Thomas et al v. Shutika et al

Filing 48

MEMORANDUM OPINION (Order to follow as separate docket entry) re 36 MOTION for Summary Judgment filed by Commonwealth Of Pennsylvania, Mark Shutika - For the foregoing reasons, the defendants motion for summary judgment (Doc. 36.) will be denied. An appropriate order will issue. Signed by Magistrate Judge Martin C. Carlson on June 4, 2014. (kjn)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
JEFFREY THOMAS and ISHAYE
THOMAS,
Plaintiffs,
v.
MARK SHUTIKA, and
COMMONWEALTH OF
PENNSYLVANIA,
Defendants.

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Civil No. 4:12-CV-692

(Magistrate Judge Carlson)

MEMORANDUM OPINION
I.

Statement of Facts and of the Case

This is a civil rights action brought by Jeffrey Thomas, and his wife, Ishaye
Thomas, against the Commonwealth of Pennsylvania, and an employee of the state
Department of Corrections, Mark Shutika. (Doc. 1.) According to the Thomases’
complaint, in January of 2011, Jeffrey Thomas was incarcerated at the State
Correctional Institution Rockview, when he was ordered by defendant Shutika to
operate a jackhammer as part of a work detail at this facility. Thomas alleges that he
was untrained in the operation of this equipment and unequipped with safety shoes,
but was nonetheless coerced by the defendant to undertake this work assignment.

According to Thomas, due to his lack of training and safety equipment he suffered
multiple fractures to his right foot as a result of the jackhammer jumping and crushing
his foot. (Id.) Following this factual recital, Thomas’ complaint brings four claims
against the defendants: (1) a civil rights claims against defendant Shutika under Title
42, U.S. Code Section 1983 (Doc. 1, Count I.); (2) a state law negligence claim
against defendant Shutika; (Doc. 1, Count II.); (3) a claim of respondeat superior
liability against the Commonwealth of Pennsylvania (Doc. 1, Count III.); and (4) a
claim on behalf of Ishaye Thomas, Jeffrey Thomas’ spouse, for loss of consortium as
a result of her husband’s injuries. (Doc. 1, Count IV.)
This matter now comes before the Court on a motion for summary judgment
filed by the defendants. (Doc. 36.) With respect to this motion the facts–both
disputed and undisputed–can be simply stated.1

This statement of facts is taken from the parties’ competing statements of
fact, and the evidentiary materials submitted by the parties in support of their
factual narratives, and reflects our identification of those factual matters which are
material and are either disputed or undisputed. (Docs. 38 and 40.) We note that
the defendants have moved to strike certain exhibits from the plaintiff’s response
to this motion for summary judgment. (Doc. 41.) The plaintiff had not opposed
this motion to strike, and we will by separate order grant this motion, without
prejudice to renewal of any relevance arguments relating to these exhibits as this
matter proceeds to trial. These stricken exhibits have played no part in our
consideration of the instant summary judgment motion.
1

2

The undisputed facts can be stated in broad brush. In January of 2011, Jeffrey
Thomas was a state inmate, housed at the State Correctional Institution, Rockview,
where he was assigned to an outside prison work detail supervised by the defendant,
Mark Shutika. In January, 2011, Thomas and another inmate, Bradford May, were
assigned to do perform work at a residence located on the prison grounds, including
landscaping, and using a jackhammer to demolish some outdoor concrete. Sometime
after defendant Shutika delivered the two inmates to this work site, Thomas suffered
a crushing foot injury when the jackhammer he was operating jumped, striking his
foot and causing multiple fractures of the foot.
Beyond the stark outline of these undisputed facts, much of what transpired
during this incident is disputed and contested. There are three participants and
witnesses to these events–the defendant, Mark Shutika; the plaintiff, Jeffrey Thomas;
and an inmate, Bradford May. Each of these witness-participants provides a different
factual narrative regarding what occurred at this worksite.
For his part, defendant Shutika insists that when he delivered Thomas and May
to their worksite on the morning of the accident he instructed May to operate the
jackhammer. (Doc. 38-4.) Thus, Shutika denies assigning Thomas to perform this
work, and completely disputes Thomas’ account that he was threatened with
discipline by Shutika if he did not undertake this work.
3

In stark contrast, the plaintiff, Jeffrey Thomas, insists that when they arrived
at the worksite, Shutika assigned him to operate the jackhammer, a piece of heavy
equipment which he had never operated before. (Doc. 38-3.) Thomas insists that he
protested this work assignment, which he regarded as dangerous due to his lack of
training, but was threatened with disciplinary action if he refused this order. (Id.)
Under the compulsion of threatened discipline, Thomas states that he attempted to
operate this equipment, and promptly suffered a severe foot injury. (Id.)
The third participant in these events, inmate Bradford May, provides yet
another narrative thread to this episode, a narrative which at various points
corroborates and contradicts the accounts of both Thomas and Shutika. (Doc. 38-2.)
Thus, May states that when he and Thomas arrived at the job site Shutika assigned
Thomas to operate the jackhammer, contradicting Shutika’s account of these job
assignments. (Id.) May, however, is unable to confirm Thomas’ assertion that
Thomas protested this assignment, and was forced to undertake this work upon threat
of discipline, stating that he simply does not know what transpired between the
plaintiff and defendant. Further, May–who had operated the jackhammer in the
past–undermines to some degree Thomas’ assertions regarding the danger of this
equipment and the need for training prior to operating the jackhammer, describing the

4

operation of this particular piece of heavy equipment as largely a matter of common
sense.2
It is against this factual background, a background marked by sharply defined
factual disputes, that this summary judgment motion comes before us for
consideration. Given the factual conflicts in this case, conflicts which relate directly
to matters that lie at the heart of this lawsuit, for the reason set forth below the motion
will be denied.
II.

Discussion
A.

Summary Judgment, Standard of Review

The defendants have moved for summary judgment pursuant to Rule 56 of the
Federal Rules of Civil Procedure, which provides that “[t]he court shall grant
summary judgment if the movant shows that there is no genuine issue as to any
material fact and that the movant is entitled to judgment as a matter of law.” Fed. R.
Civ. P., Rule 56 (a). Through summary adjudication a court is empowered to dispose
of those claims that do not present a “genuine issue as to any material fact,” Fed. R.
Civ. P. 56, and for which a trial would be “an empty and unnecessary formality.”
On this particular score the factual picture in this case is further clouded by
the testimony of Ron Schinkle, a prison supervisor, who testified that a
jackhammer is a piece of prison equipment that requires training before an inmate
may operate the equipment. (Doc. 38-5, p. 33.) Thus, Schinkle refutes inmate
May’s view that the jackhammer could be safely operated without training.
2

5

Univac Dental Co. v. Dentsply Int’l, Inc., No. 07-0493, 2010 U.S. Dist. LEXIS
31615, at *4 (M.D. Pa. Mar. 31, 2010). The substantive law identifies which facts are
material, and “[o]nly disputes over facts that might affect the outcome of the suit
under the governing law will properly preclude the entry of summary judgment.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute about a
material fact is genuine only if there is a sufficient evidentiary basis that would allow
a reasonable fact finder to return a verdict for the non-moving party. Id. at 248-49.
The moving party has the initial burden of identifying evidence that it believes
shows an absence of a genuine issue of material fact. Conoshenti v. Pub. Serv. Elec.
& Gas Co., 364 F.3d 135, 145-46 (3d Cir. 2004). Once the moving party has shown
that there is an absence of evidence to support the nonmoving party’s claims, “the
non-moving party must rebut the motion with facts in the record and cannot rest
solely on assertions made in the pleadings, legal memoranda, or oral argument.”
Berckeley Inv. Group. Ltd. v. Colkitt, 455 F.3d 195, 201 (3d Cir. 2006); accord
Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). If the nonmoving party “fails to
make a showing sufficient to establish the existence of an element essential to that
party’s case, and on which that party will bear the burden at trial,” summary judgment
is appropriate. Celotex, 477 U.S. at 322. Summary judgment is also appropriate if
the non-moving party provides merely colorable, conclusory, or speculative evidence.
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Anderson, 477 U.S. at 249. There must be more than a scintilla of evidence
supporting the nonmoving party and more than some metaphysical doubt as to the
material facts. Id. at 252; see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 586 (1986). In making this determination, the court must “consider all
evidence in the light most favorable to the party opposing the motion.” A.W. v.
Jersey City Pub. Schs., 486 F.3d 791, 794 (3d Cir. 2007).
B.

Disputed Factual Issues Preclude Summary Judgment on
Thomas’ Eighth Amendment Claims

In this case, the gravamen of Thomas’ complaint is that defendant Shutika
violated his rights under the Eighth Amendment to the United States Constitution by
displaying “deliberate indifference” to his safety by ordering him to operate a piece
of dangerous heavy equipment which Shutika knew Thomas was not competent to
operate, without any training and upon the threat of discipline if Thomas did not
agree to undertake this work assignment. Thomas faces an exacting burden in
advancing this Eighth Amendment claim against prison officials in their individual
capacities. To sustain such a claim, he must:
[M]eet two requirements: (1) “the deprivation alleged must be,
objectively, sufficiently serious;” and (2) the “prison official must have
a sufficiently culpable state of mind.” Farmer v. Brennan, 511 U.S. 825,
834, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994) (quotation marks and
citations omitted). In prison conditions cases, “that state of mind is one
of ‘deliberate indifference’ to inmate health or safety.” Id. “Deliberate
indifference” is a subjective standard under Farmer-the prison official7

defendant must actually have known or been aware of the excessive risk
to inmate safety.
Beers-Capitol v. Whetzel, 256 F.3d 120, 125 (3d Cir. 2001). In Beers-Capitol v.
Whetzel, the Third Circuit has explained the basic requirements of a claim brought
against a prison official under the Eighth Amendment as follows:
An Eighth Amendment claim against a prison official must meet two
requirements: (1) “the deprivation alleged must be, objectively,
sufficiently serious;” and (2) the “prison official must have a sufficiently
culpable state of mind.”
Id. at 125 (quoting Farmer v. Brennan, 511 U.S. 825, 834 (1994)). Furthermore, in
cases involving prison safety or prison conditions, the relevant state of mind “is one
of ‘deliberate indifference’ to inmate health or safety.”

Id.

This deliberate

indifference standard “is a subjective standard under Farmer – the prison officialdefendant must actually have known or been aware of the excessive risk to inmate
safety.” Id.
As explained in Beers-Capitol, in cases based on allegations of deliberate
indifference on the part of prison officials, the Supreme Court has “rejected an
objective test for deliberate indifference; instead it looked to what the prison official
actually knew rather than what a reasonable official in his position would have
known.” Id. at 131. Specifically, the Supreme Court “held that ‘a prison official
cannot be found liable under the Eighth Amendment for denying an inmate humane

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conditions of confinement unless the official knows of and disregards an excessive
risk to inmate health or safety.’” Id. (quoting Farmer, 511 U.S. at 837). This
requirement of actual knowledge on the part of supervisory officials “means that ‘the
official must both be aware of facts from which the inference could be drawn that a
substantial risk of serious harm exists, and he must also draw the inference.’” Id.
(quoting Farmer, 511 U.S. at 837).
At the same time, this subjective standard does not insulate officials from
liability where such officials choose to remain deliberately indifferent to an excessive
or substantial or serious risk of harm to inmates. The Supreme Court explained:
We are no more persuaded by petitioner’s argument that, without an
objective test for deliberate indifference, prison officials will be free to
ignore obvious dangers to inmates. Under the test we adopt today, an
Eighth Amendment claimant need not show that a prison official acted
or failed to act believing that harm would actually befall an inmate; it is
enough that the official acted or failed to act despite his knowledge of
a substantial risk of serious harm.
Farmer, 511 U.S. at 842. The Supreme Court also noted that a supervisory
defendant’s knowledge of a risk may be proved through circumstantial evidence, so
that “a factfinder may conclude that a prison official knew of a substantial risk from
the very fact that the risk was obvious.” Id. Although the Third Circuit has
recognized that a mere generalized knowledge that prisons are dangerous places does
not give rise to an Eighth Amendment claim, see, e.g, Jones v. Beard, 145 F. App’x
9

743 (3d Cir. 2005), the Third Circuit did interpret Farmer to signal that “a plaintiff
could make out a deliberate indifference case by showing that prison officials simply
were aware of a general risk to inmates in the plaintiff’s situation[.]” Beers-Capitol
v. Whetzel, 256 F.3d 120, 131 (3d Cir. 2001). However, in order to show deliberate
indifference in this fashion, a plaintiff would need to come forward with evidence to
showing a substantial basis for demonstrating that a prison official was deliberately
indifferent in the face of information or indicators that presented a substantial risk to
inmate safety. See Farmer, 511 U.S. at 842-43 (“If an Eighth Amendment plaintiff
presents evidence showing that a substantial risk of inmate attacks was longstanding,
pervasive, well-documented, or expressly noted by prison officials in the past, and the
circumstances suggest that the defendant-official being sued had been exposed to
information concerning the risk and thus must have known about it, then such
evidence would permit a trier of fact to find that the defendant-official had actual
knowledge of the risk.”).
Even where a plaintiff has presented sufficient evidence to allow a factfinder
to reach the inference that a prison official had knowledge of the risk on the basis that
risk was obvious, it is clear that an inference may not be compelled, and that the
prison official must be permitted to show that he was actually unaware of the risk in
question. Beers-Capitol, 256 F.3d at 132. Lastly, a prison official who is shown to
10

have been actually aware of a risk to a prisoner-plaintiff can avoid liability if he
shows that he responded reasonably to the risk, even if the response did not avoid the
ultimate harm. Id.
These general guiding constitutional principles have been applied by the courts
to cases involving inmate allegations that correctional staff exposed prisoners to
dangerous and unsafe physical conditions inside a prison. See e.g., Innis v. Wilson,
334 F.App’x 454 (3d Cir. 2009)(Eighth Amendment claim resulting from injuries
from prison table collapse); Vidaurri v. Buss, No. 09-580, 2010 WL 625016 (N.D.
Ind. Feb. 11, 2010)(Eighth Amendment claim resulting from injuries from prison
ceiling collapse); Bennett v. Philadelphia, No. 07-2794, 2008 WL 4211701 (E.D. Pa.
Sept. 9, 2008)(Eighth Amendment claim resulting from injuries from prison ceiling
collapse); McKnight v. McDuffie, No. 405-183, 2007 WL 1097280 (S.D. Ga. April
9, 2007)(Eighth Amendment claim resulting from injuries from prison bunk collapse);
Barrand v. Donahue, No. 06-694, 2006 WL 2982051, *2 (N.D.Ind.Oct. 16,
2006)(Eighth Amendment claim resulting from injuries from prison ceiling collapse).
These cases all set exacting standards for establishing Eighth Amendment violations
premised upon a failure to protect an inmate from a dangerous physical condition
inside a prison, providing that in this setting:
Deliberate indifference is comparable to criminal recklessness, and is
shown by “something approaching a total unconcern for [the plaintiff's]
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welfare in the face of serious risks, or a conscious, culpable refusal to
prevent harm.” A defendant “must be both aware of facts from which
the inference could be drawn that a substantial risk of serious harm
exists, and he must draw the inference.” A defendant must have “actual
knowledge of impending harm easily preventable, so that a conscious,
culpable refusal to prevent the harm can be inferred from the defendant's
failure to prevent it.” This total disregard for a prisoner's safety is the
“functional equivalent of wanting harm to come to the prisoner.”
Negligence does not satisfy the “deliberate indifference” standard, and
it is not enough to show that a prison guard merely failed to act
reasonably. Deliberate indifference can be inferred only where
defendants know there is a strong likelihood rather than a mere
possibility that violence will occur. Prison officials cannot be expected
to eliminate the possibility of all dangers. Thus, the right to reasonable
protection does not include the right to protection from random acts.
Barrand v. Donahue, No. 06-694, 2006 WL 2982051, *2 (N.D.Ind.Oct. 16,
2006)(citations omitted).
These same principles govern Eighth Amendment claims by inmates based
upon allegations that correctional staff ordered prisoners to undertake dangerous
work assignments.

In this setting, the concept of voluntary employment in

prison–where correctional staff control virtually all aspects of the workplace and may
use disciplinary processes to enforce compliance with workplace rules–does not, by
itself, prevent an inmate’s claim for injuries arising out of dangerously unsafe
workplace conditions. See e.g., Morgan v. Morgensen, 465 F.3d 1041, 1045 (9th Cir.
2006); Bagola v. Kindt, 131 F.3d 632, 645, n. 18 (7th Cir. 1997). In this highly
regulated prison employment context, courts recognize that “voluntariness ends at the
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point where cruel and unusual punishments begin.” Bagola v. Kindt, 131 F.3d 632,
645, n. 18 (7th Cir. 1997). See also Smith v. United States, 561 F.3d 1090 (10th Cir.
2009). Furthermore, these cases all recognize that “the Eighth Amendment is
implicated in the prison work context . . . when a prisoner employee alleges that a
prison official [1] compelled him to “perform physical labor which [was] beyond [his]
strength, [2] endanger[ed his life] or health, or [3] cause[d] undue pain.” Berry v.
Bunnell, 39 F.3d 1056, 1057 (9th Cir.1994) (per curiam).” Morgan v. Morgensen,
465 F.3d 1041, 1045 (9th Cir. 2006). See also Harris v. Kim, 483 F. App'x 329, 331
(9th Cir. 2012). Moreover, in a setting where prison disciplinary rules enable
corrections staff to sanction inmates who refuse to perform specific tasks, these cases
all acknowledge that the issue of voluntariness assumes a factual dimension which
may not be resolved on summary judgment. Id.
Applying these legal yardsticks, in this case we find as a factual matter that it
is disputed whether Thomas voluntarily chose to operate this heavy equipment
without training, or whether he was forced to do so under protest in the face of a
threat of prison discipline. Further, disputed facts prevent us from reaching any
conclusions regarding whether defendant Shutika knew that Thomas regarded the
jackhammer as a piece of equipment which presented an immediate and direct threat
to his health and safety, but instructed Thomas to work under unsafe conditions.
13

Furthermore, as a legal matter, it is apparent that questions concerning the
voluntariness of an inmate’s decision to work under conditions prescribed by prison
officials do not prevent an inmate’s claim for injuries arising out of dangerously
unsafe workplace conditions. See e.g., Morgan v. Morgensen, 465 F.3d 1041, 1045
(9th Cir. 2006); Bagola v. Kindt, 131 F.3d 632, 645, n. 18 (7th Cir. 1997). Given the
presence of these disputed facts, the defendants have not shown that there is no
genuine issue as to any material fact and that the movants are entitled to judgment as
a matter of law. Accordingly, the defendants’ motion for summary judgment on
Thomas’ Eighth Amendment claim must be denied.
C.

Thomas’ State Tort Claims Fall Within a Statutory
Exception to Sovereign Immunity

Finally, the defendants seek summary judgment on Thomas’ state law
negligence claims, arguing that the doctrine of sovereign immunity precludes these
state tort claims against prison officials. In this regard the contrasting positions of the
parties can be simply stated: The defendants’ sovereign immunity argument stems
from the familiar proposition that the Commonwealth and its employees and officials
enjoy broad immunity from most state law claims, immunity that is expressly
embraced by statute, which provides that: “it is hereby declared to be the intent of the
General Assembly that the Commonwealth, and its officials and employees acting
within the scope of their duties, shall continue to enjoy sovereign immunity and
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official immunity and remain immune from suit except as the General Assembly shall
specifically waive the immunity.” 1 Pa. C. S. A. § 2310; see also Moore v.
Commonwealth, 538 A.2d 111, 115 (Pa. Commw. 1988) (“In other words, if the
Commonwealth is entitled to sovereign immunity under Act 152, then its officials and
employees acting within the scope of their duties are likewise immune”). This grant
of immunity “applies to Commonwealth employees in both their official and
individual capacities, so long as the employees are ‘acting within the scope of their
duties.’” Larsen v. State Employees’ Ret. Sys., 553 F. Supp. 2d 403, 420 (M.D. Pa.
2008) Conduct of an employee is within the scope of employment if “ ‘it is of a kind
and nature that the employee is employed to perform; [and] it occurs substantially
within the authorized time and space limits . . . .’ ” Brautigam v. Fraley, No. 09-1723,
2010 WL 480856, *4 (M.D. Pa. Feb. 4, 2010) (Rambo, J.) In this case, defendants
contend that defendant Shutika was a Commonwealth employee, who was acting
within the scope of his employment in committing the acts alleged in this complaint.
The defendants further insist that none of the narrowly crafted statutory exceptions
to sovereign immunity apply here. Therefore, the defendants assert that they enjoy
sovereign immunity on Thomas’ state law negligence claim and are entitled to
summary judgment on this claim.

15

In response, Thomas attempts to avoid the bar of sovereign immunity by
arguing that the alleged negligence in this case falls within one of the recognized
statutory exceptions to this immunity.

Specifically, Thomas asserts that the

Commonwealth parties remain liable for any harm caused by “care, custody, or
control of personal property.” 42 Pa. C.S.A. 8522(b)(3), contends that this statutory
exemption applies here, and argues that this exemption defeats the defendants’
sovereign immunity claim.
Section 8522, of Title 42, Pennsylvania Consolidated Statutes provides a
limited waiver of sovereign immunity in certain specific instances, stating that:
(a) Liability imposed.--The General Assembly, . . . , does hereby waive,
in the instances set forth in subsection (b) . . . , sovereign immunity as
a bar to an action against Commonwealth parties, for damages arising
out of a negligent act where the damages would be recoverable under
the common law or a statute creating a cause of action if the injury were
caused by a person not having available the defense of sovereign
immunity.
(b) Acts which may impose liability.--The following acts by a
Commonwealth party may result in the imposition of liability on the
Commonwealth and the defense of sovereign immunity shall not be
raised to claims for damages caused by:
**********************
(3) Care, custody or control of personal property.--The care, custody
or control of personal property in the possession or control of
Commonwealth parties, including Commonwealth-owned personal
property and property of persons held by a Commonwealth agency,
16

except that the sovereign immunity of the Commonwealth is retained as
a bar to actions on claims arising out of Commonwealth agency
activities involving the use of nuclear and other radioactive equipment,
devices and materials.
42 Pa.C.S.A. § 8522 (a) and (b)(3).
“Because of the 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) (citation omitted). With this guiding
principle in mind, we turn to the application of 42 Pa.C.S.A. § 8522 (a) and (b)(3)
to torts that occur in a prison setting. The Pennsylvania courts have examined the
application of §8522(b)(3)’s “personal property” exception to sovereign immunity in
the context of prison tort claims on several occasions in different factual settings. As
construed by the Pennsylvania courts, this narrow exception to sovereign immunity
applies to damages claims made by inmates for negligent damage to items of inmate
personal property while that property is in the possession of Commonwealth parties.
Williams v. Stickman, 917 A.2d 915 (Pa. Cmwlth 2007). Such claims are permitted
against the Commonwealth pursuant to §8522(b)(3). In contrast, courts have rejected
efforts by inmates to broadly claim that this exception to sovereign immunity applies
to all prisoner personal injury claims, based upon the notion that the inmates
themselves are in some fashion “in the possession and custody of Commonwealth
parties.” Gallagher v. Commonwealth, 545 A.2d 981 (Pa. Cmwlth 1988).
17

In instances where prisoners bring personal injury claims against
Commonwealth parties, and seek to avoid the bar of sovereign immunity, in order to
plead “a cause of action that falls within the personal property exception to immunity,
for the exception to apply, the personal property itself must cause [the] injuries, not
merely facilitate it. Warnecki v. Southeastern Pennsylvania Transportation Authority,
689 A.2d 1023 (Pa.Cmwlth.1997).” Pennsylvania State Police v. Klimek, 839 A.2d
1173, 1175 (Pa.Cmwlth.,2003)(emphasis in original). Applying this standard, courts
have held that the personal property exemption does not apply to tort claims based
upon inmate attempts to harm themselves using personal property furnished by the
state since, in this setting, the personal property merely facilitated the harm, it did not
cause that harm. See e.g., Pennsylvania State Police v. Klimek, 839 A.2d 1173, 1175
(Pa.Cmwlth.,2003); Vargo v. Plum Borough, No. 06-1574, 2007 WL 1459403
(W.D.Pa. May 15, 2007). However, where a plaintiff alleges and shows that the
Commonwealth party’s negligence with respect to some personal property “directly
caused” an injury, §8522(b)(3)’s “personal property” exception to sovereign
immunity applies and the plaintiff may maintain an action against these state actors.
Pennsylvania State Police v. Klimek, supra; Gambo v. Commonwealth, No. 04-3318,
2005 WL 4346598 (Pa.Com.Pl. Aug. 26, 2005).

18

While the distinction between personal property that causes an injury and
personal property that merely facilitates an injury is often easier to announce than to
apply, in this case we conclude that Thomas has sufficiently pleaded a negligence
claim caused by the Commonwealth’s personal property to withstand summary
judgment. Fairly construed, Thomas’ complaint alleges that this personal property–a
prison jackhammer–was the direct, immediate and proximate cause of his injuries.
In short, this is not an instance in which the Commonwealth’s property was simply
an article that incidentally facilitated some harm. Rather, the Commonwealth’s
property was the immediate agent of that harm. In such instances, where “the
personal property itself must cause [the] injuries, not merely facilitate it,”
Pennsylvania State Police v. Klimek, supra, we find that §8522(b)(3)’s “personal
property” exception to sovereign immunity applies, and Thomas may maintain this
claim.
III.

Conclusion

For the foregoing reasons, the defendants’ motion for summary judgment (Doc.
36.) will be denied. An appropriate order will issue.
So ordered this 4th day of June, 2014.
/s/ Martin C. Carlson
Martin C. Carlson
United States Magistrate Judge
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