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Bass, Clifford Secure Dismissal for Municipal Nursing Facility in Sexual Assault Case

Attorneys John A. Bass and Andrew W. Clifford secured the dismissal of a local municipality who was a named defendant in a sexual assault case stemming from the assault of a resident (“Plaintiff”) at a county-operated skilled nursing facility by an employee at the facility. The municipality’s dismissal from the case is the result of the Bradford County Court of Common Pleas’ granting of preliminary objections, wherein the Court found the municipality to be immune from liability pursuant to the Political Subdivision Tort Claims Act (“PSTCA”), 42 Pa.C.S.A. §§ 8540 et. seq.,

Plaintiff brought various tort claims against the facility’s former employee, who was subsequently convicted of Indecent Assault, 18 Pa.C.S.A. § 3126(a)(1), as a result of the assault. The complaint also set forth claims against the municipality sounding in negligence and negligent supervision based upon theories of both direct and vicarious liability.

As a basis for raising preliminary objections, Attorneys Bass and Clifford argued that the claims against the municipality lacked legal and factual sufficiency because the municipality was entitled to immunity from suit based upon its status as a “local agency” under the PSTCA. Specifically, the PSTCA provides that “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.” 42 Pa.C.S.A. § 8541. As a general rule, immunity from suit is an affirmative defense that is properly raised in a responsive pleading as “New Matter.” However, courts recognize a limited exception to this rule allowing the affirmative defense of governmental immunity as a preliminary objection when such defense is clearly applicable on the face of the complaint and the plaintiff raises no objection.

The PSTCA, however, does not provide blanket immunity for local agencies. A local agency and its employees may only be held liable for damages on account of injury to a person if the plaintiff can meet its burden of showing (1) that 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 § 8541, 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 eight enumerated exceptions listed in the PSTCA. These exceptions include vehicle liability; care, custody or control of personal property; real property; trees, traffic controls and street lighting; utility service facilities; streets; sidewalks; and care, custody or control or animals. Additionally, negligent acts cannot include acts or conduct which constitutes a crime, actual fraud, actual malice or willful misconduct.

In granting the preliminary objections and dismissing the local municipality from the case, the Court held that the municipality, as a matter of law, enjoyed the immunity protection afforded by the PSTCA as a “local agency.” Moreover, the Court found that the alleged acts of the facility’s employee did not fall within any of the eight exceptions from immunity, and, even if they did, those acts constituted a crime. Accordingly, the Court held that the local municipality was entitled to immunity under the PSTCA, thus dismissing them from the case.