Appeal from the Order of the Court of Common Pleas of Philadelphia County in the case of Yahan Hamiter, a minor, by his parents and natural guardians, Rose Hamiter and Lafayette Hamiter, in their own right v. Consolidated Rail Corporation, City of Philadelphia and Southeastern Pennsylvania Transportation Authority, No. 2786 March Term, 1983.
John R. Padova, Solo & Padova, for appellants.
Armando A. Pandola, Jr., Chief Deputy in Charge of Claims, with him, Barbara R. Axelrod, Divisional Deputy in Charge of Appeals, and Barbara W. Mather, City Solicitor, for appellees.
Judges Rogers and Palladino, and Senior Judge Kalish, sitting as a panel of three. Opinion by Judge Rogers. Dissenting Opinion by Senior Judge Kalish.
[ 98 Pa. Commw. Page 255]
The parents of Yahan Hamiter, a minor, have sued the City of Philadelphia (city) and others for themselves and in behalf of their son (appellants) in trespass for personal injuries sustained when a train ran over their son's leg. They appeal from an order of Judge Alfred J. DiBona, Jr., of the Court of Common Pleas of Philadelphia County which granted the city's motion for summary judgment based on the immunity conferred by the Judicial Code at 42 Pa. C.S. § 8541.
The evidence shows that on June 9, 1982, young Hamiter, then eight years old, was playing at a city-owned vacant lot, formerly a lumberyard. He and his friends were amusing themselves for a time throwing rocks. They then left the lot and proceeded down a hill and onto property owned either by the Consolidated Rail Corporation (Conrail) or the Southeastern Pennsylvania Transportation Authority (SEPTA). They were looking for uninflated basketballs. Young Hamiter crossed the railroad tracks and got a basketball, which was in bushes. He was walking to retrieve another basketball
[ 98 Pa. Commw. Page 256]
when he caught his foot in the track and could not dislodge it. He was injured by a train.
The appellants alleged in their complaint that the city "by its agents, servants, employees and workmen, acting within the course and scope of their employment, owned, controlled, possessed, maintained and policed a vacant lot located at 3901-13 N. 13th Street, adjacent to the accident site, from which the minor plaintiff gained access to Conrail's and SEPTA's right of way"; that the city was "liable for damages on account of the serious and permanent injuries suffered" by him; and "that the defense of governmental immunity is inapplicable by reason of the exceptions recognized in 42 Pa. C.S. § 8542." They further alleged that the city was negligent because it failed to warn "neighborhood children of the dangers involved in using its premises as a means of ingress and egress from Conrail's right of way" and failed "to repair the retaining wall and embankment adjacent to their premises so that neighborhood children would not be able to gain access to Conrail's right of way by trespassing across the city's property."
As first noted, Judge DiBona granted the city's motion for summary judgment.
The Judicial Code provides at 42 Pa. C.S. § 8541 that, subject to exceptions, a local agency shall not be liable for damages on account of an injury to a person or property caused by an act of the agency or its employees. The eight exceptions to immunity are found in 42 Pa. C.S. § 8542(b). However, to surmount the bar to liability by recourse to the eight exceptions, the plaintiff must, pursuant to 42 Pa. C.S. § 8542(a)(1), first satisfy the condition that the damages claimed would be recoverable ...