Appeal from the Order of the Court of Common Pleas of Philadelphia County, in the case of Robert Lynch, a minor, by and through his mother, Charlesetta Brown and Charlesetta Brown v. National Railroad Passenger Corporation et al., No. 3340 September Term, 1984.
Donald E. Matusow, with him, Michael E. Sacks, Litvin, Blumberg, Matusow & Young, for appellants.
Miriam B. Brenaman, with her, Handsel B. Minyard, City Solicitor, Armando A. Pandola, Jr., Chief Deputy in Charge of Claims, Barbara R. Axelrod, Divisional Deputy in Charge of Appeals, and Ralph J. Luongo, Assistant City Solicitor, for appellee, City of Philadelphia.
Judges MacPhail and Colins, and Senior Judge Narick, sitting as a panel of three. Opinion by Judge MacPhail.
[ 115 Pa. Commw. Page 476]
Robert Lynch and his mother, Charlesetta Brown (Appellants) appeal from the order of the Court of Common Pleas of Philadelphia County of November 6, 1985 denying Appellants' second Petition for Reconsideration and reinstating and affirming its order and opinion of March 18, 1985 and its supplemental opinion of August 1, 1985.*fn1 The March 18, 1985 order sustained the preliminary objections in the nature of a demurrer of the City of Philadelphia (City) and dismissed Appellants' complaint with prejudice with respect to the City. It is this decision that is before us, and we affirm.
From the factual allegations in the complaint, we ascertain that the Appellant, Robert Lynch, age 11, on August 18, 1984, was crossing the railroad tracks near his home when he somehow fell on the tracks and a train ran over his legs, severely injuring him. Robert had gone to the City-owned playground and pool, located on one side of the tracks, to go swimming. When he discovered that the pool was closed, he went through a hole in the City-owned fence separating the playground from the railroad tracks. He was crossing the tracks to reach a vacant lot, also owned by the City, located on the other side of the tracks. Robert and his friends had a clubhouse on the vacant lot where they often played. The City also had a fence separating the vacant lot from the tracks through which there also was an opening.
City contended that it breached no duty owed to Robert in the circumstances of this case. The trial court agreed.
Appellants based their allegation of liability on several theories which we now address, bearing in mind that a demurrer admits all well pleaded facts and reasonable
[ 115 Pa. Commw. Page 477]
inferences deducible therefrom. Wells v. Southeastern Pennsylvania Transportation Authority, 105 Pa. Commonwealth Ct. 115, 523 A.2d 424 (1987). A demurrer, furthermore, cannot be sustained unless it is clear on the face of the proceeding that the claimant cannot prevail and that the law will not permit the recovery sought therein. Id.
The major focus of Appellants' arguments is to distinguish the instant case from the case of Kearns v. Rollins Outdoor Advertising, Inc., 89 Pa. Commonwealth Ct. 596, 492 A.2d 1204 (1985), wherein we affirmed the trial court's grant of summary judgment to the City where a minor passed through a hole in the chain link fence around a City playground, proceeded to climb a billboard situated nearby on adjacent property and then fell, severely injuring himself. We held that one who has suffered injuries as the result of encountering a hazardous condition on another's land cannot recover damages from the owner of the land over which he passed to reach the land on which the allegedly dangerous condition existed.
Appellants attempt to distinguish Kearns on the basis that the injured youth in Kearns was merely passing through the baseball field of a city playground, and through a hole in the playground fence, on his way from a cemetery where he had been drinking beer to a bill-board located on land adjacent to the playground. Robert, on the other hand, was intentionally going to the playground itself for the purpose of using the playground pool and only upon his arrival and discovery of the closed pool did he decide to pass ...