Appeal from the order of the Court of Common Pleas of Philadelphia County in case of Paul Kearns, a Minor et al. v. Rollins Outdoor Advertising, Inc. et al., No. 9 May Term, 1982.
Robert E. Cherwony, Kraft & Kraft, P.C., for appellant.
Barbara R. Axelrod, Divisional Deputy City Solicitor, with her, Barbara W. Mather, City Solicitor, for appellee, City of Philadelphia.
Judges Rogers and Colins and Senior Judge Blatt, sitting as a panel of three.
[ 89 Pa. Commw. Page 597]
Paul Kearns (Kearns), a minor, by his parent and natural guardian, sued the City of Philadelphia (city) and others in trespass for personal injuries he sustained when he fell forty feet from a billboard. Kearns
[ 89 Pa. Commw. Page 598]
here appeals from an order of Judge Thomas A. White of the Court of Common Pleas of Philadelphia County which granted the city's motion for summary judgment because the court believed that pursuant to 42 Pa. C.S. § 8541, which concerns governmental immunity, the city remained immune from liability.
The evidence shows that on the evening of May 9, 1980, Kearns, then fourteen years old, drank several cans of beer in a cemetery. He then left the cemetery, crossed the baseball field of a city playground, passed through a hole in the chain link fence around the playground, and proceeded to the billboard, owned by defendant Rollins Outdoor Advertising, Inc. (Rollins) and located on land owned either by defendants Southeastern Pennsylvania Transportation Authority (SEPTA) or the Consolidated Rail Corporation (CONRAIL). As noted, Kearns climbed the billboard, fell, and was injured.
Kearns alleged in his complaint that the city "owns and maintains the [playground], which is located in close proximity to the billboard in question," that the city "has failed to repair its fence which adjoins said billboard," and that the city was negligent because it failed "to maintain and repair the hole in its fence when it knew or should have known that minors who utilized the recreation center used the hole in said fence as a means of ingress and egress from the recreation center to said billboard, which they then climbed upon."
By Answer, the city denied Kearns' allegations of negligence and by New Matter invoked the affirmative defense of governmental immunity conferred by 42 Pa. C.S. §§ 8541-8564.
By Reply to New Matter, Kearns noted that the city advanced conclusions of ...