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July 2, 1997


Appealed From No. 587 October Term, 1992. Common Pleas Court of the County of Philadelphia. Judge HERRON.

Before: Honorable Doris A. Smith, Judge, Honorable Jim Flaherty, Judge, Honorable Charles P. Mirarchi, Jr. Senior Judge. Opinion BY Judge Smith.

The opinion of the court was delivered by: Smith


FILED: July 2, 1997

Harry Martin, Jr., a minor, and his mother Diane Martin (Martins) appeal from an order of the Court of Common Pleas of Philadelphia County that granted the motion for summary judgment filed by the City of Philadelphia in the Martins' action against the City alleging negligent injury of Harry. The Martins question whether the trial court erred in granting summary judgment to the City when there was an issue of material fact as to the City's immunity status; whether the City's football goalpost, which had been affixed to the City's land, should be considered "of" the land for purposes of the governmental immunity statutes; and whether the City is immune when a minor such as Harry is injured in an area designated as a football field that was unfit for the activities for which it was reasonably foreseen to be used.

The Martins' complaint alleged that Harry, then 11 years old, was playing with friends at the Murphy Recreation Center, owned and operated by the City, when he tripped and fell, while running across the football field, into a metal pipe that was lying discarded in the field. In Harry's deposition he stated that he dove into a pile of leaves to catch a football and hit a goalpost lying on the ground. Harry was seriously injured in his groin. Harry Martin, Sr. stated in an affidavit that he visited the scene shortly after the accident and saw and photographed the pipe, which he identified as a football goalpost. A City recreation leader and the former caretaker for the facility testified in depositions that it was common for people to throw debris on to the field from the adjacent, higher road. Both stated that the pipe in the photographs was not part of a goalpost and that the park used wooden goalposts at the time of the accident; it changed to metal ones four years later.

As the trial court noted, pursuant to former Pa. R.C.P. No. 1035(b), *fn1 summary judgment should be rendered "if the pleadings, depositions, answers to 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 considering a motion for summary judgment, a court should accept as true all well-pleaded factual allegations, but not Conclusions of law, in the non-moving party's pleadings. Rizzo v. City of Philadelphia, 668 A.2d 236 (Pa. Commw. 1995). The motion should be granted only in cases that are clear and free from doubt. Id. This Court's review of a grant or denial of summary judgment is limited to determining whether the trial court committed an error of law or an abuse of discretion. Kaplan v. Southeastern Pennsylvania Transportation Authority, 688 A.2d 736 (Pa. Commw. 1997).

The trial court reviewed a variety of cases interpreting the general rules of sovereign immunity in Section 8521 of the Judicial Code, 42 Pa. C.S. § 8521, and of governmental immunity in Section 8541, 42 Pa. C.S. § 8541, and the real property and sidewalk exceptions in Section 8522, as amended, 42 Pa. C.S. § 8522, and Section 8542, as amended, 42 Pa. C.S. § 8542. The trial court quoted Snyder v. Harmon, 522 Pa. 424, 562 A.2d 307 (1989), where the Supreme Court stated that local agency liability under the real estate exception in Section 8542(b)(3), 42 Pa. C.S. § 8542(b)(3), for care, custody and control of real property, required negligence making the real property unsafe for the activities for which it is regularly used or intended to be used or reasonably foreseen to be used. It further stated that the focus of the negligent act involving a dangerous condition of government-owned real estate becomes the actual defects of the real estate.

Focusing on statements in the complaint and in the Martins' response to the summary judgment motion that the pipe was "lying on the ground," and "lying discarded on the ground," the trial court stated that the Martins' claim that the pipe was a goalpost did not address the key issue of whether it was "affixed" to the ground. The trial court concluded that the pipe was not "of" the real property because it was not affixed at the time of the injury, and it granted the City's motion because the Martins had produced no evidence to create a factual issue as to whether the pipe was affixed, despite ample opportunity to do so.

The Martins first argue that the trial court erred in granting summary judgment when there was a material fact in issue, namely, the immunity status of the City. Section 8542(b) of the Judicial Code provides in part:

(b) Acts which may impose liability. --The following acts by a local agency or any of its employees may result in the imposition of liability on a local agency:


(3) Real property.--The care, custody or control of real property in the possession of the local agency.... As used in this paragraph, ...

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