School districts, like other local political bodies, are offered statutory immunity from certain acts of negligence under the Pennsylvania Tort Claims Act. This statute recognizes eight specifically enumerated instances where a person with a claim will still be able to pierce a school district’s protection and bring a viable court suit.
One such ground is based upon a school district’s management and control of its real estate under the theory that where the district is negligent in the control and care of its property, public policy should allow an injured individual to prove the district acted unreasonably in fulfilling its duty to keep its property safe.
Much of the recent litigation in this area has turned on what items constitute “real property” for the purposes of this important exception. In particular, most recent cases have grappled with sports practices and game equipment and when, if ever, a piece of moveable property is used in such a way that it can be categorized as real property and qualify for this specific exemption.
Last month, the Pennsylvania Supreme Court was asked to determine whether the absence of padding on a gym wall that a student ran into during gym class causing injury, constituted negligence in the care, custody and control of its real property, and as a result fell within the state’s real estate exemption to liability. A sister theory of recovery, negligent supervision of the participating student is often raised by the Plaintiff, though in the case discussed below, it was the district as part of their defense that raised it against its own employee.
In Brewington v. City of Philadelphia, a nine year old child was participating in a relay race when he tripped and fell into a concrete wall at the end of the gym, cutting his head and suffering a concussion.
The school had not covered the wall with padding and the child’s mother sued on the theory that the lack of padding was the result of a negligent design or construction on the part of the District. The Court also examined whether the claim of a defect might have been more properly examined as a suit for negligent supervision against the teacher.
The Court noted that previous law had focused on whether there was an affirmative act involving the care, custody or control of the property (known as the Grieff analysis) or whether it is the classification of the property as either real or personal that controls the ultimate determination of immunity (known as the Blocker analysis).
The Plaintiff in Brewington argued that the real estate exception was applicable and that the Grieff approach should apply as the school “acted” in designing and constructing the wall and was negligent in failing to utilize padding. Alternatively, the Plaintiff argued that even under Blocker approach, the case should be allowed to continue as there was still an unsettled issue as to whether gym padding should be considered real estate because it was unclear whether the padding could have been removed without damaging the walls and whether the wall is a dangerous condition without any kind of protection attached. Courts look both of these factors when determining whether certain types of property, like bleachers for instance, are converted into real property when they are affixed to a piece of real property.
The District argued the lack of an affirmative act made it impossible for the Plaintiff to prove her case. The School District then attempted to get the case dismissed arguing that safety padding is personal and not real property and thus did not fall within the real property exception.
The Court first examined the affirmative act argument, focusing on the statutory language of the Tort Claims Act, noting that a claim may be predicated either on an affirmative act which by the express terms of the Tort Claims Act include “a failure to act” when it should have done so, which can constitute negligence in the case, custody and control of its real property.
The Court next determined that the unpadded concrete wall constituted real property in the school’s possession. The Court reached this conclusion by looking at other court cases that had recognized that a government entity must render its property safe for the activities for which it is regularly used, intended to be used or reasonably can be foreseen to be used. The Court went further, specifically rejecting the notion that the padding constituted personal property, explaining that the focus in making property classifications should turn on which property caused the injury (in this case the concrete wall) and not what could have been used to protect injury (the padding). Put another way, the focus will be the cause of the injury, not the nature of the remedy. With this direction in hand, the Court held that the facts in Brewington comfortably fit within the real property exception and the District was not immune from suit.
As to the possibility of a negligent supervision claim, the Court explained that this theory was not raised by the mother and that even if it had been, this would have had no bearing on the instant case as: 1) a negligent supervision claim does not limit the exception based on a claim of negligence of the real property, 2) negligent supervision is a distinct and independent theory of liability; and 3) the narrow set of cases that have recognized negligent supervision have done so in the context of injuries that had not been caused by a defect of the property itself and/or had been caused by the actions of third persons, who were not intentionally included for protection under the Tort Claims Act.
The Pennsylvania Tort Claims Act provides protection for Districts unless Plaintiff can prove it was the District’s act or failure to act regarding its custody, care and control of real property that must have itself been the actual cause of the injury. Districts need to bear in mind that the focus will not be on whether there were other kinds of property that could have been permanently affixed that would have prevented the injury. Likewise, claims that the injury was the result of the negligent supervision of their staff will not necessarily shift liability from the District, especially where the Plaintiff has not raised it. A detailed examination of the nature of the property, the actual cause of the injury, and the behavior of the staff in light of the intended use is necessary.
School officials should also be aware of recent claims being filed by parents alleging violations of the constitutional rights in conjunction with custody and control of real property. The immunity of those suits, which will be covered in a separate article, turn on whether the school district actually created the danger, acting in a manner that shocks the conscience by recklessly disregarding the dangerous condition of its property. Districts facing on-school grounds personal injury claims should consult their solicitors to review the facts carefully and assist them in determining whether immunity from suit (under the facts presented) is a viable defense for the District.
Bottom Line for Schools
Governmental immunity for political subdivisions, including public schools, was meant to protect the public purse from excessive claims and litigation. Public schools were to be immune from civil liability for negligence except for eight specifically-defined categories — one of these being injury arising from the school’s “care, custody and control” of real property. Courts have increasingly expanded what constitutes “real property” and consequently expanded the possibility of liability of schools for injury to students and visitors. In light of this expanded liability, schools are well-advised to conduct regular risk assessments. Often, the school’s general liability insurance carrier will offer this, or provide recommendations for conducting risk assessment.
This School Law Bullet is a publication of the KingSpry Education Law Practice Group. John E. Freund is our editor. It is meant to be informational and does not constitute legal advice.
