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A school district cannot be sued for the negligent supervision of a child who fell into a hole on a school’s playground, a common pleas court judge has ruled. The child’s parents claimed their suit fell within one of the exceptions to governmental immunity because it involved the school’s real property. But Butler County (Pa.) Common Pleas Court Judge Marilyn Horan said in Webster v. Seneca Valley School District, PICS Case No. 00-1805 (C.P. Butler Aug. 1, 2000) Horan, J. (7 pages), that negligent supervision was really at the heart of William and Wynne Webster’s complaint. “Negligent supervision by the school district is not an allegation of a defect of the property itself. Negligent supervision is insufficient to impose liability under the real estate exception to governmental immunity,” Horan said. The Websters’ daughter, Jennifer, was injured during a mid-day recess when she fell into a hole on a playground on one of the Seneca Valley School District’s schools. Jennifer sustained injuries to her left leg and knee, some of which were possibly permanent. The school district had contracted with Guardian Construction Co. for work, including the placement of a backboard and basket. In their suit, the Websters claimed that Guardian was negligent in digging the hole and leaving it unprotected by guards or warnings and by failing to complete the construction work promptly. They said the school district negligently supervised its students by allowing them to play near the hole and that it did not take the proper measures either to safeguard the hole itself or to force Guardian to safeguard it. The district countered that negligent supervision of students cannot form the basis of a claim under the Political Subdivision Tort Claims Act. Horan said the district was correct. Although there are several exceptions to the act, including those for claims involving motor vehicles, care, custody or control of real property, or trees, traffic controls and street lighting, the Websters’ claim did not fit into any of them, she said. The Websters maintained their claim fell under the real property exception because the hole was part of the school district’s real property and it was negligent for placing students “in the immediate vicinity of a defective condition in the real property.” Horan cited a case, Sims v. Silver Springs-Martin Luther School, 625 A.2d 1297 (Pa. Cmwlth. 1993), in which the Commonwealth Court shot down an argument that negligent supervision by lifeguards at a pool was a viable cause of action. “Negligent supervision has repeatedly been determined to be insufficient to impose liability under the exceptions to governmental immunity,” Horan said. There was also some contention as to who dug the hole. Guardian denied digging it, but the school district claimed Guardian dug it and left it unprotected. The school district also said Guardian violated Section 3.18.1 of the construction contract. The contract states that Guardian “shall indemnify and hold harmless the owner … against claims, damages, losses and expenses.” But Guardian asserted the contract did not mean it would provide indemnification for the school district’s own negligence. Horan said the issue was one of material fact. “Careful review of the language of Section 3.18, does not contain clear, unequivocal language, or otherwise an agreement between the parties that the indemnitee would be indemnified for their own negligence,” she said.

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