City of Philadelphia liable to a bike ride in a charity event who was injured due to a large pothole.

Neither governmental immunity nor a release could stop the lawsuit.

Degliomini v. ESM Prods., Inc. (Pa. 2021)

State: Pennsylvania, Supreme Court of Pennsylvania Eastern District

Plaintiff: Anthony Degliomini and Karen Degliomini

Defendant: Esm Productions, Inc. and City of Philadelphia

Plaintiff Claims: negligence, tort claims act

Defendant Defenses: Governmental Immunity and Release

Holding: For the Plaintiff

Year: 2021

Summary

Plaintiff hit a pothole on a charity ride that rendered him a quadriplegic. He sued the event promoter and the City of Philadelphia for his injuries. Because his injuries occurred on a city street, the release was void under Pennsylvania law because it violated public policy.

The case proceeded to a jury trial, and the plaintiff recovered $3,086,833.19. The Appellate court dismissed the plaintiffs’ claims based on the release. The case was then appealed to the Supreme Court of Pennsylvania.

Prior to trial, the plaintiff settled with Esm Productions and dismissed all other defendants except the city.

Facts

Appellant Anthony Degliomini participated in the May 2015 Philadelphia Phillies Charity Bike Ride (Bike Ride), a twenty-mile ride along a designated route through the streets of South and Center City Philadelphia. During the Bike Ride, Degliomini crashed when he rode into an unmarked and un-barricaded sinkhole on Pattison Avenue in South Philadelphia, which measured sixteen square feet in area and six inches deep. As a result of the crash, Degliomini suffered severe and extensive injuries, including spinal cord injuries leading to incomplete quadriplegia, and multiple bone fractures which required surgical procedures and extensive and ongoing medical treatment. Degliomini and his wife, Karen Degliomini (appellants), filed a negligence action against the City of Philadelphia (the City), event planner ESM Productions, and several other defendants.

The parties litigated pre-trial motions seeking, inter alia, to dismiss appellants’ claims against the City due to governmental immunity pursuant to the Political Subdivision Tort Claims Act, and to bar appellants’ claims of negligence on the basis of the 2015 Phillies Charities Bike Ride Release (the Release), an exculpatory contract prepared by ESM Productions and signed by Mr. Degliomini.

Analysis: making sense of the law based on these facts.

Whenever you sue a government entity, city, county, state or the Federal Government, the government entity has the defense of governmental immunity. The Federal Government has one act, and each state has enacted government immunity, and a subsequent tort claims act for each state. The state governmental immunity and tort claims acts usually apply to any political subdivision in that state such as a city or county. Unless the lawsuit fits into one of the exceptions in the state tort claims act, you cannot sue a government entity.

In this case, the plaintiff had to prove the Pennsylvania tort claims act allowed the plaintiff to sue the city and that the release was not valid.

The court started by examining releases under Pennsylvania law.

A valid exculpatory contract fully immunizes a person or entity from any consequences of its negligence. Disfavored under Pennsylvania law, exculpatory contracts are subject to close scrutiny, strictly construed against the party seeking their protection, and enforced only provided certain criteria are met. Our courts have recognized that “lying behind these contracts is a residuum of public policy which is antagonistic to carte blanche exculpation from liability[.]”

The courts analysis ended up much like other states, as long as the release did not violate public policy the release would probably be valid.

Thus, our longstanding precedent explains that an exculpatory provision is enforceable, but only if it “does not contravene public policy, is between parties relating entirely to their private affairs, and where each party is a free bargaining agent so that the contract is not one of adhesion.”

A release does not violate public policy in Pennsylvania if:

Generally speaking, an exculpatory clause withstands a challenge based on public policy if “‘it does not contravene any policy of the law, that is, if it is not a matter of interest to the public or State.’

An exculpatory contract contravenes public policy when it violates an obvious, “overriding public policy from legal precedents, governmental practice, or obvious ethical or moral standards.

Pennsylvania does not allow a release to protect against reckless or gross negligence.

…However, we have also held that pre-injury exculpatory releases immunizing parties from liability for their reckless or grossly negligent conduct firmly violate public policy — and are therefore not enforceable — because “such releases would jeopardize the health, safety, and welfare of the people by removing any incentive for parties to adhere to minimal standards of safe conduct.”

Releases are also void if the acts were negligent per se.

An exculpatory clause is similarly void as against public policy where it immunizes a party from the consequences of violating a statute or regulation intended to preserve health or safety.

Public policy in Pennsylvania has been defined as:

…i]n the employer-employee relationship[;]” “in situations where one party is charged with a duty of public service,” e.g., public utilities, common carriers, hospitals, airports; in “agreements which attempt to exculpate one from liability for the violation of a statute or regulation designed to protect human life”; and in contracts involving “the limitation of consequential damages for injury to the person in the case of consumer goods[.]”

Releases cannot protect a public policy was supported because:

The view that parties charged with a duty of public service cannot contractually exculpate themselves from liability for negligent conduct is consistent with both our precedent generally upholding releases of liability for the ordinary negligence of private parties, and the law across other jurisdictions recognizing a clear public policy violation where the party seeking exculpation is engaged in performing a service of significant importance or practical necessity to members of the public.

The issue then turned on whether the city of Philadelphia had a duty to repair the streets.

The parties agree the City has a duty, derived from common law, to repair and maintain its streets for their ordinary and necessary use by the public, and the City concedes it may be held liable for injuries caused by its negligent failure to do so. The common law cause of action for negligent beach of a municipality’s non-delegable duty to repair dangerous street conditions is perhaps older than most of Philadelphia’s streets themselves; recognized and enforced for over a century, the duty withstood the evolution of governmental immunity in Pennsylvania throughout the late-nineteenth and twentieth centuries, which otherwise shielded municipalities and their employees from tort liability in most circumstances as a rule with few exceptions.

The parties agreed the city did have a duty to repair the streets and maintain them for the safety of the citizens of Pennsylvania.

The analysis then proceeded to look at the defenses to the claims. First would be whether or not governmental immunity precluded the claim, unless there was an exception in the Tort Claims Act.

The court then looked at the Pennsylvania governmental immunity statute and the Tort Claims Act and found the city could be liable for failing to repair the street.

While the clearly established policy of the Tort Claims Act is to provide an absolute rule of governmental immunity from negligence subject to its few, explicit exceptions without creating new causes of action, it is likewise the clear policy of the Act to codify and define the parameters of those excepted, permissible causes of action. Relevant here, the Tort Claims Act provides “[a] local agency shall be liable for damages on account of an injury to a person” where “damages would be recoverable under common law or a statute” if caused by a non-government entity, for “negligent acts of the local agency” consisting of “[a] dangerous condition of streets owned by the local agency” when the condition created a “reasonably foreseeable risk” of the kind of injury suffered, and when “the local agency had actual notice or could reasonably be charged with notice under the circumstances.”

Since the city had a duty to repair the street, the next defense was the release. Because the city had a duty to repair the street and the street was for the public good, the release was void for violating public policy.

Accordingly, we hold it is contrary to public policy to enforce an exculpatory contract immunizing the City from its essential duty of public service, which exists notwithstanding the context of a recreational event. Any other application of the Release would elevate the City’s private exculpatory contract over the public duties assigned to it and the authority afforded to it by the General Assembly. Under these discrete circumstances, enforcement of the Release would jeopardize the health, safety and welfare of the public at large, and the Release is thus rendered invalid as it violates public policy principles. We therefore reverse the decision of the Commonwealth Court.

So Now What?

Releases are an intricate and complicated law on their own. Throw in the issues of dealing with a political sub-division and protections afforded by government immunity and the loss of protection specifically numerated in a Tort Claims Act, and the case is complicated.

There the release attempted to protect the parties from a duty the City of Philadelphia could not abrogate or avoid. The duty was also based on public transportation, a city street. As such the release was void because it violated public policy, and the suit continued because there was an exception to government immunity afforded by the tort claims act.

Probably there are not going to be any charities using city streets for a while in Philadelphia.

What do you think? Leave a comment.

Jim Moss

Jim Moss is an attorney specializing in the legal issues of the outdoor recreation community. He represents guides, guide services, and outfitters both as businesses and individuals and the products they use for their business. He has defended Mt. Everest guide services, summer camps, climbing rope manufacturers; avalanche beacon manufacturers, and many more manufacturers and outdoor industries. Contact Jim at Jim@Rec-Law.us

Jim is the author or co-author of eight books about legal issues in the outdoor recreation world; the latest is Outdoor Recreation Insurance, Risk Management,

Outdoor Recreation Insurance, Risk Management, and Law

and Law. To Purchase Go Here:

To see Jim’s complete bio go here and to see his CV you can find it here. To find out the purpose of this website go here.

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