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JAVELLE VANN v. BOARD EDUCATION SCHOOL DISTRICT PHILADELPHIA (08/30/83)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: August 30, 1983.

JAVELLE VANN, A MINOR, AND SEVENIA VANN, HER MOTHER AND NATURAL GUARDIAN, APPELLANTS
v.
BOARD OF EDUCATION OF THE SCHOOL DISTRICT OF PHILADELPHIA, APPELLEE

Appeal from the Order of the Court of Common Pleas of Philadelphia County in case of Javelle Vann, a minor, and Sevenia Vann, her mother and natural guardian v. Board of Education of the School District of Philadelphia, No. 5502 April Term, 1982.

COUNSEL

Patricia Pierce, with her William L. Bowe, Rudley, Bowe & Crummett, P.C., for appellants.

Andrew M. Rosen, Assistant Counsel, with him Eugene F. Brazil, General Counsel, for appellee.

Judges Blatt, Doyle and Barbieri, sitting as a panel of three. Opinion by Judge Doyle.

Author: Doyle

[ 76 Pa. Commw. Page 604]

Javelle Vann, a minor, and Sevenia Vann, her mother and natural guardian, here appeal an order of

[ 76 Pa. Commw. Page 605]

    the Court of Common Pleas of Philadelphia County which sustained preliminary objections to a complaint against the Board of Education of the School District of Philadelphia (School District) and dismissed the complaint. We affirm.

On February 21, 1981, at approximately 11:00 p.m., Javelle Vann was walking on the sidewalk adjacent to the Anderson School at 61st Street and Cobbs Creek Parkway. She was assaulted and forceably taken through an unsecured gate in the fence around the school to an unlighted area of the school grounds where she was beaten. A complaint in trespass was filed against the School District alleging negligence in failing to secure the school property and in failing to maintain adequate lighting, thereby permitting the property to be used for criminal activity directed at passersby. The School District filed preliminary objections to the complaint claiming immunity under Section 8541 of the Judicial Code, 42 Pa. C.S. § 8541.*fn1 The court of common pleas found that the circumstances of this case did not fall within the exceptions to immunity in Section 8542 of the Judicial Code, 42 Pa. C.S. § 8542, and dismissed the complaint. This appeal followed.

Section 8541 of the Judicial Code provides:

Except as otherwise provided in this subchapter, no local agency shall be liable for any damages on account of any injury to a person or property caused by any act of the local

[ 76 Pa. Commw. Page 606]

    agency or an employee thereof or any other person.

Section 8542 of the Judicial Code provides, in pertinent part:

(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 the local agency shall not be liable for damages on account of any injury sustained by a person intentionally trespassing on real property in the possession of the local agency.

Appellants urge that immunity is waived because the injuries to Javelle Vann were caused by the School District's negligence in the maintenance and control of the school property. We are directed to a number of cases somewhat analogous to the one at bar but all of which are distinguishable.*fn2 In Stevens v. City of Pittsburgh, 129 Pa. Superior Ct. 5, 194 A. 563 (1937), the plaintiff was accidentally shot and killed while standing on his lawn adjacent to a city park. The Superior Court held that since the city operated a rifle range in the park and had notice of unauthorized shootings in the park it owed the public a duty to control those bringing firearms into the park. Similarly, in

[ 76 Pa. Commw. Page 607]

    to be used.*fn5 Violent criminal acts such as occurred here are not a reasonably foreseeable use of school property such that the exception will be applied.

Order

Now, August 30, 1983, the order of the Court of Common Pleas of Philadelphia County in the above referenced matter, dated August 4, 1982, is hereby affirmed.

Disposition

Affirmed.


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