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FRANK GIOSA AND ELAINE GIOSA v. SCHOOL DISTRICT PHILADELPHIA (07/17/89)

decided: July 17, 1989.

FRANK GIOSA AND ELAINE GIOSA, APPELLANTS,
v.
SCHOOL DISTRICT OF PHILADELPHIA, APPELLEE



Appeal from Common Pleas Court, Philadelphia County; Honorable Nicholas M. D'Alessandro, Judge.

COUNSEL

Paul J. Drucker, Philadelphia, for appellants.

Donald J. Sweeney, Sweeney, Sweeney, Sheehan & Spencer, Gregory J. Sharkey, Philadelphia, for appellee.

Richard A. Stanko, Kassab Archbold Jackson & O'Brien, Pa. Trial Lawyers Association, Media, amicus curiae.

Craig and Colins, JJ., and Kalish, Senior Judge.

Author: Craig

[ 127 Pa. Commw. Page 538]

Frank and Elaine Giosa appeal an order of the Court of Common Pleas of Philadelphia County that granted a motion for summary judgment by the School District of Philadelphia, and dismissed, with prejudice, the Giosas' claims against the school district. We reverse and remand.

On February 14, 1983, Frank Giosa slipped on a sidewalk on school district property. Mr. Giosa sustained injuries in that fall, and sued the school district, alleging that his fall was caused by an unsafe accumulation of snow and ice on the sidewalk, and that the school district failed to maintain the sidewalk in a safe condition.

The school district raised the affirmative defense of immunity under Chapter 85 of the Judicial Code, 42 Pa.C.S. § 8541. On June 27, 1988, the trial court granted the school district's summary judgment motion, concluding that an injury from an accumulation of snow and ice on the sidewalk does not fall within the sidewalk exception to governmental immunity, 42 Pa.C.S. § 8542(b)(7).

The sole question is whether an accumulation of snow and ice on the school district's sidewalk can constitute a "dangerous condition of sidewalks" under the governmental immunity provisions of the Judicial Code, thus rendering the school district not immune as to possible liability for alleged negligent maintenance of its sidewalk, the condition of which Mr. Giosa claims caused his injuries.

[ 127 Pa. Commw. Page 539]

Governmental immunity in Pennsylvania has an old and checkered past. Pennsylvania courts adopted the common law doctrine of governmental immunity in the nineteenth century. By the mid-1950's, the courts began to recognize the inconsistent and sometimes arbitrary application of the doctrine, and the lack of definitive standards for applying the doctrine. This recognition lead to an ever increasing criticism of the doctrine and to numerous suggestions that the legislature, rather than the judiciary should decide the conditions under which the cloak of governmental immunity should protect political subdivisions.

Finally, in 1973, the Pennsylvania Supreme Court completely abrogated the doctrine in Ayala v. Philadelphia Board of Public Education, 453 Pa. 584, 305 A.2d 877 (1973). The Court elected not to await legislative action abrogating the doctrine, quoting ...


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