Merritt v. Board of Education

Dissenting Opinion by

President Judge Crumlish, Jr.:

The majority, in affirming the grant of the School Districts motion for judgment on the pleadings, relies *185principally on our holding in Vann v. Board of Education, School District of Philadelphia, 76 Pa. Commonwealth Ct. 604, 464 A.2d 684 (1983). Vann held that the real property exception to governmental immunity only imposes liability “for 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.” Id. at 607-08, 464 A.2d at 686. The majority finds this case indistinguishable from Vann, concluding that the violent act here was not a reasonably foreseeable use of school property.

This is where I disagree. Unlike Vann, this is not a random act of violence on school property. West Philadelphia High School officials and security knew of the assailants presence in the neighborhood and had made several unsuccessful attempts to prevent him from entering into and loitering about the school. Bernita Merritt was attending an early morning breakfast program for disadvantaged students sponsored specifically by the Board of Education. The area was clearly in the school authorities’ control and the assailant was a known unauthorized and dangerous person. In my judgment, any student, particularly an emotionally disadvantaged person, would be a foreseeable victim of personal attack. The knowledge of the assailant’s presence makes this scenario clearly foreseeable.

I would reverse the common pleas court order granting the school district’s motion for judgment on the pleadings.