We have all heard the saying or experienced the frustrating phenomenon of “hitting a brick wall.”  Well imagine literally running and colliding into a wall made completely of cement. This encounter is the basis of the case, Brewingon v. City of Philadelphia, which was decided by the Pennsylvania Supreme Court on December 28, 2018.  In this case, a 9-year old student ran and fell into a cement wall while participating in gym class, which led to injuries that persisted following the incident.  His mother filed suit in the Philadelphia County Court of Common Pleas against the school and school district.  Her argument was that the defendants should be held liable for negligence for not padding the cement walls, which allowed for her son’s injuries.  The defendants filed a motion for summary judgment, which the trial court granted, asserting immunity from liability.  The Commonwealth Court reversed the lower court ‘s decision stating that the school fell into an exception that negated the immunity.

The Political Subdivisions Torts Claims Act allows for governmental immunity for local governmental entities.  Under this Act, the child’s school and school district could have been immune from liability for the injuries sustained in the incident.  However, the Act allows for exceptions that can exclude the immunity.  In this case, the exception at issue is the real property exception.  This exception states that a local entity will be held accountable for tort liability if (1) they would have been liable under statutory or common law without protection of the Act; (2) defendants’ “negligent acts” caused the injury; and (3) the defendants were responsible for the “care, custody, or control of [the] real property”.  The parties argued whether the issue was the lack of padding on the wall, which would be classified as personalty and not apply under the exception, or an issue of realty, meaning that the wall was part of the structure of the property under the agency’s control and thus leads to liability.  Each party discussed previous cases of similar school-related incidents in an attempt to strength their arguments.

The Supreme Court found in favor of the mother’s argument by stating that ultimately, the cement wall, which is part of the school’s realty, caused the child’s injuries.  The school is responsible for maintaining the wall in such a way as to avoid tort liability.  The school argued that they were not liable because of the gym teacher’s negligent supervision.  The Court rejected this argument by stating that the mother never asserted this claim and it does not dismiss the fact that the school was responsible for the wall, which caused the harm.

The bottom line is that in cases where local government entities may be immune from tort liability for incidents that occur on their premises, if the cause of the injury is a piece of realty on their property that they are responsible for, then liability remains on the table.  Therefore, local entities may have hit a (cement) wall when it comes to avoiding these exceptions.

Thanks to Gabrielle Outlaw for her contribution to this post. Please email Vito A. Pinto with any questions.