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THOMAS USHER v. UPPER SAINT CLAIR SCHOOL DISTRICT (02/11/85)

decided: February 11, 1985.

THOMAS USHER, INDIVIDUALLY AND AS PARENT OF JAMES USHER, APPELLANT
v.
THE UPPER SAINT CLAIR SCHOOL DISTRICT, APPELLEE



Appeal from the Order of the Court of Common Pleas of Allegheny County in case of Thomas Usher, individually and as parent of James Usher, a minor v. The Upper Saint Clair School District, No. G.D. 82-12079.

COUNSEL

Rhonda L. Comer, with her, John P. Gismondi, Gilardi & Cooper, for appellant.

Louis C. Long, with him, George I. Buckler, Meyer, Darragh, Buckler, Bebenek & Eck, for appellee.

Judges MacPhail, Doyle and Palladino, sitting as a panel of three. Opinion by Judge MacPhail. This decision was reached prior to the resignation of Judge Williams, Jr.

Author: Macphail

[ 87 Pa. Commw. Page 462]

Thomas J. Usher (Appellant) appeals from an order by the Court of Common Pleas of Allegheny County which granted summary judgment to the Upper Saint Clair School District (Appellee). We affirm.

Appellant was injured during the performance of a chemistry experiment in one of Appellee's school buildings. A school teacher dropped a flaming chemical beaker which splashed flaming fluid on Appellant's face. At the time of the accident, Appellant was out of his seat and standing next to the sink counter where the experiment was being conducted. Appellant alleged in his complaint that the teacher was negligent in failing to take adequate measures to control the area immediately surrounding the experiment. In its answer to the complaint, Appellee raised

[ 87 Pa. Commw. Page 463]

    the defense of governmental immunity under Section 201 of the Political Subdivision Tort Claims Act (Act)*fn1 and moved for summary judgment. The trial court granted Appellee's motion. This appeal followed.

The only issue before us is whether the alleged negligent conduct was directly related to the care, custody or control of real property, one of the specific exceptions to governmental immunity enumerated in the Act.*fn2 Appellant argues that this case falls within the care, custody or control of real property exception because the teacher failed to control the area of the experiment. While Appellant recognizes that we have previously held that lack of supervision of school children does not fall within this exception,*fn3 Appellant argues that the complaint here avers failure to control the area of the experiment, not failure to control the students. We disagree.

Appellant's complaint states in pertinent part:

5. The aforesaid accident was caused by negligence of the defendant's agent in general and in ...


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