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ROBERT F. MCCLOSKEY v. ABINGTON SCHOOL DISTRICT AND SPORTMASTER AND UCS (09/29/86)

decided: September 29, 1986.

ROBERT F. MCCLOSKEY, JR., A MINOR, BY HIS PARENTS AND NATURAL GUARDIANS, ROBERT F. MCCLOSKEY AND JULIETTE MCCLOSKEY AND ROBERT MCCLOSKEY AND JULIETTE MCCLOSKEY, IN THEIR OWN RIGHT, APPELLANTS
v.
ABINGTON SCHOOL DISTRICT AND SPORTMASTER AND UCS, INC., C/O UNITED CANVAS AND SLING, APPELLEES



Appeal from the Order of the Court of Common Pleas of Montgomery County, in case of Robert F. McCloskey, Jr., a minor, by his parents and natural guardians, Robert F. McCloskey and Juliette McCloskey and Robert McCloskey and Juliette McCloskey, in their own right v. Abington School District v. Sportmaster and UCS, Inc., c/o United Canvas and Sling, No. 82-18120.

COUNSEL

Daniel L. Thistle, Beasley, Hewson, Casey, Colleran, Erbstein & Thistle, with him, James R. Melinson, James R. Melinson, P.C., for appellants.

Joseph W. McGuire, with him, Catherine N. Jasons, Krusen, Evans and Byrne, for appellee, Abington School District.

Harry A. Short, Jr., with him, Henry M. Clinton, Liebert, Short, Fitzpatrick & Hirshland, for appellee, Sportmaster.

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

Author: Barry

[ 101 Pa. Commw. Page 111]

The appellants, Robert F. McCloskey, Jr., a minor, by his parents and natural guardians, Robert F. McCloskey and Juliette McCloskey and Robert McCloskey and Juliette McCloskey, in their own right, appeal

[ 101 Pa. Commw. Page 112]

    from an order of the Court of Common Pleas of Montgomery County which granted summary judgment in favor of Abington School District. We reverse and remand.

On March 16, 1982, Robert McCloskey, Jr., then a tenth grade student aged 16 and one-half, was rendered a quadriplegic when he fell from a set of gymnastic rings during a regularly scheduled gym class at Abington High School-North Campus. The District filed an answer and new matter to the appellants' amended complaint raising as a bar the defense of governmental immunity under Section 201 of the Political Subdivision Tort Claims Act (Act).*fn1 The Act provides in part that: "No local agency shall be liable for any damages on account of any injury to a person or property caused by any act of the local agency or an employee thereof or any other person."

The McCloskeys contend essentially that the facts averred in their complaint are within the real property exception to governmental immunity, Section 8542(b)(3) of the Judicial Code,*fn2 which provides in pertinent part:

(b) Acts which may impose liability. -- The following acts by a local agency or any of its employees may result in the imposition of liability on a local agency:

(3) Real Property. -- The care, custody or control of real property in the possession of ...


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