[J-9-2018]

IN THE SUPREME COURT OF PENNSYLVANIA

EASTERN DISTRICT

SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.

SYETA BREWINGTON, AS PARENT 

AND NATURAL GUARDIAN FOR 

JARRETT BREWINGTON, A MINOR, 

AND SYETA BREWINGTON IN HER 

OWN RIGHT

v.

CITY OF PHILADELPHIA, WALTER G. 

SMITH ELEMENTARY SCHOOL AND 

THE SCHOOL DISTRICT OF 

PHILADELPHIA

APPEAL OF: THE SCHOOL DISTRICT 

OF PHILADELPHIA

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No. 23 EAP 2017

Appeal from the Order of 

Commonwealth Court entered on 

November 14, 2016 at No. 886 CD 

2015 reversing the Order entered on 

April 27, 2015 in the Court of Common 

Pleas of Philadelphia County, Civil 

Division, at No. 1974 November Term 

2013

ARGUED: May 15, 2018

OPINION

JUSTICE TODD DECIDED: December 28, 2018

The Political Subdivision Tort Claims Act (“Act”), 42 Pa.C.S. §§ 8541 et seq., 

grants governmental immunity from tort liability to local political subdivisions, including 

public schools. Specific exceptions exist, however, to this otherwise broad grant of 

immunity to these entities. In this appeal, we consider one of these exceptions ― the 

real property exception to governmental immunity ― and, in particular, whether the 

absence of padding on a gym wall, into which a student ran during gym class, causing 

injury, falls within the exception. For the reasons set forth below, we find the lack of 

padding of a gym wall may constitute negligence in the care, custody, and control of real 
[J-9-2018] - 2

property, and, thus, falls within the Act’s real estate exception. Therefore, we affirm the 

order of the Commonwealth Court.

On May 9, 2012, nine-year-old Jarrett Brewington participated in a relay race 

during gym class at Walter G. Smith Elementary School, in Philadelphia. While Jarrett

was running, he tripped and fell, causing him to propel into the wall at the end of the gym, 

hit and cut his head, and lose consciousness. No padding covered the gym wall, which 

was made of concrete. Jarrett was later diagnosed with a concussion, was absent from 

school for one to two months after the incident, and continued experiencing headaches 

and memory problems years later.

On November 19, 2013, Jarrett’s mother, Syeta Brewington, as parent and natural 

guardian and in her own right (collectively, “Mother”), brought an action against Walter G. 

Smith Elementary School and the School District of Philadelphia (collectively, the 

“School”) in the Philadelphia County Court of Common Pleas.

1

 Mother alleged that 

Jarrett’s injuries occurred because of a defective and dangerous condition of the premises 

— namely, the concrete gym wall — and that the School was negligent in failing to install 

padded safety mats to cushion the wall. In response, the School filed, inter alia, a motion 

for summary judgment, raising the defense of governmental immunity, and claiming that 

the real property exception to governmental immunity under the Act did not apply.

By way of brief background, in response to our Court’s 1973 abrogation of the 

judicially-created doctrine of governmental immunity in Ayala v. Philadelphia Board of 

Education, 305 A.2d 877 (Pa. 1973), the legislature enacted, inter alia, the Act, which 

provides for governmental immunity against damages due to injury to a person or property 

caused by acts of a local agency, except as provided therein. Specifically, Section 8541 

 

1 Although also sued by Mother, by stipulation of the parties and order dated February 4, 

2015, the City of Philadelphia was dismissed from the action.
[J-9-2018] - 3

of the Act sets forth that local government agencies generally are immune from tort 

liability.2 Section 8542, however, lists a series of exclusions to governmental immunity 

for specific categories of tort claims, providing, in pertinent part, an exception for 

negligence in the care, custody, or control of real property:

(a) Liability imposed.--A local agency shall be liable for 

damages on account of an injury to a person or property within 

the limits set forth in this subchapter if both of the following 

conditions are satisfied and the injury occurs as a result of one 

of the acts set forth in subsection (b):

(1) The damages would be recoverable under common 

law or a statute creating a cause of action if the injury were 

caused by a person not having available a defense under 

section 8541 (relating to governmental immunity generally) or 

section 8546 (relating to defense of official immunity); and

(2) The injury was caused by the negligent acts of the 

local agency or an employee thereof acting within the scope 

of his office or duties with respect to one of the categories 

listed in subsection (b). As used in this paragraph, “negligent 

acts” shall not include acts or conduct which constitutes a 

crime, actual fraud, actual malice or willful misconduct.

(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. . . .

42 Pa.C.S. § 8542.

 

2 Specifically, Section 8541 provides that “[e]xcept as otherwise provided in this 

subchapter, no local agency shall be liable for any damages on account of any injury to 

a person or property caused by any act of the local agency or an employee thereof or any 

other person.” 42 Pa. C.S. § 8541.
[J-9-2018] - 4

In the instant case, Judge Shreeves-Johns granted the School’s motion for 

summary judgment, finding Mother’s tort action did not satisfy the real property exclusion. 

The court, focusing on paragraph 10 of Mother’s complaint, which alleged that Jarrett’s 

injuries were caused by a “defective and dangerous condition of the premises caused 

directly by the actions/inactions of [the School] (ie., [sic] gym without safety mats),” 

Plaintiff’s Complaint at ¶ 10, concluded that safety mats are personalty ― not realty ―

and, thus, do not fall within the real property exception to governmental immunity under 

the Act, citing Rieger v. Altoona Area School District, 768 A.2d 912 (Pa. Cmwlth. 2001). 

Further, the court rejected Mother’s claim that the construction of the gym wall without 

impact protection constituted a negligent design of the wall or negligent construction, as 

it was “comingled” with Mother’s claim of negligent care, custody, and control of the real 

estate, and, thus, according to the trial court, Rieger precluded recovery. Trial Court 

Opinion at 9.

On appeal, in a unanimous, published opinion authored by Judge Wojcik, an en 

banc panel of the Commonwealth Court reversed. Brewington v. City of Philadelphia, 

149 A.3d 901 (Pa. Cmwlth. 2016). In so doing, the court first discussed its case law 

concerning the real property exception to governmental immunity under the Act. The 

court explained that it has repeatedly held that allegations of a governmental agency’s 

negligence in the care, custody, and control of real property that rendered the property 

unsafe for its intended and foreseeable use fall within the real property exception to 

governmental immunity. The court offered, however, that the real property exception is 

limited to injuries involving real property, and does not extend to injuries caused by 

personalty.

With respect to the determination of whether an injury involves real property or 

personalty, the court relied upon its decision in Singer v. School Dist. of Philadelphia, 513 
[J-9-2018] - 5

A.2d 1108 (Pa. Cmwlth. 1986), wherein a student gymnast who was performing a stunt 

over a vaulting horse fell and injured himself when he missed the mat and fell on the 

hardwood floor. In that case, the student sued the school district, alleging that the school 

was negligent in failing to control the landing surface by providing sufficient mats on the 

gym floor for the student’s protection. The court noted that it held that the real property 

exception applied in Singer because, although the mat which could have prevented the 

injury was personalty, the unprotected hardwood floor which caused the student’s injury 

was not, thus falling within the real property exception.

Although Singer would appear to be analogous to the instant case, the court 

conceded that, in its 2001 decision in Rieger (finding that even assuming failure to provide 

mats in cheerleading practice area caused injury, such negligent conduct would not fall 

within the real property exception, as mats were not affixed to the real property, and as 

such, constituted personalty), it concluded that Singer was implicitly overruled by this 

Court’s decision in Blocker v. City of Philadelphia, 763 A.2d 373 (Pa. 2000) (holding that 

chattel not attached to realty — there, a set of bleachers that collapsed — remains 

personalty for purposes of the real property exception to governmental immunity). 

However, the court in the matter sub judice pointed out that, in Rieger, no claim was 

raised that the student’s injury was caused by personalty; thus, it viewed Blocker as 

inapposite and, thus, that it should not have been relied upon in Rieger. Moreover, the 

court opined that the Rieger court incorrectly focused its analysis on the nature of the 

chattel that could have been used to protect students, rather than the cause of the 

plaintiff’s injury — the hardwood floor ― which was real property. Thus, the court 

concluded that Rieger “misconstrued Blocker as overruling Singer” and misconstrued 

Singer as “holding that personalty placed on real property to render it safe for its intended 

use is considered to be real property for purposes of governmental immunity.” 
[J-9-2018] - 6

Brewington, 149 A.3d at 909, 910 (emphasis omitted). In sum, the court emphasized 

that, contrary to its holding in Rieger, the analysis of whether the real property exception 

applies centers on the cause of the injury, rather than the nature of the remedy that should 

have been provided. Accordingly, the court reaffirmed its decision in Singer, overruled 

Rieger, and reversed the trial court’s grant of summary judgment, concluding that, 

because Mother’s claims concerned an injury caused by real property ― i.e., the concrete 

gym wall ― the real property exception to governmental immunity applied regardless of 

the fact that Mother averred that personalty ― i.e., the protective mat ― would have 

prevented Jarrett’s injury.

We consider in this appeal whether the negligence alleged in this case concerned 

real property and whether the Commonwealth Court impermissibly broadened the real 

property exception. We also granted allocatur to consider whether Mother’s claim of a 

defect in the real property is more properly construed as a claim of negligent supervision, 

which would not satisfy the real property exception. As these issues raise pure questions 

of law, our standard of review is de novo, and our scope of review is plenary. Summers 

v. Certainteed, 997 A.2d 1152, 1159 (Pa. 2010). Further, as we have frequently stated, 

“summary judgment is appropriate only in those cases where the record clearly 

demonstrates that there is no genuine issue of material fact and that the moving party is 

entitled to judgment as a matter of law. . . . When considering a motion for summary 

judgment, the trial court must take all facts of record and reasonable inferences therefrom 

in a light most favorable to the non-moving party.” Id. Importantly, the trial court “may 

only grant summary judgment ‘where the right to such judgment is clear and free from all 

doubt.’” Id. Moreover, “an appellate court may reverse a grant of summary judgment if 

there has been an error of law or an abuse of discretion.” Id. (internal citations omitted).
[J-9-2018] - 7

The School first argues that it was not engaged in an act that involved the care, 

custody, or control of real property, and that no act involving the care, custody, or control 

of real property caused Jarrett’s injury. According to the School, the wall had no defect 

or condition that caused Jarrett’s injury. Rather, the School contends the injury was 

caused by (1) a teacher directing students to run toward a wall (i.e., negligent 

supervision); and (2) the student tripping and falling. Most specifically, the School

contends that the real property exception to governmental immunity is inapplicable in this 

case because Jarrett was not engaged in an activity involving the care, custody, and 

control of real property when he was injured.

Stressing that any exceptions to the rule of immunity must be narrowly interpreted, 

the School offers that courts have applied two different approaches in determining 

whether to apply the real property exception — the approach articulated in Grieff v. 

Reisinger, 693 A.2d 195 (Pa. 1997), and that considered in Blocker v. City of Philadelphia, 

763 A.2d 373 (Pa. 2000). The School maintains that both approaches counsel against 

applying the real property exception in this case.

Specifically, applying the Grieff approach, which, according to the School, 

considers whether the injury was caused by an affirmative act involving the care, custody, 

or control of the real property itself (in that case, negligence in the removal of paint by 

pouring paint thinner on the floor which ultimately ignited, and implicated the “care” of real 

property), the School asserts that the real property exception does not apply because 

Jarrett’s injury was caused by the teacher’s instructions to run towards the concrete wall 

and by Jarrett’s tripping, neither of which involve caring for real property or a dangerous 

condition of the wall. According to the School, there was no act that constituted negligent 

care of the wall, and no evidence that some defect of the wall constituted a dangerous 
[J-9-2018] - 8

condition; rather, the wall did what it was intended to do, “stand and be a wall.” Appellants’

Brief at 19.

Blocker involved the collapse of a bleacher resulting in an injury. The court held 

that, because the bleacher was not affixed to realty, it was personalty, and that, even if 

negligently maintained, the real estate exception did not apply to personalty. Thus, under 

Blocker, the School maintains that the real estate exception does not apply herein 

because Mother’s claims pertained to the negligent control of padding, which is

personalty. Further, the School compares and contrasts two Commonwealth Court 

decisions speaking to the real property exception. In Singer, a gymnast fell on a 

hardwood floor that was not covered with a mat while performing on the vaulting horse. 

The gymnast was permitted to proceed under the real property exception, with the court 

focusing on the hardwood floor. In Rieger, a student was injured during cheerleading 

practice when she fell onto an unprotected hardwood floor. The court found Blocker

implicitly overruled its earlier decision in Singer and that, because, according to the court,

the failure to place mats on the hardwood floor involved personalty, the claim did not fall 

within the real property exception.

Finally, the School warns of the repercussions of finding an exception to immunity 

for schools in these situations, asserting that finding an unpadded gym wall to be a 

dangerous condition and, thus, extending the real property exception to the facts of this 

case would expose school districts to liability “unless they pad nearly every conceivable 

wall, floor or other fixture within every piece of real estate they own.” Appellants’ Brief at 

24. Indeed, the School claims that basketball courts, water fountains, and baseball fields 

would all have to be padded to avoid liability. The School further offers that merely 

installing padding might not be sufficient, implicating questions about how much padding 

is necessary and the manner in which such padding must be installed.
[J-9-2018] - 9

Related thereto, Amicus Pennsylvania School Boards Association maintains that 

the real estate exception “allows claims for damages caused by affirmative acts 

associated with the care or maintenance of the existing property that makes that property 

dangerous in and of itself,” but “does not allow claims based on theories that require 

second-guessing government decisions about what public funds to spend on 

improvements to existing real estate that is not already in and of itself dangerous.” 

Amicus Brief at 8. Amicus cautions that the Commonwealth Court’s decision to apply the 

real property exception in this case will impact a variety of cases and “unavoidably place 

in the hands of juries the legislative function of dictating programmatic decisions without 

concomitant accountability for financing or outcomes, and make governmental liability 

exposures wildly unpredictable.” Id. at 10.

In response, Mother asserts that the Commonwealth Court properly concluded that 

the real property exception to governmental immunity was applicable in this case. Mother

claims that no personalty was involved in this case and that, as a result, the Grieff

approach should apply. Applying that approach, Mother contends that, rather than being 

caused by the negligent control of gym mats (here the absence of gym mats), as the 

School suggested, Jarrett’s injuries were actually caused by a defective and dangerous 

condition of the property resulting directly from the School’s negligent failure to install 

safety mats on the gym wall, thus implicating the care, custody, and control of real 

property under Grieff. While the School maintains that it did not commit an “act” which 

led to Jarrett’s injuries, Mother counters that the School did act in designing and 

constructing the defective wall.

Alternatively, under the Blocker approach, Mother argues that summary judgment 

must be denied because questions of material fact exist with regard to whether gym mats 

are a fixture and, more specifically, as to: “(1) whether the necessary impact protection 
[J-9-2018] - 10

must be attached in such way that it cannot be removed without injuring the walls or floors, 

or the protective material itself, (2) if any proposed impact protection can possibly be 

removed after installation without damage, whether it nevertheless is intended to be part 

of the realty and (3) whether the wall is a dangerous condition of the property without any 

kind of the impact protection being affixed to it.” Appellee’s Brief at 17.

Lastly, Mother criticizes the School’s examples of the purported negative effects 

of applying the real property exception under the circumstances of this case, deeming 

them “absurd.” Id. Mother also attempts to analogize the real estate and sidewalk 

exceptions to governmental immunity, appearing to suggest that, because immunity does 

not apply where an injury is caused by a defectively designed or constructed sidewalk, it 

likewise should not apply where an injury is caused by defectively designed or 

constructed real estate.

As this issue involves the interpretation of a statute, we necessarily begin our 

analysis by considering the Statutory Construction Act. 1 Pa.C.S. §§ 1501 et seq. The 

objective of all interpretation and construction of statutes is to determine and effectuate 

the intention of the legislature. Id. at § 1921(a). The best indication of the General 

Assembly's intent is the plain language of the statute. Martin v. Department of 

Transportation, Bureau of Driver Licensing, 905 A.2d 438, 443 (Pa. 2006). When the 

words of a statute are clear and unambiguous, we may not look beyond the plain meaning 

of the statute “under the pretext of pursuing its spirit.” 1 Pa.C.S. § 1921(b). Consequently, 

only when the words of a statute are ambiguous should a court seek to ascertain the 

intent of the General Assembly through consideration of the various factors found in

Section 1921 of the Statutory Construction Act. 1 Pa.C.S. § 1921(c) (setting forth various 

considerations to be employed to discern the intent of the legislature); Bayada Nurses, 

Inc., v. Dept. of Labor and Industry, 8 A.3d 866, 880-81 (Pa. 2010). Finally, in interpreting 
[J-9-2018] - 11

the Act, exceptions to governmental immunity must be narrowly construed. Dorsey v. 

Redman, 96 A.3d 332, 341 (Pa. 2014).

Although the parties do not engage in a meaningful statutory construction analysis, 

the relevant language of the Act, set forth in full above, provides that a local agency, such 

as the School, shall be liable for injury to a person if (1) damages would be recoverable 

if the injury were caused by a person not having an available defense under governmental 

immunity generally, or official immunity; and (2) the injury was caused by the negligent 

acts of the local agency acting within the scope of its duties with respect to the care, 

custody, or control of real property in the possession of the local agency. 42 Pa.C.S. 

§ 8542.

As to the first requirement, damages are recoverable at common law for harm 

caused to invitees by conditions of a property if the possessor of the land knows, or has 

reason to know, of a latent unreasonable risk of harm that he should expect the guest not 

to discover or recognize, and if he fails to render that condition reasonably safe. Atkins 

v. Urban Redevelopment Authority of Pittsburgh, 414 A.2d 100, 103 (Pa. 1980) (adopting 

Restatement (Second) of Torts § 343).3

The second requirement is a negligent act by the local agency with respect to the 

care, custody, or control of real property. In Pennsylvania, the elements of negligence 

are: a duty to conform to a certain standard for the protection of others against 

unreasonable risks; the defendant’s failure to conform to that standard; a causal 

connection between the conduct and the resulting injury; and actual loss or damage to 

the plaintiff. R.W. v. Manzek, 888 A.2d 740, 746 (Pa. 2005). Related thereto, neither the 

 

3 The standard of care a possessor of land owes to one who enters upon the land depends 

upon whether the person entering is a trespasser, licensee, or invitee. Carrender v. 

Fitterer, 469 A.2d 120, 123 (Pa. 1983). While not necessary to further resolve in this 

matter, at a minimum, a student engaging in a gym class would be a public invitee.
[J-9-2018] - 12

terms of the Act, nor any reasonable construction of its real estate exception, requires an 

affirmative act on the part of the local agency. Rather, the claim may be predicated on 

either an affirmative act, or the failure to act, resulting in negligence in the care, custody, 

or control of the real property ― as the statute, by its express terms, defines the term 

“[a]ct,” as including “a failure to act.” 42 Pa.C.S. § 8501; accord Cagey v. Commonwealth, 

179 A.3d 458 (Pa. 2018).4 Furthermore, with respect to the care, custody, or control of 

real property, we point out that “care” connotes “[s]erious attention . . . the conduct 

demanded of a person in a given situation . . . and a person’s giving attention both to 

possible dangers, mistakes, and pitfalls and to ways of minimizing those risks.” Black’s 

Law Dictionary 225 (8th ed. 2004). See also Oxford Dictionary (defining “care” as “[t]he 

provision of what is necessary for the health, welfare, maintenance, and protection of 

someone or something . . . Serious attention or consideration applied to doing something 

correctly or to avoid damage or risk.”) available at

https://en.oxforddictionaries.com/definition/care. Finally, it is axiomatic that a concrete 

wall is not a chattel, but constitutes real property.

Applying these standards, the parties herein do not dispute that Mother’s damages 

are recoverable at the common law, satisfying the first requirement to find an exception

to immunity. As to the second requirement, Mother alleged in her Complaint, in part:

10. [Jarrett] was engaged in gym activities when he 

was caused to sustain injuries as a result of defective and 

dangerous condition of the premises caused directly by the 

actions/inactions of defendants (ie. [sic] gym without safety 

mats).

 

4 For this reason, the School’s reliance upon the lack of an allegation of an affirmative act 

by it, in connection with the care, custody, or control of real property, as being dispositive 

is plainly mistaken. See Appellants’ Reply Brief at 2-3 (“Neither the Complaint nor any 

other part of the record makes reference to Jarrett’s injuries being caused by an 

affirmative act involving the care, custody or control of real property. Because there is no 

affirmative act, the real property exception cannot apply.” (emphasis original)).
[J-9-2018] - 13

11. Defendants were negligent in maintaining the 

property that was within their care, custody and control[.]

Plaintiff’s Complaint at ¶ 10, 11. Further, in Count II, Mother pled:

23. [The School’s] negligence and carelessness 

consisted of the following:

(a) [The School] caused or permitted dangerous 

conditions to exist;

(b) [The School] failed to make reasonable inspection 

of the premises, which would have revealed the dangerous 

condition created by the [School];

(c) [The School] failed to give warning of the dangerous 

condition and failed to erect barricades or to take any other 

precautions to prevent injury to [Jarrett];

(d) [The School] failed to remove the defective

condition;

(e) [The School] failed to exercise reasonable 

prudence and due care to keep the gym in a safe condition for 

the plaintiff minor;

(f) [The School] violated the ordinance of Philadelphia 

County pertaining to maintenance of the premises; and 

(g) [The School] failed to conform to [its] own 

specifications and standards as to design and maintenance of 

the school gymnasium.

(h) [The School’s] negligence was a direct cause of 

injury to [Jarrett]

(i) [The School was] negligent in the care, custody and 

control of the premises.

(j) [The School was] negligent in failing to maintain the 

property in a safe condition.

(k) [The School] was otherwise negligent under the 

circumstances.

* * *

25. Solely as a result of the negligence of [the School], 

[Jarrett] was caused to suffer various permanent physical 

injuries, including, but not limited [to], concussion, postconcussion syndrome, traumatic brain injury, in addition to 

bumps, bruises, abrasions, and lacerations about the body 

which resulted in a permanent impairment.

Plaintiff’s Complaint at ¶ 10, 11, 23, 25. Finally, the parties do not dispute that the 

concrete wall into which Jarrett fell was real property in the possession of the School.
[J-9-2018] - 14

While we are cognizant that exceptions to governmental immunity must be 

narrowly construed, based upon the plain language of the Act and Mother’s pleadings as 

set forth above, we find that Mother’s allegations satisfy the real property exception. 

Mother has plainly pled that the negligent acts, including the failure to act, of the School

regarding the care, custody, and control of real property in the possession of the School

caused Jarrett’s injuries. Specifically, we find Mother pled negligence regarding the “care”

of the real property, as that term is commonly understood to include attention to possible 

dangers to minimize and reduce risk, through the assertion that the School negligently 

failed to apply padding to the concrete gym walls. Moreover, we agree that the unpadded 

concrete wall which caused Jarrett’s injuries constituted real property in the School’s 

possession. In coming to this conclusion, we find the real property exception, by its 

express definitional terms, includes a failure to provide safety features in situations where 

such a duty otherwise exists. Indeed, our case law confirms that acts of a local agency 

which render a property unsafe for “the activities for which it is regularly used, for which 

it is intended to be used, or for which it may reasonably be foreseen to be used, are acts 

which make the local agency amenable to suit.” Mascaro v. Youth Study Center, 523 

A.2d 1118, 1124 (Pa. 1987).

Accordingly, because Jarrett’s damages would have been recoverable at common 

law absent the protections of governmental immunity, and as Mother has sufficiently 

alleged that a local agency negligently failed to act regarding the care, custody, or control 

of real property in the agency’s possession, we hold that, in these circumstances, 

governmental immunity does not apply and the School may be held liable for Jarrett’s 

damages caused by the alleged negligent failure to affix mats to the gym walls. Cf. Grieff, 

693 A.2d at 197 (“Here, [defendant’s] care of the [defendant Fire Association's] property 

caused the fire that injured [plaintiff]. While he was removing paint from the floor, therein 
[J-9-2018] - 15

caring for the real property, it ignited causing the resultant injuries to [plaintiff]. Under the 

real property exception's plain language, [defendants] are not immune from suit.”).

In so concluding, we reject the School’s assertion that the mats constituted 

personal property, and, thus, are outside of the real property exception to immunity. 

Rather, we find that the unpadded wall directly caused Jarrett’s injuries, and that the wall 

constitutes real property. Therefore, we agree with the Commonwealth Court’s analysis 

of Singer and Rieger. The court held in Singer that the real property exception applied 

because, although the mat which could have prevented the gymnast’s injury was 

personalty, the unprotected hardwood floor which caused the student’s injury was not, 

thus falling within the real property exception. Conversely, in Rieger, rendered 15 years 

later, the court found that Singer was implicitly overruled by our Court’s decision in 

Blocker. However, as noted by the Commonwealth Court in this matter, Rieger incorrectly 

focused its analysis on the nature of the chattel that could have been used to protect 

students ― mats on the hardwood floor ― rather than the cause of the plaintiff’s injury —

the hardwood floor ― which was real property. In reaching its conclusion below, the court 

stressed that, contrary to its prior holding in Rieger, the analysis of whether the real 

property exception applies centers on the cause of the injury, rather than the nature of 

the remedy that should have been provided.

We agree. Our decision in Blocker focused solely on the collapsed bleachers,

which caused the plaintiff’s injury; as chattel that was not affixed to realty, it constituted

personalty which did not fall within the real property exception. The chattel in Blocker

was the cause of the injury. Here, it was the wall, which is not chattel, but real property, 

that caused Jarrett’s injuries. Thus, we find the instant matter, unlike the situation in 

Blocker, comfortably fits within the real property exception. Accordingly, we reaffirm our 

decision in Blocker to the extent it holds personalty alone may not serve as the basis to 
[J-9-2018] - 16

trigger the real property exception to governmental immunity, and we disapprove Rieger

as inconsistent with our decision today.

Finally, as suggested by Justice Wecht in his concurring opinion in Cagey, our 

approach will not “open the proverbial floodgates to unbounded [local agency] liability,” 

as applying this exception to immunity is no guarantee of recovery: a plaintiff must plead 

and prove negligence to obtain relief. Cagey, 179 A.3d at 474 (Wecht, J., concurring). 

Indeed, we take comfort in the express limitation in the standard we apply: it is only the 

acts, or failure to act, which make the property unsafe for “the activities for which it is 

regularly used, for which it is intended to be used, or for which it may reasonably be 

foreseen to be used,” which subject the local agency to suit. Mascaro, 523 A.2d at 1124.

Having found that Mother’s allegations fit within the Act’s real property exception, 

we conclude that the School is not immune from suit. Accordingly, we affirm the decision 

of the Commonwealth Court in this regard, which concluded the trial court erred in

granting the School’s motion for summary judgment.

The School, however, also claims that it is entitled to governmental immunity 

because Jarrett’s injuries occurred as a result of the gym teacher’s negligent supervision 

of his students rather than because of the wall itself, and offers that the real estate 

exception has consistently been found inapplicable in cases where the negligence claim 

involves the failure to supervise the conduct of students or other persons adequately. See 

Mascaro, 523 A.2d at 1124 (citing cases). Specifically, the School points to Wilson v. 

Norristown Area School District, 783 A.2d 871 (Pa. Cmwlth. 2001), which it claims is 

analogous to this matter. In Wilson, a field hockey coach directed his players to run 

interior staircases through the building, resulting in a player sustaining injuries when she 

fell down the stairs. The Commonwealth Court found plaintiff’s claim did not fall within 

the real property exception, as the injury did not occur as a result of an unsafe condition 
[J-9-2018] - 17

of the step, but, rather, due to the coach’s negligent supervision of the team practice. 

According to the School, Wilson is on point with the matter sub judice, as Jarrett’s injuries 

occurred as a result of the gym teacher’s negligent supervision of the students, in directing 

them to run towards a concrete wall, rather than because of the wall itself. While Mother

did not raise a claim of negligent supervision, the School explains that the report of 

Mother’s expert made no allegation or finding that there was any intrinsic defect in the 

wall, and that statements in the report were consistent with a finding of negligent 

supervision, noting the report stated that “[t]he combination of close proximity from the 

finish line of the race and the concrete wall created an inadequate buffer zone in which 

[Jarrett] had to stop.” Appellants’ Brief at 31 (quoting Mother’s Expert’s Report). The 

School also emphasizes that Jarrett himself testified that his injury occurred because he 

was running too fast and tripped and fell. Id. at n.7 (quoting Jarrett’s deposition 

testimony). In light of the foregoing, the School asserts that the Commonwealth Court 

should have viewed Mother’s claim as one of negligent supervision and, thus, found that 

it was immune from suit due to that negligence.

Mother responds, emphasizing, as noted above, that she did not raise a claim of 

negligent supervision. She further notes that the Wilson case upon which the School

relies is not binding on this Court and adds that it is distinguishable in any event, as the 

plaintiff in Wilson never alleged that her injuries were caused by a defect in real property, 

as here.

Again, we begin our analysis, as we must, with the language of the Act. 

Specifically, the Act permits an exception to governmental immunity if, inter alia, “[t]he 

injury was caused by the negligent acts of the local agency or an employee thereof acting 

within the scope of his office or duties with respect to one of the categories listed in 

subsection . . . (3) Real property.--The care, custody or control of real property in the 
[J-9-2018] - 18

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.” 42 Pa.C.S. § 8542 (emphasis added).

Nothing in the plain language of the Act suggests that a de facto or de jure

assertion of negligent supervision bars application of the real property exception. Indeed, 

by the express terms of the statute, the only bar to invoking the real property exception is 

where the injury is sustained by a person intentionally trespassing on the real property of 

the local agency. Thus, considering the express terms of the Act, we view a claim of 

negligent supervision to be distinct and independent of one regarding negligence 

concerning real property. While a bare claim of negligent supervision might not pass 

through the narrow gate of the Act’s real property exception, as discussed below, such a 

claim does not act to bar an independent claim of the negligent care, custody, or control 

of real property on the part of the local agency.

This is especially true here, as the School provides us with no support for its 

position that Mother’s claim is properly construed as one for negligent supervision. 

Mother does not expressly plead, or plead by inference, a cause of action for negligent 

supervision, and, on the contrary, the allegations contained in the complaint all point to 

the negligent care of the real property as the cause of Jarrett’s injuries. See, e.g.,

Plaintiff’s Complaint at ¶ 10 (“[Jarrett was] caused to sustain injuries as a result of a 

defective and dangerous condition of the premises caused directly by the 

actions/inactions of defendants (ie. [sic] gym without safety mats”); id. at ¶ 11 

(“Defendants were negligent in maintaining the property that was within their care”); id. at 

¶ 23 (offering various allegations regarding condition of real property).

Furthermore, the cases cited by the School address situations in which the 

property at issue merely facilitates injury caused by the acts of others, which are outside 
[J-9-2018] - 19

of the Act’s scope of liability. See, e.g., Snyder v. Harmon, 562 A.2d 307, 312 (Pa. 1989) 

(rejecting liability for PennDot’s failing to warn public of pit and mining activities on 

adjacent property into which plaintiff jumped to avoid being hit by automobile). Nor does 

our decision in Mascaro provide the School relief. In Mascaro, a detainee in a detention 

center for juvenile criminal offenders escaped, and then, while burglarizing plaintiffs’

home, the escapee raped the plaintiffs therein. The Court reasoned that the acts of 

others, rather than the acts of the local agency or its employees, are excluded from the 

general immunity section, noting that, “[o]n this basis alone, we must conclude that any 

harm that others cause may not be imputed to the local agency or its employees.” 

Mascaro, 523 A.2d at 1124. The Mascaro Court continued that the real estate exception 

has “consistently been held to be unavailable to those whose claim of negligence consists 

of a failure to supervise the conduct of students or persons adequately.” Id. Based upon 

this tenet, the Court held that the real estate exception may be applied only where it is 

alleged that “the artificial condition or defect of the land itself causes the injury, not merely 

when it facilitates the injury by the acts of others, whose acts are outside the statute’s 

scope of liability.” Id. (emphasis original).

Indeed, the cases cited by the Mascaro Court all involve allegations of acts of third 

parties and negligent conduct by supervisors, and not allegations of negligence regarding 

the condition of the real estate itself. See Davies v. Barnes, 503 A.2d 93 (Pa. Cmwlth. 

1986) (student killed while joy riding with another student off school property after bringing 

automobile to school solely raising claims of negligent supervision); Messina v. BlairsvilleSaltsburg School District, 503 A.2d 89 (Pa. Cmwlth. 1986 ) (cheerleader injured during 

practice in school yard raising claim of lack of supervision, not negligence regarding 

property); Johnson v. City of Philadelphia, 500 A.2d 520 (Pa. Cmwlth. 1985) (where 

intruders assaulted basketball player at city facility, allegations of failure to provide safe 
[J-9-2018] - 20

conditions, including trained security personnel); Acker v. Spangler, 500 A.2d 206 (Pa. 

Cmwlth. 1985) (failure to supervise claim, and not real property defect, when table pulled 

out from under plaintiff); Usher v. Upper St. Clair School District, 487 A.2d 1022 (Pa. 

Cmwlth. 1985) (chemistry experiment accident involved allegations of teacher failing to 

control area of experiment, not control of real estate); Robson v. Penn Hills School 

District, 437 A.2d 1273 (Pa. Cmwlth. 1981) (claim of negligent supervision where student 

hit in eye by fellow student throwing pencil after teacher left classroom); Wimbish v. 

School District of Penn Hills, 430 A.2d 710 (Pa. Cmwlth. 1981) (claim involved failure to 

train staff to give prompt medical attention, not defect of real property).5 Finally, to the 

extent there is any ambiguity regarding the breadth of Mascaro, we clarified its import in 

our later decision in Grieff, where we explained that “[w]e intended Mascaro and its 

progeny to apply in similar cases where third parties cause the harm.” Grieff, 693 A.2d 

at 197 (citing Crowell v. City of Philadelphia, 613 A.2d 1178 (Pa. 1992)) (emphasis 

added).

Accordingly, our decision in Mascaro, and the cases relied upon therein, are plainly 

distinguishable from the situation sub judice, where the School’s unprotected concrete 

gym wall directly caused the alleged injury, and its condition did not merely facilitate an 

injury caused by the act of others (i.e., third parties). Again, Mother plainly alleges that 

the School’s negligent care of the real property caused Jarrett’s injuries. As such, we 

hold that, not only did Mother not raise a claim of negligent supervision in her complaint, 

but that, even if she did, raising such a claim does not bar application of the real property 

exception to an independent claim directed to the negligent care of real property.

 

5 Furthermore, although it is the focal point of much of the parties’ advocacy, we believe 

that the Commonwealth Court’s decision in Wilson, supra ― in which there was no 

indication that plaintiffs proffered a claim expressly asserting negligent care of the stairs 

on which the field hockey player fell, but, rather, focused on the negligent supervision of 

the players ― falls comfortably in the case law set forth above.
[J-9-2018] - 21

In conclusion, we hold that, pursuant to the plain language of the Act, a claim that 

a local agency failed to pad a gym wall constitutes an assertion of an act of negligence 

by a local agency concerning the care, custody, and control of real property, and, thus, 

falls under the real property exception to governmental immunity. Additionally, we find 

that Mother did not raise a claim of negligent supervision, but, regardless, we conclude 

raising such a claim does not act as a bar to application of the real property exception to 

independent allegations that go directly to the negligent care of real property resulting in

injury. The order of the Commonwealth Court is affirmed.

Chief Justice Saylor and Justices Baer, Donohue, Dougherty and Mundy join the 

opinion.

Justice Wecht files a concurring opinion.