May 20th, 2019
The MLO Minute, By Dennis McAndrews, Esq.
The Pennsylvania doctrine of “sovereign immunity“ protects school districts from recovery in many, but not all, cases in which children are injured at school or during school activities. There are exceptions to sovereign immunity which permit students and others injured on school property or at school functions to recover compensation for their injuries. On behalf of students with disabilities, we have successfully used federal statutes such as the Americans with Disabilities Act and the Rehabilitation Act to secure substantial recoveries for physical injuries, abuse or other harm suffered due to the actions or inactions of school officials.
But under Pennsylvania state law claims involving negligence, the limited exceptions to sovereign immunity have been subject to conflicting interpretations. One such issue involves the “real property exception “which permits lawsuits against a school district where the injury results from the negligent “care, custody, or control of real property in the possession” of the school district. In the past, this exception has been very narrowly construed to involve only dangers which form an inherent part of the school’s real estate, as opposed to “personalty” attached to the real estate. By way of examples from previous cases, liability was found where school maintenance staff poured paint thinner on a floor (“real property”) which ignited and injured a student, but was denied where a bleacher (“personalty”) atop the real estate collapsed and caused injuries.
The Pennsylvania Supreme Court recently weighed in on this issue in a case where a nine-year-old child was injured in a Philadelphia School District gym class during a relay race where he tripped and struck his head on an unpadded concrete wall at the end of the gym, causing him to suffer a concussion which resulted in headaches and memory problems even years later. Brewington V. School District of Philadelphia. The child was nine years of age at the time of the injury, but due to “minority tolling” where a child’s right to bring an action is “tolled” until the age of 18, the action was brought several years later when the effects of his concussion were better known. While the School District claimed that the wall did not cause the injuries, but rather that the harm was sustained by negligent supervision or a negligent failure to pad the wall, each of which would preclude liability under sovereign community, the Supreme Court disagreed and held that “a claim that a local agency failed to pad a wall constitutes an assertion of an act of negligence by a local agency concerning care, custody, and control of real property, and thus falls under the real property exception to governmental immunity.” The Court’s decision was unanimous and clarifies the law in this important area, thus opening the door to recovery in cases falling under this important exception.
