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DAVID SINGER v. SCHOOL DISTRICT PHILADELPHIA AND ROGER RASPEN (08/11/86)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: August 11, 1986.

DAVID SINGER, A MINOR, BY HIS PARENT AND NATURAL GUARDIAN, MARY ANN SINGER AND MARY ANN SINGER, IN HER OWN RIGHT, APPELLANTS
v.
SCHOOL DISTRICT OF PHILADELPHIA AND ROGER RASPEN, APPELLEES

Appeal from the Order of the Court of Common Pleas of Philadelphia County in the case of David Singer v. School District of Philadelphia and Roger Raspen, No. 3543 May Term, 1983.

COUNSEL

Arnold Machles, with him, Michael S. Bloom, Arnold Machles Associates, for appellants.

Andrew M. Rosen, Assistant Counsel, for appellee.

President Judge Crumlish, Jr., and Judges Rogers, Craig, MacPhail, Doyle, Barry and Colins. Opinion by President Judge Crumlish, Jr. Judges Rogers and Doyle dissent.

Author: Crumlish

[ 99 Pa. Commw. Page 554]

David Singer and his mother, Mary Ann Singer, appeal a Philadelphia County Common Pleas Court order granting judgment on the pleadings for the School District of Philadelphia (District), citing the doctrine of governmental immunity.*fn1 We reverse and remand.

While performing a gymnastic stunt over a vaulting horse in a District gymnasium at Ferguson School, David Singer fell and broke his elbow when he missed a mat and landed on the hardwood floor.*fn2

A motion for judgment on the pleadings may be granted only where no facts are at issue and the law is so clear that a trial would be a fruitless exercise. Beardell v. Western Wayne School District, 91 Pa. Commonwealth Ct. 348, 496 A.2d 1373 (1985). All well-pleaded allegations of the party opposing a motion must be taken as true, while only those facts specifically admitted by the opposing party may be considered against him, Nevling v. Natoli, 290 Pa. Superior Ct. 174, 434 A.2d 187 (1981).

[ 99 Pa. Commw. Page 555]

The Singers contend that the facts averred in the complaint come within the real property exception to governmental immunity,*fn3 Section 8542(b)(3) of the Judicial Code, because the District was negligent in controlling the landing surface by insufficiently protecting the hardwood floors with mats. We agree.

Pursuant to the real property exception, the conduct alleged in the complaint must be directly related to the condition of the property.*fn4 Fizzano v. Borough of Ridley Park, 94 Pa. Commonwealth Ct. 179, 503 A.2d 57 (1986). This exception has been read to impose liability for negligence which makes government-owned real property unsafe for activities for which it is regularly used, intended to be used or reasonably foreseen to be used. Vann v. Board of Education, School District of Philadelphia, 76 Pa. Commonwealth Ct. 604, 464 A.2d 684 (1983).

[ 99 Pa. Commw. Page 556]

Our review of the complaint reveals that it alleges negligence concerning the care, custody and control of the landing surface around the vaulting horse. A necessary element of a gymnasium's hardwood floor, which is regularly used as a gymnastic stunt area is sufficient matting protection to ensure safe landing by the students. Since proper gym floor matting is an essential safety element of a gymnasium floor being utilized for a vaulting stunt, it is an aspect within the District's care, custody and control of its real property, subject to the real property exception.

Material issues of fact as to the adequacy of the mat protection of the landing surface remain unresolved.*fn5 Thus, we reverse the common pleas court order granting judgment on the pleadings for the District, and we remand the case to that court for further proceedings.

[ 99 Pa. Commw. Page 557]

Order

The Philadelphia County Common Pleas Court order, No. 3543 dated December 4, 1984, is reversed and the case is remanded for further proceedings.

Jurisdiction relinquished.

Judges Rogers and Doyle dissent.

Disposition

Reversed and remanded.


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