Usher v. Upper Saint Clair School Dist.

• Decision Date: 11 February 1985
• Citation: 487 A.2d 1022,87 Pa.Cmwlth. 461
• Parties: , 23 Ed. Law Rep. 142 Thomas USHER, individually and as parent of James Usher, Appellant, v. The UPPER SAINT CLAIR SCHOOL DISTRICT, Appellee.
• Court: Pennsylvania Commonwealth Court

Page 1022

487 A.2d 1022

87 Pa.Cmwlth. 461, 23 Ed. Law Rep. 142

Thomas USHER, individually and as parent of James Usher, Appellant, v. The UPPER SAINT CLAIR SCHOOL DISTRICT, Appellee.

Commonwealth Court of Pennsylvania.

Argued Nov. 16, 1984.

Decided Feb. 11, 1985.

John P. Gismondi, Rhonda L. Comer, Gilardi & Cooper, Pittsburgh, for appellant.

George I. Buckler, Louis C. Long, Pittsburgh, for appellee.

Before MacPHAIL, DOYLE and PALLADINO, JJ.

MacPHAIL, Judge.

Thomas J. Usher (Appellant) appeals from an order by the Court of Common Pleas of Allegheny County which granted summary judgment to the Upper Saint Clair School District (Appellee). We affirm.

Appellant was injured during the performance of a chemistry experiment in one of Appellee's school buildings. A school teacher dropped a flaming chemical beaker which splashed flaming fluid on Appellant's face. At the time of the accident, Appellant was out of his seat and standing next to the sink counter where the experiment was being conducted. Appellant alleged in his complaint that the teacher was negligent in failing to take adequate measures to control the area immediately surrounding the experiment. In its answer to the complaint, Appellee raised the defense of governmental immunity under Section 201 of the Political Subdivision Tort Claims Act (Act) ¹ and moved for summary judgment. The trial court granted Appellee's motion. This appeal followed.

The only issue before us is whether the alleged negligent conduct was directly related to the care, custody or control of real property, one of the specific exceptions to governmental immunity enumerated in the Act. ² Appellant argues that this case falls within the care, custody or control or real property exception because the teacher failed to control the area of the experiment. While Appellant recognizes that we have previously held that lack of supervision of school children does not fall within this exception, ³ Appellant argues that the complaint here avers failure to control the area of the experiment, not failure to control the students. We disagree.

Appellant's complaint states in pertinent part:

5. The aforesaid accident was caused by negligence of the defendant's agent in general and in the following particulars:

(a) in failing to properly conduct the said experiment;

(b) in failing to take adequate measures to protect the injured plaintiff.

Our reading of those allegations of negligence indicates that it is the teacher's failure to conduct the experiment and the teacher's failure to protect the student that comprise the basis for liability. Nothing is alleged concerning the Appellee's failure to control the real estate.

In Lewis v. Hatboro-Horsham School District, 77 Pa. Commonwealth Ct. 287, 289, 465 A.2d 1090, 1091 (1983), Judge Doyle, writing for this Court, said:

This section [Section 202(b)(3) ] generally imposes liability in cases where the cause of the accident was the subdivision or its employee's negligence in the care of real estate. Its purpose was to limit the old rule of absolute sovereign immunity by imposing a standard of due care on those political subdivisions who are owners or users of [real] property. Penalty is then imposed in the form of liability for failure to adhere to the standard of care in cases involving the exceptions (emphasis added).

Thus, in Robson v. Penn Hills School District, 63 Pa. Commonwealth Ct. 250, 437 A.2d 1273 (1981), we held that sovereign immunity applied where a student is injured in a throwing incident while the teacher was out of the classroom; in Lewis we held that the same defense applied where a student was hit by a baseball during practice on school property; and in Wimbish v. Penn Hills School District, 59 Pa. Commonwealth Ct. 620, 430 A.2d 710 (1981), we held that the defense applied where a student was injured on school property and allegedly did not receive appropriate medical attention. In none of these cases was it alleged that the school district was negligent in the care, custody or control of its real...