Appeals, Nos. 189 and 190, March T., 1961, from judgment of Court of Common Pleas of Allegheny County, Jan. T., 1961, No. 468, in case of Steve Shields, a minor, by Billie Jackson, his mother and guardian, and Billie Jackson in her own right v. School District of City of Pittsburgh. Judgment affirmed.
Theodore M. Tracy, with him Stokes, Lurie & Tracy, for appellants.
Edmund W. Ridall, Jr., Assistant Solicitor, with him Niles Anderson, Solicitor, for school district, appellee.
Before Bell, C.j., Musmanno, Jones, Cohen, Eagen and O'brien, JJ.
OPINION BY MR. JUSTICE EAGEN
The minor plaintiff, Steve Shields, seven years of age, on August 13, 1960, about 7:30 o'clock p.m., while in a playground maintained by the defendant, the School District of the City of Pittsburgh, on land adjacent to one of its elementary schools, fell against an allegedly defective fence injuring his eye, resulting in its loss of vision.
This suit for damages followed. Plaintiffs contend that the school district was negligent in allowing the gate, or entrance to the playground to remain open during the school vacation period, and in permitting the fence enclosure to be in a dangerous and defective condition. The court below sustained preliminary objections to the complaint in the nature of a demurrer and entered judgment for the defendant. The plaintiffs appeal.
A narrow question is presented for decision, namely, upon the occasion involved: Was the defendant engaged in the performance of a proprietary, as distinguished from a governmental, function?
In Pennsylvania, it has long been the rule that a school district is not liable in trespass for the negligence of its officers and employees committed while engaged in a governmental function: Supler v. N. Franklin Twp. School Dist., 407 Pa. 657, 182 A.2d 535
(1962). However, the rule is equally well established that this immunity does not prevail if the negligent act is committed in the course of a private or proprietary function: Morris v. Mt. Lebanon Twp. Sch. Dist., 393 Pa. 633, 144 A.2d 737 (1958).
The legal demarcation between acts that are governmental and proprietary in nature is not easily resolved. The tests frequently suggested are confusing and have proven ...