Under 42 Pa.C.S. §§ 8541 et seq., political subdivisions in Pennsylvania, including public schools, receive a broad degree of governmental immunity under Pennsylvania tort law. But there are specific exceptions. In the recent case of Brewington v Philadelphia School District, the state’s high court expanded the “real property exception” to governmental immunity.
A nine-year-old boy was engaged in a relay race during his gym class at a Philadelphia elementary school when he tripped and fell. As a result, he was propelled into the concrete gym wall where he hit and cut his head causing him to lose consciousness. Soon after, doctors diagnosed him with a concussion that prevented him from attending school for nearly two months after the incident and experienced continuing headaches and memory problems for years after. The gymnasium wall in its surrounding entirety lacked any kind of padding to cover the concrete and provide at least some degree of protection.
The boy’s mother filed a tort suit against the elementary school and the School District of Philadelphia under the real property exception of 42 Pa.C.S. §§ 8541 et seq. The suit alleged that the unpadded concrete wall in the gym was a dangerous condition on the school premises and that the school was negligent in failing to install padding to provide cushion to the gym wall. In response, the school filed a motion for summary judgment raising the defense of governmental immunity and claiming that the case did not fall within the real property exception.
The Real Property Exception to Governmental Immunity
At issue in Brewington was whether the absence of padding on the gym wall falls into the “real property exception” under the statute. The real property exception in § 8542 specifically provides that a governmental entity is held liable when:
- The damages would be recoverable under common law or statute if the injury were caused by a person without governmental immunity; and
- When the entity was negligent in the care, custody, or control of real property in their possession.
The trial court ruled that the exception did not apply and granted the motion for summary judgment. The judge based his decision on the prior holding in Rieger v. Altoona Area School District, reasoning that gym mats are not “real property” but rather personal property and as a result, do not fall within the real property exception.
Additionally, the court rejected the mother’s negligence claim regarding the design and construction of the wall on the basis it was “commingled” within her already precluded claim.
On appeal to the Commonwealth Court, the trial court’s decision was unanimously reversed. The court first determined that the negligence claim with respect to the design and construction of the wall was not precluded because it has been repeatedly held in Pennsylvania that claims alleging property have been rendered unsafe for its intended use routinely fall within the real property exception to governmental immunity.
The court provided, however, that the real property exception is limited to injuries caused by real property and does not include injuries caused by personal property. The court then determined that the gym mats do not constitute personal property, but rather, realty. The court based this determination on the holding in Singer v. School Dist. of Philadelphia and explained that the trial court misconstrued the holding of Rieger in reaching their decision.
The court provided the proper analysis of whether the real property exception applies is centered upon what the cause of the injury was, not what the nature of the remedy that could and should have been provided to prevent the injury was. As a result, because the concrete wall is real property and caused the injury, the mother’s claim concerned an injury caused by real property and the real property exception applied regardless of the fact that the mother asserted the school was negligent in failing to provide personal property, being the protective mat, which would have prevented the injury.
The school district then appealed the case to the Supreme Court of Pennsylvania. The school district argued that the boy’s accident was not related to any negligent care or maintenance of the property. Rather, the school contended that the negligent supervision of the teacher caused the injury. The school district characterized the case as one of “negligent supervision” which is not a property defect and should not fall within the real property exception to governmental immunity.
Two approaches have been used in Pennsylvania courts to determine whether or not a case falls within the real property exception. The first approach asks whether the injury was caused by an affirmative act involving the care, custody, or control of the real property itself. The school argued that under this approach, the real property exception does not apply because there was no act on part of the school constituting negligent care of the wall. The second approach considers whether personal property is attached to realty and when it is not, the real property exception does not apply. As a result, the court argued that under this approach, the real property exception also does not apply because the mother’s claims were based upon the negligent control of padding, which is personal property and was not attached to realty.
The Rationale of Holding and Language of § 8542
In order to reach its holding, the Supreme Court first considered the specific language of § 8542. As to the first requirement, the parties did not dispute that the Mother’s damages would be recoverable at common law against a party without governmental immunity. As to the second requirement, the court also determined the concrete wall was the cause of the injury and realty and that the mother’s allegations satisfied the real property exception as she plainly pled that the negligent acts, including the failure to act regarding the care, custody, and control of real property in possession of the school caused her son’s injury.
The court concluded that the real property exception expressly includes a failure to provide safety measures where a duty may exist. Therefore, the mother sufficiently pled that the school negligently failed to act regarding the care, custody, and control of the real property in its possession through their alleged failure to provide padding and the property exception applies. As a result, the court correctly reversed the trial court’s decision to grant summary judgment.
The court also noted and rejected the school’s contentions as to the reversal was affirmed.he approaches taken by courts. The court provided that the unprotected concrete wall, being realty, was the cause of the injury and that whether the mats that could have prevented the injury are considered personal property was not relevant to the decision of whether or not the real property exception applies. As to the school’s contention that the mother’s claim is misconstrued and is rather one of negligent supervision, the court also rejected this on the basis that the mother neither pleaded expressly nor by inference a cause of action for negligent supervision. Rather, all of her claims pointed directly to the negligent care of real property as the cause of the injury. For those reasons, the trial court erroneously granted summary judgment and found the case falls within the real property exception.