Carlo v. Scranton School District

• Decision Date: 29 June 1935
• Docket Number: 17
• Citation: 319 Pa. 417,179 A. 561
• Parties: Carlo, Appellant, v. Scranton School District
• Court: Pennsylvania Supreme Court

179 A. 561

Carlo, Appellant, v. Scranton School District

319 Pa. 417

No. 17

Supreme Court of Pennsylvania

June 29, 1935

Submitted May 28, 1935.

Appeal, No. 17, Jan. T., 1936, by plaintiff, from judgment and decree of C.P. Lackawanna Co., Nov. T., 1934, No. 1388 in case of Joseph Carlo v. School District of the City of Scranton. Judgment affirmed.

Trespass for wrongful death.

The opinion of the Supreme Court states the facts.

Affidavit of defense raising questions of law sustained and judgment entered for defendant, opinion by LEACH, J. Plaintiff appealed.

Error assigned was order of court.

The judgment is affirmed

A. A Vosburg and A. Floyd Vosburg, for appellant.

David J. Reedy and Stanley F. Coar, for appellee.

Before SIMPSON, KEPHART, SCHAFFER, MAXEY, DREW and LINN, JJ.

OPINION

MR. JUSTICE MAXEY:

This action of trespass was instituted by plaintiff to recover damages for the death of his minor son. From the entry of judgment for defendant upon an affidavit of defense raising questions of law, plaintiff appealed.

The statement of claim avers that defendant owned, maintained, and controlled the William Penn School in North Scranton. There was a fifty-foot flagstaff in the school yard, the base of which was about twenty-eight feet from the sidewalk of Clearview Street, on which avenue the school property abutted. On October 12, 1934, at about 4:30 P.M., plaintiff's son, while on the sidewalk, was killed when the upper portion of the flagstaff snapped off and fell, crushing the boy beneath it. It is alleged that the falling of the flagstaff was due to its defective, rusted, and weakened condition; that this condition had existed for over six months; and that defendant was negligent in not having it replaced or repaired. The court below entered judgment in favor of defendant on the ground that this was a case of tortious liability and a school district is not liable for injuries caused by the negligence of its directors or employees.

Plaintiff concedes that "a school district is a state agency, performing governmental functions, and while acting within the legitimate scope of these duties, is, generally speaking, not liable for negligence in connection therewith." Illustrative of this well established rule are: School Dist. v. Fuess, 98 Pa. 600; Ford v. School Dist., 121 Pa. 543, 15 A. 812; Wallace v. School Dist., 316 Pa. 388, 175 A. 411; Brinton v. School Dist., 81 Pa.Super. 456. See also Briegel v. Phila., 135 Pa. 451, 19 A. 1038; Rosenblit v. Phila., 28 Pa.Super. 587; Brinton v. School Dist., 81 Pa.Super. 450. But it is contended that in the instant case the facts establish a nuisance and that the ordinary rule as to school district immunity cannot be invoked by the defendant here.

It is unnecessary to consider whether the maintenance of an undoubted nuisance would, in the event of injury resulting from it, subject a school district to liability, for the allegations of the statement of claim aver a breach of duty that cannot be distinguished in principle from other trespass cases in which pleas of immunity by school districts have met with judicial acceptance. The characterization as a "nuisance" of the situation presented in the statement of claim is warranted only on the theory that every negligent act of omission or commission is a nuisance. Whether or not a given set of facts constitutes a condition which in law is a nuisance is sometimes a question not free from difficulty. "While it may be easy to draw the line between what is and what is not a nuisance, . . . it is by no means so easy to determine whether the circumstances of any particular case ought to place it on one side or the...