Brewington v. City of Phila.

• Decision Date: 14 November 2016
• Docket Number: No. 886 C.D. 2015,886 C.D. 2015
• Citation: 149 A.3d 901
• Parties: Syeta Brewington, as parent and natural guardian for Jarrett Brewington, a minor and Syeta Brewington in her own right, Appellants v. City of Philadelphia and Walter G. Smith Elementary School Appeal of: Syeta Brewington and Jarrett Brewington
• Court: Pennsylvania Commonwealth Court

149 A.3d 901

Syeta Brewington, as parent and natural guardian for Jarrett Brewington, a minor and Syeta Brewington in her own right, Appellants

v.City of Philadelphia and Walter G. Smith Elementary School

Appeal of: Syeta Brewington and Jarrett Brewington

No. 886 C.D. 2015

Commonwealth Court of Pennsylvania.

Argued: October 19, 2016

FILED: November 14, 2016

Craig A. Falcone, Media, for appellants.

Ryan Mulderrig, Philadelphia, for appellees.

BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge, HONORABLE RENÉE COHN JUBELIRER, Judge, HONORABLE P. KEVIN BROBSON, Judge, HONORABLE ANNE E. COVEY, Judge, HONORABLE MICHAEL H. WOJCIK, Judge, HONORABLE JULIA K. HEARTHWAY, Judge, HONORABLE JOSEPH M. COSGROVE, Judge

OPINION BY JUDGE WOJCIK

Syeta Brewington, as parent and natural guardian for Jarrett Brewington, a minor, and Syeta Brewington in her own right (Plaintiff) appeals from the April 27, 2015 order of the Court of Common Pleas of Philadelphia County (trial court) granting summary judgment to Walter G. Smith Elementary School and the School District of Philadelphia (collectively, Defendants).

The relevant facts follow. On May 9, 2012, nine-year-old Jarrett Brewington (Student) was injured during gym class at the Walter G. Smith Elementary School (School). At the time Student was injured, he and other children were engaged in a relay race whose boundaries were concrete walls at either end of the school's gym.¹ (Reproduced Record (R.R.) at 86a.) Student testified: "I was running too fast and I couldn't stop and I tripped and fell. ... And hit my head on the wall. ... I fell to the ground and blacked out ... blood ran all the way down my face." (R.R. at 79a–80a; 86a–87a.)

Student suffered a concussion that caused him to miss classes for the final weeks of the spring 2012 semester. His symptoms initially required him to severely curtail his activities, including watching television and even talking, for about three months. Student returned to school in the fall, but his memory problems persisted and his grades dropped. During his February 17, 2015 deposition, Student stated that he still experienced occasional headaches and intermittent memory problems.

On November 19, 2013, Plaintiff filed a Complaint against the School, the School District of Philadelphia, and the City of Philadelphia,² alleging in part as follows:

10. [Student] was engaged in gym activities when he was caused to sustain injuries as a result of a defective and dangerous condition of the premises caused directly by the actions/inactions of defendants (i.e. gym without safety mats).

11. Defendants were negligent in maintaining the property that was within their care, custody and control[.]

23. [Defendants'] negligence and carelessness consisted of the following:

(a) defendants caused or permitted dangerous conditions to exist;

(b) defendants failed to make a reasonable inspection of the premises, which would have revealed the dangerous condition created by the defendants;

(c) defendants failed to give warning of the dangerous condition and failed to erect barricades or to take any other precautions to prevent injury to [Student];

(d) defendants failed to remove the dangerous condition;

(e) defendants failed to exercise reasonable prudence and due care to keep the gym in a safe condition for the minor plaintiff;

(f) defendants violated the ordinance of Philadelphia County pertaining to maintenance of the premises; and

(g) defendants failed to conform to their own specifications and standards as to design and maintenance of the school gymnasium.

(h) defendants' negligence was a direct cause of injury to [Student];

(i) defendants were negligent in the care, custody and control of the premises.

(j) defendants were negligent in failing to maintain the property in a safe condition;

(Complaint, ¶¶ 10–11, 23, R.R. at 21a–22a, 24a–25a.)

Defendants filed an Answer and New Matter denying the relevant allegations in the complaint and asserting, among other things, the defense of governmental immunity. Sections 8541–8542 of the Judicial Code, 42 Pa.C.S. §§ 8541 –8542, commonly known as the Political Subdivision Tort Claims Act, (Tort Claims Act). On March 2, 2015, Defendants filed a motion for summary judgment alleging that they were immune from liability for Student's injuries because the real property exception to governmental immunity at 42 Pa.C.S. § 8542(b)(3) does not apply.

The trial court granted Defendants' motion for summary judgment by order dated April 25, 2015. The trial court first focused on the allegation in Paragraph 10 of Plaintiff's Complaint, alleging that Student's injuries resulted from a "defective and dangerous condition of the premises caused directly by the actions/inactions of defendants (i.e. gym without safety mats)." Relying on Rieger v. Altoona Area School District , 768 A.2d 912 (Pa. Cmwlth. 2001), the trial court held that a claim that Defendants were negligent in failing to protect the walls with safety mats does not fall within the real property exception because safety mats are personalty, not realty. The trial court next determined that, although Plaintiff adequately pleaded a claim of negligent design or construction, that claim was "comingled" with Plaintiff's claim of negligent care, custody and control of real property and accordingly, the holding in Rieger was dispositive.

On appeal to this Court, Plaintiff argues that the trial court erred in granting summary judgment to Defendants because Plaintiff's claim falls within the real property exception to governmental immunity.³

Local government agencies are generally immune from tort liability. 42 Pa.C.S. § 8541. However, Section 8542 of the Tort Claims Act waives immunity for specific categories of tort claims. It states:

(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 ....

42 Pa.C.S. § 8542. In order to fall within the real property exception, "the injured party must show that (a) the injury resulted from a dangerous condition that (b) stemmed from the care, custody or control of real property, not personalty." Taylor v. Northeast Bradford School District , 101 A.3d 144, 148 (Pa. Cmwlth. 2014) ; Mellon v. City of Pittsburgh Zoo , 760 A.2d 921, 924 (Pa. Cmwlth. 2000).

Plaintiff asserts that the allegations in the Complaint, the testimony presented, and Plaintiff's expert report, (R.R. at 220a–23a), state a claim that the design and layout of the gym and the construction of its walls were not safe for its intended purpose. Plaintiff argues that the trial court erred in characterizing that claim as one alleging an injury caused by personalty rather than real property.

Plaintiff cites Grieff v. Reisinger , 548 Pa. 13, 693 A.2d 195, 197 (1997), which held that the real property exception to governmental immunity applied to injuries caused by a fire chief's alleged negligent care of the fire association's real property. In Grieff , our Supreme Court rejected the argument that the exception applied only to a dangerous condition "of" real property. Noting that the exception expressly applies to an agency's negligence related to the care, custody, or control of real property in its possession, the Supreme Court reasoned that "Grieff's care of the ... property caused the fire that injured Reisinger. While he was removing paint from the floor, therein caring for the real property, it ignited causing the resultant injuries to Reisinger. Under the real property exception's plain language, Grieff and the Fire Association are not immune from suit." Id. at 197.

Although the Supreme Court's decision in Grieff suggested an expansion of the circumstances to which the real property exception to governmental immunity would apply, it was not inconsistent with existing case law.

For example, in Gump v. Chartiers–Houston School District , 125 Pa.Cmwlth. 596, 558 A.2d 589 (1989), a member of a high school wrestling team was injured while sprinting in a running drill conducted in the high school's hallway. "As he reached the end of the hallway [the student] failed to negotiate a left hand turn and unintentionally pushed his hand through the window pane of a hallway door." Id. at 590. The student suffered multiple lacerations of his right hand and arm requiring medical treatment. The appellants (the student and his parents) argued that the school district was not immune from suit "because of the alleged regular and permitted use of the hallway for wrestling activities." Id. at 602. They also argued that the school district's "failure to install a type of window that was shatterproof or reinforced created a dangerous condition." Id. This Court concluded that the appellants' allegations "placed them squarely within the [real property] exception. " Id. (emphasis added). Accordingly, we reversed the trial's court's grant of summary judgment and remanded for further proceedings.

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