Walsh v. City of Philadelphia

558 A.2d 192, 126 Pa. Commw. 27, 1989 Pa. Commw. LEXIS 315
CourtCommonwealth Court of Pennsylvania
DecidedMay 12, 1989
Docket2945 C.D. 1987 and 210 C.D. 1988
StatusPublished
Cited by13 cases

This text of 558 A.2d 192 (Walsh v. City of Philadelphia) 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
Walsh v. City of Philadelphia, 558 A.2d 192, 126 Pa. Commw. 27, 1989 Pa. Commw. LEXIS 315 (Pa. Ct. App. 1989).

Opinions

NARICK, Senior Judge.

Thomas Walsh (Walsh) and the City of Philadelphia (City) have cross-appealed1 from an order of the Court of Common Pleas of Philadelphia County which determined that: 1) the City was not immune from liability for damages for personal injuries Walsh suffered on a City playground by virtue of the so-called Recreational Use of Land and Water Act (Recreation Act or Act)2 and 2) that Walsh was not entitled to damages for pain and suffering because he did not prove a permanent loss of a bodily function or that he was permanently disfigured. We reverse.

The parties submitted a stipulation of facts to the trial judge, who based his ruling thereon, allowing oral argu[29]*29ment by counsel. The facts indicate that Walsh, eighteen years of age, fell at the Guerin Recreation Center playground on January 21, 1983, while playing a “chase” game of basketball, sustaining an ankle fracture. He was in various casts for over five months and then underwent three months of physical therapy. He lost nine months of work due to the accident. Medical and lost wage damages were stipulated to be $5,800. Pain and suffering damages, if allowed, were stipulated to be $45,000.

The Guerin Recreation Center, owned by the City, is a cement recreational facility, located between Sixteenth, Jackson and Wolf Streets. It is approximately a half city block long and one block wide. It contains two full and two half basketball courts, as well as bocee courts and benches. The hole Walsh fell into was between the basketball and bocee courts.

Walsh’s last medical treatment for his injured leg was August 4, 1983 and no further treatment is indicated. Following removal of the casts, he was found to have a permanent one-half inch atrophy of the left quadriceps and calf muscles.

The threshold issue we must address is whether the City is immune from liability. As a precondition to imposing liability upon a local agency, a plaintiff must demonstrate that the damages sought would have been recoverable if the injury were caused by a person not having available a defense of immunity. 42 Pa.C.S. § 8542(a)(1). The City contends that it would have such a defense under Section 3 of the Recreation Act, 68 P.S. § 477-3, which provides in part: “an owner of land owes no duty of care to keep the premises safe for entry or use by others for recreational purposes, or to give any warning of a dangerous condition, use, structure, or activity on such premises to persons entering for such purposes.”

An “owner” is defined in Section 2 of the Recreation Act, 68 P.S. § 477-2 as: “the possessor of a fee interest, a tenant, lessee, occupant or person in control of the premis[30]*30es.” It is clear that the “owner” of recreational land need not be a private person. See Commonwealth v. Auresto, 511 Pa. 73, 511 A.2d 815 (1986) (Commonwealth immune); Farley v. Township of Upper Darby, 100 Pa.Commonwealth Ct. 535, 514 A.2d 1023 (1986) (township immune).

The question here is whether the land and use fall within the purview of the statute. Section 2 of the Recreation Act defines “land” as “land, roads, water, watercourses, private ways and buildings, structures and machinery or equipment when attached to the realty.” “Recreational purpose” is defined in Section 2 as “including], but ... not limited to, any of the following, or any combination thereof: hunting, fishing, swimming, boating, camping, picnicking, hiking, pleasure driving, nature study, water skiing, water sports and viewing or enjoying historical, archaeological, scenic, or scientific sites.” (Emphasis added.)

Walsh argues, relying on Rivera v. Philadelphia Theological Seminary of St. Charles Borromeo, Inc., 510 Pa. 1, 507 A.2d 1 (1986), that an inner-city playground is not the type of land the Recreation Act is designed to protect. In Rivera, our Supreme Court determined that the immunity granted under the Recreation Act did not apply to an indoor swimming pool on the grounds of a theological seminary in an urban area. The pool was being used by a group of youngsters for an evening swim party. The evidence in Rivera indicated that, while the group had implicit permission to use the facility, and groups did frequently use the pool, free of charge, the seminary grounds were not otherwise open to the public. Further, the entrance to the building in which the pool was situate was locked and the group had to navigate a maze of hallways to reach the pool itself. On these facts, the Supreme Court declined to apply the immunity provisions of the Recreation Act.

The Court’s opinion in Rivera contains a lengthy discussion of the Legislature’s purpose in enacting the Recreation Act:

The Recreation Use Act is therefore designed to encourage the opening up of large, private land holdings for [31]*31outdoor recreational use by the general public by limiting the liability of the landowner. Considering that purpose, we believe the Legislature intended to limit the meaning of the words ‘buildings, structures and machinery or equipment when attached to the realty’ in Section 2 of the Act, 68 P.S. § 477-2, to ancillary structures attached to open space lands made available for recreation and not to enclosed recreational facilities in urban regions. Grammatically, this construction is indicated by the dual presence of the conjunctive ‘and’ in the list, both before ‘buildings’ as well as after ‘structures.’ The position of the limiting clause ‘when attached to the realty’ at the end of the sentence is another such indication. All of these factors make it appropriate to treat the list beginning with the word ‘buildings’ as a restrictive modifier of ‘land, roads, water, watercourses.’
The intention of the Legislature to limit the applicability of the Recreation Use Act to outdoor recreation on largely unimproved land is evident not only from the Act’s stated purpose but also from the nature of the activities it listed as recreational purposes within the meaning of the statute. Specifically, with the exception of ‘swimming,’ which may be either an indoor or outdoor sport, the recreational activities enumerated in the statute are all pursued outdoors.

Id., 510 Pa. at 15-16, 507 A.2d at 8 (footnote omitted).

Despite this relatively broad language, we believe that Rivera is factually distinguishable from the instant matter, and, accordingly, not dispositive. The Supreme Court considered significant the fact that the seminary grounds were not otherwise open to the public. It construed the phrase “buildings, structures and machinery or equipment when attached to the realty” in Section 2 of the Recreation Act to be limited to ancillary structures attached to open space lands, themselves open for recreational purposes. The enclosed seminary facility did not fall within the Court’s construction of the Act’s definition of “land.” Secondly, the Court looked at the definition of “recreational purposes” [32]*32and determined that, with the exception of swimming, all of the activities listed in the Act’s definition were pursued outdoors. The fact that the activity at issue in Rivera

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Walsh v. City of Philadelphia
558 A.2d 192 (Commonwealth Court of Pennsylvania, 1989)

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Bluebook (online)
558 A.2d 192, 126 Pa. Commw. 27, 1989 Pa. Commw. LEXIS 315, Counsel Stack Legal Research, https://law.counselstack.com/opinion/walsh-v-city-of-philadelphia-pacommwct-1989.