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RUTH GORE v. BETHLEHEM AREA SCHOOL DISTRICT (02/11/88)

decided: February 11, 1988.

RUTH GORE, AS PARENT AND NATURAL GUARDIAN OF JAMES SMITH, A MINOR, AND RUTH GORE, INDIVIDUALLY, APPELLANT
v.
BETHLEHEM AREA SCHOOL DISTRICT, APPELLEE



Appeal from the Order of the Court of Common Pleas of Northampton County in the case of Ruth Gore, as Parent and Natural Guardian of James Smith, a minor, and Ruth Gore, Individually v. Bethlehem Area School District, No. 1985-C-3021.

COUNSEL

Edward J. McKarski, with him, David S. Smith, Law Offices of George A. Hahalis, for appellant.

Frank G. Procyk, with him, Matthew Sorrentino, Holland, Taylor and Sorrentino, for appellee.

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

Author: Narick

[ 113 Pa. Commw. Page 395]

Appellant, Ruth Gore as parent and natural guardian of James Smith, a minor, and Ruth Gore, individually, appeals from an order of the Court of Common Pleas of Northampton County which granted summary judgment in favor of the Bethlehem Area School District (BASD) and dismissed Appellant's cause of action in trespass against BASD on the grounds of governmental immunity as provided in 42 Pa. C. S. §§ 8541-8542. For the reasons set forth below, we affirm.

The facts surrounding the civil action commenced by Appellant against BASD involves an attempt by Appellant to recover compensatory damages as a result of injuries and losses sustained by the minor Appellant, James Smith, on October 30, 1984 at the Marvine Elementary School, located in Bethlehem, Pennsylvania. On October 30, 1984, James Smith was engaged in recreational activities in the gymnasium area of the school, and, while attempting to hang on a chin-up bar

[ 113 Pa. Commw. Page 396]

    located in the arch of a doorway leading to a storage room, sustained seriously bodily injuries to the face and mouth when the chin-up bar became dislodged from its position and fell striking James Smith. This storage room was located outside the gymnasium area and was used to store athletic equipment.

On appeal, Appellant contends that the trial court erred in concluding that the placement of the chin-up bar did not fall within the exception to governmental immunity under 42 Pa. C. S. § 8542(b)(3) because Appellant was denied an opportunity to establish that the intent on the part of BASD was for the chin-up bar to become a permanent fixture. BASD counters that the chin-up bar was a chattel item which was movable property and not a fixture or real property permanently placed on the school premises.

It is provided in Pa. R.C.P. No. 1035 that a trial court may grant a summary judgment only in those situations where "the pleadings, depositions, answers, interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." In determining whether to grant a summary judgment, a trial court must examine the record in the light most favorable to the non-moving party. McCloskey v. Abington School District, 101 Pa. Commonwealth Ct. 110, 515 A.2d 642 (1986).

Immunity will be denied a local agency such as a school district only when there is negligence which makes government-owned property unsafe for the activities for which it is regularly used, for which it is intended to be used, or for which it may be reasonably foreseen to be used. Vann v. Board of Education, School District of ...


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