Real Property Exception Gets a Boost
The Pennsylvania Supreme Court, in Brewington v. City of Philadelphia, clarified and gave a boost to the real property exception to governmental immunity. The Court upheld the Commonwealth Court’s reversal of a grant of summary judgment in a case involving the absence of padding in a school gymnasium. A student ran into the wall during a relay race causing a concussion. The Court held that this fell into the real property exception. The complaint alleged that the school was negligent for failing to install padded safety mats to cushion the wall.
The trial court granted summary judgment, ruling that the mats were personalty, not realty, and thus did not fall within the real property exception. In reversing, the Commonwealth Court relied on Singer v. School Dist. of Philadelphia, 513 A.2d 1108 (Pa. Cmwlth. 1986). In Singer, a student gymnast was injured because of a missing gym floor mat. Although the mat was personalty, the unprotected hardwood floor was not. Since it was the floor that caused the injury, the real property exception applied.
The Court explicitly overruled Rieger v. Altoona Area School District, 768 A.2d 912 (Pa. Cmwlth. 2001). Rieger held that negligent failure to provide mats in a cheerleading practice area did not fall within the exception. Since the mats were not affixed to the floor, they were personalty. Therefore, Rieger called the viability of Singer into question. Brewington determined that the Rieger analysis was faulty, and reaffirmed Singer.
The Brewington Court concluded that the proper analysis focuses on the cause of the injury, rather than the nature of the remedy that should have been provided. In other words, the Court focused on the bare floor rather than the absent mats. The real property exception applied despite the fact that the lawsuit alleged that personalty (protective matting) would have prevented the injury.
The Court dismissed the City’s claim that the wall itself had no dangerous condition that caused injury. The City claimed that the wall did what it was intended to do, “stand and be a wall”. The plaintiff’s nuanced contention was that the injury was caused not by negligent control of gym mats, but rather, by a dangerous condition of property, i.e., an unpadded wall. The Court agreed, stating that although the mats which could have prevented the injury were personalty, the unprotected wall was not.
The Court also dismissed the City’s defense that the dispute was more properly construed as a claim of negligent supervision rather than a claim of defective real property. The City claimed that the injury was caused in part by a teacher directing students to run toward the wall. “While a bare claim of negligent supervision might not pass through the narrow gate of the Act’s real property exception, … such a claim does not bar an independent claim of the negligent care, custody or control of real property on the part of the local agency.”
Plaintiff’s counsel wisely focused on negligent care of the real property in the complaint and never expressly plead a cause of action for negligent supervision. Even if plaintiff had raised negligent supervision, this would “not bar application of the real property exception to an independent claim directed to the negligent care of real property.”
Contrast Brewington and Singer with Blocker v. City of Philadelphia, 763 A.2d 373 (Pa. 2000). Blocker held that chattel not attached to realty remains personalty and therefore is not subject to immunity. Thus, the City was immune from suit for injuries caused by the collapse of an unattached wooden bleacher. The bleacher measured roughly twelve feet wide and four to five feet tall, with approximately five tiers of seating. Since exceptions to governmental immunity must be narrowly construed, based on the language of the legislation, even an unattached object certainly weighing hundreds of pounds is considered personalty.
