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The Commonwealth Court’s decision to allow a student to sue the Philadelphia School District for failing to pad a concrete gym wall was a clear case of “flip-flopping” by the intermediate court, an attorney representing the school told the Pennsylvania Supreme Court on Tuesday.

“There have been multiple opinions over the past 20 years reaching differing conclusions,” Levin Legal Group attorney Allison Petersen said. “The Commonwealth Court got it wrong when it reversed itself.”

According to Petersen, under the Political Subdivisions Tort Claims Act, the district cannot be subject to lawsuits where the conduct involved—in this case, having students run a relay race using an unguarded concrete wall as the finish line—does not arise out of the care, control or custody of real estate. The Commonwealth Court’s 2016 decision allowing the case Brewington v. Philadelphia School District to go forward clearly went against precedent, Petersen said.

However, according to Chief Justice Thomas Saylor, the case issue isn’t quite as simple.

“Why is a wall not real estate?” Saylor asked early in the argument session in Brewington. “The act includes the failure to act.”

The questions got at an underlying issue for the high court to consider: just how broadly courts in Pennsylvania should interpret the Political Subdivisions Tort Claims Act, which provides immunity to public entities unless the injuries involve defects of the real estate.

According to Petersen, the Commonwealth Court’s reading was far too broad.

“The wall was acting as intended,” Petersen replied. “The court took too expansive a reading of the Tort Claims Act,” Petersen said. “The teacher was not caring for the gym, the teacher was not in custody of the gym, and the teacher’s instructions had nothing to do with real property.”

Last year, an en banc panel of the Commonwealth Court ruled that Jarrett Brewington, a former student at the now-closed Walter G. Smith Elementary School, could sue the school for the concussion he sustained. The court had determined that the facts fell under the real property exception to the general rule for governmental immunity under Pennsylvania’s Tort Claims Act.

According to the Commonwealth Court’s opinion, Brewington was injured on May 9, 2012. He was 9 years old at the time, when he tripped and fell and struck his head on a concrete wall that was not protected by any matting. Because of the concussion, Brewington missed the last weeks of the school year, according to the opinion. He returned to school the following year, but had memory problems and his grades fell. In a February 2015 deposition, Brewington said he still suffered from headaches and memory problems, according to the ruling.

Although the trial court initially dismissed the lawsuit, the Commonwealth Court determined that the case stemmed from a “dangerous condition” due to the care, custody and control of the property.

On Tuesday, the justices pursued questions regarding the applicable scope of the act, asking if immunity applied if the kids weren’t acting on a teacher’s instructions, and what conduct constituted “care” of real property.

Attorney Craig Falcone of Sacchetta & Falcone contended that the gym was clearly within the school’s care, custody and control, and that the padding needed to be put up because the plaintiff’s injuries were a foreseeable outcome of the relay race.

“We have to look at the circumstances and whether it was used for a reasonable, foreseeable purpose,” Falcone said.

Justice Max Baer, however, said Falcone’s argument was too simple, too.

“Your argument is too simple,” he said. “It’s not just [whether it was] real property.”