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The Pennsylvania Supreme Court has ruled that a school can be held liable for injuries resulting from a child running into an unpadded concrete wall during gym class—an exception to the broad governmental immunity afforded to schools.

A unanimous high court said that the School District of Philadelphia’s failure to cover a gym wall with padding meant that it was on the hook for injuries sustained in 2012 by a 9-year-old student at Walter G. Smith Elementary School.

The Supreme Court’s decision upheld an en banc Commonwealth Court ruling from last year, holding that the mother of Jarrett Brewington could sue the school for the concussion he sustained after he tripped and hit his head on an uncovered portion of the wall during a race. 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.

“I was running too fast and I couldn’t stop and I tripped and fell … and hit my head on the wall,” Brewington said in a deposition, according to the Commonwealth Court ruling. “I fell to the ground and blacked out … blood ran all the way down my face.”

Because of the concussion, Brewington missed the last weeks of the school year. He returned to school the following year with memory problems and his grades fell. In a February 2015 deposition, Brewington said he still suffered from headaches and memory problems.

In the Supreme Court’s opinion, Justice Debra Todd said Brewington’s mother successfully alleged negligent acts that would trigger an exception to the school district’s governmental immunity.

“Mother has plainly pled that the negligent acts, including the failure to act, of the school regarding the care, custody, and control of real property in the possession of the school caused Jarrett’s injuries,” Todd said. “Specifically, we find mother pled negligence regarding the ‘care’ of the real property, as that term is commonly understood to include attention to possible dangers to minimize and reduce risk, through the assertion that the school negligently failed to apply padding to the concrete gym walls. Moreover, we agree that the unpadded concrete wall which caused Jarrett’s injuries constituted real property in the school’s possession.”

She continued, “In coming to this conclusion, we find the real property exception, by its express definitional terms, includes a failure to provide safety features in situations where such a duty otherwise exists. Indeed, our case law confirms that acts of a local agency which render a property unsafe for ‘the activities for which it is regularly used, for which it is intended to be used, or for which it may reasonably be foreseen to be used, are acts which make the local agency amenable to suit,’” citing the 1987 ruling in Mascaro v. Youth Study Center.

In its defense, the school district pointed to Mascaro‘s holding that the real estate exception to immunity applies only where “‘the artificial condition or defect of the land itself causes the injury, not merely when it facilitates the injury by the acts of others, whose acts are outside the statute’s scope of liability.’”

But Todd said Mascaro and the cases it relied on ”are plainly distinguishable from the situation sub judice, where the school’s unprotected concrete gym wall directly caused the alleged injury, and its condition did not merely facilitate an injury caused by the act of others (i.e., third parties).”

“In conclusion, we hold that, pursuant to the plain language of the act, a claim that a local agency failed to pad a gym wall constitutes an assertion of an act of negligence by a local agency concerning the care, custody, and control of real property, and, thus, falls under the real property exception to governmental immunity,” Todd said. “Additionally, we find that mother did not raise a claim of negligent supervision, but, regardless, we conclude raising such a claim does not act as a bar to application of the real property exception to independent allegations that go directly to the negligent care of real property resulting in injury.”

Justice David Wecht penned a concurring opinion in which he joined the majority but registered his belief that Mascaro should be overturned.

“Unaccountably and atextually, Mascaro narrowed by judicial fiat the statutory circumstances under which a governmental agency waives immunity for damages arising from its negligence with respect to the care, custody, and control of real property, manufacturing a test that transgresses the one established by the General Assembly,” Wecht said. “Instead of laboring to conform the law to Mascaro, we should conform the law to the statute.”

Craig Falcone represents Brewington.

“It’s a win for the victims in this case. I think the issues in this matter were squarely addressed by the Supreme Court, which clarified the law,” Falcone said.

Michael Levin, who represents the school district, said, “We’re disappointed in the ruling and we believe it greatly expands the liability exposure of public political subdivisions.”

(Copies of the 30-page opinion in Brewington v. City of Philadelphia, PICS No. 19-0003, are available at http://at.law.com/PICS.)