A city is not protected by governmental immunity when a dangerous condition in the facilities of a utility system is created by the negligence or inaction of a local agency or its employees, the Pennsylvania Supreme Court has ruled.

In a split decision in Metropolitan Edison v. City of Reading, a 6-1 majority found June 20 that the city of Reading failed to fix a dangerous condition in an excavation site that exposed and allegedly damaged a piece of Metropolitan Edison Co. equipment, and the electric utility can therefore proceed with a negligence lawsuit. The Commonwealth Court misconstrued the utility exception to governmental immunity, as well as the basis of Met-Ed's complaint, Justice Christine Donohue said in reversing the lower court's decision and determining the city lacked immunity.

“Under the utility exception, the focus must be on whether the injuries alleged were caused by a dangerous condition which derived from, originated from or had its source in the local agency's utility service facility and located within its right-of-way, not on the genesis of the dangerous condition,” Donohue said. “It must also be established that the local agency had sufficient advance notice, or could reasonably be charged with notice under the circumstances, of the dangerous condition, and the foreseeable risks presented by those dangerous conditions to permit it to take timely remedial measures.”