Olympic, Inc. v. McKeesport Municipal Water , 104 Pa. Commw. 107 ( 1987 )

Dissenting Opinion by

Senior Judge Kalish:

I respectfully dissent.

In Gall v. Allegheny County Health Department, 98 Pa. Commonwealth Ct. 175, 510 A.2d 926 (1986), this court reviewed the legislative history concerning the regulations of water purification operations of municipalities and the impositions of liability upon municipal water suppliers for dangerous impurities of the water and concluded:

The legislature intended that the municipality would be liable for injuries or damages directly resulting from the negligent maintenance of the physical facilities and equipment within the municipality control and not for injuries resulting from the quality of the water supplied by the facilities and equipment. (Emphasis added.)

This intent of the legislature is set forth in section 8542(b)(5) of the Judicial Code, 42 Pa. C. S. §8542(b)(5), which provides that the political subdivisions may be liable for a dangerous condition of the facilities of water systems, provided 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 political subdivision had notice of the condition. See Medicus v. Upper Merion Township, 82 Pa. Commonwealth Ct. 303, 475 A.2d 918 (1984).

In Gall, the court further concluded that there was a failure to allege any facts which would enable the court to conclude that the facility itself constituted a dangerous condition so as to bring this action within one of the eight exceptions to immunity set forth in 42 Pa. C. S. §8542.

Here, the complaint alleges that the City and the Water Authority failed to erect sufficient barriers around the reservoir; foiled to provide sufficient preventive maintenance in the care and upkeep of the filtration plant; failed to clean and treat the reservoir for forty years and the filtration plant for twenty years; and failed to use reasonable standard chemical treatment and purification techniques.

While there may be no liability in connection with the quality of the drinking water,' and the producers of the water are not insurers, they should be held to a standard of reasonable care in the maintenance of the equipment and to foresee that the failure to do so created an unreasonable risk of harm.

The facts alleged state a cause of action.