768 A.2d 912 (Pa.Cmwlth. 2001), Rieger v. Altoona Area School Dist.

Citation:768 A.2d 912
Opinion Judge:The opinion of the court was delivered by: Judge Flaherty
Party Name: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.
Case Date:March 02, 2001
Court:Commonwealth Court of Pennsylvania
 
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Page 912

768 A.2d 912 (Pa.Cmwlth. 2001)

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

March 2, 2001.

Argued Oct. 30, 2000.

Page 913

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

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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...

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