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ADRIENNE BROWN v. QUAKER VALLEY SCHOOL DISTRICT AND KENNETH JOHNS (12/27/84)

decided: December 27, 1984.

ADRIENNE BROWN, APPELLANT
v.
QUAKER VALLEY SCHOOL DISTRICT AND KENNETH JOHNS, APPELLEES



Appeal from the Order of the Court of Common Pleas of Allegheny County in case of Adrienne Brown v. Quaker Valley School District and Kenneth Johns, No. GD-83-1796.

COUNSEL

Richard J. Schubert, with him, Irving M. Portnoy, Litman, Litman, Harris, Portnoy and Brown, P.A., for appellant.

John C. Conti, Weis & Weis, for appellees.

Judges Williams, Jr. and Doyle and Senior Judge Barbieri, sitting as a panel of three. Opinion by Judge Williams, Jr.

Author: Williams

[ 86 Pa. Commw. Page 497]

Adrienne Brown appeals from an order of the Court of Common Pleas of Allegheny County which granted summary judgment to the defendants and dismissed her personal injury action. We affirm.

On the morning of March 9, 1981, Brown, a senior at Quaker Valley High School, attended her regularly scheduled physical education class. The class was supervised by the physical education teacher, Kenneth Johns. During the course of attempting a "straddle jump" using a spring board and vaulting horse, Brown seriously injured her right knee. Thereafter, Brown filed a personal injury suit against Quaker Valley School District (District) and Johns, seeking to recover damages for the injuries she suffered to her right knee. Brown alleged that the District

[ 86 Pa. Commw. Page 498]

    and Johns were negligent in failing to adequately instruct and supervise gymnastic students as to the safe and proper method of using inherently dangerous equipment, and failing to adequately warn her of the dangers posed by the use of such equipment. The District and Johns raised the affirmative defense of governmental and official immunity and moved for summary judgment. On October 20, 1983, the common pleas court granted the defendants' motion for summary judgment and dismissed Brown's complaint. Brown appeals that dismissal.

On appeal, Brown raises three assignments of error. First, she contends that governmental immunity is not available to the District as her injuries were caused by the District's care, custody and control of real property, which is an exception to governmental immunity. Next, she argues that the conduct of Johns takes him outside the official immunity offered by statute. Finally, Brown raises a constitutional challenge under both the Pennsylvania and Federal Constitutions to the grant of governmental and official immunity in tort actions. We will deal with these issues in that order.

Brown first contends that the District's liability is based on its care, custody and control of real property. Section 8542(b)(3) of the Judicial Code, 42 Pa. C.S. § 8542(b)(3), imposes liability upon local agencies, such as school districts, for injuries resulting from the agency's care, custody or control of real property. While Brown was injured within the school grounds, there is no allegation that the condition of the building or grounds caused her injuries. Rather, it is admitted that it was Brown's use of the spring board and vaulting horse which resulted in her injuries. The spring board and vaulting horse are items of movable equipment, not fixtures, as they are

[ 86 Pa. Commw. Page 499]

    not permanently placed at the school nor essential for its operation. See McClure v. Atlantic Rock Co., 339 Pa. 296, 14 A.2d 124 (1940). Accordingly, that equipment is not considered a part of real property. Therefore, the care, custody or control of real property exception to governmental immunity does not ...


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