          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.


      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 . . .
                                             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).




                                                    2
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 trochanter2 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 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



                                               3
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).



                                                4
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.


                                                  5
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).




                                         6
       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,



                                                 7
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).



                                               8
             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

                                           9
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




                                          10
          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                  :


                               ORDER

     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
