Appeal from the Order of the Court of Common Pleas of Montgomery County in case of Richard A. Lewis, a minor, by his parent and natural guardian, Helen Keller and Helen Keller in her own right v. Hatboro-Horsham School District and John Canally, No. 79-15331.
Gerald L. Bowen, with him, Robert R. Fleck, Bowen and Fleck, for appellants.
Phillip B. Silverman, McGettigan, McWilliams & Silverman, for appellees.
President Judge Crumlish, Jr., and Judges Doyle and Barbieri, sitting as a panel of three. Opinion by Judge Doyle. Concurring Opinion by President Judge Crumlish, Jr.
[ 77 Pa. Commw. Page 288]
This is an appeal from an order of the Court of Common Pleas of Montgomery County, Pennsylvania which granted summary judgment to the Hatboro-Horsham School District (School District) and John Canally, appellees, and barred the recovery of Richard A. Lewis, a minor, who was injured on the school premises. The Court found the School District to be immune under Section 201 of the Political Subdivision Tort Claims Act (Act).*fn1 We affirm.
On March 26, 1979, the appellee John Canally, employed by the School District as a baseball coach, was
[ 77 Pa. Commw. Page 289]
conducting practice for the junior varsity baseball team. While appellant Richard Lewis was rounding the bases as he had been instructed to do by the coach, he was hit in the eye by a line drive which Mr. Canally had just batted. As a result of this incident, appellant suffered a permanent loss of vision in his right eye.
Appellant contends that because this accident happened on school property it falls within one of the eight exceptions to the Act, namely that which imposes liability where the accident occurred because of failure to exercise proper care in the custody and control of real estate. The pertinent section of the Act provides:
(b) Actions or activities which may impose liability -- The following acts or activities by a political subdivision or any of its employees may result in imposition of liability on a political subdivision.
(3) The care, custody or control of real property in the possession of the political subdivision. . . .
53 P.S. § 5311.202(b)(3). This section generally imposes liability in cases where the cause of the accident was the subdivision or its employee's negligence in the care of real estate. Its purpose was to limit the old rule of absolute sovereign immunity by imposing a standard of due care on those political subdivisions who are owners or users of property. Penalty is then imposed in the form of liability for failure to adhere to the standard of care in cases involving the exceptions. In a similar case, ...