August 16, 2021 • 43 mins
Host Corrie Woods interviews fellow appellate attorney Nathan Murawsky of Hamburg, Rubin, Mullin, Maxwell & Lupin, PC to discuss Wise v. Huntingdon Cnty. Housing Dev. Corp., a case involving statutory sovereign immunity, and an exception thereto for injuries resulting from dangerous conditions of the Commonwealth's real estate. In Wise, the Court at long last reassesses and rejects some of the more bizarre distinctions in this area of the law.
Show Notes:
Read more about Wise v. Huntingdon Cnty. Housing Dev. Corp. and all of SCOPA's cases on SCOPAblog.
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Episode Transcript
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Intro (00:00):
The Supreme Court of Pennsylvania is the highest
Court in the Commonwealth andthe oldest appellate court in
the nation, an institution thatshapes our practice, our laws,
and our lives. This is a podcastby attorneys and for attorneys
who argue before Pennsylvania'scourt of final appeal. Welcome
to The Standard of Review bySCOPAblog.
Corrie Woods (00:26):
Hi, and welcome to The Standard of Review by
SCOPAblog. I'm your host CorrieWoods and today I'll be talking
with attorney Nathan Murkowskiof Hamburg, Ruben, Mullen,
Maxwell, and Lupin PC, whoearned a win in the Court's
recent case of Wise versusHuntingdon County Housing
Development Corporation, a caseinvolving statutory sovereign
immunity and an exceptionthereto for injuries resulting
(00:49):
from dangerous conditions of theCommonwealth's real estate. Our
courts have struggled mightilytrying to make sense of this
exception, often adopting,frankly, sophistic distinctions
that have more to do with anattorney's semantic framing of
the claim than legislativeintent or substantial justice.
That struggle was perhaps nevermore evident than in the instant
case where the plaintiff'sinjury, a fall on a poorly
(01:11):
illuminated sidewalk, led to abizarre discussion of whether
her injury was caused byartificial 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 finaltime, to bring order to the
chaos by setting forth a clearertest, and jettisoning some of
(01:33):
the more absurd of thesedistinctions, much to the
chagrin of several justices whowould dispense with them
altogether in favor of return tostatutory text. It remains to be
seen whether Wise will be thefinal word, or just the final
straw, in this area of the law.
Let's listen.
Our guest today is NathanMurawsky, a principal at
Hamburg, Ruben, Mullen, Maxwelland Lupin PC. Attorney Murawsky
(01:57):
has represented injured personsin personal injury matters for
almost 25 years, and hasobtained significant settlements
and verdicts in therepresentation of his clients.
His experience includes casesinvolving auto accidents,
premises liability, medicalmalpractice, professional
negligence, liquor liability,defective products, and civil
rights violations. Nate hastried dozens of cases to verdict
(02:20):
in courts throughoutPennsylvania, New Jersey and in
the federal court for theEastern District of
Pennsylvania. Nathan, thanks forjoining us today.
Nathan Murawsky (02:28):
Thanks for having me.
Corrie Woods (02:30):
So before we get into the case, I wonder if you
could just tell the listeners alittle bit about why you became
a lawyer and how you came toyour current practice?
Nathan Murawsky (02:38):
Becoming a lawyer, like I think many
people, for me started as beingin college and kind of not
knowing what it is exactly Iwanted to do. I was lucky enough
to have an uncle, who was a realestate litigator, who said to me
early on, you really ought to goto law school, this would be
good for you. And at the sametime, the woman who is now my
(03:01):
wife, who I met in college, hadan uncle who was a personal
injury attorney in Philadelphia,and said the same thing to me. I
was actually doing corporatework clerking during law school,
and he had said to me, "No, youshould not do corporate work,
you should be a litigator. Thisis what kind of what you were
meant to do." And I actuallythink they were both right. So
that that kind of got me on theroad to doing trial work. And
(03:25):
I've loved it ever since. It's,it's just a fantastic thing
doing the litigation. And youknow, not just the work. But I
think especially on my end,representing plaintiffs, there
is a certain amount of personalsatisfaction with a lot of these
cases where you're takingsomeone like Sharon Wise in this
case, you know, who gets hurt,and you're really doing the
(03:48):
legwork to, you know, to putthem back on their feet to do
you know, those types of things.
So there's a very rewardingaspect to it. In the end, it's
like anything else, with law,it's tough, but it's definitely
worth it.
Corrie Woods (04:01):
So turning to the case, I think it might be
helpful to give listeners just alittle bit of background about
sovereign immunity, because it'snot the most natural concept in
the world. So as I understandit, sovereign immunity emanates
from sort of jolly old England,right? The Latin maxim is, and
forgive this Latin, I'm fromWest Virginia, "Rex Non Potest
(04:24):
Peccare," or the king can do nowrong. And as I understand it,
that was probably a misstatementof the early English common law.
That maxim was really aboutGeorge the Third being too young
to have legal capacity. But thatsort of grows in England until
it is now the law, it getstransplanted to the US, and it
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kind of lingers until somewherein the 20th century, when we get
a lot of liberal courts that aresort of starting to modernize
tort law and uproot some ofthose old doctrines. In
Pennsylvania, that that casethat says, "Hey, we're just
gonna do away with this becauseit's kind of crazy," is Mayle v.
Department of Highways, I thinkthat was 1978. And they
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basically say, "Well, this isirrational and kind of offensive
to injured people and eliminateit." 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 astatute that sort of puts it
back in place with a bunch ofexceptions." One of those
exceptions is really what we'retalking about today, which is
claims for damages caused by a,quote, "dangerous condition of
(05:30):
Commonwealth agency realestate." And there's a bunch of
cases that we'll get into thattry to figure out what that
means. So with all of that 600years of background or so what
are sort of the essential factsof this case? And how did it get
started with you and your firm?
Nathan Murawsky (05:47):
So, the essential facts of the case is
that back in May of 2013, SharonWise, was living in what was
essentially, you know,Commonwealth run housing, and
she lived there, and she had asister who lived in a different
location. And this is a fairlysignificant size property, you
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know, multiple buildings,probably a few 100 residents.
And, and late one night, she'svisiting her sister, she walks
out of the, of the kind of themain exit of that building, and
starts to walk back to where sheis now residing, and she had not
been there all that long. And itwas a rainy night. And, you
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know, kind of getting to the endof the story. As she's walking,
it becomes very, very dark. Andpart of it, and the reason
really is that there is, youknow, some outdoor lighting. And
the outdoor lamppost that isclosest to this area was totally
blocked by what had to be a 100year old tree, just a massive
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tree. So what was somewhat lit,when she walked out the door,
becomes an area that's not litat all. And in trying to
navigate her way as best shecould, foot goes on the edge of
the sidewalk, she rolls herankle, and essentially has a
pretty significant fracture ofthe ankle that requires surgery
to repair the ankle. So thatthat was the gist of the case.
(07:21):
And the theory all along wasthat that there was, you know,
lighting that was put out there,which we learned through
discovery had been redone abouttwo or three years before the
accident, there was about an$800,000 grant that this
particular location had gottento redo their outside lighting.
(07:43):
And so the Commonwealth had beeninstrumental in actually
deciding where to put these newlampposts. So they put the
lamppost in, but this one areabecause of this tree was
blocking that area from gettingany, any significant light that
would come from that onelamppost. And that that was kind
of the theory that there wasthis dark area that was caused
(08:03):
by, you know, the actions of theCommonwealth 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 forHuntingdon County, that's when
they, you know, Commonwealthfiles a motion for summary
judgment, and it's granted.
Corrie Woods (08:21):
Yeah. And so I mean, if you just take those
facts and the language of thestatute, it sure sounds like a
dangerous condition ofCommonwealth agency real estate,
Nathan Murawsky (08:30):
It does. And, and part of the issue we had
doesn't it?
initially on the appellate sideis that there was no, you know,
the argument was made by theCommonwealth that there was no
defect in the sidewalk. And Ithink that anybody who practices
in this area has nightmaresabout this, you know, what's the
(08:50):
defect of the property type ofthing where you've got to show
that the sidewalk is actuallydefective somehow, you know,
omething of that nature. Andhere was no, there was no like
ulling back and looking at theig picture as to what was going
n. And so their, their motionor summary judgment,
ssentially was saying, "Thesidewalk's not defective. And i
(09:13):
the sidewalk's not defective,e have immunity." And when
he Common- or when the trial curt entered summary judgment, t
ere was no opinion. And then,you know, after 1925b stateme
t, what we got back was kind oa page and a half that real
y didn't give a whole lotf explanation as to why so we ki
(09:34):
d of went into the appellae process, not really having
a firm handle as to why the tril court did what it did. So it
s almost like we were startig from ground zero, once we get
o the Commonwealth Cour
Corrie Woods (09:48):
Yep. And so I guess let's just back up a
little bit. So I think at thegeneral level, the average guy
on the street says, "Oh, yeah,you know, the sidewalk wasn't
wet. This is a dangerouscondition on Commonwealth or of
Commonwealth property." What arethe legal hurdles that make this
a tougher question for you?
Nathan Murawsky (10:06):
Well, the legal hurdles, and I think that's
something we'll definitelydiscuss is that the case law in
the area about what falls withinthat real estate exception. It's
so convoluted as to what exactlyit means. What is the dangerous
condition? What is it- is it ofthe property? Is it on the
(10:27):
property? Is it the lighting? Isit the whatever it is- that that
there's no direct answer, thatthere was no clarity. And when,
you know, the courts have- kindof leading up to this case- have
gone under the guise of, youknow, you really have to show
something very specific to fallwithin the exception, that, you
(10:50):
know, you just don't know what'sgoing to be out there. And you
know, you can't, you're kind oflooking at every angle and
purely from a litigationstandpoint, when we have cases
like this to come in where weknow the real estate exception
applies, you really have to lookat every angle. I mean, we we at
one point had an expert outthere looking at the sidewalk to
(11:11):
see if there was an issue withthe sidewalk, because you could
see it coming. You knew thatthat was going to be the
argument that it just wasn'tgoing to, they were just going
to argue that they- this was notunder the real estate exception,
you know, for whatever reasonthey could gather and you know,
what, whether it's indoorlighting versus outdoor
lighting, or artificial versusnatural conditions, there are
(11:34):
just so many variables out therethat you never really know what
you have. You're kind of you'reputting the best foot out there
and hoping you get past asummary judgment motion. And,
again, I think we'll get to itlater on in this conversation. I
think ultimately, the courtscleaned it up a little bit.
Corrie Woods (11:50):
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 distinctionsthat are made in the case law,
you're in the position of havingto sort of allege the condition
about 37 different ways to getto hopefully cover your bases so
that you are, you know, able toget past this case law and just
(12:12):
get to the actual claim ofnegligence or premises
liability, or whatever it is, inthe first place. Right?
Nathan Murawsky (12:19):
Oh, absolutely.
You know, you've got to allegeeverything in the complaint. And
then, you know, you know, look,no case ever ends the way that
you are, you know, you never getthrough discovery and think,
"Wow! That's exactly how Ithought this case was gonna go."
You know, you always pick up onother things and see other
things out there. You know, itwasn't until, you know, that
obviously Miss Wise had told usabout it being dark and what was
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going on. But it wasn't untilyou actually got out to the
property and you took a look atit, that you really understood
the gravity of what it was. Andyou could- like you could
physically see how this wouldcreate the dangerous condition
that it created. You know, theirony being that at a later
date, when we were conductinganother deposition, I had
(13:05):
decided that I was going to waitaround until nightfall to see
for myself what it was like. Andwhen I got out there, I found
that the tree had been removed
Corrie Woods (13:15):
Oh, boy.
Nathan Murawsky (13:16):
So obviously, which of course doesn't come
into play from an evidentiarystandpoint, you know, at trial.
The fact that they've nowremoved this tree, but so, you
know, there was no way to kindof look at it again and think,
"Alright, so what did it reallylook like back at that time?"
Corrie Woods (13:31):
I'm not sure that's the best restorative
measure, I think maybe you couldhave put in another lamppost
instead of getting rid of thebeautiful 100 year old tree. But
that's-
Nathan Murawsky (13:40):
Exactly.
Exactly.
Corrie Woods (13:42):
-my opinion, I suppose. So let's do just sort
of a quick case study in howthis seemingly simple situation
is, you know, there's no lightbecause there's a lamppost over
here and a tree in the way. Howdoes that get sort of gobbled up
in the case law? And I think theCommonwealth Court's view of the
matter really illustrates, tosome degree, just just how
(14:04):
bizarre this discussion can get.
Nathan Murawsky (14:06):
Yeah, it definitely does. And, and the
fact that we had such littleguidance from the trial court as
to why you kind of had to gothrough and make every analysis
out there. So, you know, thefirst thing we're talking about
is the whole distinction throughthe case law about is it a
natural condition, or is it anartificial condition, which, you
(14:29):
know, personally, I think shouldbe completely and utterly
irrelevant to the discussion andbecause it's, it's not part of
the exception itself. It's notwithin the language, but it was
kind of this legally creatednecessity, that it that it can't
be a naturally occurringcondition that it has to be
something artificial. So, youknow, the first step is arguing,
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you know, why it's not a, youknow, a naturally occurring
condition because the lamppostwas something that was
intentionally placed that it'snot like, you know, you know, a
running creek nearby orsomething that somehow causes
all of these things to happen.
And then after that you havethis series of cases that
delineate between indoorlighting and outdoor lighting.
(15:12):
And some cases that discuss thatthe failure to have lighting
inside in a dark area isdifferent than the necessity to
have lighting outside. Now youget past that, and now you get
into the issue of like the guardrail cases, where does the
Commonwealth have an affirmativeduty to put up our guard rail?
And then if they put in theguard rail? How does that change
(15:34):
things? And then it's the samething that even came into play a
little bit with our opinion, inthis case was, you know, did the
Commonwealth have an affirmativeduty to put up lighting in the
first place? And does thatsomehow suggest to the
Commonwealth, well, hey, you'rebetter off not putting any up,
putting up any lightning at all,because then you could be found
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responsible. So, you know, youhave all of those hoops that
you've got to jump through andjust trying to find, you know,
that narrow tunnel for the courtto find that there's liability.
In a case like this, whereyou've got multiple factors
going on, I can tell you that,at least in my argument, in
Commonwealth Court, that was theone thing that I think from my
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end, as a litigator, frustratedme more than anything else, is
that I could not seem to get thepanel to focus on, looking at
the big picture, looking at howeverything together creates this
dangerous condition. And it wasmore of focus on "well, isn't it
just because it was dark thatthis happened?" and not thinking
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about the lamppost or thinkingabout the tree or anything else?
And that's, I mean, that's theproblem with sovereign immunity
case law altogether.
Corrie Woods (16:55):
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 thereal 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? Ithink there's a good argument,
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and I think you've made it,that, hey, they, you know, this
is this is all kind ofirrelevant. So why are we
worried about putting theseparticular conditions in little
boxes, instead of, as you say,looking at the overall picture
there, but one thing that I'dlike to sort of drill down on is
what I think is one of the themore interesting philosophical
questions that I've ever seen ina Commonwealth Court opinion.
(17:37):
And that is, the court'sdiscussion of it is the Earth's
rotation that has caused theinjury at play here. I wonder if
you could talk a little bitabout how that worked into their
analysis?
Nathan Murawsky (17:46):
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 kindof now gotten through it. And
we're going to be back down atthe trial court level. I can
tell you that when the opinioncame in, Steve Barrett, who
worked on this case with me,literally walked over- his
office is next to mine- andshowed him that language. And
(18:08):
it- we were just silent. Wejust, you know, you know, one of
the things that I guess is whenyou're doing appellate work, and
I think that all lawyers know,and think that sometimes judges
already have an outcome decidedand simply need to find a way
legally to get to that outcome.
(18:29):
Without kind of starting doingthe process the other way
around, which is let's look atthe facts and where the facts
take us, then whatever outcomewe come to that that's the
proper outcome. And, and to, tous, 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, andthat we can somehow try to, you
(18:54):
know, reconcile all of thesefacts. And that's what they came
up with, which was just, it wasjust, it was amazing to us. And
even, I think the Supreme Courtthere was at one point during
the argument, I think it wasJustice Baer when when that line
came up, just kind of likebrushed it off and said, "Yeah,
yeah, we know that that doesn'twork. We know that that's not
right." But kind of just like itwasn't even a consideration or
(19:18):
discussion. But, you know, oneof the things we said in our
brief to the Supreme Court was,when the Commonwealth Court has
to revert to planetary movementsin order to justify their
opinion, then, that's whatshould signify that this whole
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area of the law needs to berevisited. Like, if that's how
far you have to go, this is nowa bridge too far. And it's all
got to get dialed back.
Corrie Woods (19:47):
Yeah, I mean, let's, I mean, let's take it to
another level of abstraction orremoval, right? I mean, all
injuries are caused by themortality of man. You know, like
what, what are we going to startsaying that the dangerous
condition is that humans aren'tmade of steel or some level of
sophistry- and I don't want tosort of pile on to the
Commonwealth Court. I thinkthat, you know, they're they're
(20:09):
trying to do the best they canwith with case law that is, as
you say, really convoluted andhas erected all these bizarre in
and out binaries. But I thinkyour your point is well taken
that when you have intermediateappellate court judges who are
forced by the case law, todetermine the sort of cosmic
(20:30):
cause of injuries, I think it'sa sign that things are not
necessarily- not all is wellwith the state of the
jurisprudence in that area.
Nathan Murawsky (20:39):
And I think the perhaps one of the unintended
consequences- if that decisionhad been allowed to stand- was
that if there- in any situationwith Commonwealth real estate,
if darkness was part of theequation, then there would be
immunity. So, you know, becauseit wasn't really singled out.
(21:02):
And we kind of read that opinionto say, even if you have a
defect on a sidewalk, thatcauses an injury, if it was also
dark outside, and it could havebeen because it was dark. Well,
now there's immunity, becausethe darkness is, you know, that
naturally occurring conditionthat contributed, and therefore
there's immunity. So I thinkthat's, I think part of the
(21:25):
reason the Supreme Court pickedit up, was because not only
because maybe in this particularinstance, the decision really
didn't make sense. But it justopened up the door to get even
further, far from what theactual intent of the real estate
exception was in the firstplace.
Corrie Woods (21:43):
Yeah, I mean, we're in the world of- now it's,
you know, Nocturne Non PotestPeccare, where it's, you know,
the nighttime can do no wrong.
Nathan Murawsky (21:51):
Right. Right, exactly.
Corrie Woods (21:52):
So you seek allocatur, obviously. And it's
granted. Did you think that youwere basically sort of trying
to, and just to foreshadow whatthe Court did here, did you
think that you were trying toweave these strands into
something that made sense? Ordid you think that hey, you
know, there's a chance thatwe're going to, you know, get
get back to sort of firstprinciples on this and start
rebuilding?
Nathan Murawsky (22:11):
The idea was, you know, like, any good
argument you have you have- youask 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'regetting, you know, you're
getting your client her day incourt, no matter what, you know,
the end result, because I mean,look, obviously, for for our
(22:32):
client for Sharon Wise, that wasthe ultimate goal, just just
give me the ability to get infront of a jury and try the case
and then see what they have tosay. But, you know, we had asked
for, essentially a completerevisiting of all of sovereign
immunity law. And we had somehope, initially, that that was
going to be consideration,because one of the things that
(22:56):
we asked for in that petitionfor allocatur was, you know, our
question presented was,basically, can we revisit the
entire case law, because we'regetting to a point that it's
just so ridiculous enough isenough. And when the Court
granted allocatur, it basicallydid a cut and paste of that
section of our brief, saying,this is what we're going to
(23:17):
revisit. So clearly, they wentinto it saying, you know, at
least some of us are willing torevisit the entirety of case
law. Now, we knew going in thatthat was one heck of an ask. To
have- you know, to have theCourt go back and redo
everything. So our expectationwas that there would be some
revisiting of prior cases. Andas this is all going on, the
(23:42):
Cagey decision had just comeout, which was, in some
respects, I think, almost thefirst step where the Court,
again, looked at sovereignimmunity and the real estate
exception and in Cagey decisionand said, "Okay, we've got to
dial this back. And we've got tomake things pretty
straightforward." So that- Ithink that our decision in Wise
(24:03):
kind of took the next step withCagey to kind of expand it. I do
think, you know, I would haveliked to have seen them totally
just go back from, you know, toground zero, and started over
again, you know, our firstargument was that the
legislative intent of the realestate exception was that the
Commonwealth should be treatedlike any other property owner. I
(24:25):
mean, that's right, in thelanguage of, you know, what the
legislature put out there andthe commission that was formed
in order to, you know,promulgate this law. So that was
kind of the argument is, hey, weshould be starting with the
premise that the Commonwealth islike any other property owner
instead of the other way aroundthat the Commonwealth has
absolute immunity, but for a fewnarrow exceptions. Ultimately,
(24:46):
they didn't go that way. But Ido think that they, again, you
know, maybe it's these thingsnever happen that quickly, but
it- you know it with eachoncoming case, that's, I'm sure
we'll deal with these issues.
It'll you know, be a little bitmore clear for everybody moving
forward what that real estateexception actually means.
Corrie Woods (25:06):
Yep. So and just out of curiosity, did you
proceed to oral argument on thisone? Or was this one of the the
COVID casualities that wassubmitted?
Nathan Murawsky (25:13):
No, we did have oral argument. It was done over
Zoom, which was, you know,rather interesting trying to do
that, although I thought itworked rather well. I've had the
fortunate experience to arguebefore the Supreme Court and,
you know, other appellatecourts, and a little bit of the
give and take when you're infront of an entire room of
people kind of goes by thewayside. And that's more, you
(25:37):
know, that that's a lawyerthing. I don't know how much
that really has to do with theactual decision making part of
the case. But, you know, doingappellate work and having those
oral arguments, and, you know,having the interchange with the
judges, I think you'll learn alittle bit more over Zoom, it
was it was more structured,clearly everyone was kind of
waiting their turn and askingquestions kind of one at a time.
(26:00):
So it was a little different.
But it- we got to have theargument. Nonetheless, I still
think, and I think some of theyounger attorneys in my office
kind of say, "Why do we evenhave oral argument on these
things? Why does it matter?" I,I still think that, you know,
every little bit helps. So-
Corrie Woods (26:17):
Yeah, I mean, I think there are definitely cases
that were won and there aredefinitely cases that were lost
at oral argument. I don't thinkthere'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 (26:31):
Exactly.
Corrie Woods (26:32):
One thing I did find interesting is what you
just said about this, this sortof Zoom argument is interesting
to me, because I tend to agreewith you that it's better to do
this stuff in person. Becauseyou do get a lot more
intersection. And the purpose ofbeing at oral argument, right,
is so that you're there to talkabout what the judges want to
know. And on this sort of Zoomstructure, I don't know they
(26:55):
give you like, what, five, sevenminutes ahead of time, and you
can just sort of give them yourargument, is that right?
Nathan Murawsky (27:00):
Yeah. They they basically said, the usual kind
of we know what the case isabout, I think Justice Saylor
started off giving about a twominute overview as to what the
case was about, and then gaveyou a little bit of time to get
into your, you know, get intothe generalities of the
argument. And then they- thenthey got into specifics about
those types of things. So thatthe format was somewhat the
(27:22):
same. It was just, you know,definitely more structured in
the way that it was handled.
Corrie Woods (27:29):
And so after oral argument, the case gets
submitted, what do they come outwith?
Nathan Murawsky (27:32):
I think that the first the first concern we
had was we didn't know how longit was going to take for a
decision to come out. And thenwhen it did come out- and I
don't remember exactly, I thinkwe argued it, I want to say it
was last summer. The decisioncame out just recently. So I
think it was about a 10 monthtime period. And just based on
(27:55):
the oral argument alone, wereally didn't have any concerns
that we were going to get sentback down, we just didn't know
as to how far the court wasgoing to be willing to go. I
was. I don't want to say I'msurprised by the fact that it
was essentially it was unanimousand that everybody agreed it
needed to get sent back down. Ithink some of the concurring
opinions were more to kind ofget their own points of view out
(28:18):
about concerns or you know wherethis goes moving forward. I
don't know that I expected thereto be a dissenting opinion. But
I wouldn't have been surprisedthat there was a concurring
opinion that it was a little bitmore expressive about we don't
want to open up the doors oflitigation, you know, against
the Commonwealth for any andeverything now.
Corrie Woods (28:35):
And so just in terms of what's in the opinion,
just just very briefly, themajority balked at sort of what
you wanted as a home run. Theydidn't go back to first
principles and legislativeintent, they kind of tried to
weave all of these cases, somewould say contradictory cases,
or convoluted cases into a testand let the opinion authored by
Chief Justice Baer whodetermines essentially, there's
(28:57):
there's three elements, right?
Number one, the condition mustbe of the realty. It must, and
this is, it must derive,originate from, or have as, as
its source, which is a littleredundant, a dangerous
condition, resulting from adefect in the property, or its
construction, maintenance,repair, or design, which seems a
(29:18):
little more expansive than someof the earlier cases. Number
two, the condition must be anartificial condition or a defect
of the land itself. And numberthree, it must be the cause or a
concurrent cause of the injury.
And how well do you think thatsort of synthesizes things going
(29:41):
backward? And how much of thisis synthesis and how much of
this is modification?
Nathan Murawsky (29:46):
I think it's a little bit of both. Another
trial lawyer who was helping usout and was involved in the
amicus brief for thePennsylvania Trial Lawyers on
this, his take on it was thatwhile the language of the
opinion, pretty much seems to bethis, "Alright, we're gonna stay
within the framework of whatwe've always done, we're going
(30:07):
to suggest language like youjust read that makes it a little
bit more expansive." But thatperhaps the fact that this
decision in and of itselfstands, will be suggestive to
lower courts, kind of the ideathat you have to look at
everything. And part of that,you know, when you talk about
(30:28):
like the design, and I don'tremember the case off the top of
my head, where it was, it was adifferent case where there was a
design of the property thatsomehow caused a dangerous
condition. And I had alwaysthought, well, you know, that's
part of this, that you couldhave a design. And in this case,
in particular, you had a designwhere it was where the lamppost
(30:51):
was put in where the tree wasat, they knew how this was all
laid out. And that could causethe dangerous condition. And I
think that that part of youknow, where this decision gets a
little bit more expansive, andreduces that blanket immunity,
where you've now got an areawhere if you can show that the
Commonwealth through, you know,even part of it being
(31:13):
artificial, created a situationor some type of area on the
premises that's unsafe, that nowyou've met the burden, as
opposed to having to show thatmaybe the exact spot where an
accident happened, that thatspot was the part that was
defective in some way, shape, orform. So I think it opens up the
(31:34):
door like that, I do think it isstill a little confusing. I
think that there is- there'smore room to go with this. I
think the fact that they put thetest down is a good first step,
I think that this is theanalysis that lower courts are
going to have to use, and it'sgoing to be more difficult to
try to use planetary rotationsto justify immunity. But I- it
(31:58):
obviously still leaves some ofthat wiggle room for courts to
try to take language and dodifferent things with it.
Corrie Woods (32:04):
To the point that it's still confusing, I just
created like a couple questionquiz on how workable is this
test. So I'm just gonna name anumber of conditions that
conceivably lead to an injury.
And some of them come fromearlier cases, some of them
don't. And just give me yoursort of first gut feeling as to
whether liability could attachnotwithstanding sovereign
(32:26):
immunity. Number one, gravelthat the Commonwealth has laid
down in a dirt driveway?
Nathan Murawsky (32:32):
I would think that under that argument, it's-
I would think that that gets youover the immunity hurdle. Sure.
Because it's a- it's an activemove by the Commonwealth to put
something down. It's it's notnatural existing in the fact
that even though maybe gravelitself is a natural thing, it's
it was artificially placedthere, you know, again, I mean,
even my answer there suggestshas still open ended some of
(32:55):
this stuff is.
Corrie Woods (32:56):
Yeah, okay. Rock salt laid down on an asphalt
driveway?
Nathan Murawsky (33:04):
Yeah, well, that's, you know, that's. See
that- I mean, the cases beforebasically said, the use of that
type of stuff is not. Look, Idon't know that I want that case
even if you don't have immunity.
But yeah, I think that that'stoo close to some of their prior
cases that they would have ahard time getting past to say
that, you know, the use of rocksalt standing alone is enough.
Corrie Woods (33:25):
Yeah. Okay. An in-ground swimming pool, I think
we can agree, that probablywould have been fine before.
Right?
Nathan Murawsky (33:31):
Right.
Corrie Woods (33:31):
Okay. An above-ground swimming pool?
Nathan Murawsky (33:35):
I think same thing. I- maybe you get into the
fixture argument there about isthat really a fixture and might
be an idea as to is thissomething that they would put up
and take down every year versussomething that was- even though
it was above ground, you know,they'd put a fence around or
something else? I think that maybe one of the factors that look
at.
Corrie Woods (33:53):
Okay, and just two more, and I promise we'll we'll
move on from the Jeopardy round.
Nathan Murawsky (33:57):
Well, that's fine!
Corrie Woods (33:58):
A non functional light bulb, and a lamp on a
walkway?
Nathan Murawsky (34:05):
See, I think at that point, you get more into
what did they know and when didthey know it?
Corrie Woods (34:11):
Yeah.
Nathan Murawsky (34:12):
That I think plays into it. Like if it's, you
mean it's almost like any otherpremises liability case? You
know, how long had the grapesbeen on the floor of the
supermarket before somebodyfell? I think you're kind of
getting into the same argumentwith the Commonwealth there
about what's their practiceabout changing lightbulbs and
that type of thing.
Corrie Woods (34:28):
Yeah. And last one, lighting that is obscured
by a hill on a dark walkway?
Nathan Murawsky (34:36):
I still- I mean, our case was they knew
where the lighting was. And Ithink that even if the
Commonwealth in that situation,didn't install the lighting,
initially, maybe they took overa property, you still have to
know. You know, you still haveto know that that you're
obscuring the only light youhave out there. And I think
there- although, you know, theCourt clearly doesn't want to
(34:56):
say at any point in time "Yes,the Commonwealth has an
obligation to put up lighting orput up guard rails or whatever
it is," I think ultimately theydo.
Corrie Woods (35:05):
Yeah. Okay, so I think that went okay. It's
always scary to I always, Ialways feel like I'm, it's like
you're at oral argument againand you're gonna be trapped into
answering one way or the other.
But okay, so I think that thekey here, and one of the big
ones is this does kind of solvethe problems about causation,
right? Because when they say itmust be the cause or a
(35:26):
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 thedarkness? Is this the Earth's
rotation? Is this you know, theBig Bang, ultimately responsible
for everything in the world?
Right. And I think that thatmight be more helpful in the
(35:46):
future than even maybe some ofthe other language here, right?
I do want to touch on the theconcurring opinions a little
bit. Justice Donahue and JusticeWecht, and I believe Justice
Dougherty joined Justice Wecht'sopinion and Justice Wecht joined
Justice Donahue's opinion. Theyseem to acknowledge that a lot
of those problems are still kindof there, there's still some
arbitrary distinctions. Theydon't really have a basis in
(36:09):
text or legislative intent. Andsort of the big one that I
wanted to call attention to, isthe one that Justice Wecht
brings up. He calls it aperverse incentive on behalf of
the Commonwealth to say, "Well,you know, if I'm putting myself
at risk of liability forinstalling safety equipment, or
lighting or anything thatdoesn't end up working, well,
(36:31):
why would I do it at all? Whydon't I just leave the whole
place dark?"
Nathan Murawsky (36:35):
Yeah. And I know, I think it was in a
footnote, that the majorityopinion basically said, you
know, we're kind of not going tojust assume that, that our
holding will have theCommonwealth just say, "hey,
well, that's exactly what we'regoing to do." Whether it's
political motivation, or moralmotivation, I can't imagine any
(36:57):
situation where the Commonwealthis simply going to say, well,
because we might be in troublefor it, therefore, we're not
going to do it. I get the thethought process behind it. And
if it was maybe a lessscrupulous private corporation
that we were discussing who wasmotivated by profit, that might
(37:17):
be a more significant argument.
I just don't envision, you know,the Commonwealth being of that
nature. That was one of thearguments we were waiting to
hear in the oral argument, whichnever really came about. And our
response would be to that, ifthat's the Commonwealth concern?
Well, that's, that's whatinsurance is for. That's why,
(37:38):
you know, you build that intothe cost of whatever it is
you're going to do. If you thinkputting up a guardrail could
potentially expose you toliability, well, then make sure
you have the right type ofinsurance coverage. So that if
it does, you're covered for it,but you're still doing the right
thing. You're making the rightcall.
Corrie Woods (37:57):
I mean, it is it is odd to consider the board of
directors or an architect at acommunity college or something
thinking, "Well, you know what,there's an off chance that
someone you know, if we, if weput the light here, someone,
someone might, you know, rolltheir ankle and need surgery, 15
years down the line. So let'sjust put everyone at risk for 15
years, right? On the off chancethat she sues." So- and I think
(38:20):
you kind of touched there alittle bit on one thing that I
always try to underline in tortcases, which is when we talk
about rules of liability andrules of immunity in tort cases,
we're not talking about actuallysaving money or losing money,
we're talking about the shiftingof the costs of the injury,
right, because the injury hasalready happened. And it's just
(38:42):
a matter of is the cost ofpaying that going to be defrayed
across, whether it's insuranceor whether it's taxpayer
dollars, or the company'sdollars, or is it going to be
borne by someone who justhappened to be the victim of an
accident?
Nathan Murawsky (38:55):
Yeah, in that in every other area of the law,
that that's out there, thatconsideration in the sense of,
you know, kind of behind thescenes, that's why there's auto
insurance. That's why there'shomeowners 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
(39:17):
law, those types of things, youknow, there is no adjustment
for, you know, a motor vehiclecase, because of what the levels
of insurance may or may not beor whether or not somebody has
coverage. In fact, it's exactlythe opposite, that that's
excluded. That's neveradmissible. So why that should
come into play here. I, youknow, I again, I don't think it
(39:40):
really holds any weight.
Corrie Woods (39:43):
So sort of wrapping up, what does this
decision mean, specifically foryour, your client? And then for
Pennsylvania law in this area?
Do you think that this is sortof the the end of the beginning
or do you think this is thebeginning of the end for the
development of the law in thisarea?
Nathan Murawsky (39:58):
For the client, you know, and in having
conversations with her after theopinion, you know, the reality
is she gets her day in court.
And I can say from having doneenough of these arguments, and
having, you know, having had theopportunity to talk with some of
the Justices and, you know, atall appellate levels, it's kind
of a nice reminder that you tryto say to them at the end, that
(40:20):
this isn't just an exercise inlegal analysis, that there was a
woman who had a broken ankle whoneeded surgery, who doesn't even
get in front of a jury, becauseof, you know, what we think was
an incorrect analysis of thelaw. And that ultimately, that's
what this, you know, is attrial, where that's what it
boils down to is you want thejury to make the decision, you
(40:43):
know, you want the jury to hearthis case and decide, was it
negligent? And you know, did itcause injury? And is she
entitled to anything? So for theclient, that's, that's the best
part of it. As far as movingforward, I would like to think
that this is the start of a kindof the pendulum swinging the
(41:03):
other way. I think that sincethe real estate exception, and
the whole Tort Immunity Act waspassed, it has been the pendulum
has swung toward narrowing theexceptions to immunity as much
as possible. And I think thatthe pendulum is now starting to
go the other way. How far it'llgo, you know, I don't
necessarily know and, you know,kind of, as we alluded to
(41:27):
before, it's a little bit slowmoving. But I think that, you
know, as an active trial lawyerin Pennsylvania, the only thing
I would ask is anybody else whohas a case, at a trial court
level that gets bounced on thereal estate exception, take the
appeal, unless it's clear asday, take the appeal, because
(41:47):
the only way that this continuesto move forward is if you
continue to press courts toacknowledge these other
decisions, and to kind of movethings forward. And I would hope
on a trial court level, youknow, that these two decisions
would would kind of send thatmessage, you know, and
especially when you talked aboutwith the with the with the
causation issue? You know, Ithink that for a trial court
(42:10):
judge, that may be the biggestpart of this is, is that part
where the court essentiallysays, you know, it's not for the
court to decide what the causalfactors are, you have to look at
what the plaintiff has allegedthose factors to be, because
that's a factual question. And Ithink that, that I am hoping
(42:32):
that, you know, it doesn't takeanother, you know, appeal up to
the Supreme Court for theSupreme Court to say, no, what
we meant was, you know, to thetrial court judge or an
appellate court judge, you haveto stop creating the plaintiff's
cause of action and allow it tostand the way that they've pled
it within the complaint. Andthat's a factual question. So
(42:52):
that's, that's kind of where I'mreally hoping this goes. This is
just the beginning of thatpendulum going back the other
way.
Corrie Woods (43:02):
Really well put.
Nate, thank you so much forjoining us today on The Standard
of Review.
Nathan Murawsky (43:06):
Thank you for having me.
Corrie Woods (43:08):
That's all for this episode of The Standard of
Review. If you like what you'veheard, and you want to hear
more, you can subscribe for newepisodes in your pod catcher of
choice. If you'd like to reachout with a topic or a guest for
a new episode, you can find uson the web at Woods Law Offices
dot com or just search for WoodsLaw Offices on Facebook,
Twitter, or LinkedIn. Thanks somuch for listening, and we'll
(43:30):
see you next time on TheStandard of Review.
Outro (43:33):
Thanks for listening to The Standard of Review by
SCOPAblog. This episode has beenbrought to you by Woods Law
Offices, Raising the Bar forPennsylvania Appeals. Check them
out at www dot Woods Law Officesdot com.
The Supreme Court of Pennsylvania is the highest
Court in the Commonwealth andthe oldest appellate court in
the nation, an institution thatshapes our practice, our laws,
and our lives. This is a podcastby attorneys and for attorneys
who argue before Pennsylvania'scourt of final appeal. Welcome
to The Standard of Review bySCOPAblog.
Corrie Woods (00:26):
Hi, and welcome to The Standard of Review by
SCOPAblog. I'm your host CorrieWoods and today I'll be talking
with attorney Nathan Murkowskiof Hamburg, Ruben, Mullen,
Maxwell, and Lupin PC, whoearned a win in the Court's
recent case of Wise versusHuntingdon County Housing
Development Corporation, a caseinvolving statutory sovereign
immunity and an exceptionthereto for injuries resulting
(00:49):
from dangerous conditions of theCommonwealth's real estate. Our
courts have struggled mightilytrying to make sense of this
exception, often adopting,frankly, sophistic distinctions
that have more to do with anattorney's semantic framing of
the claim than legislativeintent or substantial justice.
That struggle was perhaps nevermore evident than in the instant
case where the plaintiff'sinjury, a fall on a poorly
(01:11):
illuminated sidewalk, led to abizarre discussion of whether
her injury was caused byartificial 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 finaltime, to bring order to the
chaos by setting forth a clearertest, and jettisoning some of
(01:33):
the more absurd of thesedistinctions, much to the
chagrin of several justices whowould dispense with them
altogether in favor of return tostatutory text. It remains to be
seen whether Wise will be thefinal word, or just the final
straw, in this area of the law.
Let's listen.
Our guest today is NathanMurawsky, a principal at
Hamburg, Ruben, Mullen, Maxwelland Lupin PC. Attorney Murawsky
(01:57):
has represented injured personsin personal injury matters for
almost 25 years, and hasobtained significant settlements
and verdicts in therepresentation of his clients.
His experience includes casesinvolving auto accidents,
premises liability, medicalmalpractice, professional
negligence, liquor liability,defective products, and civil
rights violations. Nate hastried dozens of cases to verdict
(02:20):
in courts throughoutPennsylvania, New Jersey and in
the federal court for theEastern District of
Pennsylvania. Nathan, thanks forjoining us today.
Nathan Murawsky (02:28):
Thanks for having me.
Corrie Woods (02:30):
So before we get into the case, I wonder if you
could just tell the listeners alittle bit about why you became
a lawyer and how you came toyour current practice?
Nathan Murawsky (02:38):
Becoming a lawyer, like I think many
people, for me started as beingin college and kind of not
knowing what it is exactly Iwanted to do. I was lucky enough
to have an uncle, who was a realestate litigator, who said to me
early on, you really ought to goto law school, this would be
good for you. And at the sametime, the woman who is now my
(03:01):
wife, who I met in college, hadan uncle who was a personal
injury attorney in Philadelphia,and said the same thing to me. I
was actually doing corporatework clerking during law school,
and he had said to me, "No, youshould not do corporate work,
you should be a litigator. Thisis what kind of what you were
meant to do." And I actuallythink they were both right. So
that that kind of got me on theroad to doing trial work. And
(03:25):
I've loved it ever since. It's,it's just a fantastic thing
doing the litigation. And youknow, not just the work. But I
think especially on my end,representing plaintiffs, there
is a certain amount of personalsatisfaction with a lot of these
cases where you're takingsomeone like Sharon Wise in this
case, you know, who gets hurt,and you're really doing the
(03:48):
legwork to, you know, to putthem back on their feet to do
you know, those types of things.
So there's a very rewardingaspect to it. In the end, it's
like anything else, with law,it's tough, but it's definitely
worth it.
Corrie Woods (04:01):
So turning to the case, I think it might be
helpful to give listeners just alittle bit of background about
sovereign immunity, because it'snot the most natural concept in
the world. So as I understandit, sovereign immunity emanates
from sort of jolly old England,right? The Latin maxim is, and
forgive this Latin, I'm fromWest Virginia, "Rex Non Potest
(04:24):
Peccare," or the king can do nowrong. And as I understand it,
that was probably a misstatementof the early English common law.
That maxim was really aboutGeorge the Third being too young
to have legal capacity. But thatsort of grows in England until
it is now the law, it getstransplanted to the US, and it
(04:45):
kind of lingers until somewherein the 20th century, when we get
a lot of liberal courts that aresort of starting to modernize
tort law and uproot some ofthose old doctrines. In
Pennsylvania, that that casethat says, "Hey, we're just
gonna do away with this becauseit's kind of crazy," is Mayle v.
Department of Highways, I thinkthat was 1978. And they
(05:07):
basically say, "Well, this isirrational and kind of offensive
to injured people and eliminateit." 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 astatute that sort of puts it
back in place with a bunch ofexceptions." One of those
exceptions is really what we'retalking about today, which is
claims for damages caused by a,quote, "dangerous condition of
(05:30):
Commonwealth agency realestate." And there's a bunch of
cases that we'll get into thattry to figure out what that
means. So with all of that 600years of background or so what
are sort of the essential factsof this case? And how did it get
started with you and your firm?
Nathan Murawsky (05:47):
So, the essential facts of the case is
that back in May of 2013, SharonWise, was living in what was
essentially, you know,Commonwealth run housing, and
she lived there, and she had asister who lived in a different
location. And this is a fairlysignificant size property, you
(06:10):
know, multiple buildings,probably a few 100 residents.
And, and late one night, she'svisiting her sister, she walks
out of the, of the kind of themain exit of that building, and
starts to walk back to where sheis now residing, and she had not
been there all that long. And itwas a rainy night. And, you
(06:35):
know, kind of getting to the endof the story. As she's walking,
it becomes very, very dark. Andpart of it, and the reason
really is that there is, youknow, some outdoor lighting. And
the outdoor lamppost that isclosest to this area was totally
blocked by what had to be a 100year old tree, just a massive
(06:57):
tree. So what was somewhat lit,when she walked out the door,
becomes an area that's not litat all. And in trying to
navigate her way as best shecould, foot goes on the edge of
the sidewalk, she rolls herankle, and essentially has a
pretty significant fracture ofthe ankle that requires surgery
to repair the ankle. So thatthat was the gist of the case.
(07:21):
And the theory all along wasthat that there was, you know,
lighting that was put out there,which we learned through
discovery had been redone abouttwo or three years before the
accident, there was about an$800,000 grant that this
particular location had gottento redo their outside lighting.
(07:43):
And so the Commonwealth had beeninstrumental in actually
deciding where to put these newlampposts. So they put the
lamppost in, but this one areabecause of this tree was
blocking that area from gettingany, any significant light that
would come from that onelamppost. And that that was kind
of the theory that there wasthis dark area that was caused
(08:03):
by, you know, the actions of theCommonwealth 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 forHuntingdon County, that's when
they, you know, Commonwealthfiles a motion for summary
judgment, and it's granted.
Corrie Woods (08:21):
Yeah. And so I mean, if you just take those
facts and the language of thestatute, it sure sounds like a
dangerous condition ofCommonwealth agency real estate,
Nathan Murawsky (08:30):
It does. And, and part of the issue we had
doesn't it?
initially on the appellate sideis that there was no, you know,
the argument was made by theCommonwealth that there was no
defect in the sidewalk. And Ithink that anybody who practices
in this area has nightmaresabout this, you know, what's the
(08:50):
defect of the property type ofthing where you've got to show
that the sidewalk is actuallydefective somehow, you know,
omething of that nature. Andhere was no, there was no like
ulling back and looking at theig picture as to what was going
n. And so their, their motionor summary judgment,
ssentially was saying, "Thesidewalk's not defective. And i
(09:13):
the sidewalk's not defective,e have immunity." And when
he Common- or when the trial curt entered summary judgment, t
ere was no opinion. And then,you know, after 1925b stateme
t, what we got back was kind oa page and a half that real
y didn't give a whole lotf explanation as to why so we ki
(09:34):
d of went into the appellae process, not really having
a firm handle as to why the tril court did what it did. So it
s almost like we were startig from ground zero, once we get
o the Commonwealth Cour
Corrie Woods (09:48):
Yep. And so I guess let's just back up a
little bit. So I think at thegeneral level, the average guy
on the street says, "Oh, yeah,you know, the sidewalk wasn't
wet. This is a dangerouscondition on Commonwealth or of
Commonwealth property." What arethe legal hurdles that make this
a tougher question for you?
Nathan Murawsky (10:06):
Well, the legal hurdles, and I think that's
something we'll definitelydiscuss is that the case law in
the area about what falls withinthat real estate exception. It's
so convoluted as to what exactlyit means. What is the dangerous
condition? What is it- is it ofthe property? Is it on the
(10:27):
property? Is it the lighting? Isit the whatever it is- that that
there's no direct answer, thatthere was no clarity. And when,
you know, the courts have- kindof leading up to this case- have
gone under the guise of, youknow, you really have to show
something very specific to fallwithin the exception, that, you
(10:50):
know, you just don't know what'sgoing to be out there. And you
know, you can't, you're kind oflooking at every angle and
purely from a litigationstandpoint, when we have cases
like this to come in where weknow the real estate exception
applies, you really have to lookat every angle. I mean, we we at
one point had an expert outthere looking at the sidewalk to
(11:11):
see if there was an issue withthe sidewalk, because you could
see it coming. You knew thatthat was going to be the
argument that it just wasn'tgoing to, they were just going
to argue that they- this was notunder the real estate exception,
you know, for whatever reasonthey could gather and you know,
what, whether it's indoorlighting versus outdoor
lighting, or artificial versusnatural conditions, there are
(11:34):
just so many variables out therethat you never really know what
you have. You're kind of you'reputting the best foot out there
and hoping you get past asummary judgment motion. And,
again, I think we'll get to itlater on in this conversation. I
think ultimately, the courtscleaned it up a little bit.
Corrie Woods (11:50):
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 distinctionsthat are made in the case law,
you're in the position of havingto sort of allege the condition
about 37 different ways to getto hopefully cover your bases so
that you are, you know, able toget past this case law and just
(12:12):
get to the actual claim ofnegligence or premises
liability, or whatever it is, inthe first place. Right?
Nathan Murawsky (12:19):
Oh, absolutely.
You know, you've got to allegeeverything in the complaint. And
then, you know, you know, look,no case ever ends the way that
you are, you know, you never getthrough discovery and think,
"Wow! That's exactly how Ithought this case was gonna go."
You know, you always pick up onother things and see other
things out there. You know, itwasn't until, you know, that
obviously Miss Wise had told usabout it being dark and what was
(12:42):
going on. But it wasn't untilyou actually got out to the
property and you took a look atit, that you really understood
the gravity of what it was. Andyou could- like you could
physically see how this wouldcreate the dangerous condition
that it created. You know, theirony being that at a later
date, when we were conductinganother deposition, I had
(13:05):
decided that I was going to waitaround until nightfall to see
for myself what it was like. Andwhen I got out there, I found
that the tree had been removed
Corrie Woods (13:15):
Oh, boy.
Nathan Murawsky (13:16):
So obviously, which of course doesn't come
into play from an evidentiarystandpoint, you know, at trial.
The fact that they've nowremoved this tree, but so, you
know, there was no way to kindof look at it again and think,
"Alright, so what did it reallylook like back at that time?"
Corrie Woods (13:31):
I'm not sure that's the best restorative
measure, I think maybe you couldhave put in another lamppost
instead of getting rid of thebeautiful 100 year old tree. But
that's-
Nathan Murawsky (13:40):
Exactly.
Exactly.
Corrie Woods (13:42):
-my opinion, I suppose. So let's do just sort
of a quick case study in howthis seemingly simple situation
is, you know, there's no lightbecause there's a lamppost over
here and a tree in the way. Howdoes that get sort of gobbled up
in the case law? And I think theCommonwealth Court's view of the
matter really illustrates, tosome degree, just just how
(14:04):
bizarre this discussion can get.
Nathan Murawsky (14:06):
Yeah, it definitely does. And, and the
fact that we had such littleguidance from the trial court as
to why you kind of had to gothrough and make every analysis
out there. So, you know, thefirst thing we're talking about
is the whole distinction throughthe case law about is it a
natural condition, or is it anartificial condition, which, you
(14:29):
know, personally, I think shouldbe completely and utterly
irrelevant to the discussion andbecause it's, it's not part of
the exception itself. It's notwithin the language, but it was
kind of this legally creatednecessity, that it that it can't
be a naturally occurringcondition that it has to be
something artificial. So, youknow, the first step is arguing,
(14:51):
you know, why it's not a, youknow, a naturally occurring
condition because the lamppostwas something that was
intentionally placed that it'snot like, you know, you know, a
running creek nearby orsomething that somehow causes
all of these things to happen.
And then after that you havethis series of cases that
delineate between indoorlighting and outdoor lighting.
(15:12):
And some cases that discuss thatthe failure to have lighting
inside in a dark area isdifferent than the necessity to
have lighting outside. Now youget past that, and now you get
into the issue of like the guardrail cases, where does the
Commonwealth have an affirmativeduty to put up our guard rail?
And then if they put in theguard rail? How does that change
(15:34):
things? And then it's the samething that even came into play a
little bit with our opinion, inthis case was, you know, did the
Commonwealth have an affirmativeduty to put up lighting in the
first place? And does thatsomehow suggest to the
Commonwealth, well, hey, you'rebetter off not putting any up,
putting up any lightning at all,because then you could be found
(15:55):
responsible. So, you know, youhave all of those hoops that
you've got to jump through andjust trying to find, you know,
that narrow tunnel for the courtto find that there's liability.
In a case like this, whereyou've got multiple factors
going on, I can tell you that,at least in my argument, in
Commonwealth Court, that was theone thing that I think from my
(16:19):
end, as a litigator, frustratedme more than anything else, is
that I could not seem to get thepanel to focus on, looking at
the big picture, looking at howeverything together creates this
dangerous condition. And it wasmore of focus on "well, isn't it
just because it was dark thatthis happened?" and not thinking
(16:44):
about the lamppost or thinkingabout the tree or anything else?
And that's, I mean, that's theproblem with sovereign immunity
case law altogether.
Corrie Woods (16:55):
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 thereal 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? Ithink there's a good argument,
(17:15):
and I think you've made it,that, hey, they, you know, this
is this is all kind ofirrelevant. So why are we
worried about putting theseparticular conditions in little
boxes, instead of, as you say,looking at the overall picture
there, but one thing that I'dlike to sort of drill down on is
what I think is one of the themore interesting philosophical
questions that I've ever seen ina Commonwealth Court opinion.
(17:37):
And that is, the court'sdiscussion of it is the Earth's
rotation that has caused theinjury at play here. I wonder if
you could talk a little bitabout how that worked into their
analysis?
Nathan Murawsky (17:46):
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 kindof now gotten through it. And
we're going to be back down atthe trial court level. I can
tell you that when the opinioncame in, Steve Barrett, who
worked on this case with me,literally walked over- his
office is next to mine- andshowed him that language. And
(18:08):
it- we were just silent. Wejust, you know, you know, one of
the things that I guess is whenyou're doing appellate work, and
I think that all lawyers know,and think that sometimes judges
already have an outcome decidedand simply need to find a way
legally to get to that outcome.
(18:29):
Without kind of starting doingthe process the other way
around, which is let's look atthe facts and where the facts
take us, then whatever outcomewe come to that that's the
proper outcome. And, and to, tous, 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, andthat we can somehow try to, you
(18:54):
know, reconcile all of thesefacts. And that's what they came
up with, which was just, it wasjust, it was amazing to us. And
even, I think the Supreme Courtthere was at one point during
the argument, I think it wasJustice Baer when when that line
came up, just kind of likebrushed it off and said, "Yeah,
yeah, we know that that doesn'twork. We know that that's not
right." But kind of just like itwasn't even a consideration or
(19:18):
discussion. But, you know, oneof the things we said in our
brief to the Supreme Court was,when the Commonwealth Court has
to revert to planetary movementsin order to justify their
opinion, then, that's whatshould signify that this whole
(19:39):
area of the law needs to berevisited. Like, if that's how
far you have to go, this is nowa bridge too far. And it's all
got to get dialed back.
Corrie Woods (19:47):
Yeah, I mean, let's, I mean, let's take it to
another level of abstraction orremoval, right? I mean, all
injuries are caused by themortality of man. You know, like
what, what are we going to startsaying that the dangerous
condition is that humans aren'tmade of steel or some level of
sophistry- and I don't want tosort of pile on to the
Commonwealth Court. I thinkthat, you know, they're they're
(20:09):
trying to do the best they canwith with case law that is, as
you say, really convoluted andhas erected all these bizarre in
and out binaries. But I thinkyour your point is well taken
that when you have intermediateappellate court judges who are
forced by the case law, todetermine the sort of cosmic
(20:30):
cause of injuries, I think it'sa sign that things are not
necessarily- not all is wellwith the state of the
jurisprudence in that area.
Nathan Murawsky (20:39):
And I think the perhaps one of the unintended
consequences- if that decisionhad been allowed to stand- was
that if there- in any situationwith Commonwealth real estate,
if darkness was part of theequation, then there would be
immunity. So, you know, becauseit wasn't really singled out.
(21:02):
And we kind of read that opinionto say, even if you have a
defect on a sidewalk, thatcauses an injury, if it was also
dark outside, and it could havebeen because it was dark. Well,
now there's immunity, becausethe darkness is, you know, that
naturally occurring conditionthat contributed, and therefore
there's immunity. So I thinkthat's, I think part of the
(21:25):
reason the Supreme Court pickedit up, was because not only
because maybe in this particularinstance, the decision really
didn't make sense. But it justopened up the door to get even
further, far from what theactual intent of the real estate
exception was in the firstplace.
Corrie Woods (21:43):
Yeah, I mean, we're in the world of- now it's,
you know, Nocturne Non PotestPeccare, where it's, you know,
the nighttime can do no wrong.
Nathan Murawsky (21:51):
Right. Right, exactly.
Corrie Woods (21:52):
So you seek allocatur, obviously. And it's
granted. Did you think that youwere basically sort of trying
to, and just to foreshadow whatthe Court did here, did you
think that you were trying toweave these strands into
something that made sense? Ordid you think that hey, you
know, there's a chance thatwe're going to, you know, get
get back to sort of firstprinciples on this and start
rebuilding?
Nathan Murawsky (22:11):
The idea was, you know, like, any good
argument you have you have- youask 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'regetting, you know, you're
getting your client her day incourt, no matter what, you know,
the end result, because I mean,look, obviously, for for our
(22:32):
client for Sharon Wise, that wasthe ultimate goal, just just
give me the ability to get infront of a jury and try the case
and then see what they have tosay. But, you know, we had asked
for, essentially a completerevisiting of all of sovereign
immunity law. And we had somehope, initially, that that was
going to be consideration,because one of the things that
(22:56):
we asked for in that petitionfor allocatur was, you know, our
question presented was,basically, can we revisit the
entire case law, because we'regetting to a point that it's
just so ridiculous enough isenough. And when the Court
granted allocatur, it basicallydid a cut and paste of that
section of our brief, saying,this is what we're going to
(23:17):
revisit. So clearly, they wentinto it saying, you know, at
least some of us are willing torevisit the entirety of case
law. Now, we knew going in thatthat was one heck of an ask. To
have- you know, to have theCourt go back and redo
everything. So our expectationwas that there would be some
revisiting of prior cases. Andas this is all going on, the
(23:42):
Cagey decision had just comeout, which was, in some
respects, I think, almost thefirst step where the Court,
again, looked at sovereignimmunity and the real estate
exception and in Cagey decisionand said, "Okay, we've got to
dial this back. And we've got tomake things pretty
straightforward." So that- Ithink that our decision in Wise
(24:03):
kind of took the next step withCagey to kind of expand it. I do
think, you know, I would haveliked to have seen them totally
just go back from, you know, toground zero, and started over
again, you know, our firstargument was that the
legislative intent of the realestate exception was that the
Commonwealth should be treatedlike any other property owner. I
(24:25):
mean, that's right, in thelanguage of, you know, what the
legislature put out there andthe commission that was formed
in order to, you know,promulgate this law. So that was
kind of the argument is, hey, weshould be starting with the
premise that the Commonwealth islike any other property owner
instead of the other way aroundthat the Commonwealth has
absolute immunity, but for a fewnarrow exceptions. Ultimately,
(24:46):
they didn't go that way. But Ido think that they, again, you
know, maybe it's these thingsnever happen that quickly, but
it- you know it with eachoncoming case, that's, I'm sure
we'll deal with these issues.
It'll you know, be a little bitmore clear for everybody moving
forward what that real estateexception actually means.
Corrie Woods (25:06):
Yep. So and just out of curiosity, did you
proceed to oral argument on thisone? Or was this one of the the
COVID casualities that wassubmitted?
Nathan Murawsky (25:13):
No, we did have oral argument. It was done over
Zoom, which was, you know,rather interesting trying to do
that, although I thought itworked rather well. I've had the
fortunate experience to arguebefore the Supreme Court and,
you know, other appellatecourts, and a little bit of the
give and take when you're infront of an entire room of
people kind of goes by thewayside. And that's more, you
(25:37):
know, that that's a lawyerthing. I don't know how much
that really has to do with theactual decision making part of
the case. But, you know, doingappellate work and having those
oral arguments, and, you know,having the interchange with the
judges, I think you'll learn alittle bit more over Zoom, it
was it was more structured,clearly everyone was kind of
waiting their turn and askingquestions kind of one at a time.
(26:00):
So it was a little different.
But it- we got to have theargument. Nonetheless, I still
think, and I think some of theyounger attorneys in my office
kind of say, "Why do we evenhave oral argument on these
things? Why does it matter?" I,I still think that, you know,
every little bit helps. So-
Corrie Woods (26:17):
Yeah, I mean, I think there are definitely cases
that were won and there aredefinitely cases that were lost
at oral argument. I don't thinkthere'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 (26:31):
Exactly.
Corrie Woods (26:32):
One thing I did find interesting is what you
just said about this, this sortof Zoom argument is interesting
to me, because I tend to agreewith you that it's better to do
this stuff in person. Becauseyou do get a lot more
intersection. And the purpose ofbeing at oral argument, right,
is so that you're there to talkabout what the judges want to
know. And on this sort of Zoomstructure, I don't know they
(26:55):
give you like, what, five, sevenminutes ahead of time, and you
can just sort of give them yourargument, is that right?
Nathan Murawsky (27:00):
Yeah. They they basically said, the usual kind
of we know what the case isabout, I think Justice Saylor
started off giving about a twominute overview as to what the
case was about, and then gaveyou a little bit of time to get
into your, you know, get intothe generalities of the
argument. And then they- thenthey got into specifics about
those types of things. So thatthe format was somewhat the
(27:22):
same. It was just, you know,definitely more structured in
the way that it was handled.
Corrie Woods (27:29):
And so after oral argument, the case gets
submitted, what do they come outwith?
Nathan Murawsky (27:32):
I think that the first the first concern we
had was we didn't know how longit was going to take for a
decision to come out. And thenwhen it did come out- and I
don't remember exactly, I thinkwe argued it, I want to say it
was last summer. The decisioncame out just recently. So I
think it was about a 10 monthtime period. And just based on
(27:55):
the oral argument alone, wereally didn't have any concerns
that we were going to get sentback down, we just didn't know
as to how far the court wasgoing to be willing to go. I
was. I don't want to say I'msurprised by the fact that it
was essentially it was unanimousand that everybody agreed it
needed to get sent back down. Ithink some of the concurring
opinions were more to kind ofget their own points of view out
(28:18):
about concerns or you know wherethis goes moving forward. I
don't know that I expected thereto be a dissenting opinion. But
I wouldn't have been surprisedthat there was a concurring
opinion that it was a little bitmore expressive about we don't
want to open up the doors oflitigation, you know, against
the Commonwealth for any andeverything now.
Corrie Woods (28:35):
And so just in terms of what's in the opinion,
just just very briefly, themajority balked at sort of what
you wanted as a home run. Theydidn't go back to first
principles and legislativeintent, they kind of tried to
weave all of these cases, somewould say contradictory cases,
or convoluted cases into a testand let the opinion authored by
Chief Justice Baer whodetermines essentially, there's
(28:57):
there's three elements, right?
Number one, the condition mustbe of the realty. It must, and
this is, it must derive,originate from, or have as, as
its source, which is a littleredundant, a dangerous
condition, resulting from adefect in the property, or its
construction, maintenance,repair, or design, which seems a
(29:18):
little more expansive than someof the earlier cases. Number
two, the condition must be anartificial condition or a defect
of the land itself. And numberthree, it must be the cause or a
concurrent cause of the injury.
And how well do you think thatsort of synthesizes things going
(29:41):
backward? And how much of thisis synthesis and how much of
this is modification?
Nathan Murawsky (29:46):
I think it's a little bit of both. Another
trial lawyer who was helping usout and was involved in the
amicus brief for thePennsylvania Trial Lawyers on
this, his take on it was thatwhile the language of the
opinion, pretty much seems to bethis, "Alright, we're gonna stay
within the framework of whatwe've always done, we're going
(30:07):
to suggest language like youjust read that makes it a little
bit more expansive." But thatperhaps the fact that this
decision in and of itselfstands, will be suggestive to
lower courts, kind of the ideathat you have to look at
everything. And part of that,you know, when you talk about
(30:28):
like the design, and I don'tremember the case off the top of
my head, where it was, it was adifferent case where there was a
design of the property thatsomehow caused a dangerous
condition. And I had alwaysthought, well, you know, that's
part of this, that you couldhave a design. And in this case,
in particular, you had a designwhere it was where the lamppost
(30:51):
was put in where the tree wasat, they knew how this was all
laid out. And that could causethe dangerous condition. And I
think that that part of youknow, where this decision gets a
little bit more expansive, andreduces that blanket immunity,
where you've now got an areawhere if you can show that the
Commonwealth through, you know,even part of it being
(31:13):
artificial, created a situationor some type of area on the
premises that's unsafe, that nowyou've met the burden, as
opposed to having to show thatmaybe the exact spot where an
accident happened, that thatspot was the part that was
defective in some way, shape, orform. So I think it opens up the
(31:34):
door like that, I do think it isstill a little confusing. I
think that there is- there'smore room to go with this. I
think the fact that they put thetest down is a good first step,
I think that this is theanalysis that lower courts are
going to have to use, and it'sgoing to be more difficult to
try to use planetary rotationsto justify immunity. But I- it
(31:58):
obviously still leaves some ofthat wiggle room for courts to
try to take language and dodifferent things with it.
Corrie Woods (32:04):
To the point that it's still confusing, I just
created like a couple questionquiz on how workable is this
test. So I'm just gonna name anumber of conditions that
conceivably lead to an injury.
And some of them come fromearlier cases, some of them
don't. And just give me yoursort of first gut feeling as to
whether liability could attachnotwithstanding sovereign
(32:26):
immunity. Number one, gravelthat the Commonwealth has laid
down in a dirt driveway?
Nathan Murawsky (32:32):
I would think that under that argument, it's-
I would think that that gets youover the immunity hurdle. Sure.
Because it's a- it's an activemove by the Commonwealth to put
something down. It's it's notnatural existing in the fact
that even though maybe gravelitself is a natural thing, it's
it was artificially placedthere, you know, again, I mean,
even my answer there suggestshas still open ended some of
(32:55):
this stuff is.
Corrie Woods (32:56):
Yeah, okay. Rock salt laid down on an asphalt
driveway?
Nathan Murawsky (33:04):
Yeah, well, that's, you know, that's. See
that- I mean, the cases beforebasically said, the use of that
type of stuff is not. Look, Idon't know that I want that case
even if you don't have immunity.
But yeah, I think that that'stoo close to some of their prior
cases that they would have ahard time getting past to say
that, you know, the use of rocksalt standing alone is enough.
Corrie Woods (33:25):
Yeah. Okay. An in-ground swimming pool, I think
we can agree, that probablywould have been fine before.
Right?
Nathan Murawsky (33:31):
Right.
Corrie Woods (33:31):
Okay. An above-ground swimming pool?
Nathan Murawsky (33:35):
I think same thing. I- maybe you get into the
fixture argument there about isthat really a fixture and might
be an idea as to is thissomething that they would put up
and take down every year versussomething that was- even though
it was above ground, you know,they'd put a fence around or
something else? I think that maybe one of the factors that look
at.
Corrie Woods (33:53):
Okay, and just two more, and I promise we'll we'll
move on from the Jeopardy round.
Nathan Murawsky (33:57):
Well, that's fine!
Corrie Woods (33:58):
A non functional light bulb, and a lamp on a
walkway?
Nathan Murawsky (34:05):
See, I think at that point, you get more into
what did they know and when didthey know it?
Corrie Woods (34:11):
Yeah.
Nathan Murawsky (34:12):
That I think plays into it. Like if it's, you
mean it's almost like any otherpremises liability case? You
know, how long had the grapesbeen on the floor of the
supermarket before somebodyfell? I think you're kind of
getting into the same argumentwith the Commonwealth there
about what's their practiceabout changing lightbulbs and
that type of thing.
Corrie Woods (34:28):
Yeah. And last one, lighting that is obscured
by a hill on a dark walkway?
Nathan Murawsky (34:36):
I still- I mean, our case was they knew
where the lighting was. And Ithink that even if the
Commonwealth in that situation,didn't install the lighting,
initially, maybe they took overa property, you still have to
know. You know, you still haveto know that that you're
obscuring the only light youhave out there. And I think
there- although, you know, theCourt clearly doesn't want to
(34:56):
say at any point in time "Yes,the Commonwealth has an
obligation to put up lighting orput up guard rails or whatever
it is," I think ultimately theydo.
Corrie Woods (35:05):
Yeah. Okay, so I think that went okay. It's
always scary to I always, Ialways feel like I'm, it's like
you're at oral argument againand you're gonna be trapped into
answering one way or the other.
But okay, so I think that thekey here, and one of the big
ones is this does kind of solvethe problems about causation,
right? Because when they say itmust be the cause or a
(35:26):
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 thedarkness? Is this the Earth's
rotation? Is this you know, theBig Bang, ultimately responsible
for everything in the world?
Right. And I think that thatmight be more helpful in the
(35:46):
future than even maybe some ofthe other language here, right?
I do want to touch on the theconcurring opinions a little
bit. Justice Donahue and JusticeWecht, and I believe Justice
Dougherty joined Justice Wecht'sopinion and Justice Wecht joined
Justice Donahue's opinion. Theyseem to acknowledge that a lot
of those problems are still kindof there, there's still some
arbitrary distinctions. Theydon't really have a basis in
(36:09):
text or legislative intent. Andsort of the big one that I
wanted to call attention to, isthe one that Justice Wecht
brings up. He calls it aperverse incentive on behalf of
the Commonwealth to say, "Well,you know, if I'm putting myself
at risk of liability forinstalling safety equipment, or
lighting or anything thatdoesn't end up working, well,
(36:31):
why would I do it at all? Whydon't I just leave the whole
place dark?"
Nathan Murawsky (36:35):
Yeah. And I know, I think it was in a
footnote, that the majorityopinion basically said, you
know, we're kind of not going tojust assume that, that our
holding will have theCommonwealth just say, "hey,
well, that's exactly what we'regoing to do." Whether it's
political motivation, or moralmotivation, I can't imagine any
(36:57):
situation where the Commonwealthis simply going to say, well,
because we might be in troublefor it, therefore, we're not
going to do it. I get the thethought process behind it. And
if it was maybe a lessscrupulous private corporation
that we were discussing who wasmotivated by profit, that might
(37:17):
be a more significant argument.
I just don't envision, you know,the Commonwealth being of that
nature. That was one of thearguments we were waiting to
hear in the oral argument, whichnever really came about. And our
response would be to that, ifthat's the Commonwealth concern?
Well, that's, that's whatinsurance is for. That's why,
(37:38):
you know, you build that intothe cost of whatever it is
you're going to do. If you thinkputting up a guardrail could
potentially expose you toliability, well, then make sure
you have the right type ofinsurance coverage. So that if
it does, you're covered for it,but you're still doing the right
thing. You're making the rightcall.
Corrie Woods (37:57):
I mean, it is it is odd to consider the board of
directors or an architect at acommunity college or something
thinking, "Well, you know what,there's an off chance that
someone you know, if we, if weput the light here, someone,
someone might, you know, rolltheir ankle and need surgery, 15
years down the line. So let'sjust put everyone at risk for 15
years, right? On the off chancethat she sues." So- and I think
(38:20):
you kind of touched there alittle bit on one thing that I
always try to underline in tortcases, which is when we talk
about rules of liability andrules of immunity in tort cases,
we're not talking about actuallysaving money or losing money,
we're talking about the shiftingof the costs of the injury,
right, because the injury hasalready happened. And it's just
(38:42):
a matter of is the cost ofpaying that going to be defrayed
across, whether it's insuranceor whether it's taxpayer
dollars, or the company'sdollars, or is it going to be
borne by someone who justhappened to be the victim of an
accident?
Nathan Murawsky (38:55):
Yeah, in that in every other area of the law,
that that's out there, thatconsideration in the sense of,
you know, kind of behind thescenes, that's why there's auto
insurance. That's why there'shomeowners 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
(39:17):
law, those types of things, youknow, there is no adjustment
for, you know, a motor vehiclecase, because of what the levels
of insurance may or may not beor whether or not somebody has
coverage. In fact, it's exactlythe opposite, that that's
excluded. That's neveradmissible. So why that should
come into play here. I, youknow, I again, I don't think it
(39:40):
really holds any weight.
Corrie Woods (39:43):
So sort of wrapping up, what does this
decision mean, specifically foryour, your client? And then for
Pennsylvania law in this area?
Do you think that this is sortof the the end of the beginning
or do you think this is thebeginning of the end for the
development of the law in thisarea?
Nathan Murawsky (39:58):
For the client, you know, and in having
conversations with her after theopinion, you know, the reality
is she gets her day in court.
And I can say from having doneenough of these arguments, and
having, you know, having had theopportunity to talk with some of
the Justices and, you know, atall appellate levels, it's kind
of a nice reminder that you tryto say to them at the end, that
(40:20):
this isn't just an exercise inlegal analysis, that there was a
woman who had a broken ankle whoneeded surgery, who doesn't even
get in front of a jury, becauseof, you know, what we think was
an incorrect analysis of thelaw. And that ultimately, that's
what this, you know, is attrial, where that's what it
boils down to is you want thejury to make the decision, you
(40:43):
know, you want the jury to hearthis case and decide, was it
negligent? And you know, did itcause injury? And is she
entitled to anything? So for theclient, that's, that's the best
part of it. As far as movingforward, I would like to think
that this is the start of a kindof the pendulum swinging the
(41:03):
other way. I think that sincethe real estate exception, and
the whole Tort Immunity Act waspassed, it has been the pendulum
has swung toward narrowing theexceptions to immunity as much
as possible. And I think thatthe pendulum is now starting to
go the other way. How far it'llgo, you know, I don't
necessarily know and, you know,kind of, as we alluded to
(41:27):
before, it's a little bit slowmoving. But I think that, you
know, as an active trial lawyerin Pennsylvania, the only thing
I would ask is anybody else whohas a case, at a trial court
level that gets bounced on thereal estate exception, take the
appeal, unless it's clear asday, take the appeal, because
(41:47):
the only way that this continuesto move forward is if you
continue to press courts toacknowledge these other
decisions, and to kind of movethings forward. And I would hope
on a trial court level, youknow, that these two decisions
would would kind of send thatmessage, you know, and
especially when you talked aboutwith the with the with the
causation issue? You know, Ithink that for a trial court
(42:10):
judge, that may be the biggestpart of this is, is that part
where the court essentiallysays, you know, it's not for the
court to decide what the causalfactors are, you have to look at
what the plaintiff has allegedthose factors to be, because
that's a factual question. And Ithink that, that I am hoping
(42:32):
that, you know, it doesn't takeanother, you know, appeal up to
the Supreme Court for theSupreme Court to say, no, what
we meant was, you know, to thetrial court judge or an
appellate court judge, you haveto stop creating the plaintiff's
cause of action and allow it tostand the way that they've pled
it within the complaint. Andthat's a factual question. So
(42:52):
that's, that's kind of where I'mreally hoping this goes. This is
just the beginning of thatpendulum going back the other
way.
Corrie Woods (43:02):
Really well put.
Nate, thank you so much forjoining us today on The Standard
of Review.
Nathan Murawsky (43:06):
Thank you for having me.
Corrie Woods (43:08):
That's all for this episode of The Standard of
Review. If you like what you'veheard, and you want to hear
more, you can subscribe for newepisodes in your pod catcher of
choice. If you'd like to reachout with a topic or a guest for
a new episode, you can find uson the web at Woods Law Offices
dot com or just search for WoodsLaw Offices on Facebook,
Twitter, or LinkedIn. Thanks somuch for listening, and we'll
(43:30):
see you next time on TheStandard of Review.
Outro (43:33):
Thanks for listening to The Standard of Review by
SCOPAblog. This episode has beenbrought to you by Woods Law
Offices, Raising the Bar forPennsylvania Appeals. Check them
out at www dot Woods Law Officesdot com.
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