Gore v. Bethlehem Area School District
Gore v. Bethlehem Area School District
Opinion of the Court
Opinion by
Appellant, Ruth Gore as parent and natural guardian of James Smith, a minor, and Ruth Gore, individually, appeals from an order of the Court of Common Pleas of Northampton County which granted summary judgment in favor of the Bethlehem Area School District (BASD) and dismissed Appellants cause of action in trespass against BASD on the grounds of governmental immunity as provided in 42 Pa. C. S. §§8541-8542. For the reasons set forth below, we affirm.
The facts surrounding the civil action commencéd by Appellant against BASD involves an attempt by Appellant to recover compensatory damages as a result of injuries and losses sustained by the minor Appellant, James Smith, on October 30, 1984 at the Marvine Elementary School, located in Bethlehem, Pennsylvania. On October 30, 1984, James Smith was engaged in recreational activities in the gymnasium area of the school, and, while attempting to hang on a chin-up bar
On appeal, Appellant contends that the trial court erred in concluding that the placement of the chin-up bar did not fall within the exception to governmental immunity under 42 Pa. C. S. §8542(b)(3) because Appellant was denied an opportunity to establish that the intent on the part of BASD was for the chin-up bar to become a permanent fixture. BASD counters that the chin-up bar was a chattel item which was movable property and not a fixture or real property permanently placed on the school premises.
It is provided in Pa. R.C.P. No. 1035 that a trial court may grant a summary judgment only in those situations where “the pleadings, depositions, answers, 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 determining whether to grant a summary judgment, a trial court must examine the record in the light most favorable to the non-moving party. McCloskey v. Abington School District, 101 Pa. Commonwealth Ct. 110, 515 A.2d 642 (1986).
Immunity will be denied a local agency such as a school district only when there is negligence which makes government-owned property unsafe for the activities for which it is regularly used, for which it is intended to be used, or for which it may be reasonably foreseen to be used. Vann v. Board of Education, School District of Philadelphia, 76 Pa. Commonwealth Ct. 604, 464 A.2d 684 (1983). Further, immunity will lie when
(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, except that the local agency shall not be liable for damages on account of any injury sustained by a person intentionally trespassing on real property in the possession of the local agency. . . .
Thus, we must determine whether the chin-up bar . can be considered a fixture that has become part and parcel of the realty and therefore could render BASD liable for negligence in the care, custody or control of real property which is in its possession.
The Pennsylvania Supreme Court has designated three classes which chattels connected with realty may fall into:
First, those which are manifestly furniture, as distinguished from improvements, and not peculiarly fitted to the property with which they are used; these always remain personalty. (Citations omitted.) Second, those which are so annexed to the property, that they cannot be removed without material injury to the real estate or to them*398 selves; these are realty, . . . (Citations omitted.) Third, those which, although physically connected with the real estate are so affixed as to be removable without destroying or materially injuring the chattels themselves, or the property to which they are annexed; these become part of the realty or remain personalty depending upon the intention of the parties at the time of annexation; in this class fall such chattels as boilers and machinery affixed for the use of an owner or tenant but readily removable. (Citations omitted.)
Clayton v. Lienhard, 312 Pa. 433, 436-37, 167 A. 321, 322 (1933). Therefore, a determination of whether or not a chattel or article of property has become realty involves factual considerations—how was the chattel annexed to the property; and at the time of annexation what was the intent of the parties. Beardell v. Western Wayne School District, 91 Pa. Commonwealth Ct. 348, 354, 496 A.2d 1373, 1376 (1985).
A fixture is an article in the nature of personal property which has been so annexed to the realty that it is regarded, as part and parcel of the land. Blacks Law Dictionary 574 (5th Ed. 1979). The considerations to be made in determining whether or not a chattel becomes a fixture include (1) the manner in which it is physically attached or installed, (2) the extent to which it is essential to the permanent use of the building or other improvement, and (3) the intention of the parties who attached or installed it, McCloskey, 101 Pa. Commonwealth Ct. at 113-4, 515 A.2d at 644 citing Clothier, The Law of Fixtures in Pennsylvania, 32 Pa. B.Q. 66, 66-67 (1960-61).
In the case at hand, the undisputed evidence of record establishes that (1) the chin-up bar was located in a
We believe the case herein is similar to the situation which existed in Brown v. Quaker Valley School District, 86 Pa. Commonwealth Ct. 496, 486 A.2d 526 (1984). In Brown, a student suffered injuries to her right knee while attempting to perform a “straddle jump” utilizing a springboard and vaulting horse. This Court affirmed the trial courts grant of summary judgment opining that “[t]he springboard and vaulting horse are items of moveable equipment, not fixtures, as they are not permanently placed at the school nor essential for its operation. (Citation omitted.) Accordingly, that equipment is not considered a part of real property. Therefore, the care, custody or control of real property exception to governmental immunity does not apply”. Id. at 498-99, 486 A.2d at 528. Thus, as in Brown, the nature of the chattel herein, the chin-up bar, is obviously an item of moveable equipment, not permanently placed at the school nor essential for its operation.
Lastly, we should also mention the recently filed opinion of Canon-McMillan School District v. Teddy S. Bioni, 110 Pa. Commonwealth Ct. 584, 533 A.2d 179 (1987). In Canon-McMillan, a student sustained an eye injury while performing an in-class project which required the use of a wood lathe when a laminated wooden bowl which the student was sanding on the lathe
Order
And Now, this 11th day of February, 1988, the order of the Court of Common Pleas of Northampton County granting summary judgment in favor of the Bethlehem Area School District is hereby affirmed.
We note that it is our opinion that the issue of intent (foes not arise in the instant matter.
See Doris A. Stahl, Administratrix of the Estate of Michael J. Wilson, Deceased v. Cocalico School District, 112 Pa. Commonwealth Ct. 50, 56, 530 A.2d 948, 951 (1987) (Application for reargument granted October 28, 1987) where this Court noted that a heavy trash dumpster which had remained in the same location for an indefinite period of time could be classified as real property for exception purposes.
Concurring Opinion
Concurring Opinion by
I concur in the result only because I believe the majority has unnecessarily complicated the resolution of the issue before us.
Appellant contends that whether the chin-up bar, which is alleged to have been the cause of James Smiths injuries, is a fixture (and therefore real property which brings their cause of action within the real estate exception to governmental immunity, 42 Pa. C. S. §8542
Appellant is correct in her assertion that the question of intent is one of fact which, if present, precludes summary judgment. McClosky v. Abington School District, 101 Pa. Commonwealth Ct. 110, 515 A.2d 642 (1986) . However, the issue of intent does not arise in all instances where a chattel is used in connection with real property.
In Canon-McMillan School District v. Bioni, 110 Pa. Commonwealth Ct. 584, 592, 533 A.2d 179, 182 (1987) ,
It is not disputed that the chin-up bar involved in this case was not permanently affixed to the realty. The bar was situated in a doorway between the gymnasium and a storeroom. While it had not been moved for a period of time, its placement was not permanent. The bar could be moved at anytime and used in any doorway anywhere. This chin-up bar, like the springboard and vaulting horse in Brown v. Quaker Valley School District, 86 Pa. Commonwealth Ct. 496, 486 A.2d 526 (1984), is an item “of movable equipment” and not a fixture because it is “not permanently placed at the school nor essential for its operation. . . . Accordingly, that equipment is not considered a part of real property. Therefore, the care, custody or control of real property exception to governmental immunity does not apply.” Id. at 488-89, 486 A.2d at 528.
The majority states that in Canon-McMillan this court “concluded that the lathe was not a part of the realty.” Majority op. at 7. This is incorrect. This court determined that a category three chattel was involved but that a new trial was necessary because the finding that the school district intended the chattel to be a part of the realty was against the weight of the evidence.
Reference
- Full Case Name
- Ruth Gore, as Parent and Natural Guardian of James Smith, a Minor, and Ruth Gore, Individually, Appellant v. Bethlehem Area School District, Appellee
- Cited By
- 25 cases
- Status
- Published