Repko v. Chichester School District

• Decision Date: 10 August 2006
• Citation: 904 A.2d 1036
• Parties: Kelly Michelle REPKO v. CHICHESTER SCHOOL DISTRICT, Appellant.
• Court: Pennsylvania Commonwealth Court

904 A.2d 1036

Kelly Michelle REPKO v. CHICHESTER SCHOOL DISTRICT, Appellant.

Commonwealth Court of Pennsylvania.

Argued June 9, 2006.

Decided August 10, 2006.

Allison S. Petersen, Huntingdon Valley, for appellant.

Christopher J. Heavens, Boothwyn, for appellee.

BEFORE: COHN JUBELIRER, Judge, SIMPSON, Judge, and McCLOSKEY, Senior Judge.

OPINION BY Judge COHN JUBELIRER.

Chichester School District (the School) appeals an order of the Court of Common Pleas of Delaware County that denied its Motion for Post-Trial Relief after a jury awarded damages in the amount of $250,000.00 to Kelly Michelle Repko (Repko). The award of damages was in compensation for the School's alleged negligence when a table¹ that was improperly placed in the School's gymnasium fell on Repko, causing injuries. (Motion for Post-Trial Relief.)

The relevant facts are undisputed. On June 16, 2003, Repko, a student at the School, was playing basketball during gym class. The basketball went into the bleachers, which were collapsed into the wall, and Repko went to retrieve it. A folding table was leaning on its side against the bleachers. The table had been used for a graduation ceremony the night before and was improperly stored in the gym. As Repko was walking away from the bleacher area with the basketball, the table fell over, struck Repko on the back of her right calf and ankle, and caused a deep cut, which required several stitches.

Repko filed a complaint that averred she sustained personal injuries as a result of the School's negligent maintenance of real property under its care, custody and control. The School filed preliminary objections in the nature of a demurrer, based upon immunity afforded it under what is commonly referred to as the Political Subdivision Tort Claims Act (Tort Claims Act), 42 Pa.C.S. §§ 8541-8542. However, the preliminary objections were overruled by the trial court without an opinion. At the close of discovery, the School filed a motion for summary judgment based on immunity because it was uncontested that a table, which was not affixed to the real property of the District, caused Repko's injury. Again, the trial court denied the motion without an opinion.

In June 2005, a three-day jury trial took place and, at the close of the trial, the School motioned for nonsuit based on immunity, which the trial court denied. Thereafter, at the close of the evidence, the School moved for a directed verdict, which the trial court, again, denied. Prior to closing statements and over the objections of the School, the trial court, sua sponte, determined that representatives for the School admitted the table constituted a dangerous condition and, thus, that the School had admitted negligence. The trial court further determined that it would not charge the jury with the School's suggested jury instructions on immunity and liability, thus removing the issue of liability from the jury. The jury ultimately awarded Repko $250,000.00 in damages and the School filed a timely Motion for Post-Trial Relief, which was denied. The trial court, pursuant to Pa. R.A.P.1925(a), issued an opinion supporting its ruling.

The trial court's determination that the School was not entitled to immunity under the Tort Claims Act was based upon its interpretation of Grieff v. Reisinger, 548 Pa. 13, 693 A.2d 195 (1997), and cases following its approach. See Hanna v. West Shore School District, 717 A.2d 626 (Pa.Cmwlth.1998); Erb v. Greenmount Cmty. Fire Co., 63 Pa. D. & C.4th 353 (2003). In Grieff, our Supreme Court held that the real property exception to governmental immunity applied to injuries caused by a fire chief's alleged negligent care of a fire association's property. There, the fire chief was removing paint from the floor near the kitchen by pouring paint thinner onto the floor. The paint thinner flowed across the floor, under the refrigerator, and ignited into a fire causing severe injuries to a bystander. In addressing the real property exception, the Court stated that the exception "provides that a local agency may be liable for its employees' or its own negligence related to the `care, custody or control of real property' in its possession." 548 Pa. at 15, 693 A.2d at 197 (quoting 42 Pa.C.S. §§ 8542(a)(2)-(b)(3)). The Court went on to note that, "[h]ere, [the fire chief's] care of the Fire Association's property caused the fire that injured [the bystander]. While he was removing paint from the floor, therein caring for the real property, it ignited causing the resultant injuries. . . ." Id. at 16, 693 A.2d at 197 (emphasis added). Thus, the Court held that, under the plain language of the real property exception, the chief and the Fire Association were not immune from suit. Id.

The trial court, here, applied the analysis in Grieff and found that the School had negligently cared for the gymnasium area. In so doing, it specifically found the Supreme Court's analysis in Blocker v. City of Philadelphia, 563 Pa. 559, 763 A.2d 373 (2000) not to be applicable to the case. In Blocker, the Supreme Court held that the real estate exception to immunity did not apply to a city for its negligent maintenance of a bleacher. There, a citizen was injured when a bleacher that she was sitting on collapsed at a city concert facility. The trial court granted a motion for summary judgment in favor of the City based on its immunity under the Tort Claims Act, and this Court reversed. Id. at 561-62, 763 A.2d at 374. This Court held that there was a question as to whether the intent of the City was to consider the bleacher part of the realty. However, the Supreme Court reversed and held that consideration of the intention of an owner regarding whether a chattel has been permanently placed on real property is only relevant where the chattel has, in fact, been affixed to the realty. Id. at 562-63, 763 A.2d at 375. Because the Supreme Court held that the evidence was clear that the bleacher was not attached to the ground, the intent of the City was irrelevant; absent an attachment to realty, a chattel remains personalty. Id. at 563, 763 A.2d at 375-76. Accordingly, the Supreme Court held that because it was undisputed that the bleacher, which caused the injury, was personalty, any negligent maintenance of it did not fall within the real property exception to immunity.

The trial court expressed its reasoning as follows:

[U]nlike Blocker, where the bleachers['] defective condition caused the injury, here it was the negligent care of the gymnasium area, which is real property, which caused the injuries to Repko.

Like the Grieff and Hanna decisions, this Court determined that the manner in which the School District cared for its real property was what caused the injuries. . . . In this instance there was no claim that a defect in the personalty caused the injuries to Repko. With the admissions of the defense witnesses that the table was placed in the gym negligently and caused a dangerous condition, it was clear to this Court that this claim fell within the real estate exception.

(Trial Ct. Op. at 8.) The School appealed.², ³

Although the School raises several arguments, because we agree that the School is immune from liability pursuant to the Tort Claims Act, we do not reach its other arguments.⁴

With regard to the Tort Claims Act, the School argues that, before the real property exception to immunity is applicable, the Court must first determine that the cause of the injury was the real property or was sufficiently related to the real property. The School highlights the undisputed fact that the object that caused the injury to Repko was a table, which was not affixed to the School's real property. Therefore, it contends that, pursuant to the Supreme Court's opinion in Blocker, Repko's claim does not fall within the real property exception to immunity because the object that injured Repko was an item of personalty, and not real property. On the other hand, Repko relies on the Supreme Court's opinion in Grieff and our opinion on remand, in which we held that the real property exception to immunity applied because the government entity cared for the real property, ie. the floor, in a negligent manner. For the reasons that follow, we agree with the School that Blocker applies to the case at bar.

Local government agencies are generally immune from tort liability under the Tort Claims Act. Wells v. Harrisburg School District, 884 A.2d 946 (Pa.Cmwlth. 2005) (finding school districts are local government agencies for purposes of 42 Pa.C.S. § 8541-42 immunity provisions). There are limited exceptions to such immunity and an injured party may recover in tort from a local governmental agency if:

(1) damages would be otherwise recoverable under common law or statute; (2) the injury was caused by the negligent act of the local agency or an employee acting within the scope of his official duties; and (3) the negligent act of the local agency falls within one of eight enumerated categories.

Wells, 884 A.2d at 948 (citing 42 Pa.C.S. § 8542). Section 8542 provides an exception to immunity for 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).

At the outset, we recognize that there are two approaches that can be used to determine whether to apply the real estate exception to immunity under the Tort Claims Act, and that, at times, deciding which approach to apply under a given set of facts is challenging. Under the Blocker approach, the determinative inquiry is whether the injury is caused by personalty, which is not attached to the real estate, or by a fixture, which is attached. Under the Grieff approach, the determinative inquiry is whether the injury is caused by the care, custody or control of the real property...