Rieger v. ALTOONA AREA SCHOOL DIST.

• Decision Date: 02 March 2001
• Citation: 768 A.2d 912
• Parties: Erika RIEGER, a minor, by Bernard Rieger and Jacqueline Rieger, as parents and natural guardians, and in their own right, Appellants, v. ALTOONA AREA SCHOOL DISTRICT.
• Court: Pennsylvania Commonwealth Court

768 A.2d 912

Erika RIEGER, a minor, by Bernard Rieger and Jacqueline Rieger, as parents and natural guardians, and in their own right, Appellants, v. ALTOONA AREA SCHOOL DISTRICT.

Commonwealth Court of Pennsylvania.

Argued October 30, 2000.

Decided March 2, 2001.

Douglas V. Stoehr, Altoona, for appellants.

David P. Andrews, Altoona, for appellee.

Before KELLEY, Judge, FLAHERTY, Judge, RODGERS, Senior Judge.

FLAHERTY, Judge.

Erika Rieger (Erika) and her parents, Bernard and Jacqueline Rieger (collectively, "the Riegers") appeal from an order of the Court of Common Pleas of Blair County (trial court), which granted summary judgment to the Altoona Area School District (School District) in the negligence action brought by the Riegers. For the reasons set forth herein, we affirm.

The relevant facts are as follows. Erika, age thirteen at the time, was in eighth grade and a member of the Keith Junior High School cheerleading squad. During a cheerleading practice conducted in the school gymnasium on January 6, 1998, Erika sustained dental and facial laceration injuries as a consequence of a fall that resulted from a failed cheerleading stunt. Erika and another cheerleader, Yasmine Rajpar (Yasmine), were paired together for the first time by their coach, Patty Wendle, and directed to practice a stunt known as the "liberty." One element of the "liberty" involves a "shoulder sit" stunt whereby one cheerleader sits on the shoulders of the base or "pole" cheerleader and dismounts either forward or backward. While practicing the shoulder sit stunt on the day of the accident, Yasmine served as the pole with Erika performing the dismount. After Erika successfully performed a forward dismount, a miscommunication occurred between Erika and Yasmine regarding whether Erika was to dismount forward or to the rear. While the source of the miscommunication remains in dispute, the end result caused Erika to dismount forward and hit the hardwood gymnasium floor face first without the aid of her arms to brace her fall because Yasmine maintained her grasp in an effort to prevent Erika's fall.

The Riegers filed a negligence action against the School District claiming that their case falls within the real property exception of the Political Subdivision Tort Claims Act (Act). 42 Pa.C.S. § 8542(b)(3). The School District responded with a motion for summary judgment asserting that as a local agency it is entitled to immunity under 42 Pa.C.S. § 8541 and that the Riegers failed to make out a claim that satisfied any of the immunity exceptions enumerated in 42 Pa.C.S. § 8542. By order dated March 8, 2000, the trial court granted the School District's summary judgment motion upon determining that the real property exception of the Act did not apply and further found that Erika had voluntarily assumed the risk of injury from her cheerleading activities. The Riegers now appeal the trial court's order to this Court.¹

The Riegers present two issues on appeal. First, whether the trial court erred by granting the School District summary judgment based on its determination that the real property exception set forth in 42 Pa.C.S. § 8542(b)(3) of the Act did not apply. Second, whether the trial court erred by alternatively granting the School District summary judgment based on its determination that Erika had voluntarily assumed the risk of injury when she attempted the cheerleading stunt.²

Initially, we note that § 8541 of the Act provides: "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 an act of the local agency or an employee thereof or any other person." 42 Pa.C.S. § 8541. The real property exception to local governmental immunity set forth in § 8542(b)(3) of the Act provides:

(b) Acts which may impose liability. The following acts by a local agency or any of its employees may result in the imposition of liability on a 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.

42 Pa.C.S. § 8542(b)(3).

Initially, we note that our decision in Jones v. Southeastern Pennsylvania Transportation Authority, 748 A.2d 1271, 1272 (Pa.Cmwlth.2000) provides the following overview of the law relevant to present summary judgment inquiry:

Summary judgment is properly granted where "there is no genuine issue of any material fact as to a necessary element of the cause of action or defense which could be established by additional discovery or expert report." Pa. R.C.P. No. 1035.2(1). After the close of discovery relevant to the motion, summary judgment is also appropriate if "an adverse party who will bear the burden of proof at trial has failed to produce evidence of facts essential to the cause of action or defense which in a jury trial would require the issues to be submitted to a jury." Pa. R.C.P. No. 1035.2(2). An entry of summary judgment may be granted only in cases where the right is clear and free from doubt. Davis v. Brennan, 698 A.2d 1382 (Pa.Cmwlth. 1997). The moving party has the burden of proving the non-existence of any genuine issue of material fact. Id. Parties seeking to avoid the imposition of summary judgment must show by specific facts in their depositions, answers to interrogatories, admissions or affidavits that there is a genuine issue for trial. Sovich v. Shaughnessy, 705 A.2d 942 (Pa.Cmwlth.1998).

See also Pennsylvania Rules of Court 2000, Note to Pa. R.C.P. No. 1035.2.

On the facts here, the Riegers first contend that gymnastics mats are an integral part of a gymnasium hardwood floor when it is used to practice the gymnastic-type stunts that are routinely performed in modern cheerleading. In support of this argument, the Riegers rely on our decision in Singer v. School District of Philadelphia, 99 Pa.Cmwlth. 553, 513 A.2d 1108 (1986). In Singer, a student-gymnast attempted a gymnastic stunt over a vaulting horse that resulted in a broken elbow when he missed a mat and landed on the hardwood floor. This Court held that matting is a necessary element of a gymnasium's hardwood floor when it is used as a gymnastic stunt area, and therefore, constituted an aspect of the School District's care, custody and control of its real property, subject to the real property exception. Id. at 1109-10. The Riegers argue that modern cheerleading includes many gymnastic type stunts thus imposing the mat requirement on the School District under the custody, care and control analysis set forth in Singer. The Riegers maintain that since the School District did not ensure that mats were used during cheerleading practice, it is subject to negligence liability under the real property exception to the Act. 42 Pa.C.S. § 8542(b)(3).

Although we agree that application of the Singer analysis to the facts here would warrant reversal of the trial court's grant of summary judgment, we conclude that Singer no longer represents controlling authority as it was overruled, sub silentio, by the Supreme Court's recent decision in Blocker v. City of Philadelphia, 563 Pa. 559, 763 A.2d 373 (2000). In Blocker, a negligence action was brought by Wendy Blocker against the City of Philadelphia (City) for injuries sustained following the collapse of the bleacher on which she was seated while attending a concert at a facility owned and maintained by the City. Ms. Blocker pursued her claim under the real property exception to the Act following the City's claim of immunity. The common pleas court granted the City's motion for summary judgment and this Court reversed holding that a genuine issue of material fact existed regarding weather the bleacher constituted a fixture attached to realty, thus falling within the real property exception to the Act. See Blocker v. City of Philadelphia, 729 A.2d 187 (Pa. Cmwlth.1999). In overturning this Court's reversal, the Supreme Court concluded that the record evidence clearly demonstrated that the bleachers responsible for Blocker's injury were not attached to the realty and absent such an attachment, the bleachers constituted personalty which is outside the scope of the real property exception to the Act. Blocker, 563 Pa. at 562, 763 A.2d at 375.

In addressing the issue of whether the allegedly defective bleachers were affixed to the realty, the Supreme Court cited the following passage from its earlier decision in Clayton v. Lienhard, 312 Pa. 433, 167 A. 321 (1933).

Chattels used in connection with real estate are of three classes: First, those which are manifestly furniture, as distinguished from improvements, and not peculiarly fitted to the property with which they are used; these always remain personalty.... Second, those which are so annexed to the property that they cannot be removed without material injury to the real estate or to themselves; these are realty, even in the face of an expressed intention that they should be considered personalty-to them the ancient maxim "Quicquid plantatur solo, solo cedit" [meaning whatever is annexed to the land becomes land] applies in full force.... Third, those which, although physically connected with the real estate, are so affixed as to be removable without destroying or materially injuring the chattels themselves, or the property to which they are annexed; these become part of the realty or remain personalty, depending upon the intention of the parties at the time of the annexation; in this class fall such chattels as boilers and machinery affixed for the use of an owner or tenant but readily removable....

Blocker, 563 Pa. at 563, 763 A.2d at 375 quoti...