Appeal from Common Pleas Court, Philadelphia County; Honorable Berel Carson, Judge.
Edward F. Chacker, Daniel J. Siegel, Gay & Chacker, Philadelphia, for appellant/appellee, Thomas Walsh, Jr.
Donna Mouzayck, Barbara R. Axelrod, Deputy City Solicitors, Norma S. Weaver, Seymour Kurland, City Sol., Philadelphia, for appellee/appellant, City of Philadelphia.
Crumlish, Jr., President Judge, L. McGinley, J., and Narick, Senior Judge. Crumlish, Jr., President Judge, concurring. McGinley, J., joins in this concurring opinion.
[ 126 Pa. Commw. Page 28]
Thomas Walsh (Walsh) and the City of Philadelphia (City) have cross-appealed*fn1 from an order of the Court of Common Pleas of Philadelphia County which determined that: 1) the City was not immune from liability for damages for personal injuries Walsh suffered on a City playground by virtue of the so-called Recreational Use of Land and Water Act (Recreation Act or Act)*fn2 and 2) that Walsh was not entitled to damages for pain and suffering because he did not prove a permanent loss of a bodily function or that he was permanently disfigured. We reverse.
The parties submitted a stipulation of facts to the trial judge, who based his ruling thereon, allowing oral argument
[ 126 Pa. Commw. Page 29]
by counsel. The facts indicate that Walsh, eighteen years of age, fell at the Guerin Recreation Center playground on January 21, 1983, while playing a "chase" game of basketball, sustaining an ankle fracture. He was in various casts for over five months and then underwent three months of physical therapy. He lost nine months of work due to the accident. Medical and lost wage damages were stipulated to be $5,800. Pain and suffering damages, if allowed, were stipulated to be $45,000.
The Guerin Recreation Center, owned by the City, is a cement recreational facility, located between Sixteenth, Jackson and Wolf Streets. It is approximately a half city block long and one block wide. It contains two full and two half basketball courts, as well as bocce courts and benches. The hole Walsh fell into was between the basketball and bocce courts.
Walsh's last medical treatment for his injured leg was August 4, 1983 and no further treatment is indicated. Following removal of the casts, he was found to have a permanent one-half inch atrophy of the left quadriceps and calf muscles.
The threshold issue we must address is whether the City is immune from liability. As a precondition to imposing liability upon a local agency, a plaintiff must demonstrate that the damages sought would have been recoverable if the injury were caused by a person not having available a defense of immunity. 42 Pa.C.S. § 8542(a)(1). The City contends that it would have such a defense under Section 3 of the Recreation Act, 68 P.S. § 477-3, which provides in part: "an owner of land owes no duty of care to keep the premises safe for entry or use by others for recreational purposes, or to give any warning of a dangerous condition, use, structure, or activity on such premises to persons entering for such purposes."
An "owner" is defined in Section 2 of the Recreation Act, 68 P.S. § 477-2 as: "the possessor of a fee interest, a tenant, lessee, occupant ...