A Pennsylvania commonwealth court’s decision to allow a student to sue a Philadelphia school district for failing to pad a concrete gym wall was a clear case of “flip-flopping,” an attorney representing the district told the Pennsylvania Supreme Court last month.
The attorney suggested that the appeals court erred when it found that plaintiff Jarrett Brewington, who suffered a concussion after he collided with a concrete wall, could sue his client for failing to pad the wall.
The incident occurred on May 9, 2012, The plaintiff was participating in a relay race and the unprotected concrete wall served as the finish line. That day, the plaintiff tripped and fell, striking his head on the wall and suffering a concussion. This caused Brewington to miss the last few weeks of the school year. While he returned to school the following year, he allegedly had memory problems and his grades fell.
Before the state’s highest court, defense attorney Allison Petersen, of the Levin Legal Group, argued that the Commonwealth Court’s decision was at odds with “multiple opinions over the past 20 years reaching differing conclusions.”
The Commonwealth Court had held that Brewington could sue the district, holding that the facts fell under the real property exception to the general rule for governmental immunity, which exists within Pennsylvania’s Tort Claims Act.
Petersen argued that, under the Political Subdivisions Tort Claims Act, the district cannot be subject to lawsuits where the conduct does not arise out of the care, control or custody of real estate, which was at odds with the Commonwealth Court’s 2016 decision allowing the litigation to move forward.
Petersen argued that the Commonwealth Court’s conclusion that the wall constituted real estate was too broad.
“The wall was acting as intended,” Petersen argued, according to the media. “The court took too expansive a reading of the Tort Claims Act. The teacher was not caring for the gym, the teacher was not in custody of the gym, and the teacher’s instructions had nothing to do with real property.”
In contrast, plaintiff’s attorney Craig Falcone of Sacchetta & Falcone argued that the gym was clearly within the school’s care, custody and control. Further, the padding needed to be put up because the plaintiff’s injuries were a foreseeable outcome of the relay race, according to Falcone.
