Intro: 0:16

The Supreme Court of Pennsylvania is the highest Court in the Commonwealth and the oldest appellate court in the nation, an institution that shapes our practice, our laws, and our lives. This is a podcast by attorneys and for attorneys who argue before Pennsylvania's court of final appeal. Welcome to The Standard of Review by SCOPAblog.

Corrie Woods: 0:42

Hi, and welcome to The Standard of Review by SCOPAblog. I'm your host Corrie Woods and today I'll be talking with attorney Nathan Murkowski of Hamburg, Ruben, Mullen, Maxwell, and Lupin PC, who earned a win in the Court's recent case of Wise versus Huntingdon County Housing Development Corporation, a case involving statutory sovereign immunity and an exception thereto for injuries resulting from dangerous conditions of the Commonwealth's real estate. Our courts have struggled mightily trying to make sense of this exception, often adopting, frankly, sophistic distinctions that have more to do with an attorney's semantic framing of the claim than legislative intent or substantial justice. That struggle was perhaps never more evident than in the instant case where the plaintiff's injury, a fall on a poorly illuminated sidewalk, led to a bizarre discussion of whether her injury was caused by artificial or natural darkness, absent or inadequate lighting, or simply the Earth's rotation on its axis. In Wise, the Court, led by Chief Justice Baer, attempts, perhaps for a final time, to bring order to the chaos by setting forth a clearer test, and jettisoning some of the more absurd of these distinctions, much to the chagrin of several justices who would dispense with them altogether in favor of return to statutory text. It remains to be seen whether Wise will be the final word, or just the final straw, in this area of the law. Let's listen. Our guest today is Nathan Murawsky, a principal at Hamburg, Ruben, Mullen, Maxwell and Lupin PC. Attorney Murawsky has represented injured persons in personal injury matters for almost 25 years, and has obtained significant settlements and verdicts in the representation of his clients. His experience includes cases involving auto accidents, premises liability, medical malpractice, professional negligence, liquor liability, defective products, and civil rights violations. Nate has tried dozens of cases to verdict in courts throughout Pennsylvania, New Jersey and in the federal court for the Eastern District of Pennsylvania. Nathan, thanks for joining us today.

Nathan Murawsky: 2:44

Thanks for having me.

Corrie Woods: 2:45

So before we get into the case, I wonder if you could just tell the listeners a little bit about why you became a lawyer and how you came to your current practice?

Nathan Murawsky: 2:53

Becoming a lawyer, like I think many people, for me started as being in college and kind of not knowing what it is exactly I wanted to do. I was lucky enough to have an uncle, who was a real estate litigator, who said to me early on, you really ought to go to law school, this would be good for you. And at the same time, the woman who is now my wife, who I met in college, had an uncle who was a personal injury attorney in Philadelphia, and said the same thing to me. I was actually doing corporate work clerking during law school, and he had said to me, "No, you should not do corporate work, you should be a litigator. This is what kind of what you were meant to do." And I actually think they were both right. So that that kind of got me on the road to doing trial work. And I've loved it ever since. It's, it's just a fantastic thing doing the litigation. And you know, not just the work. But I think especially on my end, representing plaintiffs, there is a certain amount of personal satisfaction with a lot of these cases where you're taking someone like Sharon Wise in this case, you know, who gets hurt, and you're really doing the legwork to, you know, to put them back on their feet to do you know, those types of things. So there's a very rewarding aspect to it. In the end, it's like anything else, with law, it's tough, but it's definitely worth it.

Corrie Woods: 4:16

So turning to the case, I think it might be helpful to give listeners just a little bit of background about sovereign immunity, because it's not the most natural concept in the world. So as I understand it, sovereign immunity emanates from sort of jolly old England, right? The Latin maxim is, and forgive this Latin, I'm from West Virginia, "Rex Non Potest Peccare," or the king can do no wrong. And as I understand it, that was probably a misstatement of the early English common law. That maxim was really about George the Third being too young to have legal capacity. But that sort of grows in England until it is now the law, it gets transplanted to the US, and it kind of lingers until somewhere in the 20th century, when we get a lot of liberal courts that are sort of starting to modernize tort law and uproot some of those old doctrines. In Pennsylvania, that that case that says, "Hey, we're just gonna do away with this because it's kind of crazy," is Mayle v. Department of Highways, I think that was 1978. And they basically say, "Well, this is irrational and kind of offensive to injured people and eliminate it." But the legislature in its infinite wisdom says, "Well, actually, we would like to pay fewer settlements and verdicts. So we're going to create a statute that sort of puts it back in place with a bunch of exceptions." One of those exceptions is really what we're talking about today, which is claims for damages caused by a, quote, "dangerous condition of Commonwealth agency real estate." And there's a bunch of cases that we'll get into that try to figure out what that means. So with all of that 600 years of background or so what are sort of the essential facts of this case? And how did it get started with you and your firm?

Nathan Murawsky: 6:02

So, the essential facts of the case is that back in May of 2013, Sharon Wise, was living in what was essentially, you know, Commonwealth run housing, and she lived there, and she had a sister who lived in a different location. And this is a fairly significant size property, you know, multiple buildings, probably a few 100 residents. And, and late one night, she's visiting her sister, she walks out of the, of the kind of the main exit of that building, and starts to walk back to where she is now residing, and she had not been there all that long. And it was a rainy night. And, you know, kind of getting to the end of the story. As she's walking, it becomes very, very dark. And part of it, and the reason really is that there is, you know, some outdoor lighting. And the outdoor lamppost that is closest to this area was totally blocked by what had to be a 100 year old tree, just a massive tree. So what was somewhat lit, when she walked out the door, becomes an area that's not lit at all. And in trying to navigate her way as best she could, foot goes on the edge of the sidewalk, she rolls her ankle, and essentially has a pretty significant fracture of the ankle that requires surgery to repair the ankle. So that that was the gist of the case. And the theory all along was that that there was, you know, lighting that was put out there, which we learned through discovery had been redone about two or three years before the accident, there was about an$800,000 grant that this particular location had gotten to redo their outside lighting. And so the Commonwealth had been instrumental in actually deciding where to put these new lampposts. So they put the lamppost in, but this one area because of this tree was blocking that area from getting any, any significant light that would come from that one lamppost. And that that was kind of the theory that there was this dark area that was caused by, you know, the actions of the Commonwealth with regard to lighting. And then, you know, obviously, as we complete discovery, and, you know, proceeding forward and you know, in Common Pleas Court for Huntingdon County, that's when they, you know, Commonwealth files a motion for summary judgment, and it's granted.

Corrie Woods: 8:37

Yeah. And so I mean, if you just take those facts and the language of the statute, it sure sounds like a dangerous condition of Commonwealth agency real estate,

Nathan Murawsky: 8:46

It does. And, and part of the issue we had doesn't it? initially on the appellate side is that there was no, you know, the argument was made by the Commonwealth that there was no defect in the sidewalk. And I think that anybody who practices in this area has nightmares about this, you know, what's the defect of the property type of thing where you've got to show that the sidewalk is actually defective somehow, you know, omething of that nature. And here was no, there was no like ulling back and looking at the ig picture as to what was going n. And so their, their motion or summary judgment, ssentially was saying, "The sidewalk's not defective. And i the sidewalk's not defective, e have immunity." And when he Common- or when the trial c urt entered summary judgment, t ere was no opinion. And then, you know, after 1925b stateme t, what we got back was kind o a page and a half that real y didn't give a whole lot f explanation as to why so we ki d of went into the appella e process, not really having a firm handle as to why the tri l court did what it did. So it s almost like we were starti g from ground zero, once we get o the Commonwealth Cour

Corrie Woods: 10:04

Yep. And so I guess let's just back up a little bit. So I think at the general level, the average guy on the street says, "Oh, yeah, you know, the sidewalk wasn't wet. This is a dangerous condition on Commonwealth or of Commonwealth property." What are the legal hurdles that make this a tougher question for you?

Nathan Murawsky: 10:22

Well, the legal hurdles, and I think that's something we'll definitely discuss is that the case law in the area about what falls within that real estate exception. It's so convoluted as to what exactly it means. What is the dangerous condition? What is it- is it of the property? Is it on the property? Is it the lighting? Is it the whatever it is- that that there's no direct answer, that there was no clarity. And when, you know, the courts have- kind of leading up to this case- have gone under the guise of, you know, you really have to show something very specific to fall within the exception, that, you know, you just don't know what's going to be out there. And you know, you can't, you're kind of looking at every angle and purely from a litigation standpoint, when we have cases like this to come in where we know the real estate exception applies, you really have to look at every angle. I mean, we we at one point had an expert out there looking at the sidewalk to see if there was an issue with the sidewalk, because you could see it coming. You knew that that was going to be the argument that it just wasn't going to, they were just going to argue that they- this was not under the real estate exception, you know, for whatever reason they could gather and you know, what, whether it's indoor lighting versus outdoor lighting, or artificial versus natural conditions, there are just so many variables out there that you never really know what you have. You're kind of you're putting the best foot out there and hoping you get past a summary judgment motion. And, again, I think we'll get to it later on in this conversation. I think ultimately, the courts cleaned it up a little bit.

Corrie Woods: 12:05

Yeah. And so I guess, I guess just to sort of underline what you're saying is, because of all these sort of semantic or framing distinctions that are made in the case law, you're in the position of having to sort of allege the condition about 37 different ways to get to hopefully cover your bases so that you are, you know, able to get past this case law and just get to the actual claim of negligence or premises liability, or whatever it is, in the first place. Right?

Nathan Murawsky: 12:34

Oh, absolutely. You know, you've got to allege everything in the complaint. And then, you know, you know, look, no case ever ends the way that you are, you know, you never get through discovery and think,"Wow! That's exactly how I thought this case was gonna go." You know, you always pick up on other things and see other things out there. You know, it wasn't until, you know, that obviously Miss Wise had told us about it being dark and what was going on. But it wasn't until you actually got out to the property and you took a look at it, that you really understood the gravity of what it was. And you could- like you could physically see how this would create the dangerous condition that it created. You know, the irony being that at a later date, when we were conducting another deposition, I had decided that I was going to wait around until nightfall to see for myself what it was like. And when I got out there, I found that the tree had been removed

Corrie Woods: 13:31

Oh, boy.

Nathan Murawsky: 13:32

So obviously, which of course doesn't come into play from an evidentiary standpoint, you know, at trial. The fact that they've now removed this tree, but so, you know, there was no way to kind of look at it again and think,"Alright, so what did it really look like back at that time?"

Corrie Woods: 13:47

I'm not sure that's the best restorative measure, I think maybe you could have put in another lamppost instead of getting rid of the beautiful 100 year old tree. But that's-

Nathan Murawsky: 13:55

Exactly. Exactly.

Corrie Woods: 13:57

-my opinion, I suppose. So let's do just sort of a quick case study in how this seemingly simple situation is, you know, there's no light because there's a lamppost over here and a tree in the way. How does that get sort of gobbled up in the case law? And I think the Commonwealth Court's view of the matter really illustrates, to some degree, just just how bizarre this discussion can get.

Nathan Murawsky: 14:22

Yeah, it definitely does. And, and the fact that we had such little guidance from the trial court as to why you kind of had to go through and make every analysis out there. So, you know, the first thing we're talking about is the whole distinction through the case law about is it a natural condition, or is it an artificial condition, which, you know, personally, I think should be completely and utterly irrelevant to the discussion and because it's, it's not part of the exception itself. It's not within the language, but it was kind of this legally created necessity, that it that it can't be a naturally occurring condition that it has to be something artificial. So, you know, the first step is arguing, you know, why it's not a, you know, a naturally occurring condition because the lamppost was something that was intentionally placed that it's not like, you know, you know, a running creek nearby or something that somehow causes all of these things to happen. And then after that you have this series of cases that delineate between indoor lighting and outdoor lighting. And some cases that discuss that the failure to have lighting inside in a dark area is different than the necessity to have lighting outside. Now you get past that, and now you get into the issue of like the guard rail cases, where does the Commonwealth have an affirmative duty to put up our guard rail? And then if they put in the guard rail? How does that change things? And then it's the same thing that even came into play a little bit with our opinion, in this case was, you know, did the Commonwealth have an affirmative duty to put up lighting in the first place? And does that somehow suggest to the Commonwealth, well, hey, you're better off not putting any up, putting up any lightning at all, because then you could be found responsible. So, you know, you have all of those hoops that you've got to jump through and just trying to find, you know, that narrow tunnel for the court to find that there's liability. In a case like this, where you've got multiple factors going on, I can tell you that, at least in my argument, in Commonwealth Court, that was the one thing that I think from my end, as a litigator, frustrated me more than anything else, is that I could not seem to get the panel to focus on, looking at the big picture, looking at how everything together creates this dangerous condition. And it was more of focus on "well, isn't it just because it was dark that this happened?" and not thinking about the lamppost or thinking about the tree or anything else? And that's, I mean, that's the problem with sovereign immunity case law altogether.

Corrie Woods: 17:11

Yeah. is just that each each of the distinctions that that you've just, you know, mentioned, do they have anything to do with the safety of the the real estate issue, to have anything to do with, you know, whether the legislature, you know, intended to let people, you know, sue the state for injuries in those situations? I think there's a good argument, and I think you've made it, that, hey, they, you know, this is this is all kind of irrelevant. So why are we worried about putting these particular conditions in little boxes, instead of, as you say, looking at the overall picture there, but one thing that I'd like to sort of drill down on is what I think is one of the the more interesting philosophical questions that I've ever seen in a Commonwealth Court opinion. And that is, the court's discussion of it is the Earth's rotation that has caused the injury at play here. I wonder if you could talk a little bit about how that worked into their analysis?

Nathan Murawsky: 18:02

I don't know that I have an answer to that. I am still a little baffled by it. I laugh at it now, having kind of now gotten through it. And we're going to be back down at the trial court level. I can tell you that when the opinion came in, Steve Barrett, who worked on this case with me, literally walked over- his office is next to mine- and showed him that language. And it- we were just silent. We just, you know, you know, one of the things that I guess is when you're doing appellate work, and I think that all lawyers know, and think that sometimes judges already have an outcome decided and simply need to find a way legally to get to that outcome. Without kind of starting doing the process the other way around, which is let's look at the facts and where the facts take us, then whatever outcome we come to that that's the proper outcome. And, and to, to us, that was perhaps one of the most blatant, if kind of, hey, just find me a way that we can say that they have immunity, and that we can somehow try to, you know, reconcile all of these facts. And that's what they came up with, which was just, it was just, it was amazing to us. And even, I think the Supreme Court there was at one point during the argument, I think it was Justice Baer when when that line came up, just kind of like brushed it off and said, "Yeah, yeah, we know that that doesn't work. We know that that's not right." But kind of just like it wasn't even a consideration or discussion. But, you know, one of the things we said in our brief to the Supreme Court was, when the Commonwealth Court has to revert to planetary movements in order to justify their opinion, then, that's what should signify that this whole area of the law needs to be revisited. Like, if that's how far you have to go, this is now a bridge too far. And it's all got to get dialed back.

Corrie Woods: 20:03

Yeah, I mean, let's, I mean, let's take it to another level of abstraction or removal, right? I mean, all injuries are caused by the mortality of man. You know, like what, what are we going to start saying that the dangerous condition is that humans aren't made of steel or some level of sophistry- and I don't want to sort of pile on to the Commonwealth Court. I think that, you know, they're they're trying to do the best they can with with case law that is, as you say, really convoluted and has erected all these bizarre in and out binaries. But I think your your point is well taken that when you have intermediate appellate court judges who are forced by the case law, to determine the sort of cosmic cause of injuries, I think it's a sign that things are not necessarily- not all is well with the state of the jurisprudence in that area.

Nathan Murawsky: 20:54

And I think the perhaps one of the unintended consequences- if that decision had been allowed to stand- was that if there- in any situation with Commonwealth real estate, if darkness was part of the equation, then there would be immunity. So, you know, because it wasn't really singled out. And we kind of read that opinion to say, even if you have a defect on a sidewalk, that causes an injury, if it was also dark outside, and it could have been because it was dark. Well, now there's immunity, because the darkness is, you know, that naturally occurring condition that contributed, and therefore there's immunity. So I think that's, I think part of the reason the Supreme Court picked it up, was because not only because maybe in this particular instance, the decision really didn't make sense. But it just opened up the door to get even further, far from what the actual intent of the real estate exception was in the first place.

Corrie Woods: 21:59

Yeah, I mean, we're in the world of- now it's, you know, Nocturne Non Potest Peccare, where it's, you know, the nighttime can do no wrong.

Nathan Murawsky: 22:06

Right. Right, exactly.

Corrie Woods: 22:08

So you seek allocatur, obviously. And it's granted. Did you think that you were basically sort of trying to, and just to foreshadow what the Court did here, did you think that you were trying to weave these strands into something that made sense? Or did you think that hey, you know, there's a chance that we're going to, you know, get get back to sort of first principles on this and start rebuilding?

Nathan Murawsky: 22:27

The idea was, you know, like, any good argument you have you have- you ask for one thing, you know, you ask for the moon and the stars, no pun intended in this case, and hope that at least you're getting, you know, you're getting your client her day in court, no matter what, you know, the end result, because I mean, look, obviously, for for our client for Sharon Wise, that was the ultimate goal, just just give me the ability to get in front of a jury and try the case and then see what they have to say. But, you know, we had asked for, essentially a complete revisiting of all of sovereign immunity law. And we had some hope, initially, that that was going to be consideration, because one of the things that we asked for in that petition for allocatur was, you know, our question presented was, basically, can we revisit the entire case law, because we're getting to a point that it's just so ridiculous enough is enough. And when the Court granted allocatur, it basically did a cut and paste of that section of our brief, saying, this is what we're going to revisit. So clearly, they went into it saying, you know, at least some of us are willing to revisit the entirety of case law. Now, we knew going in that that was one heck of an ask. To have- you know, to have the Court go back and redo everything. So our expectation was that there would be some revisiting of prior cases. And as this is all going on, the Cagey decision had just come out, which was, in some respects, I think, almost the first step where the Court, again, looked at sovereign immunity and the real estate exception and in Cagey decision and said, "Okay, we've got to dial this back. And we've got to make things pretty straightforward." So that- I think that our decision in Wise kind of took the next step with Cagey to kind of expand it. I do think, you know, I would have liked to have seen them totally just go back from, you know, to ground zero, and started over again, you know, our first argument was that the legislative intent of the real estate exception was that the Commonwealth should be treated like any other property owner. I mean, that's right, in the language of, you know, what the legislature put out there and the commission that was formed in order to, you know, promulgate this law. So that was kind of the argument is, hey, we should be starting with the premise that the Commonwealth is like any other property owner instead of the other way around that the Commonwealth has absolute immunity, but for a few narrow exceptions. Ultimately, they didn't go that way. But I do think that they, again, you know, maybe it's these things never happen that quickly, but it- you know it with each oncoming case, that's, I'm sure we'll deal with these issues. It'll you know, be a little bit more clear for everybody moving forward what that real estate exception actually means.

Corrie Woods: 25:22

Yep. So and just out of curiosity, did you proceed to oral argument on this one? Or was this one of the the COVID casualities that was submitted?

Nathan Murawsky: 25:29

No, we did have oral argument. It was done over Zoom, which was, you know, rather interesting trying to do that, although I thought it worked rather well. I've had the fortunate experience to argue before the Supreme Court and, you know, other appellate courts, and a little bit of the give and take when you're in front of an entire room of people kind of goes by the wayside. And that's more, you know, that that's a lawyer thing. I don't know how much that really has to do with the actual decision making part of the case. But, you know, doing appellate work and having those oral arguments, and, you know, having the interchange with the judges, I think you'll learn a little bit more over Zoom, it was it was more structured, clearly everyone was kind of waiting their turn and asking questions kind of one at a time. So it was a little different. But it- we got to have the argument. Nonetheless, I still think, and I think some of the younger attorneys in my office kind of say, "Why do we even have oral argument on these things? Why does it matter?" I, I still think that, you know, every little bit helps. So-

Corrie Woods: 26:33

Yeah, I mean, I think there are definitely cases that were won and there are definitely cases that were lost at oral argument. I don't think there's any question about about that. So I guess for every case, you may want to look at risk- risk, reward there. But

Nathan Murawsky: 26:47

Exactly.

Corrie Woods: 26:48

One thing I did find interesting is what you just said about this, this sort of Zoom argument is interesting to me, because I tend to agree with you that it's better to do this stuff in person. Because you do get a lot more intersection. And the purpose of being at oral argument, right, is so that you're there to talk about what the judges want to know. And on this sort of Zoom structure, I don't know they give you like, what, five, seven minutes ahead of time, and you can just sort of give them your argument, is that right?

Nathan Murawsky: 27:16

Yeah. They they basically said, the usual kind of we know what the case is about, I think Justice Saylor started off giving about a two minute overview as to what the case was about, and then gave you a little bit of time to get into your, you know, get into the generalities of the argument. And then they- then they got into specifics about those types of things. So that the format was somewhat the same. It was just, you know, definitely more structured in the way that it was handled.

Corrie Woods: 27:44

And so after oral argument, the case gets submitted, what do they come out with?

Nathan Murawsky: 27:48

I think that the first the first concern we had was we didn't know how long it was going to take for a decision to come out. And then when it did come out- and I don't remember exactly, I think we argued it, I want to say it was last summer. The decision came out just recently. So I think it was about a 10 month time period. And just based on the oral argument alone, we really didn't have any concerns that we were going to get sent back down, we just didn't know as to how far the court was going to be willing to go. I was. I don't want to say I'm surprised by the fact that it was essentially it was unanimous and that everybody agreed it needed to get sent back down. I think some of the concurring opinions were more to kind of get their own points of view out about concerns or you know where this goes moving forward. I don't know that I expected there to be a dissenting opinion. But I wouldn't have been surprised that there was a concurring opinion that it was a little bit more expressive about we don't want to open up the doors of litigation, you know, against the Commonwealth for any and everything now.

Corrie Woods: 28:51

And so just in terms of what's in the opinion, just just very briefly, the majority balked at sort of what you wanted as a home run. They didn't go back to first principles and legislative intent, they kind of tried to weave all of these cases, some would say contradictory cases, or convoluted cases into a test and let the opinion authored by Chief Justice Baer who determines essentially, there's there's three elements, right? Number one, the condition must be of the realty. It must, and this is, it must derive, originate from, or have as, as its source, which is a little redundant, a dangerous condition, resulting from a defect in the property, or its construction, maintenance, repair, or design, which seems a little more expansive than some of the earlier cases. Number two, the condition must be an artificial condition or a defect of the land itself. And number three, it must be the cause or a concurrent cause of the injury. And how well do you think that sort of synthesizes things going backward? And how much of this is synthesis and how much of this is modification?

Nathan Murawsky: 30:02

I think it's a little bit of both. Another trial lawyer who was helping us out and was involved in the amicus brief for the Pennsylvania Trial Lawyers on this, his take on it was that while the language of the opinion, pretty much seems to be this, "Alright, we're gonna stay within the framework of what we've always done, we're going to suggest language like you just read that makes it a little bit more expansive." But that perhaps the fact that this decision in and of itself stands, will be suggestive to lower courts, kind of the idea that you have to look at everything. And part of that, you know, when you talk about like the design, and I don't remember the case off the top of my head, where it was, it was a different case where there was a design of the property that somehow caused a dangerous condition. And I had always thought, well, you know, that's part of this, that you could have a design. And in this case, in particular, you had a design where it was where the lamppost was put in where the tree was at, they knew how this was all laid out. And that could cause the dangerous condition. And I think that that part of you know, where this decision gets a little bit more expansive, and reduces that blanket immunity, where you've now got an area where if you can show that the Commonwealth through, you know, even part of it being artificial, created a situation or some type of area on the premises that's unsafe, that now you've met the burden, as opposed to having to show that maybe the exact spot where an accident happened, that that spot was the part that was defective in some way, shape, or form. So I think it opens up the door like that, I do think it is still a little confusing. I think that there is- there's more room to go with this. I think the fact that they put the test down is a good first step, I think that this is the analysis that lower courts are going to have to use, and it's going to be more difficult to try to use planetary rotations to justify immunity. But I- it obviously still leaves some of that wiggle room for courts to try to take language and do different things with it.

Corrie Woods: 32:20

To the point that it's still confusing, I just created like a couple question quiz on how workable is this test. So I'm just gonna name a number of conditions that conceivably lead to an injury. And some of them come from earlier cases, some of them don't. And just give me your sort of first gut feeling as to whether liability could attach notwithstanding sovereign immunity. Number one, gravel that the Commonwealth has laid down in a dirt driveway?

Nathan Murawsky: 32:48

I would think that under that argument, it's- I would think that that gets you over the immunity hurdle. Sure. Because it's a- it's an active move by the Commonwealth to put something down. It's it's not natural existing in the fact that even though maybe gravel itself is a natural thing, it's it was artificially placed there, you know, again, I mean, even my answer there suggests has still open ended some of this stuff is.

Corrie Woods: 33:11

Yeah, okay. Rock salt laid down on an asphalt driveway?

Nathan Murawsky: 33:19

Yeah, well, that's, you know, that's. See that- I mean, the cases before basically said, the use of that type of stuff is not. Look, I don't know that I want that case even if you don't have immunity. But yeah, I think that that's too close to some of their prior cases that they would have a hard time getting past to say that, you know, the use of rock salt standing alone is enough.

Corrie Woods: 33:40

Yeah. Okay. An in-ground swimming pool, I think we can agree, that probably would have been fine before. Right?

Nathan Murawsky: 33:46

Right.

Corrie Woods: 33:47

Okay. An above-ground swimming pool?

Nathan Murawsky: 33:50

I think same thing. I- maybe you get into the fixture argument there about is that really a fixture and might be an idea as to is this something that they would put up and take down every year versus something that was- even though it was above ground, you know, they'd put a fence around or something else? I think that may be one of the factors that look at.

Corrie Woods: 34:09

Okay, and just two more, and I promise we'll we'll move on from the Jeopardy round.

Nathan Murawsky: 34:13

Well, that's fine!

Corrie Woods: 34:14

A non functional light bulb, and a lamp on a walkway?

Nathan Murawsky: 34:21

See, I think at that point, you get more into what did they know and when did they know it?

Corrie Woods: 34:27

Yeah.

Nathan Murawsky: 34:28

That I think plays into it. Like if it's, you mean it's almost like any other premises liability case? You know, how long had the grapes been on the floor of the supermarket before somebody fell? I think you're kind of getting into the same argument with the Commonwealth there about what's their practice about changing lightbulbs and that type of thing.

Corrie Woods: 34:44

Yeah. And last one, lighting that is obscured by a hill on a dark walkway?

Nathan Murawsky: 34:52

I still- I mean, our case was they knew where the lighting was. And I think that even if the Commonwealth in that situation, didn't install the lighting, initially, maybe they took over a property, you still have to know. You know, you still have to know that that you're obscuring the only light you have out there. And I think there- although, you know, the Court clearly doesn't want to say at any point in time "Yes, the Commonwealth has an obligation to put up lighting or put up guard rails or whatever it is," I think ultimately they do.

Corrie Woods: 35:20

Yeah. Okay, so I think that went okay. It's always scary to I always, I always feel like I'm, it's like you're at oral argument again and you're gonna be trapped into answering one way or the other. But okay, so I think that the key here, and one of the big ones is this does kind of solve the problems about causation, right? Because when they say it must be the cause or a concurrent cause of injury, we're no longer going into the chain of causation and saying, well, is this you know, is this the lighting? Is this the darkness? Is this the Earth's rotation? Is this you know, the Big Bang, ultimately responsible for everything in the world? Right. And I think that that might be more helpful in the future than even maybe some of the other language here, right? I do want to touch on the the concurring opinions a little bit. Justice Donahue and Justice Wecht, and I believe Justice Dougherty joined Justice Wecht's opinion and Justice Wecht joined Justice Donahue's opinion. They seem to acknowledge that a lot of those problems are still kind of there, there's still some arbitrary distinctions. They don't really have a basis in text or legislative intent. And sort of the big one that I wanted to call attention to, is the one that Justice Wecht brings up. He calls it a perverse incentive on behalf of the Commonwealth to say, "Well, you know, if I'm putting myself at risk of liability for installing safety equipment, or lighting or anything that doesn't end up working, well, why would I do it at all? Why don't I just leave the whole place dark?"

Nathan Murawsky: 36:50

Yeah. And I know, I think it was in a footnote, that the majority opinion basically said, you know, we're kind of not going to just assume that, that our holding will have the Commonwealth just say, "hey, well, that's exactly what we're going to do." Whether it's political motivation, or moral motivation, I can't imagine any situation where the Commonwealth is simply going to say, well, because we might be in trouble for it, therefore, we're not going to do it. I get the the thought process behind it. And if it was maybe a less scrupulous private corporation that we were discussing who was motivated by profit, that might be a more significant argument. I just don't envision, you know, the Commonwealth being of that nature. That was one of the arguments we were waiting to hear in the oral argument, which never really came about. And our response would be to that, if that's the Commonwealth concern? Well, that's, that's what insurance is for. That's why, you know, you build that into the cost of whatever it is you're going to do. If you think putting up a guardrail could potentially expose you to liability, well, then make sure you have the right type of insurance coverage. So that if it does, you're covered for it, but you're still doing the right thing. You're making the right call.

Corrie Woods: 38:13

I mean, it is it is odd to consider the board of directors or an architect at a community college or something thinking, "Well, you know what, there's an off chance that someone you know, if we, if we put the light here, someone, someone might, you know, roll their ankle and need surgery, 15 years down the line. So let's just put everyone at risk for 15 years, right? On the off chance that she sues." So- and I think you kind of touched there a little bit on one thing that I always try to underline in tort cases, which is when we talk about rules of liability and rules of immunity in tort cases, we're not talking about actually saving money or losing money, we're talking about the shifting of the costs of the injury, right, because the injury has already happened. And it's just a matter of is the cost of paying that going to be defrayed across, whether it's insurance or whether it's taxpayer dollars, or the company's dollars, or is it going to be borne by someone who just happened to be the victim of an accident?

Nathan Murawsky: 39:11

Yeah, in that in every other area of the law, that that's out there, that consideration in the sense of, you know, kind of behind the scenes, that's why there's auto insurance. That's why there's homeowners insurance, that's why all those things are out there, you know, why there's products liability law, and there can be, you know, positions for those types of things. But it's not, it's not a consideration in the law, those types of things, you know, there is no adjustment for, you know, a motor vehicle case, because of what the levels of insurance may or may not be or whether or not somebody has coverage. In fact, it's exactly the opposite, that that's excluded. That's never admissible. So why that should come into play here. I, you know, I again, I don't think it really holds any weight.

Corrie Woods: 39:58

So sort of wrapping up, what does this decision mean, specifically for your, your client? And then for Pennsylvania law in this area? Do you think that this is sort of the the end of the beginning or do you think this is the beginning of the end for the development of the law in this area?

Nathan Murawsky: 40:14

For the client, you know, and in having conversations with her after the opinion, you know, the reality is she gets her day in court. And I can say from having done enough of these arguments, and having, you know, having had the opportunity to talk with some of the Justices and, you know, at all appellate levels, it's kind of a nice reminder that you try to say to them at the end, that this isn't just an exercise in legal analysis, that there was a woman who had a broken ankle who needed surgery, who doesn't even get in front of a jury, because of, you know, what we think was an incorrect analysis of the law. And that ultimately, that's what this, you know, is at trial, where that's what it boils down to is you want the jury to make the decision, you know, you want the jury to hear this case and decide, was it negligent? And you know, did it cause injury? And is she entitled to anything? So for the client, that's, that's the best part of it. As far as moving forward, I would like to think that this is the start of a kind of the pendulum swinging the other way. I think that since the real estate exception, and the whole Tort Immunity Act was passed, it has been the pendulum has swung toward narrowing the exceptions to immunity as much as possible. And I think that the pendulum is now starting to go the other way. How far it'll go, you know, I don't necessarily know and, you know, kind of, as we alluded to before, it's a little bit slow moving. But I think that, you know, as an active trial lawyer in Pennsylvania, the only thing I would ask is anybody else who has a case, at a trial court level that gets bounced on the real estate exception, take the appeal, unless it's clear as day, take the appeal, because the only way that this continues to move forward is if you continue to press courts to acknowledge these other decisions, and to kind of move things forward. And I would hope on a trial court level, you know, that these two decisions would would kind of send that message, you know, and especially when you talked about with the with the with the causation issue? You know, I think that for a trial court judge, that may be the biggest part of this is, is that part where the court essentially says, you know, it's not for the court to decide what the causal factors are, you have to look at what the plaintiff has alleged those factors to be, because that's a factual question. And I think that, that I am hoping that, you know, it doesn't take another, you know, appeal up to the Supreme Court for the Supreme Court to say, no, what we meant was, you know, to the trial court judge or an appellate court judge, you have to stop creating the plaintiff's cause of action and allow it to stand the way that they've pled it within the complaint. And that's a factual question. So that's, that's kind of where I'm really hoping this goes. This is just the beginning of that pendulum going back the other way.

Corrie Woods: 43:17

Really well put. Nate, thank you so much for joining us today on The Standard of Review.

Nathan Murawsky: 43:22

Thank you for having me.

Corrie Woods: 43:24

That's all for this episode of The Standard of Review. If you like what you've heard, and you want to hear more, you can subscribe for new episodes in your pod catcher of choice. If you'd like to reach out with a topic or a guest for a new episode, you can find us on the web at Woods Law Offices dot com or just search for Woods Law Offices on Facebook, Twitter, or LinkedIn. Thanks so much for listening, and we'll see you next time on The Standard of Review.

Outro: 43:49

Thanks for listening to The Standard of Review by SCOPAblog. This episode has been brought to you by Woods Law Offices, Raising the Bar for Pennsylvania Appeals. Check them out at www dot Woods Law Offices dot com.