of the exception to the motor vehicle portion of the Tort Claims Act and the traffic control device exception.  Although the Water Authority truck was running and had its strobe light on, it was parked at the time of the collision.  A car hit the water authority truck, forcing it involuntarily to move forward and fatally injure decedent.  The court found that this matter does not involve a vehicle in motion, and hence the exception to the immunity act does not apply.  Because the Authority truck was parked at the time of the collision, it was no longer in operation when the accident occurred.  The involuntary movement of a vehicle does not constitute “operation” for purposes of the motor vehicle exception to governmental immunity.  Illegally parking the truck with its strobe light flashing did not constitute a traffic device.  Therefore, the exception to government immunity did not apply either.  The truck is not a traffic control device.

STATUTE OF LIMITATIONS-SOVEREIGN IMMUNITY-TAPPING FEES

Hidden Creek v. Lower Salford Township Authority, 129 A.3d 602 (Pa. Cmwlth. 2015).  Legitimate factual questions remain as to whether Developer was reasonably unaware that the tapping fees which they were challenging were allegedly erroneous.  Likewise, the developer was reasonably unaware that the Authority’s apparent failure to comply with the law adopting its tapping Resolutions may have deprived Developer of information necessary to evaluate the accuracy of the tapping fee.  Because the facts are not so clear that reasonable minds would not differ as to whether Developer should have been reasonably aware of the alleged error in tapping fees, we conclude that the trial court properly denied the Authority’s summary judgment motion on the timeliness issue.  However, the court then went on to say there was no right to sue under the Political Subdivision Tort Claims Act.  There simply was no exception.  However, this case was saved because governmental immunity did not apply.  The statute with respect to tapping fees created a targeted form of accountability resting outside the scope of governmental immunity.  The Act in question specifically permits suit.  The law authorizes any person questioning the reasonableness or uniformity of a rate fixed by an Authority to bring suit against the Authority in the Court of Common Pleas.  Therefore the lower court order was affirmed.  The damage claim is simply the funds the Authority collected.  There is no claim for consequential damages.  The lawsuit would simply make the Authority adhere to the law on tapping fees.

SOVEREIGN IMMUNITY-DERIVATIVE SOVEREIGN IMMUNITY

The government’s sovereign immunity under the Telephone Consumer Protection Act does not provide “derivative sovereign immunity” to a private enterprise as well as the government.  Only the government gets that sovereign immunity.  This case involved unsolicited cell phone intrusion.  The court considered whether a federal contractor shares the government’s immunity when it sends text messages to unconsenting recipients.  The court held that it did not share that immunity.  Campbell-Ewald Company v. Gomez, 136 S.Ct. 663 (2016).

FOREIGN SOVEREIGN IMMUNITIES ACT-COMMERCIAL ACTIVITY IN THE UNITED STATES-FOREIGN ACCIDENT

OBB Personenverkehr AG v. Sachs, 136 S.Ct. 390 (2015).  The Sovereign Immunities Act shields foreign states and their agencies from suit in United States Courts unless the suit falls within one of the Act’s specifically enumerated exceptions.  This case concerns the scope of the commercial activity exception, which withdraws sovereign immunity in any case “in which the action is based upon a commercial activity carried on in the United States by [a] foreign state.”28 U. S. C. §1605(a)(2).  Respondent Carol Sachs is a resident of California who purchased in the United States a Eurail pass for rail travel in Europe. She suffered traumatic personal injuries when she fell onto the tracks at the Innsbruck, Austria, train station while attempting to board a train operated by the Austrian state-owned railway. She sued the railway in Federal District Court, arguing that her suit was not barred by sovereign immunity because it is “based upon” the railway’s sale of the pass to her in the United States. We disagree and conclude that her action is instead “based upon” the railway’s conduct in Innsbruck. We therefore hold that her suit falls outside the commercial activity exception and is barred by sovereign immunity.

SOVEREIGN IMMUNITY-POLITICAL SUBDIVISION TORT CLAIMS ACT-EXCEPTIONS-VEHICLE LIABILITY-DAMAGES-PAIN AND SUFFERING-PERMANENT LOSS, DISFIGUREMENT OR PERMANENT DISMEMBERMENT

In order to recover under the Political Subdivision Tort Claims Act, a person has to show that one of the exceptions applies.  One of those exceptions is vehicle liability.  Here, the person was on a bicycle and was hit by a transportation authority vehicle.  The injured party must still show damages for pain and suffering.  Such damages are only recoverable under this Act in a case involving death or permanent loss of a bodily function, permanent disfigurement or permanent dismemberment.  Here enough evidence was shown.  While the bicycle rider recovered from injuries and did not need surgery, this does not mean that no serious injury occurred.  There was in fact a permanent disability established.  Hutto v. Philadelphia Parking Authority, 118 A.3d 476 (Pa. Cmwlth. 2015).

NEGLIGENCE – PECULIAR RISKS DOCTRINE – LOCAL AGENCY – SOVEREIGN IMMUNITY

Gardner sued city when he hurt his back claiming that the garden was negligently constructed by a contractor.  The court threw the case out and found that acts of local agencies or the acts of its employees does not include the negligent acts of persons other than the local agency and its employees, thereby excluding an independent contractor.  In summary Section 8541 precludes liability for the acts of any person not an employee of a local agency who injures another.  The employer of an independent contractor is not liable for physical harm caused to another by an act or omission of the contractor or its servants except where the work to be performed by the independent contractor involves special danger or peculiar risks.  Nardo v. City of Philadelphia, 988 A.2d 740 (Pa. Cmwlth. 2010).

SOVEREIGN IMMUNITY-FEDERAL TORT CLAIMS ACT-EQUITABLE TOLLING

U.S. v. Kwai Fun Wong, 135 S.Ct. 1625 (2015).  The United States Supreme Court held that the Federal Tort Claims Act two-year limitation period can be tolled.  The court actually had two cases before it, one a personal injury case and one that was not.  The question is whether the time period in which to file a Federal Tort Claims Act case is jurisdictional.  Jurisdictional provisions cannot be waived or extended.  Time limits in the FTCA are just time limits, nothing more, said the court.  “Even though they govern litigation against the Government, a court can toll them on equitable ground.”  The Supreme Court affirmed the judgments of the United States Court of Appeals to the Ninth Circuit and remanded the case for further proceedings consistent with the opinion.  The lower court will decide whether the requirements for equitable tolling exist, since it will be accepted under the FTCA.  The FTCA goes further than the typical statute waiving sovereign immunity to indicate that its time bar allows a court to hear late claims.

SOVEREIGN IMMUNITY-POLITICAL SUBDIVISION TORT CLAIMS ACT-EXCEPTIONS-REAL PROPERTY-INMATE ATTACKING LAWYER

Burns v. Blair County, 112 A.3d 690 (Pa. Cmwlth. 2015).  Inmate in courtroom attacked his lawyer.  The question is whether immunity applied or whether this was an exception to the immunity as “real property” where it was claimed that the county officials did not do enough to prevent the assault.  The court relied upon Mascaro v. Youth Study Center, 514 Pa. 351, 523 A.2d 1118 (1987).  Mascaro involved rape by a detainee.  Mascaro stands for the narrow application of the real estate exception, that the harm that others who are not government employees caused cannot be imputed to the local agency or its employees, the real estate exception can only be applied when an artificial condition or defect of the land causes injury, and that the government unit is not liable for the criminal acts of others.  Burns at 699.  Burns did not establish that the injury was caused by a defect in county property and the case should be thrown out, according to the court.

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