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HELEN KNIAZ AND STEVEN KNIAZ v. BENTON BOROUGH AND BENTON VOLUNTEER FIRE COMPANY (01/08/88)

decided: January 8, 1988.

HELEN KNIAZ AND STEVEN KNIAZ, HER HUSBAND
v.
BENTON BOROUGH AND THE BENTON VOLUNTEER FIRE COMPANY, INC. HELEN KNIAZ, APPELLANT



Appeal from the Order of the Court of Common Pleas of Columbia County in the case of Helen Kniaz and Steven Kniaz, her husband v. Benton Borough and The Benton Borough Volunteer Fire Company, Inc., No. 875-1984.

COUNSEL

Robert A. Schwartz, with him, John A. Mihalik, for appellant.

Elwood R. Harding, Jr., with him, Gailey C. Keller and David C. Dickson, Jr., for appellee, Benton Volunteer Fire Company, Inc.

Judges Craig and Palladino, and Senior Judge Narick, sitting as a panel of three. Opinion by Judge Craig.

Author: Craig

[ 112 Pa. Commw. Page 417]

The plaintiff in this civil action for personal injury has appealed from an order by President Judge Myers of the Court of Common Pleas of Columbia County granting summary judgment in favor of defendant Benton Borough, a municipality.

The complaint and defendants' affidavits, filed pursuant to the motion for summary judgment, establish a factual scenario which is essentially undisputed: While plaintiff Helen Kniaz, attending a volunteer fire company picnic in Benton Borough's public park, was seated in a park pavilion on a bench attached to a picnic table, the bench suddenly overturned so that she was thrown to the floor and injured.

The borough's new matter, as the proper vehicle under Pa. R.C.P. No. 1030 for raising affirmative defenses, pleaded defenses of immunity under the Recreational Use of Land and Water Act (Recreational Land Act), Act of February 2, 1966, P.L. (1965) 1860, as amended, 68 P.S. §§ 477-1-477-8 and under 42 Pa. C.S. § 8541, conferring local agency immunity subject to specified exceptions.

Hence the first issue is whether the borough, under section 3 of the Recreational Land Act, 68 P.S. § 477-3, is immune as an "owner of land" who by that provision "owes no duty of care to keep the premises safe for entry or use by others for recreational purposes. . . ."

[ 112 Pa. Commw. Page 418]

Secondly, if there is no immunity under the Recreational Land Act, is the borough's governmental immunity also inapplicable, under 42 Pa. C.S. § 8542, on the ground that the injury was caused by negligent acts of the borough relating to the care, custody or control of real property?

Immunity Under The Recreational Land Act

In Farley v. Township of Upper Darby, 100 Pa. Commonwealth Ct. 535, 514 A.2d 1023 (1986) the court en banc settled the point that a municipality is protected by immunity under the Recreational Land Act with respect to injuries incurred in the use of a municipal park for recreational purposes, following Department of Environmental Resources v. Auresto, 511 Pa. 73, 511 A.2d 815 (1986) in which the Pennsylvania ...


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