Suing School Districts and other Pennsylvania municipal bodies has traditionally been very difficult because of an immunity statute called the “Political Subdivision Tort Claims Act.” It’s a long name for a Pennsylvania law that says that government agencies are immune from being sued unless the claim falls within eight very narrow exceptions to immunity.

One of the eight exceptions is the “real estate” exception.

Imagine slipping on an icy sidewalk on your walk into a high school because the school failed to properly salt the sidewalk. Although it sounds like your claim fits within the “real estate” exception to immunity, think again. Courts have held that ice on top of a sidewalk is not a defect in the real estate itself and thus immunity applies. That’s how strictly the immunity exception has been applied. I’ve argued the exception myself to win cases for several eastern PA Counties.

This year, in Brewington v. City of Philadelphia, 149 A.3d 901 (Pa. Commw. Ct. 2016), the Commonwealth Court decided that a student who collided with a concrete wall in his gym class could sue the school for the concussion he suffered after he tripped and hit his head on an uncovered portion of the wall.

Brewington was 9 years old when he was injured. Ideally, the wall he collided with should have been covered by matting but was not.

“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.”

I’m sympathetic to Brewington’s injuries and, as a parent, would be upset that the school failed to install matting on the walls. However, I predict that the Supreme Court agreed to hear this case because it thought the Commonwealth Court went too far in expanding the real estate exception.

The Supreme Court granted allowance of appeal on the issue of whether the Commonwealth Court’s decision was impermissibly broad and “requires school districts to take unreasonable steps … to protect themselves from liability.”

Putting mats on a gym wall that children are likely to hit is hardly unreasonable. Nonetheless, I’m predicting the Supreme Court will reverse the Commonwealth Court. Stay tuned. We should know early next year.

~Jerry Geiger

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