Landis v. School District

64 Pa. D. & C.4th 92, 2003 Pa. Dist. & Cnty. Dec. LEXIS 191
CourtPennsylvania Court of Common Pleas, Lehigh County
DecidedJune 10, 2003
Docketno. 2002-C-0040
StatusPublished

This text of 64 Pa. D. & C.4th 92 (Landis v. School District) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Lehigh County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Landis v. School District, 64 Pa. D. & C.4th 92, 2003 Pa. Dist. & Cnty. Dec. LEXIS 191 (Pa. Super. Ct. 2003).

Opinion

BLACK, J.,

This case is before the court on the motion of defendant School District of the City of Allentown (ASD) for summary judgment based on (1) the expiration of the statute of limitations and (2) governmental immunity. For the reasons that follow, we find that ASD is immune from suit on the cause of action [94]*94asserted against it. Therefore, ASD’s motion for summary judgment is granted.

FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff, Deborah Landis, brings this action individually and as parent and natural guardian of her son, Brandon Breisch, for damages arising from injuries sustained by him in two separate incidents that occurred on property of ASD. At all times relevant to this action, Brandon was a student at Jefferson Elementary School in Allentown, Pennsylvania. The Jefferson School is operated by ASD.

The first incident occurred on May 20, 1998, when Brandon, who was then 5 years old, was playing on certain playground equipment manufactured by defendant BCI Burke Company, LLC. The playground equipment has been described by the parties as a “jungle gym” incorporating, inter alia, horizontal bars and ladders into its structure. The parties agree that it was securely installed into the ground and is therefore part of ASD’s property. While playing on this equipment Brandon fell to the ground, fracturing his right radius and ulna. At the time of this incident, ASD had a policy that prohibited children of Brandon’s age from using this equipment.

On September 7, 2001, while climbing on the same piece of playground equipment, Brandon again fell to the ground, this time sustaining a right radial head fracture. This injury healed over the next two-and-one-half months, but Brandon still experiences “achiness” in the area where his arm was previously injured in the 1998 incident.

[95]*95Plaintiff initiated this suit against both ASD and BCI on January 7, 2002, for medical expenses incurred by her for Brandon and on Brandon’s behalf for his pain and suffering and disability as a result of the two incidents referred to above. Plaintiff concedes that her individual claim for medical expenses arising from the 1998 incident is barred by the two-year statute of limitations. However, she continues to pursue a claim for medical expenses arising from the second incident and a claim on Brandon’s behalf for his pain and suffering and disability arising from both incidents.

Plaintiff’s complaint alleges that ASD was negligent (a) by installing equipment on its property with horizontal bars that are too high for a child of Brandon’s age to safely traverse; (b) by failing to mark the bars with minimum height restrictions; and (c) by failing to maintain a minimum level of impact-absorbing material under the lateral bars to cushion a child’s fall from the apparatus.

Discovery has been completed, and ASD now moves for summary judgment. ASD and BCI each joined the other as an additional defendant on claims of sole liability, joint liability, and liability over. However, BCI has not opposed ASD’s summary judgment motion.

DISCUSSION

The standard for reviewing a summary judgment motion is well established.

“Summary judgment is appropriate only in those cases where the record clearly demonstrates that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. . . . The re[96]*96viewing court must view the record in the light most favorable to the non-moving party, resolving all doubts as to the existence of a genuine issue of material fact against the moving party.” Basile v. H & R Block Inc., 563 Pa. 359, 365, 761 A.2d 1115, 1118 (2000). (citations omitted) The court is not to grant summary judgment where the moving party relies exclusively upon oral testimony, affidavits, or depositions to establish the absence of a genuine issue of material fact. Nanty-Glo Borough v. American Surety Co., 309 Pa. 236, 238, 163 A. 523, 524 (1932). No matter how indisputable such proof may appear, issues of witness credibility are for the jury. Id. In moving for summary judgment, the defendants have the burden of establishing that there exists no genuine issue of material fact, and that they are therefore entitled to judgment as a matter of law.

“The non-moving party is entitled to all reasonable inferences. Any doubts as to the existence of a factual dispute must be resolved in the non-moving party’s favor and summary judgment is appropriate only in the clearest of cases.” Nelson v. Heslin, 806 A.2d 873, 876 (Pa. Super. 2002), quoting Lange v. Burd, 800 A.2d 336, 338 (Pa. Super. 2002). (emphasis in original)

In responding to a motion for summary judgment the non-moving party cannot rest on the allegations of his/ her pleading, but must produce sufficient evidence by way of affidavits, answers to interrogatories, depositions, or admissions in pleadings or discovery to create a genuine issue of fact on those issues on which the non-moving party has the burden of proof at trial. Ertel v. Patriot-News Co., 544 Pa. 93, 674 A.2d 1038 (1996).

[97]*97As a local agency, the ASD is entitled to governmental immunity pursuant to 42 Pa.C.S. §8541 unless the cause of action falls within one of the recognized exceptions to governmental immunity found in 42 Pa.C.S. §8542(b). At issue is the applicability of the real property exception to immunity, which is as follows:

“(b) Acts which may impose liability. — The following acts by a local agency or any of its employees may result in the imposition of liability on a local agency: ...
“(3) Real property. — The care, custody or control of real property in the possession of the local agency....”1

ASD contends that plaintiff has failed to adduce sufficient evidence during discovery to justify the application of the real property exception. It is well established that “exceptions to the rule of immunity are to be narrowly interpreted given the express legislative interest to insulate political subdivisions from tort liability.” Phillips v. City of Philadelphia, 148 Pa. Commw. 175, 181, 610 A.2d 509, 512 (1992). Plaintiff concedes that she cannot support the allegations in the complaint that ASD failed to lay down sufficient impact-absorbing padding beneath the equipment. Additionally, in responding to the summary judgment motion, plaintiff does not contend that ASD was negligent in installing the equipment or in failing to mark minimum height restrictions on the bars. Rather, plaintiff states:

“After discovery, plaintiff’s negligence claims have been narrowed to the negligence of school district employees Susan Taber and Cynthia Czopp.”2

[98]*98Viewing the evidence in the light most favorable to plaintiff, the non-moving party, the relevant facts are these: Ms.

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761 A.2d 1115 (Supreme Court of Pennsylvania, 2000)
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Bluebook (online)
64 Pa. D. & C.4th 92, 2003 Pa. Dist. & Cnty. Dec. LEXIS 191, Counsel Stack Legal Research, https://law.counselstack.com/opinion/landis-v-school-district-pactcompllehigh-2003.