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Editor: Jeffrey Harlan Penneys, Esq.
Profession: Philadelphia Personal Injury Attorney

Category: Dog Bite Law News

Clearly, Philadelphia Housing Authority (PHA) as the owner and direct manager of the property had the authority to take such action regarding a pit bull attached to the property with or without its consent. There are few cases that interpret the care, custody, or control of animals exception to immunity, particularly where a wild animal is not involved. In Jenkins v. McDonald, 498 A.2d 487 (Pa. Cmwlth. 1985), the plaintiff was attacked on a city sidewalk by a stray dog. The Court rejected the plaintiff's argument that the city was liable pursuant to the care, custody, or control of animals exception to local governmental immunity set forth at 42 Pa. C.S. §8542(b)(8),24 and it determined that a stray dog could not be considered in the care, custody or control of a municipality.

Further, the Dog Law, which authorizes municipalities to seize and detain stray dogs, does not bring stray dogs under the care, custody or control of the municipality for purposes of the exception to immunity. The present case, however, is quite dissimilar. Here, the dog was not a stray that wandered onto the property of PHA one day to attack a child. Rather, the dog was on the premises every work day and leashed to a tree on PHA's property with actual knowledge that its property was being used for such purposes. In Herman v. Greene County Fair Board, 535 A.2d 1251 (Pa. Cmwlth. 1988), the plaintiff was injured when a team of horses broke loose while in the direct control of their owner during a horse-pulling contest at a county fair. This Court rejected the plaintiff's argument that the county was liable pursuant to the care, custody or control of animals exception to local governmental immunity, on the grounds that the horses were within the direct control of a third party, not the county, at the time of the incident. Citing Mascaro v. Youth Study Center, 514 Pa. 351, 523 A.2d 1118 (1987), the Court noted that negligent acts of third parties cannot be imputed to government agencies under immunity provisions.

Herman, however, does not support PHA's contentions. First, the dog that attacked Govan was arguably in direct control of PHA at the time of the incident as it was leashed to PHA property with actual knowledge. Second, the Supreme Court has "refined" Mascaro to confirm that an agency may be liable despite the presence of third-party negligence if the facts establish that the agency is jointly negligent. Jones v. Chieffo, 549 Pa. 46, 700 A.2d 417 (1997). PHA also argues that the immunity exception is unavailable to Govan pursuant to Palermo by Palermo v. Nails, 483 A.2d 871 (Pa. Super. 1984), wherein the Superior Court held that a landlord out of possession is not responsible for attacks by animals kept by his or her tenant on leased premises where the tenant has exclusive control over such premises. This argument would more closely relate to the issue that PHA has not specifically raised: whether Govan met the first prong of the test for waiver of sovereign immunity, that is, whether damages would be recoverable under statute or common law if the party were not protected by sovereign immunity. Even if PHA had not waived this issue for failure to raise it in the Statement of Questions on Appeal, Palermo would be of no support to PHA in any event. PHA was not a landlord out of possession at the time of the incident. The attack did not take place in Skinner's apartment or on premises within her exclusive control. Rather, it took place on common ground in control of PHA, which had an on-site manager on the premises. Thus, PHA, as landowner, owed Govan, as invitee, the duty of protection from foreseeable harm. Carrender v. Fitterer, 503 Pa. 178, 469 A.2d 120 (1983).