Brewington v. City of Philadelphia, 122818 PASC, 23 EAP 2017

Docket Nº:23 EAP 2017
Opinion Judge:TODD, JUSTICE.
Party Name:SYETA BREWINGTON, AS PARENT AND NATURAL GUARDIAN FOR JARRETT BREWINGTON, A MINOR, AND SYETA BREWINGTON IN HER OWN RIGHT v. CITY OF PHILADELPHIA, WALTER G. SMITH ELEMENTARY SCHOOL AND THE SCHOOL DISTRICT OF PHILADELPHIA APPEAL OF: THE SCHOOL DISTRICT OF PHILADELPHIA
Judge Panel:SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ. Chief Justice Saylor and Justices Baer, Donohue, Dougherty and Mundy join the opinion. WECHT, JUSTICE.
Case Date:December 28, 2018
Court:Supreme Court of Pennsylvania
 
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SYETA BREWINGTON, AS PARENT AND NATURAL GUARDIAN FOR JARRETT BREWINGTON, A MINOR, AND SYETA BREWINGTON IN HER OWN RIGHT

v.

CITY OF PHILADELPHIA, WALTER G. SMITH ELEMENTARY SCHOOL AND THE SCHOOL DISTRICT OF PHILADELPHIA

APPEAL OF: THE SCHOOL DISTRICT OF PHILADELPHIA

No. 23 EAP 2017

Supreme Court of Pennsylvania

December 28, 2018

ARGUED: May 15, 2018

Appeal from the Order of Commonwealth Court entered on November 14, 2016 at No. 886 CD 2015 reversing the Order entered on April 27, 2015 in the Court of Common Pleas of Philadelphia County, Civil Division, at No. 1974 November Term 2013

SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.

OPINION

TODD, JUSTICE.

The Political Subdivision Tort Claims Act ("Act"), 42 Pa.C.S. §§ 8541 et seq., grants governmental immunity from tort liability to local political subdivisions, including public schools. Specific exceptions exist, however, to this otherwise broad grant of immunity to these entities. In this appeal, we consider one of these exceptions ― the real property exception to governmental immunity ― and, in particular, whether the absence of padding on a gym wall, into which a student ran during gym class, causing injury, falls within the exception. For the reasons set forth below, we find the lack of padding of a gym wall may constitute negligence in the care, custody, and control of real property, and, thus, falls within the Act's real estate exception. Therefore, we affirm the order of the Commonwealth Court.

On May 9, 2012, nine-year-old Jarrett Brewington participated in a relay race during gym class at Walter G. Smith Elementary School, in Philadelphia. While Jarrett was running, he tripped and fell, causing him to propel into the wall at the end of the gym, hit and cut his head, and lose consciousness. No padding covered the gym wall, which was made of concrete. Jarrett was later diagnosed with a concussion, was absent from school for one to two months after the incident, and continued experiencing headaches and memory problems years later.

On November 19, 2013, Jarrett's mother, Syeta Brewington, as parent and natural guardian and in her own right (collectively, "Mother"), brought an action against Walter G. Smith Elementary School and the School District of Philadelphia (collectively, the "School") in the Philadelphia County Court of Common Pleas.[1] Mother alleged that Jarrett's injuries occurred because of a defective and dangerous condition of the premises - namely, the concrete gym wall - and that the School was negligent in failing to install padded safety mats to cushion the wall. In response, the School filed, inter alia, a motion for summary judgment, raising the defense of governmental immunity, and claiming that the real property exception to governmental immunity under the Act did not apply.

By way of brief background, in response to our Court's 1973 abrogation of the judicially-created doctrine of governmental immunity in Ayala v. Philadelphia Board of Education, 305 A.2d 877 (Pa. 1973), the legislature enacted, inter alia, the Act, which provides for governmental immunity against damages due to injury to a person or property caused by acts of a local agency, except as provided therein. Specifically, Section 8541 of the Act sets forth that local government agencies generally are immune from tort liability.2 Section 8542, however, lists a series of exclusions to governmental immunity for specific categories of tort claims, providing, in pertinent part, an exception for negligence in the care, custody, or control of real property:

(a) Liability imposed.--A local agency shall be liable for damages on account of an injury to a person or property within the limits set forth in this subchapter if both of the following conditions are satisfied and the injury occurs as a result of one of the acts set forth in subsection (b):

(1) The damages would be recoverable under common law or a statute creating a cause of action if the injury were caused by a person not having available a defense under section 8541 (relating to governmental immunity generally) or section 8546 (relating to defense of official immunity); and

(2) The injury was caused by the negligent acts of the local agency or an employee thereof acting within the scope of his office or duties with respect to one of the categories listed in subsection (b). As used in this paragraph, "negligent acts" shall not include acts or conduct which constitutes a crime, actual fraud, actual malice or willful misconduct.

(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.

In the instant case, Judge Shreeves-Johns granted the School's motion for summary judgment, finding Mother's tort action did not satisfy the real property exclusion. The court, focusing on paragraph 10 of Mother's complaint, which alleged that Jarrett's injuries were caused by a "defective and dangerous condition of the premises caused directly by the actions/inactions of [the School] (ie., [sic] gym without safety mats)," Plaintiff's Complaint at ¶ 10, concluded that safety mats are personalty ― not realty ― and, thus, do not fall within the real property exception to governmental immunity under the Act, citing Rieger v. Altoona Area School District, 768 A.2d 912 (Pa. Cmwlth. 2001). Further, the court rejected Mother's claim that the construction of the gym wall without impact protection constituted a negligent design of the wall or negligent construction, as it was "comingled" with Mother's claim of negligent care, custody, and control of the real estate, and, thus, according to the trial court, Rieger precluded recovery. Trial Court Opinion at 9.

On appeal, in a unanimous, published opinion authored by Judge Wojcik, an en banc panel of the Commonwealth Court reversed. Brewington v. City of Philadelphia, 149 A.3d 901 (Pa. Cmwlth. 2016). In so doing, the court first discussed its case law concerning the real property exception to governmental immunity under the Act. The court explained that it has repeatedly held that allegations of a governmental agency's negligence in the care, custody, and control of real property that rendered the property unsafe for its intended and foreseeable use fall within the real property exception to governmental immunity. The court offered, however, that the real property exception is limited to injuries involving real property, and does not extend to injuries caused by personalty.

With respect to the determination of whether an injury involves real property or personalty, the court relied upon its decision in Singer v. School Dist. of Philadelphia, 513 A.2d 1108 (Pa. Cmwlth. 1986), wherein a student gymnast who was performing a stunt over a vaulting horse fell and injured himself when he missed the mat and fell on the hardwood floor. In that case, the student sued the school district, alleging that the school was negligent in failing to control the landing surface by providing sufficient mats on the gym floor for the student's protection. The court noted that it held that the real property exception applied in Singer because, although the mat which could have prevented the injury was personalty, the unprotected hardwood floor which caused the student's injury was not, thus falling within the real property exception.

Although Singer would appear to be analogous to the instant case, the court conceded that, in its 2001 decision in Rieger (finding that even assuming failure to provide mats in cheerleading practice area caused injury, such negligent conduct would not fall within the real property exception, as mats were not affixed to the real property, and as such, constituted personalty), it concluded that Singer was implicitly overruled by this Court's decision in Blocker v. City of Philadelphia, 763 A.2d 373 (Pa. 2000) (holding that chattel not attached to realty - there, a set of bleachers that collapsed - remains personalty for purposes of the real property exception to governmental immunity). However, the court in the matter sub judice pointed out that, in

Rieger, no claim was raised that the student's injury was caused by personalty; thus, it viewed Blocker as inapposite and, thus, that it should not have been relied upon in Rieger. Moreover, the court opined that the Rieger court incorrectly focused its analysis on the nature of the chattel that could have been used to protect students, rather than the cause of the plaintiff's injury - the hardwood...

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