Sims v. Silver Springs-Martin Luther School

A.2d 1297 SIMS, of the Estate Administrator D. William Deceased, Sims, Henry and of William right, Sims, in his own D. William v. SCHOOL, Lutheran LUTHER SPRINGS-MARTIN

SILVER Gallagher, Germantown, Frank J. Whit Diane at Home District, Appellants. comb, Sr., School Colonial Epps, Nagle, Marie M. Jeanne David Township of Whitemarsh. SIMS, of the Estate Administrator D. William Sims, Deceased, Henry and William William right, Appellant, Sims, in his own D.

v. SCHOOL, Lutheran LUTHER SPRINGS-MARTIN SILVER Whitcomb, Gallagher, Germantown, Frank J. Diane Home District, Nagle, Marie David M. Jeanne Sr., School Colonial Whitemarsh, Appellees. Township Epps, Pennsylvania. Court Commonwealth Argued Nov. 1992. May 1993.

Decided Glass, for William D. Sims. Larry appellant Dale, Dist. appellant F. Colonial School George Jacobsen, appellees Tp., L. David Audrey Epps. M. and Jeanne Marie Nagle FRIEDMAN, JJ, and PALLADINO and Before SILVESTRI, Judge. Senior

PALLADINO, Judge. (Sims), in right, own and as the William D. Sims his Sims, deceased, Henry administrator of estate William (Colonial) grant District a appeal and the School Colonial the Court of Common Pleas Mont- summary judgment by (trial court) in County Township favor Whitemarsh gomery (Whitemarsh). We affirm. (decedent), minor, Henry Sims April

On William Silver- by employees to a recreational swim was taken the decedent King Tragically, Martin Luther Home. Springs accident, was using At the time of the drowned. Colonial, by pursuant was owned contract which between Whitemarsh Colonial. Sims, the pleadings and after were

Suit was instituted following completion of Defendants discovery, closed and Whitemarsh, Epps Nagle summary filed motions for no genuine claimed that issue of judgment. Whitemarsh immune from existed, and that Whitemarsh was material fact commonly is the Political liability what called pursuant (Act), §§ Tort Act 42 Pa.C.S. 8541-8564. Subdivision Claims summary in favor of Whi- granted judgment The court trial temarsh, summary judgment motions but denied the filed Nagle.1 timely Both Colonial filed by Epps Sims and appeals to this court.2 Nagle, denying Epps of portion

1. The of the order the motions duty summary judgment lifeguards night, is not before two that us. appeals for our 2. The have been consolidated review. two raise the is appeal, following On Sims and Colonial 1) concluding trial court erred in that sues: whether in of of “possession” pool, Whitemarsh was not the time accident, subject liability so as to be under the real 2) 8542(b)(3); exception estate found at Section whether there 3) in whether the trial dispute; are material issues of fact in holding solely court erred that Whitemarsh is not liable or liable with to the contract between jointly pursuant Colonial 4) two; by holding and whether the trial court erred that party beneficiary decedent was not a third of the contract between Colonial and Whitemarsh.3 1035(b),

Pa. No. provides summary judg R.C.P. ment is if appropriate only pleadings, depositions, answers fact, interrogatories, admissions of and affidavits show that there is no of genuine dispute issue material fact and that moving party judgment is entitled to as a matter of law. Tasman, (1991). Marks v. 527 Pa. 589 A.2d 205 In ruling on a motion for summary judgment, the evidence must be light viewed most favorable to non-moving party. Id. case,

In the instant all parties agree that Whitemarsh is a local and as such agency, liability is immune from unless one 8542(b) exceptions under section applies. the Act argue

Both Colonial and Sims Whitemarsh was accident, possession at the time of the and there- fore, that the real estate applies. The real estate 8542(b), § exception, Pa.C.S. provides: (b) which may impose liability. Acts acts following —The a local agency employees may of its result in the on a local imposition liability agency: (3) Real Property. custody care or control of real —The in the the local agency, except review, scope summary judgment granted, 3. Our where has been determining limited to whether the trial court committed an error of Borough Boyertown, law or abused its discretion. Grim v. 141 Pa. Commonwealth Ct. 595 A.2d 775 624 on damages not be liable for account local shall agency

the intentionally by person trespassing any injury of sustained local possession agency. (Empha- in the property added.) sis recognized it must be construing this section

When of rule govern an to the absolute represents that it 8542(b)(3) 8541, § § is in 42 Pa.C.S. and that immunity mental v. Board Education narrowly. Vann interpreted to be of of Pa. Ct. Philadelphia, 76 Commonwealth the School District of 604, 684 464 A.2d IN

I. WHITEMARSH POSSESSION? WAS undisputed it is that possession, issue of On the to a contract with pool pursuant was the using Whitemarsh Whitemarsh, Colonial, using pool, provided the that when in of claim support its argues own lifeguards. its not in pool in was located possession, it was not pool, not own the Township, that Whitemarsh did responsible regular nor it pool, repairs was maintain of Whitemarsh had limited use and that fact that pool, possession so as to not sufficient constitute was 8542(b)(3). provisions § of Whitemarsh under bring having in limited control past have held We not period for a limited of time is premises merely occupying 8542(b)(3). §to See liability pursuant impose sufficient to Keener, Pa. Authority Common Redevelopment York v. (1986) (action city employee Ct. 516 A.2d 832 wealth showing buyer and oversee property, inspecting v. property.); not Prescott “possession” renovation is ing Pa. Ct. Housing Authority, 124 Commonwealth Philadelphia (1989) (the Authority’s Philadelphia Housing 555 A.2d 305 did not consti by parties owned third control real real property as term used tute Inc., 102 v. Bristol Co. Walsh Camelot exception); Walsh (1986) (a 76, 517 volunteer Ct. A.2d Pa. Commonwealth owned temporary privately company occupancy fire extinguishing for the a fire does building purpose 8542(b)(3)). § for the “possession” purposes constitute death, responsi- was day On the of decedent’s Whitemarsh monies and opening closing pool, collecting any ble for and However, did not own patrons. Whitemarsh supervising responsible maintain nor was Whitemarsh pool, or Further, no pool. Whitemarsh had regular repairs and did not control the input design pool into the of the layout pool The and of the pool. design illumination of the by Colo- along provided with the illumination were controlled short, merely pool, In was occupying nial. Whitemarsh death, the time of decedent’s and we therefore conclude pool was not in of the at the time of Whitemarsh 8542(b)(3). §of purposes the accident for the MATERIAL IN II. WERE FACTS DISPUTE? that a issue of material fact is argues genuine

Sims what caused the decedent to drown. Sims dispute, namely was caused a combi- proffered drowning evidence that the pool design, lighting, nation of defective insufficient absence of negligent supervision by lifeguards. a lifeline and two of unsafe conditions or defects allegations Sims makes First, alleges itself. he that the slope defective, second, lighting was that the was insuffi- allegations cient. We note that neither of these aver that was to control conditions at the time of Whitemarsh able these alleges the accident. Sims also that the removal of lifeline supervision by lifeguards contributed to his negligent allegations son’s death. These are not of a defect of the itself. However, because we have held that Whitemarsh was death, regardless not in of the cause of decedent’s possession, If Whitemarsh cannot be held liable. a fact finder were the cause of decedent’s negligent supervision find that was death, Negligent supervision would not be liable. impose been determined to be insufficient to repeatedly has immunity. See liability exceptions governmental under the 626 124 Authority, Pa. Com Philadelphia Housing v.

Prescott (1989); 124, v. Lancaster 305 Rhoads 555 A.2d monwealth Ct. A.2d 520 Pa. Commonwealth Ct. Parking Authority, 103 denied, Pa. (1987), 515 appeal allowance petition Pennsylva (1987); Frank v. Southeastern 611, 529 A.2d 1084 Authority, 96 Pa. Commonwealth Ct. Transportation nia A.2d condi- determine a defective If the fact finder were to lighting causing insufficient pool design tion immune and not drowning, would nonetheless be discussed, the real estate previously liable held because as Therefore, no there is material apply. does defeats dispute fact which issue summary judgment. motion for Whitemarsh’s LIABLE III. IS WHITEMARSH OVER TO COLONIAL? be is found not to that whether Whitemarsh argues Colonial Tort to the Claims exceptions in for purposes Act, pursuant over to Colonial it is nevertheless liable parties. the two contract between defines the language the contract which Colonial relies respect with between Colonial and Whitemarsh relationship its as liability. entirety provides The contract in damages and follows: FOR THE USE AGREEMENT

JOINT EACH OTHERS FACILITIES OF part organiza- an on the of both acceptance A. There is facilities, being public of each return tions that the facilities for its tax investment when public the most to the used, and its properly pledges are most each facilities to further this end. cooperation other Township 1. of the Whitemarsh Park Programs recognized are as school related Department Recreation programs. indoor District will make available

2. Colonial School not in conflict with outdoor school facilities when township charge no unless a school activities at cost for admission is made. Board Township Park and Recreation

3. Whitemarsh indoor and outdoor recreation facili- will make available Department Recreation ties when not conflict with at no cost to the School District. programs Department provide 4. Park and Recreation will ade- leadership for all recreation activities conducted quate school facilities. adequate leadership

5. District will provide School on Park and all school activities conducted Recreation Department facilities. leadership, supervision,

6. Where additional or other necessary by employees organization, service is of either organization that extra cost shall be reimbursed using facility facility. to that which owns the organizations give greatest 7. Both will endeavor to possible anticipated notice of use to the other to facilitate scheduling. organization responsibility

8. Each assumes damage program being which occurs while its conduct- damage ed on the other’s facilities and will cause such be as repaired immediately possible. as B. Both Boards endorse the for the concept School-Park construction of new facilities and each will discuss with the any projects may concept other new be able to use this advantage. to their mutual Liability provision.

C. liability 1. The Colonial School District will assume no injuries, any personal property damage for loss of or personal property.

2. Department The Whitemarsh Park and Recreation liability injuries, Board will assume no for loss of any personal or damage personal property. _ _

Signed: Attested to:

School District _ _ Date:

Signed:

Witness A(8) C(l) A(4), Paragraphs and specifically Colonial relies C(2). A(8) makes Paragraph An examination of clear assigned damage respec- is for responsibility being tive facilities. A(8) be organization that each will

Paragraph provides is “damage” that occurs. responsible any “damage” While contract, Koontz, the Di defined in the Donald former Township, of and Recreation for Whitemarsh rector Parks “damage” physical damage referred to testified that facilities, window, type or “that such as a broken broken bench 5.) (Koontz is this read thing.” Deposition When “will cause conjunction paragraph with final words of it possible,” as as damage repaired immediately such to be A(8) contemplate paragraph per clear that does not becomes injuries on liability for such injuries, place sonal nor does it Whitemarsh. C(l) (2) They are mutual

Paragraphs disclaimers. any injuries, party liability will assume indicate neither personal property damage personal property. or loss is indication in the disclaimer that Whitemarsh There no liability the present tort under facts. agreed assume eight exceptions observe that none of We further § exceptions. § 42 Pa. 8542 are contract When C.S. Vann, narrowly, reach conclu construed as dictated we agency never intended for a local legislature sion that the If theory. under a contract damages be held liable for tort an intended, had it would have included legislature so contract actions. dealing specifically with provides: § 42 Pa. 4. C.S. agency Except subchapter, no local provided otherwise this as any injury to damages any person shall be liable for on account agency employee an properly caused an act of the local or added.) (Emphasis person. other

thereof or local 629 A THIRD DECEDENT IV. WAS PARTY BENEFICIARY? in party beneficiary decedent is a third argues that the

Sims proffers and Colonial. Sims between Whitemarsh the contract A(4), leader- placing duty provide paragraph that when A(8), damages assuming responsibility ship, paragraph and facilities, together, liability are read to third for each other’s on Whitemarsh. party beneficiary imposed part a two test for determin- Supreme Court set forth Our party beneficiary: intended third ing whether one is an (1) beneficiary’s right ‘appro- of the must be recognition (2) parties,’ intention of the priate to effectuate the an ‘satisfy obligation promisee must performance money beneficiary’ to the or the circumstances indicate pay the benefit give beneficiary that the intends to promisee promised performance.’ Liederbach, 47, 60, 744, 459 A.2d Guy v. 501 Pa.

Further, in a third party party we stated that order for a be beneficiary: parties it intended one of the enough

it is not be that the latter should be a person the contract and the third beneficiary, parties but both to the contract must so intend contract; and must indicate that intention other ... to the third must be created obligation party words itself____ affirmatively appear, and must the contract Authority Corporation, General State v. Sutter Pa. Com 1022, (1979), 156, 164-65, monwealth Ct. 403 A.2d 1026-27 citing Spires Company, v. Hanover Fire Insurance 364 Pa. omitted). (1950) (footnote 56-7, 70 A.2d 830-31 explains “damage” specify Sims the word does not encompasses property damage bodily injury, whether it therefore, previously, must include both. As stated the term A(8) “damage” paragraph person- was not meant include injury. al

Finally, argument ignores requirement this contract intend to benefit the third parties must in affirmatively expressed the this must be and that party, not in the does language paragraphs The above contract. to provide Colonial or Whitemarsh show an intention either with the similarly person, situated decedent, or other in language para- The party beneficiary. a third rights of A(4) provide to obligation on Whitemarsh graph places an liability to an nothing possible it about leadership; states A(8) Further, in paragraph the injured language person. mention, of the affirmatively by implication, makes no rights party beneficiary. of a third and Colonial details

The contract between Whitemarsh The liabilities Whitemarsh Colonial. rights and between concluded, the contract is devoid agree, and we that trial court to as a allow decedent recover any language that would beneficiary. third party record, did we find that the trial court reviewing

After grant in the error law or abuse its discretion not commit an we af- judgment Accordingly, for Whitemarsh. summary firm.

ORDER NOW, 1993, the of the Pleas May 21, order Common AND above-captioned matter is County Montgomery Court of affirmed.

FRIEDMAN, dissenting. Judge, unresolved, summary judg- of fact remain Where questions this is the I believe that appropriate. ment not Because here, respectfully I dissent. case liability impose Sims and Colonial seek immunity, exception governmental property under the real find that had jury could both arguing time of accident at the and control of possession property contributed and that a defective condition Here, to concede that majority appears Sims’ death.1 allegations defects because Sims makes I jury question. itself, drowning presents a the cause of Sims’ no However, material majority concludes agree. would defeat Whitemarsh’s dispute of fact is in which issue because, judgment regardless summary motion death, govern- the real cause of Sims’ liability on impose White- apply does immunity mental proper- was not where Whitemarsh marsh if reasons that majority accident. The the time of Sims’ ty at was the negligent supervision find finder were to fact death, liable would not be because of Sims’ Whitemarsh cause liability impose alone is insufficient to supervision negligent immunity. governmental to under the real property hand, a If, the fact finder were to determine that on the other or pool design lighting of the insufficient defective condition would, nonetheless, im- be drowning, caused that, lack I cannot under the possession. agree mune for of a here, be decided as possession the issue of can circumstances matter law. that its determination on the fact majority

The bases merely occupying own but was pool did not not period responsi limited of time and was premises for a recognize I that regular repairs its or maintenance. ble for however, this property; own the Whitemarsh did not it at the possession whether had determinative of 8542(b)(3) § purposes of the accident. Possession time rather, ownership; to a mere require has not been construed expose agency is sufficient a local possessory interest 8542(b)(3) of the Judicial Code. Low liability under section District, 96 Pa. Commonwealth man v. Indiana Area School 389, occupancy 1270 Control or can 507 A.2d Ct. regard ownership. Never possession, without constitute Keener, v. Redevelopment Authority York theless, 101 citing v. (1986), Prescott 464, 832 516 A.2d Pa. Commonwealth Ct. Authority, 124 Ct. Philadelphia Housing Pa. Commonwealth however, solely agrees, court Sims died as with the trial 1. Colonial supervision. negligent a result (1989), v. Camelot A.2d and Walsh Walsh Inc., Ct. 517 A.2d 577 Bristol Co. 102 Pa. Commonwealth (1986) that Whitemarsh’s majority as concludes authority, was property control or of Colonial’s insuffi- occupancy limited 8542(b)(3). § Although impose liability pursuant cient to possession local had city agency to find a we refused Keener, the circumstances Prescott and property real under Walsh, cases, on by I do these relied not feel compare present to the situation. majority, Keener, fell injured through a was when he In subcontractor “as is” renovating property purchased part floor while a as accident, At time of the city plan. redevelopment had been transferred property title and legal owners, Authority current who from the to the Redevelopment However, sale, prior had hired the subcontractor. various services connection city employee performed had conducting showing the property by inspections, with the buyers overseeing preliminary prospective this extremely We determined that to consider renovations. limited, “possession” as past involvement with defy any of the term. would notion Prescott, Philadelphia against Housing In suit was filed poisoning a child lead Authority behalf of who suffered his apart- from the walls of ingesting paint after lead-based eligible apartment persons The was one rented to for ment. Housing under the Federal Assistance housing assistance In with a of cases to Program. refusing accordance line possession, purposes govern- for of the interpret immunity, by include control exercised a municipality ment its and enforcement agency solely through regulatory or local Housing Authority held the did not assume powers, we the responsibility of based on its under possession apartment regulations housing program. with the See Federal connected 178, 126 Pa. Ct. Mentzer v. Commonwealth 559 Ognibene, also denied, (1989), 644, 523 565 A.2d 1168 appeal A.2d 79 Pa. (1989); v. 120 Pa. Pennsylvania Corp., Kline Mines Common- (1988); Shrader, 547 v. 112 wealth Ct. A.2d 1276 Buffalini 228, 535 684 Pa. Commonwealth Ct. A.2d Walsh, fireman, injured a In is even farther afield. Walsh blaze, the fire alleged that volunteer combatting a while building him remain in the ordered negligently company the fire safety We held equipment. proper without building of owned occupancy privately a company’s temporary fire not a did consti- extinguishing of purpose for the limited of section purposes for the property of that tute 8542(b)(3). opin- each of these from easily distinguishable

This case is Keener, use the city in Whitemarsh’s Unlike the ions. event; actually was not past here was drowning when the supervising premises the occupying and Moreover, alleged possession the occurred. Whitemarsh’s enforcement regulatory with its had no connection pool Finally, was case in Prescott. White- as the responsibilities, with the compare does pool marsh’s use of Colonial’s on the Walsh. firefighter’s temporary presence occupation facility the This was not a one-time rather, virtually from the time that benefit the owner but constructed, regularly was a scheduled takeover pool the was during Whitemarsh received the finan- premises, which addition, all the cases cial benefit of its use. In absent from continuing majority, on the is the sort written relied Colonial, agreement that existed between Whitemarsh using time which Whitemarsh was pursuant of the contract makes this of Sim’s accident. The existence Parking Authority, v. case more akin to Rhoads Lancaster (1987) A.2d 122 than to Pa. Commonwealth Ct. previously discussed. opinions Rhoads, Parking Authority patron Municipal In of a complaint property and filed a was assaulted on the garage provide Authority city failing against security garage. alleged Rhoads both adequate however, garage; city Authority possessed and the judgment in favor of the summary city court granted trial care, custody had and control grounds relinquished that it summary judg- the We stated garage Authority. the ground improper questions because ment on this was fact on this issue existed where evidence showed that material interest and city parking garage the had leasehold the operations. some of control over its degree exercised too, had a contractual interest the Here Whitemarsh degree use Colonial’s and exercised periodic evening over it times. On the Sims’ control at those using pursuant the drowning, Whitemarsh was and Colonial. The con- written contract between Whitemarsh could others’ parties that the use each facilities provided tract party conditions which made each accountable specific under the other using party’s for its own actions and activities while Therefore, may not have although WHiitemarsh property. acquired liability the I feel that Whitemarsh property, owned for contracting pool specific and control of in responsibility, To this contractual shift times. effectuate damage obligation assumed the which Whitemarsh during program time that it conducted its at the occurred lifeguards, to provided pool personnel, including open and pool facility. No premises supervise and close the and one but use right facility during had these Whitemarsh charged an admission fee those periods, swim, portion who no of which went came persons Colonial. considering all summary judgment,

In a motion doubts non-moving party. must be resolved in favor of the Marks v. Tasman, least, very Pa. h21 589 A.2d At showing evidence that Whitemarsh present Sims Colonial periodic regularly ongoing, a contractual interest had some of control over its pool degree use of and exercised I during periods. those feel that this evidence is operations to raise of material fact on the issue of questions sufficient time at the possessed whether accident, making summary judgment inappropriate. Accord- basis, I remand for trial. ingly, on this would reverse and

Case Details

Case Name: Sims v. Silver Springs-Martin Luther School

Court Name: Commonwealth Court of Pennsylvania

Date Published: May 21, 1993

Citation: 625 A.2d 1297

Docket Number: 361 and 407 C.D. 1992

Court Abbreviation: Pa. Commw. Ct.