The Pennsylvania Supreme Court has agreed to consider whether failing to fully cover a concrete wall in a school’s gymnasium with protective matting fits the narrow exception for governmental immunity.
The justices on July 11 granted allocatur in Brewington v. City of Philadelphia to address whether the Commonwealth Court “impermissibly” broadened that exception when it allowed a student to sue his former school after he struck his head on a concrete wall while running a relay race in his school’s gym.
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 after he tripped and hit his head on an uncovered portion of the wall during the 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.
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.
“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 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, 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.
Brewington’s mother had filed a lawsuit against the city and the school district on her son’s behalf in 2013.
Philadelphia Court of Common Pleas Judge Karen Shreeves-Johns granted the school district’s motion for summary judgment, ruling that the real property exception to governmental immunity did not apply.
Shreeves-Johns relied on the Commonwealth Court’s 2001 ruling in Rieger v. Altoona Area School District. There, the Commonwealth Court ruled that a school’s failure to provide safety mats on hard surfaces did not fall within the real property exception because mats are personalty, or personal property, not realty.
In Rieger, a student was injured during cheerleading practice when she fell on a hard wood floor not protected by safety mats. The Commonwealth Court found that mats were real property and not real estate, and that the real property exception did not apply.
Shreeves-Johns also cited the state Supreme Court’s 2000 ruling in Blocker v. Philadelphia. In Blocker, the plaintiff was injured when a bleacher collapsed during a concert at a city-owned facility. The Supreme Court ruled that chattel that is not affixed to real property remains personal property.
The Commonwealth Court, in a ruling written by Judge Michael H. Wojcik, overturned Shreeves-Johns’ ruling and reinstated Brewington’s lawsuit. Judges Mary Hannah Leavitt, Renee Cohn Jubelirer, P. Kevin Brobson, Anne Covey, Julia K. Hearthway and Joseph M. Cosgrove joined in the ruling.
Wojcik said Shreeves-Johns misinterpreted Rieger and misapplied Blocker. The panel went further and decided to overturn Rieger because the decision in that case ran counter to rulings in other cases.
Wojcik cited the Commonwealth Court’s 2014 ruling in Taylor v. Northeast Bradford School District and its 2000 ruling in Mellon v. City of Pittsburgh Zoo. In those cases, the court ruled that a plaintiff must show the injury “resulted from a dangerous condition that … stemmed from the case, custody and control of real property.”
“In accord with the plain statutory language, we have consistently held that in order for the real property exception to apply, the real property must be in the ‘possession’ and ‘control’ of the governmental agency, and the injury must be ’caused by’ negligence related to the care, custody or control of the real property,” Wojcik said.
The Brewingtons’ attorney, Craig Falcone of Sacchetta & Falcone, did not return a call for comment. The district’s interim general counsel, Miles Shore, also did not return a call for comment.