decided: May 5, 1989.
TODD ALEXANDER GUMP, A MINOR, BY HIS PARENTS AND NATURAL GUARDIANS, ALEXANDER F. GUMP, AND CAROL L. GUMP, HIS WIFE, APPELLANTS
CHARTIERS-HOUSTON SCHOOL DISTRICT, TIMOTHY MOUSETIS, AND FRANK ROTUNDA, APPELLEES
Appeal from the Order of the Court of Common Pleas of Washington County, in the case of Todd Alexander Gump, a minor, by his parents and natural guardians, Alexander F. Gump and Carol L. Gump, his wife v. Chartiers-Houston School District, Timothy Mousetis and Frank Rotunda, No. 387 of 1986.
Stephen A. Zappalla, Jr., Dattilo, Barry, Fasulo & Cambest, for appellants.
Phillip J. Binotto, Jr., Binotto, Sweat & Johnson, for appellees.
Judges Colins and McGinley, and Senior Judge Kalish, sitting as a panel of three. Opinion by Judge McGinley. Judge Barry did not participate in the decision in this case.
[ 125 Pa. Commw. Page 597]
Todd Alexander Gump, a minor, and his parents Alexander F. Gump and Carol L. Gump (Appellants) appeal an order of the Court of Common Pleas of Washington County (trial court) granting summary judgment to Chartiers-Houston School District (Appellee).
[ 125 Pa. Commw. Page 598]
On February 23, 1985, Todd Alexander Gump (Todd) a member of the Chartiers-Houston High School's wrestling team, was injured while sprinting in a running drill conducted in the hallway of the high school. As he reached the end of the hallway Todd failed to negotiate a left hand turn and unintentionally pushed his hand through the window pane of a hallway door. Todd suffered multiple lacerations of the right hand and arm requiring medical treatment.
The Appellants allege in their complaint*fn1 that Todd's injuries were the result of a defect in the realty.*fn2 Appellants specifically allege that a defect of the door window caused the injury.*fn3 The Appellants also allege that the
[ 125 Pa. Commw. Page 599]
defect could have been corrected by the installation of safety glass or other types of protective devices.*fn4
The Appellee raised the affirmative defense of governmental immunity in its preliminary objections. The Appellants filed preliminary objections in the nature of a Motion to Strike for lack of conformity to law or rule of court*fn5 and a response to Appellee's preliminary objections. The trial court sustained Appellants' preliminary objections and dismissed Appellee's preliminary objections in the nature of a demurrer. Appellee filed an Answer and New Matter raising the defense of governmental immunity. Appellants filed a Reply to New Matter. Appellee then filed a Motion for Summary Judgment and the trial court granted it. The trial court concluded
[ 125 Pa. Commw. Page 600]
that the Appellants' claim did not fall under any of the specific exceptions to immunity in Section 8542(b) of the Judicial Code (Code), 42 Pa. C.S. § 8542(b). The trial court also found that the Appellants' allegations amounted to a claim of negligent supervision which has been repeatedly determined not to be an exception under Section 8542 of the Code.
Our scope of review of the grant of a motion for summary judgment is limited to determining whether there has been an error of law or a manifest abuse of discretion. Miller v. Emelson, 103 Pa. Commonwealth Ct. 437, 520 A.2d 913 (1987). Summary judgment is properly granted where there is no genuine issue of material fact and the moving party has clearly established entitlement to judgment as a matter of law. Kuehner v. Parsons, 107 Pa. Commonwealth Ct. 61, 527 A.2d 627 (1987).
On appeal the Appellants argue that the injuries sustained by Todd were not the result of negligent supervision. Rather, the Appellants argue that their complaint falls within the real property exception to governmental immunity, Section 8542(b)(3) of the Code, 42 Pa. C.S. § 8542(b)(3). A plaintiff seeking to recover under Section 8542 of the Code must meet two distinct requirements. Rhoads v. Lancaster Parking Authority, 103 Pa. Commonwealth Ct. 303, 520 A.2d 122 (1987), petition for allowance of appeal denied, 515 Pa. 611, 529 A.2d 1084 (1987). First, he must show that he possesses a common law cause of action against the local agency, 42 Pa. C.S. § 8542(a)(1), and second, he must demonstrate that the cause of action falls within one of the eight exceptions to governmental immunity contained in Section 8542(b) of the Code. Farber v. Engle, 106 Pa. Commonwealth Ct. 173, 525 A.2d 864 (1987). The Appellants argue they have alleged a cause of action as set forth in Section 343 of the
[ 125 Pa. Commw. Page 601]
Restatement (Second) of Torts (1965).*fn6 The Appellants also allege that Todd was an invitee*fn7 because of his status as a student and member of the wrestling team.
Our Supreme Court in Atkins v. Urban Redevelopment Authority of Pittsburgh, 489 Pa. 344, 414 A.2d 100 (1980) when referring to Section 343 of the Restatement (Second) of Torts (1965) noted that:
It is clear from this section, and the comments thereto, that liability depends not simply on the status of the injured party (e.g., 'licensee' v. 'invitee'), but on many variables. Major variables include the purposes of the invitation, the obviousness of the danger, the likelihood that the invitee will realize the danger and will take steps to protect himself, the nature of the land and the purposes for which it is used. (Emphasis in original.)
[ 125 Pa. Commw. Page 602]
defective design. Appellee relies on an affidavit of record which states that no defective design existed in the realty.*fn8 Although Appellants have not filed counter-affidavits we must still determine whether the Appellee has satisfied the burden of proving that no genuine issues of material fact exist. Santoro v. City of Philadelphia, 59 Pa. Commonwealth Ct. 114, 429 A.2d 113 (1981). Appellee's affidavit concerns itself with the lack of a defect in the construction, design and placement of the window in a hallway corridor used as a hallway. Appellants have pleaded facts alleging a defect as a result of the realty regularly being used for wrestling activities.*fn9 A genuine issue of material fact exists of record and the Appellee is not entitled to summary judgment.
[ 125 Pa. Commw. Page 604]
Accordingly, we reverse the trial court and remand for proceedings consistent with this opinion.
Now, May 5, 1989, the order of the Court of Common Pleas of Washington County, at No. 387 of 1986, dated March 28, 1988, is reversed and the case is remanded for proceedings consistent with this opinion.
Judge Barry did not participate in the decision in this case.
Reversed and remanded.