Martin By and Through Martin v. City of Philadelphia
| Decision Date | 02 July 1997 |
| Parties | Harry MARTIN, JR., a minor by and through his Parent and Natural Guardian Diane MARTIN and Diane Martin in her own right, Appellants, v. CITY OF PHILADELPHIA. |
| Court | Pennsylvania Commonwealth Court |
Michael J. Flanagan, Philadelphia, for appellants.
Alan C. Ostrow, Philadelphia, for appellee.
Before SMITH and FLAHERTY, JJ., and MIRARCHI, Jr., Senior Judge.
Harry Martin, Jr., a minor, and his mother Diane Martin (Martins) appeal from an order of the Court of Common Pleas of Philadelphia County that granted the motion for summary judgment filed by the City of Philadelphia in the Martins' action against the City alleging negligent injury of Harry. The Martins question whether the trial court erred in granting summary judgment to the City when there was an issue of material fact as to the City's immunity status; whether the City's football goalpost, which had been affixed to the City's land, should be considered "of" the land for purposes of the governmental immunity statutes; and whether the City is immune when a minor such as Harry is injured in an area designated as a football field that was unfit for the activities for which it was reasonably foreseen to be used.
The Martins' complaint alleged that Harry, then 11 years old, was playing with friends at the Murphy Recreation Center, owned and operated by the City, when he tripped and fell, while running across the football field, into a metal pipe that was lying discarded in the field. In Harry's deposition he stated that he dove into a pile of leaves to catch a football and hit a goalpost lying on the ground. Harry was seriously injured in his groin. Harry Martin, Sr., stated in an affidavit that he visited the scene shortly after the accident and saw and photographed the pipe, which he identified as a football goalpost. A City recreation leader and the former caretaker for the facility testified in depositions that it was common for people to throw debris on to the field from the adjacent, higher road. Both stated that the pipe in the photographs was not part of a goalpost and that the park used wooden goalposts at the time of the accident; it changed to metal ones four years later.
As the trial court noted, pursuant to former Pa.R.C.P. No. 1035(b), 1 summary judgment should be rendered "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." In considering a motion for summary judgment, a court should accept as true all well-pleaded factual allegations, but not conclusions of law, in the non-moving party's pleadings. Rizzo v. City of Philadelphia, 668 A.2d 236 (Pa.Cmwlth.1995). The motion should be granted only in cases that are clear and free from doubt. Id. This Court's review of a grant or denial of summary judgment is limited to determining whether the trial court committed an error of law or an abuse of discretion. Kaplan v Southeastern Pennsylvania Transportation Authority, 688 A.2d 736 (Pa.Cmwlth.1997).
The trial court reviewed a variety of cases interpreting the general rules of sovereign immunity in Section 8521 of the Judicial Code, 42 Pa.C.S. § 8521, and of governmental immunity in Section 8541, 42 Pa.C.S. § 8541, and the real property and sidewalk exceptions in Section 8522, as amended, 42 Pa.C.S. § 8522, and Section 8542, as amended, 42 Pa.C.S. § 8542. The trial court quoted Snyder v. Harmon, 522 Pa. 424, 562 A.2d 307 (1989), where the Supreme Court stated that local agency liability under the real estate exception in Section 8542(b)(3), 42 Pa.C.S. § 8542(b)(3), for care, custody and control of real property, required negligence making the real property unsafe for the activities for which it is regularly used or intended to be used or reasonably foreseen to be used. It further stated that the focus of the negligent act involving a dangerous condition of government-owned real estate becomes the actual defects of the real estate.
Focusing on statements in the complaint and in the Martins' response to the summary judgment motion that the pipe was "lying on the ground," and "lying discarded on the ground," the trial court stated that the Martins' claim that the pipe was a goalpost did not address the key issue of whether it was "affixed" to the ground. The trial court concluded that the pipe was not "of" the real property because it was not affixed at the time of the injury, and it granted the City's motion because the Martins had produced no evidence to create a factual issue as to whether the pipe was affixed, despite ample opportunity to do so.
The Martins first argue that the trial court erred in granting summary judgment when there was a material fact in issue, namely, the immunity status of the City. Section 8542(b) of the Judicial Code provides in part:
(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.... As used in this paragraph, "real property" shall not include:
...
(iv) sidewalks.
The determination of whether a government agency enjoys immunity under a particular set of facts is a conclusion of law. Here the trial court concluded as a matter of law that immunity applied even assuming that the pipe involved in the accident was a goalpost that was previously affixed to the property.
The Martins next directly challenge the trial court's conclusion that the City could not be held liable because the goalpost was not attached to the premises at the time of injury. They note that the Supreme Court in Snyder stated that the language in Section 8522(b)(4), 42 Pa.C.S. § 8522(b)(4), governing the exception to sovereign immunity for a dangerous condition of Commonwealth agency real estate and sidewalks, indicated that the dangerous condition must "derive, originate from or have as its source the Commonwealth realty." Snyder, 522 Pa. at 433, 562 A.2d at 311. In Finn v. City of Philadelphia, 165 Pa.Cmwlth. 255, 645 A.2d...
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