Determining Whether Something Is A Part Of Realty Or Personalty For Purposes Of Liability Under The Pennsylvania Subdivision Tort Claims Act
By: Steven M. Liero, Esquire
When an action is brought against a political subdivision, such as a school district or a municipality, a question arise whether the claim falls within an exception to the immunity enjoyed by the subdivision.
Most often claims are brought pursuant to the real estate exception contained in 42 Pa. C.S.A. § 8542(b)(c). To invoke this section, the plaintiff must show that a) the injury resulted from a defective condition that b) stemmed from the care, custody or control of real estate, not personalty. Mellon v. City of Pittsburgh Zoo, 768 A.2d 921 (Pa. Cmwlth 2000). The question becomes more complicated when the real estate contains not only a building or grounds around the building, but a device attached to the building. As an example, a question arises whether a metal cleat, attached to a gym wall in a school on which a person is injured is part of the realty itself or simply an item of personalty. If the latter, the plaintiff’s injury would not fall within the real estate exception to immunity and that person could not recover for pain and suffering.
Whether an item, such as the metal cleat, is personalty or realty is a legal question for the Court. Bioni v. Canon-McMillan School District, 521 Pa. 299, 555 A.2d. 901 (Pa. 1989). In other words, it is up to the Court to decide whether a particular instrument, based upon the evidence, is part of the realty or not. If the Court decides that the metal cleat was part of the realty, the question whether it created a dangerous condition is a question for the jury to resolve.
Chattels, or personalty, used in connection with real estate are of three classes: First, those that are manifestly furniture, as distinguished from improvements not particularly fitted to the property with which they are used; these always remain personalty. Second, those which are so annexed to the property that they cannot be removed without material injury to the real estate or to themselves; these are realty, even in the face of an expressed intent that they should be considered personalty. Third, those which, although physically connected to the real estate, are so affixed as to be removable without destroying or materially injuring the chattel themselves or the property to which they are annexed; those become part of the realty or remain personalty depending upon the intent of the parties at the time of the annexation; in that class fall such chattels as boilers and machinery affixed for the use of an owner or a tenant but readily removable.
In our example, if the metal bar is removed after an incident and the removal does not cause any damage to the wall, the metal bar could fall within the class of personalty. However, to fall within that class, there must be evidence of the intent of the school district at the time the bar was put up. If it was intended to be permanent at the time, then it will be considered realty. If it was intended to be put up but moved on occasion, it will be part of personalty and therefore not actionable in a case of personal injury.
Again, using the same example, a plaintiff could argue that the absence of some type of cover over the middle cleat created a dangerous condition stemming from the care, custody or control of real property. At least one case seems to indicate that that argument may not be available to a plaintiff. In Reiger v. Altoona Area School District, 768 A.2d. 912 (Pa. Cmwlth 2001), a cheerleader sought damages against the school district after she fell on the gym floor during a stunt. The cheerleader argued that the School was negligent in its care, custody and control of the gym by not placing mats on the floor. In support of her argument, she relied on Singer v. School District of Philadelphia, 513 A.2d. 1108 (Pa. Cmwlth 1986), in which the Court held that matting, as a necessary element of a gym’s hardwood floor when it is used a gymnastics stunt area, constitutes an aspect of the School’s care, custody and control of its real estate subject to the real estate exception. The Reiger Court, however, relying on a subsequent Supreme Court case stated, “The Singer holding is no longer viable following Blocker”. The record evidence establishes that the gymnasium mats in question were in no way affixed to the real property and as such, constitutes personalty. Therefore, even assuming that failure to provide mats in the cheerleading practice area amounted to a negligent act, such negligent act would not fall within the real estate exception to the Act.
This analysis could apply to a contention that covers should have been applied to the metal bar to keep people from striking it. Since the cover would not be part of the realty, according to this holding, even though it would be a protection against injury, it would not fall within the care, custody and control of real property.
Thus, when analyzing questions such as this, evidence must be developed about the uses by a particular item, whether they have been moved occasionally or their removal creates damage to the real estate, and the intent of the owner at the time of fixation. When these issues are clarified, there is a basis for arguing whether plaintiff has brought himself/herself within the real estate exception to immunity.