Summary
In Fizzano v. Borough of Ridley Park, 94 Pa. Commw. 179, 503 A.2d 57 (1986), a case in which a plaintiff was struck by a hockey puck while ice skating in a public park, we recognized that the "failure to supervise the activities of third parties is not the type of negligence which is covered by the real property exception to governmental immunity."
Summary of this case from Kasavage v. City of PhilaOpinion
Argued June 4, 1985
January 13, 1986.
Municipalities — Immunity — Political Subdivision Tort Claims Act, Act of November 26, 1978, P.L. 1399 — Skating injury — Real property — Improper supervision.
1. Under provisions of the Political Subdivision Tort Claims Act, Act of November 26, 1978, P.L. 1399, a municipality is immune from suit for injuries arising out of an injury sustained by a skater at a public ice rink allegedly due to improper supervision of other users, as the real property exception from such immunity is applicable to the physical condition of the premises itself. [181]
Judge ROGERS concurred in the result only.
Argued June 4, 1985, before Judges ROGERS, BARRY and PALLADINO, sitting as a panel of three.
Appeal, No. 2616 C.D. 1983, from the Order of the Court of Common Pleas of Delaware County in case of Christine Fizzano and Thomas Fizzano, h/w v. Borough of Ridley Park, No. 81-00387.
Complaint in trespass filed in Court of Common Pleas of Delaware County against borough for negligence. Borough filed motion for summary judgment. Motion for summary judgment granted. Complaint dismissed. TOAL, J. Plaintiffs appealed to the Commonwealth Court of Pennsylvania. Held: Affirmed.
Bruce E. Rodger, Kassab, Cherry and Archbold, for appellants.
Sean O'Callaghan, Lawrence Evans Grant Associates, P.C., for appellee.
The incident giving rise to this action occurred on February 8, 1980, when Christine Fizzano was struck by a hockey puck while ice skating at a public lake in Ridley Park Borough (Borough). On January 12, 1981, Christine and Thomas Fizzano, husband and wife (appellants), filed an action in trespass charging the Borough with negligence in connection with its alleged failure to properly supervise the activities taking place on the lake.
After reviewing the pleadings, depositions, answers to interrogatories, admissions, and affidavits, the Court of Common Pleas of Delaware County granted the Borough's motion for summary judgment and dismissed the complaint on the basis that the facts alleged did not fall within any of the exceptions to the general grant of immunity enjoyed by the Borough under the provisions of the Political Subdivision Tort Claims Act (Act). We agree.
Act of November 26, 1978, P.L. 1399, as amended, formerly 53 P. S. § 5311.101, repealed by Section 333 of the Act of October 5, 1980, P.L. 693. A similar provision is now found at 42 Pa. C. S. § 8541.
Appellants argue that their cause of action falls squarely within the real property exception set forth in Section 202(b)(3) of the Act because Christine Fizzano's injuries were a direct result of the Borough's negligent failure to control, restrict, or prevent the dangerous conduct of third parties while on public property. More specifically, appellants claim that the Borough should have either prevented children from playing hockey in the same area where others were ice skating or it should have provided close supervision of such a dangerous activity. The Borough's failure to do so, they argue, constitutes negligent conduct directly related to the care, custody and control of real property.
Formerly 53 P. S. § 5311.202(b)(3). A similar provision is now found at 42 Pa. C. S. § 8542(b)(3).
Appellants make the following observation on page 13 of their brief: "The fact that the dangerous condition at issue herein arose from the activities of other users of East Lake, as distinguished from a physical condition of the lake itself, does not operate to relieve the Borough of liability to the Fizzanos." But it is precisely that distinction which this Court has consistently relied on when deciding cases of this nature. We specifically held that failure to supervise the activities of third parties is not the type of negligence which is covered by the real property exception to governmental immunity. Usher v. Upper Saint Clair School District, 87 Pa. Commw. 461, 487 A.2d 1022 (1985); Close v. Voorhees, 67 Pa. Commw. 205, 446 A.2d 728 (1982); Robson v. Penn Hills School District, 63 Pa. Commw. 250, 437 A.2d 1273 (1981); and Wimbish v. School District of Penn Hills, 59 Pa. Commw. 620, 530 A.2d 710 (1981). The conduct complained of must be directly related to the condition of the property.
We find no merit in appellants' attempt to distinguish these cases from the case at hand by arguing that they are applicable only to situations where the negligent supervision involves students. No limitation of this nature is evident in any of the opinions cited and we do not construe them in the narrow manner suggested by appellants.
Affirmed.
ORDER
NOW, January 13, 1986, the order of the Court of Common Pleas of Delaware County, No. 83-00387, dated September 1, 1983, is affirmed.
Judge ROGERS concurs in result only.