Gleason, DiFrancesco, Shahade, 
Barbin & Markovitz
Johnstown, Pennsylvania

Except as otherwise provided in this subchapter, no local agency shall be liable for any damages on account of any injury to a person or property caused by any act of the local agency or an employee thereof or any other person.
1980, Oct. 5, P.L. 693, No. 142, § 221(i), effective in 60 days.

§ 8542 Exceptions to governmental immunity

(a) Liability imposed.
A local agency shall be liable for damages on account of an injury to a person or property within the limits set forth in this subchapter if both of the following conditions are satisfied and the injury occurs as a result of one of the acts set forth in subsection (b):
(1) The damages would be recoverable under common law or a statute creating a cause of action if the injury were caused by a person not having available a defense under section 8541 (relating to governmental immunity generally) or section 8546 (relating to defense of official immunity) ; and

(2) The injury was caused by the negligent acts of the local agency or an employee thereof acting within the scope of his office or duties with respect to one of the categories listed in subsection (b). As used in this paragraph, "negligent acts" shall not include acts or conduct which constitutes a crime, actual fraud, actual malice or willful misconduct.

(b) Acts which may impose liability.
The following acts by a local agency or any of its employees may result in the imposition of iability on a local agency:
(1) Vehicle !iability
The operation of any motor vehide in the possession or control of the local agency. As used in this paragraph, "motor vehicle" means any vehicle which is self- propelled and any attachment thereto, including vehicles operated by rail, through water or in the air.

 (2) Care, custody or control of personal property
The care, custody or control of personal property of others in the possession or control of the local agency. The only losses for which damages shall be recoverable under this paragraph are those property losses suffered with respect to the personal property in the possession or control of the local agency.

 (3) Real property
The care, custody or control of real property in the possession of the local agency, except that the local agency shall not be liable for damages on account of any injury sustained by a person intentionally trespassing on real property in the possession of the local agency. A used in this paragraph, "real property" shall not include:

(i) trees, traffic signs, lights and other traffic controls, street lights and street lighting systems;

 (ii) facilities of steam, sewer, water, gas and electric systems owned by the local agency and located within rights- of-way;

 (iii) streets; or

 (iv) sidewalks.

(4) Trees, traffic controls and street lighting
A dangerous condition of trees, traffic signs, lights or other traffic controls, street lights or street lighting systems under the care, custody or control of the local agency, except that the claimant to recover must establish that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred and that the local agency had actual notice or could reasonably be charged with notice under the circumstances of the dangerous condition at a sufficient time prior to the event to have taken measures to protect against the dangerous condition.

 (5) Utility service facilities
A dangerous condition of the facilities of steam, sewer, water, gas or electric systems owned by the local agency and located within rights-of-way, except that the claimant to recover must establish that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred and that the local agency had actual notice or could reasonably be charged with notice under the circumstances of the dangerous condition at a sufficient time prior to the event to have taken measures to protect against the dangerous condition.

 (6) Streets

(i) A dangerous condition of streets owned by the local agency, except that the claimant to recover must establish that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred and that the local agency had actual notice or could reasonably be charged with notice under the circumstances of the dangerous condition at a sufficient time prior to the event to have taken measures to protect against the dangerous condition.

 (ii ) A dangerous condition of streets owned or under the jurisdiction of Commonwealth agencies, if all of the following conditions are met;

(A) The local agency has entered into a written contract with a Commonwealth agency for the maintenance and repair by the local agency of such streets and the contract either:
(i) had not expired or been otherwise terminated prior to the occurrence of the injury; or

 (ii ) if expired, contained a provision that expressly established local agency responsibility beyond the term of the contract for injuries arising out of the local agency's work.

(B) The injury and dangerous condition were directly caused by the negligent performance of its duties under such contract.

 (C) The claimant must establish that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred and that the local agency had actual notice or could reasonably be charged with notice under the circumstances of the dangerous condition at a sufficient time prior to the event to have taken measures to protect against the dangerous condition.

(7) Sidewalks
A dangerous condition of sidewalks within the rights-of way of streets owned by the local agency, except that the claimant to recover must establish that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred and that the local agency had actual notice or could reasonably be charged with notice under the circumstances of the dangerous condition at a sufficient time prior to the event to have taken measures to protect against the dangerous condition. When a local agency is liable for damages under this paragraph by reason of its power and authority to require installation and repair of sidewalks under the care, custody and control of other persons, the local agency shall be secondarily liable only and such other persons shall be primarily liable.

 (8) Care, custody or control of animals
The care, custody or control of animals in the possession or control of a local agency, including but not limited to police dogs and horses. Damages shall not be recoverable under this paragraph on account of any injury caused by wild animals, including but not limited to bears and deer, except as otherwise provided by statute.

(c) Limited definition
As used in this section the amount of time reasonably required to take protective measures, including inspections required by law, shall be determined with reference to the actual equipment, personnel and facilities available to the local agency and the competing demands therefor.

§ 8545. Official liability generally
An employee of a local agency is liable for civil damages on account of any injury to a person or property caused by acts of the employee which are within the scope of his office or duties only to the same extent as his employing local agency and subject to the limitations imposed by this subchapter.

1980, Oct. 5, P.L. 693, No. 142, § 221 (1), effective in 60 days.

§ 8546. Defense of official immunity
In any action brought against an employee of a local agency for damages on account of an injury to a person or property based upon claims arising from, or reasonably related to, the office or the performance of the duties of the employee, the employee may assert on his own behalf, or the local agency may assert on his behalf:

(1) Defenses which are available at common law to the employee.

(2) The defense that the conduct of the employee which gave rise to the claim was authorized or required by law, or that he in good faith reasonably believed the conduct was authorized or required by law.

 (3) The defense that the act of the employee which gave rise to the claim was within the policymaking discretion granted to the employee by law. For purposes of this subsection, all acts of members of the governing body of a local agency or of the chief executive officer thereof are deemed to be within the policymaking discretion granted to such person by law.

 § 8547 Legal assistance

(a) Mandatory provision of legal assistance generally
When an action is brought against an employee of a local agency for damages on account of an injury to a person or property, and it is alleged that the act of the employee which gave rise to the claim was within the scope of the office or duties of the employee, the local agency shall, upon the written request of the employee, defend the action, unless or until there is a judicial determination that such act was not within the scope of the office or duties of the employee.

(b)Optional provision of legal assistance generally
When an action is brought against an employee of a local agency for damages on account of an injury to a person or property, and it is not alleged that the act of the employee which gave rise to the claim was within the scope of his office or duties, the local agency may, upon the written request of the employee, defend the action, and such undertaking to defend thereafter may be withdrawn only with the approval of the court. If the local agency has refused a written request to defend the action, and it is judicially determined that the act was, or that the employee in good faith reasonably believed that such act was, within the scope of the office or duties of the employee and did not constitute a crime, actual fraud, actual malice or willful misconduct, the local agency shall reimburse the employee for the expenses of his legal defense in such amounts as shall be determined to be reasonable by the court.

 (c) Control of iitigation
When, pursuant to subsection (a) or subsection (b), the local agency defends an action against an employee thereof at the request of the employee, it may assume exclusive control of the defense of the employee, keeping him advised with respect thereto, and the employee shall cooperate fully with the defense, except that in situations where the legal counsel provided by the local agency determines that the interests of the employee and the local agency conflict, the local agency shall obtain the express written consent of the employee for such interested representation or shall supply independent representation.

 § 8548 Indemnity

(a) Indemnity by local agency generally
When an action is brought against an employee of a local agency for damages on account of an injury to a person or property, and he has given timely prior written notice to the local agency, and it is judicially determined that an act of the employee caused the injury and such act was, or that the employee in good faith reasonably believed that such act was, within the scope of his office or duties, the local agency shall indemnify the employee for the payment of any judgment on the suit.

 (b)Indemnity by employee
generally No employee of a local agency shall be liable to the local agency for any surcharge, contribution, indemnity or reimbursement for any liability incurred by the local agency for damages on account of an injury to a person or property caused by an act of the employee which was within the scope of his office or duties or which he in good faith reasonably believed to be within the scope of his office or duties. No employee of a local agency shall be liable to the local agency for any surcharge, contribution, indemnity or reimbursement for any expenses or legal fees incurred by the local agency while defending the employee against a claim for damages on account of an injury to a person or property caused by an act of the employee.

(c)Cooperation. In any action against a local agency or an employee thereof for damages on account of an injury caused by the act of the employee in which action the employee has not fully cooperated with the local agency in the defense of the action, the provisions of subsection (b) shall not apply.

 § 8549. Limitation on damages
In any action brought against an employee of a local agency for damages on account of an injury to a person or property in which it is judicially determined that the act of the employee caused the injury and that such act was, or that the employee in good faith reasonably believed that such act was, within the scope of his office or duties, damages shall be recoverable only within the limits set forth in this subchapter.

§ 8550 Willful Misconduct
In any action against a local agency or employee thereof for damages on account of an injury caused by the act of the employee in which it is judicially determined that the act of the employee caused the injury and that such act constituted a crime, actual fraud, actual malice or willful misconduct, the provisions of sections 8545 (relating to official liability generally), 8546 (relating to defense of official immunity), 8548 (relating to indemnity) and 8549 (relating to limitation on damages) shall not apply.

 1980, Oct. 5, P.L. 693, No.142, § 221(1), effective in 60 days.

§ 8553. Limitations on damages

(a) General rule.
Actions for which damages are limited by reference to this subchapter shall be limited as set forth in this section.

 (b )Amounts recoverable.
Damages arising from the same cause of action or transaction or occurrence or series of causes of action or transactions or occurrences shall not exceed $500,000 in the aggregate.

 (c) Types of losses recognized.
Damages shall be recoverable only for:

(1) Past and future loss of earnings and earning capacity.

 (2) Pain and suffering in the following instances:

(i)death; or

 (ii)only in cases of permanent loss of a bodily function, permanent disfigurement or permanent dismemberment where the medical and dental expenses referred to in paragraph (3) are in excess of $1,500.

(3)Medical and dental expenses including the reasonable value of reasonable and necessary medical and dental services, prosthetic devices and necessary ambulance, hospital, professional nursing, and physical therapy expenses accrued and anticipated in the diagnosis, care and recovery of the claimant.

 (4)Loss of consortium.

 (5)Loss of support.

 (6)Property losses.

(d) Insurance benefits
If a claimant receives or is entitled to receive benefits under a policy of insurance other than a life insurance policy as a result of losses for which damages are recoverable under subsection (c), the amount of such benefits shall be deducted from the amount of damages which would otherwise be recoverable by such claimant.

 § 8557. Judgment as a bar
The judgment in an action cognizable under section 8545 (relating to official liability generally) shall constitute a complete bar to any action by the claimant, by reason of the same subject matter, against the local agency of which the defendant in such action is an employee. The judgment in an action under section 8542 (relating to exceptions to governmental immunity) shall constitute a complete bar to any action by the claimant, by reason of the same subject matter, against the employee whose act gave rise to the claim.

 1980, Oct. 5, P.L. 693, No. 142, § 221(1), effective in 60 days.

 § 8558. Judgments against insured local agency
If the judgment is obtained against a local agency that has procured a contract or policy of public liability insurance protection the holder of the judgment may use the methods of collecting the judgment as are provided by the policy or contract and the laws ot the Commonwealth to the extent of the limits of coverage provided.

 1980, Oct. 5, P.L. 693, No. 142, § 221(1), effective in 60 days.

 § 8559. Judgments against self-insured local agency and those not fully insured
For the payment of any judgment obtained under the provisions of this subchapter against a local agency that is a self-insurer or not fully covered by liability insurance, the manner of paying a money judgment shall be based upon a proof of indebtedness or evidence of any estimated tax levy necessary for payment of the judgment and any other evidence or statements which the court of original jurisdiction may require. As an alternative to paying the money judgment in this manner, the court may provide for the judgment to be paid over a period of not less than one nor more than ten years. The interest rate on any judgment where payment is extended more than three years shall be at the rate prescribed by law for the first three years and at the rate of 6% for each remaining year.

 1980, Oct. 5, P.L. 693, No. 142, § 221(1), effective in 60 days.

 § 8563. General powers of local agencies

(a) Rules and regulations

 A local agency may promulgate rules and regulations not inconsistent with this subchapter in order to implement the intent of this subchapter.

 (b) Delegation of duties.
Any duties placed upon a local agency under the provisions of this subchapter may be delegated to an independent contractor by a written agreement.

 §8564. Liability insurance and self-insurance

(a) Purchase of liability insurance.
A local agency may purchase insurance on itself or its employees for any liability arising from the performance of their duties within the scope of their employment.

 (b) Employment of risk manager.
A local agency may employ a professional risk manager whose responsibility it shall be to administer a public liability insurance program for the local agency and initiate any risk management program for the local agency and its employees.

 (c) Joint action by local agency.
Any two or more local agencies may join together, enter into any agreements or jointly contract for the development of a group risk management program either through the provisions of the act of July 12, 1972 (P.L.762, No.180), referred to as the Intergovernmental Cooperation Law, or any other applicable statute. Any two or more local agencies may join together, enter into any agreements or jointly contract for the purchasing of public liability insurance. Any two or more local agencies may pool their public liability insurance risks through the provisions of the act of July 12,1972 (P.L.762, No.180) or any other applicable statute.

 (d) Insurance pooling and coinsurance.
The pooling of insurance risks, reserves, claims or losses shall not be construed to be transacting insurance nor otherwise subject local agencies to the provisions of statutes regulating insurance or insurance companies. Local agencies may be coinsured under a master policy and the total premium may be prorated among the local agencies. Any county may undertake a group risk management program or public liability insurance program on behalf of itself and any other local agencies covered by this subchapter within the county that wish to voluntarily participate in the programs.

 (e) Self-insurance.
Any local agency may self-insure which must be funded on an annual basis by appropriations to establish a reserve for self insurance purposes.

 
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