Sims v. Silver Springs-Martin Luther School

625 A.2d 1297, 155 Pa. Commw. 619, 1993 Pa. Commw. LEXIS 321
CourtCommonwealth Court of Pennsylvania
DecidedMay 21, 1993
Docket361 and 407 C.D. 1992
StatusPublished
Cited by20 cases

This text of 625 A.2d 1297 (Sims v. Silver Springs-Martin Luther School) is published on Counsel Stack Legal Research, covering Commonwealth Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Sims v. Silver Springs-Martin Luther School, 625 A.2d 1297, 155 Pa. Commw. 619, 1993 Pa. Commw. LEXIS 321 (Pa. Ct. App. 1993).

Opinions

PALLADINO, Judge.

William D. Sims (Sims), in his own right, and as the administrator of the estate of William Henry Sims, deceased, and the Colonial School District (Colonial) appeal a grant of summary judgment by the Court of Common Pleas of Montgomery County (trial court) in favor of Whitemarsh Township (Whitemarsh). We affirm.

On April 27, 1984, William Henry Sims (decedent), a minor, was taken to a recreational swim by employees of the Silver-Springs Martin Luther King Home. Tragically, the decedent drowned. At the time of the accident, Whitemarsh was using the pool which was owned by Colonial, pursuant to a contract between Whitemarsh and Colonial.

Suit was instituted by Sims, and after the pleadings were closed and following the completion of discovery, Defendants Whitemarsh, Epps and Nagle filed motions for summary judgment. Whitemarsh claimed that no genuine issue of material fact existed, and that Whitemarsh was immune from liability pursuant to what is commonly called the Political Subdivision Tort Claims Act (Act), 42 Pa.C.S. §§ 8541-8564. The trial court granted summary judgment in favor of Whitemarsh, but denied the motions for summary judgment filed by Epps and Nagle.1 Both Sims and Colonial filed timely appeals to this court.2

[623]*623On appeal, Sims and Colonial raise the following issues: 1) whether the trial court erred in concluding that Whitemarsh was not in “possession” of the pool, at the time of the accident, so as to be subject to liability under the real estate exception found at Section 8542(b)(3); 2) whether there are material issues of fact in dispute; 3) whether the trial court erred in holding that Whitemarsh is not solely liable or jointly liable with Colonial pursuant to the contract between the two; and 4) whether the trial court erred by holding that decedent was not a third party beneficiary of the contract between Colonial and Whitemarsh.3

Pa. R.C.P. No. 1035(b), provides that summary judgment is appropriate only if the pleadings, depositions, answers to interrogatories, admissions of fact, and affidavits show that there is no genuine issue of material fact in dispute and that the moving party is entitled to judgment as a matter of law. Marks v. Tasman, 527 Pa. 132, 589 A.2d 205 (1991). In ruling on a motion for summary judgment, the evidence must be viewed in the light most favorable to the non-moving party. Id.

In the instant case, all parties agree that Whitemarsh is a local agency, and as such is immune from liability unless one of the exceptions under section 8542(b) of the Act applies.

Both Colonial and Sims argue that Whitemarsh was in possession of the pool at the time of the accident, and therefore, that the real estate exception applies. The real estate exception, 42 Pa.C.S. § 8542(b), provides:

(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, except that [624]*624the local agency shall not be liable for damages on account of any injury sustained by a person intentionally trespassing on property in the possession of the local agency. (Emphasis added.)

When construing this section it must be recognized that it represents an exception to the absolute rule of governmental immunity in 42 Pa.C.S. § 8541, and that § 8542(b)(3) is to be interpreted narrowly. Vann v. Board of Education of the School District of Philadelphia, 76 Pa. Commonwealth Ct. 604, 464 A.2d 684 (1983).

I. WAS WHITEMARSH IN POSSESSION?

On the issue of possession, it is undisputed that Whitemarsh was using the pool pursuant to a contract with Colonial, and that Whitemarsh, when using the pool, provided its own lifeguards. Whitemarsh argues in support of its claim that it was not in possession, that the pool was not located in Whitemarsh Township, that Whitemarsh did not own the pool, maintain the pool, nor was it responsible for regular repairs to the pool, and that the fact that Whitemarsh had limited use of the pool was not sufficient to constitute possession so as to bring Whitemarsh under the provisions of § 8542(b)(3).

We have held in the past that having limited control or merely occupying premises for a limited period of time is not sufficient to impose liability pursuant to § 8542(b)(3). See York Redevelopment Authority v. Keener, 101 Pa. Commonwealth Ct. 464, 516 A.2d 832 (1986) (action of city employee in inspecting property, showing property to buyer and overseeing renovation is not “possession” of property.); Prescott v. Philadelphia Housing Authority, 124 Pa. Commonwealth Ct. 124, 555 A.2d 305 (1989) (the Philadelphia Housing Authority’s control of real property owned by third parties did not constitute possession as the term is used in the real property exception); Walsh by Walsh v. Camelot Bristol Co. Inc., 102 Pa. Commonwealth Ct. 76, 517 A.2d 577 (1986) (a volunteer fire company in temporary occupancy of a privately owned [625]*625building for the purpose of extinguishing a fire does not constitute “possession” for the purposes of § 8542(b)(3)).

On the day of decedent’s death, Whitemarsh was responsible for opening and closing the pool, collecting any monies and supervising the patrons. However, Whitemarsh did not own or maintain the pool, nor was Whitemarsh responsible for regular repairs to the pool. Further, Whitemarsh had no input into the design of the pool and did not control the illumination of the pool. The design and layout of the pool along with the illumination provided were controlled by Colonial. In short, Whitemarsh was merely occupying the pool, at the time of decedent’s death, and we therefore conclude Whitemarsh was not in possession of the pool at the time of the accident for the purposes of § 8542(b)(3).

II. WERE MATERIAL FACTS IN DISPUTE?

Sims argues that a genuine issue of material fact is in dispute, namely what caused the decedent to drown. Sims proffered evidence that the drowning was caused by a combination of defective pool design, insufficient lighting, absence of a lifeline and negligent supervision by the lifeguards.

Sims makes two allegations of unsafe conditions or defects in the property itself. First, he alleges that the slope of the pool was defective, and second, that the lighting was insufficient. We note that neither of these allegations aver that Whitemarsh was able to control these conditions at the time of the accident. Sims also alleges that the removal of a lifeline and negligent supervision by the lifeguards contributed to his son’s death. These are not allegations of a defect of the property itself.

However, because we have held that Whitemarsh was not in possession, regardless of the cause of decedent’s death, Whitemarsh cannot be held liable.

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Sims v. Silver Springs-Martin Luther School
625 A.2d 1297 (Commonwealth Court of Pennsylvania, 1993)

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Bluebook (online)
625 A.2d 1297, 155 Pa. Commw. 619, 1993 Pa. Commw. LEXIS 321, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sims-v-silver-springs-martin-luther-school-pacommwct-1993.