J. Faucon v. Parkland Area School District

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Jamie A. Faucon, as Parent and :

Natural Guardian, Callie Faucon, :

A Minor, Jamie A. Faucon, in her own :

right, :

Appellants :

:

v. : No. 1349 C.D. 2024

:

Parkland Area School District : Submitted: September 9, 2025

BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE LORI A. DUMAS, Judge

HONORABLE MARY HANNAH LEAVITT, Senior Judge

OPINION

BY JUDGE McCULLOUGH FILED: October 21, 2025

Jamie A. Faucon, as parent and natural guardian of Callie Faucon, a minor

(Student), and in her own right (together, Appellant), appeals from the September 11,

2024 order of the Court of Common Pleas of Lehigh County (trial court), which

sustained Parkland School District’s (School District) preliminary objections in the

nature of demurrers and dismissed Appellant’s third amended complaint with

prejudice. Upon review, we affirm.

I. Factual and Procedural Background

Appellant filed the operative third amended complaint against the School

District on June 13, 2024. The third amended complaint includes a single cause of

action for negligence. Appellant alleges that on March 14, 2023, Student was injured

in gym class while in the weight room of Parkland Area High School. Specifically,

Appellant avers that Student saw a weight leaning against a wall, approached it, and

then it allegedly “suddenly and without warning” fell on her foot. (Third Amended

Complaint, ¶¶ 5-7.) Appellant avers that Student suffered a transverse fracture of her

first metatarsal on her left foot, swelling, pain and suffering. Id., ¶ 8. She further

claims that because of the “negligent design and construction” of the weight room,

Student “had unfettered access to all of the equipment.” Id., ¶ 11. Appellant contends

that had the weight room been designed in a manner that did not allow unfettered access

to the weight equipment, Student would not have been injured. Id., ¶ 12. Appellant

alleges that the School District’s negligence and carelessness consisted of the

following:

a. Designing the weight room in such a manner that allowed

minor children to have unrestricted access to the room’s

equipment;

b. Designing the weight room in a manner that makes it more

likely that a child would be injured than feasible alternatives,

including but not limited to:

i. Requiring keycard access to the weight room;

ii. Providing designated areas specifically for

trained and untrained students; and

iii. Providing storage space such that dangerous

equipment would be out of the reach of

untrained students.

c. Failing to design the premises in a manner that would

prevent minor children from being injured;

d. Constructing the weight room in such a manner that

allowed minor children to have unrestricted access to the

room’s equipment;

2

e. Constructing the weight room in a manner that makes it

more likely that a child would be injured than feasible

alternatives;

f. Failing to construct the premises in a manner that would

prevent minor children from being injured;

g. Failing to warn individuals that the design of the premises

made it more likely that an individual would be injured; and

h. Failing to remedy the defective condition of the premises

such that individuals would not be likely to be injured.

(Third Amended Complaint, ¶ 19.)

Appellant further alleges:

14. It was further foreseeable that users of the weight room

would not properly store or restore the weights and

equipment, as it is common in weight rooms that weights and

equipment are not properly stored or restored.

15. Given that it was both foreseeable that weights and

equipment would be left in areas where they were not secured

or properly stored, and that it was foreseeable that weights

and equipment would be stored and stacked in a manner that

would result in them falling suddenly and without warning,

it was also foreseeable that the design of the weight room,

providing unfettered access to students such as [Student],

made the falling of weights on [Student] likely.

16. Therefore, the design of the weight room was the direct

and proximate cause of [Student’s] injuries.

Id., ¶¶ 14-16.

On June 28, 2023, the School District filed preliminary objections to the

third amended complaint, demurring on the grounds that Appellant failed to state a

negligence claim under the real property exception to governmental immunity under

the Political Subdivision Tort Claims Act (Tort Claims Act), 42 Pa.C.S. § 8542(b)(3).

3

On September 11, 2024, the trial court sustained the School District’s

preliminary objections and dismissed the third amended complaint with prejudice. The

trial court explained:

[Appellant] posits that this unfettered access caused a foot

injury to [Student], by giving students the ability to freely

enter into the room where the weights were stored. As a

matter of law, however, those allegations fail to allege

negligence sufficient to fall within the real property

exception to governmental immunity under the [Tort Claims

Act]. To fall within the real property exception, “the injured

party must show that (a) the injury resulted from a dangerous

condition that (b) stemmed from the care, custody or control

of real property, not personalty.” Brewington v. City of

Philadelphia, 149 A.3d 901 (Pa. [Cmwlth.] 2016) (citations

omitted). As alleged, [Student] was attending her regularly

scheduled gym class and was able to access the weight room

during this time. There is no basis to conclude that the

[S]chool [D]istrict real property was unsafe for its intended

and regular use as a weight room. At best, access to the

weight room may have facilitated the injury, however,

[Student’s] foot injury was caused when a loose weight,

leaning against a wall, fell on her left foot, not by an unsafe

or dangerous condition of the real property. See, Moon v.

Dauphin County, 129 A.3d 16 (Pa. [Cmwlth.] 2015)(the real

property exception to governmental immunity may not apply

where a dangerous condition of the real property merely

facilitates an injury). Having unfettered access to places

within the school, especially during a regularly scheduled

gym class, without more, is insufficient to establish a defect

in the design or construction of real property. Any further

amendment would prove futile. The third amended

complaint is dismissed with prejudice.

(Trial ct. order., 9/11/24, at 1 n.1.)

4

On appeal,1 Appellant contends that the trial court committed an error of

law in concluding her claim did not fall within the real property exception to

governmental immunity. Specifically, she asserts that the trial court erred in

concluding that her allegations that the weight room was defectively designed in such

a manner that students could have “unfettered access” to the weights are insufficient to

establish a defect in the design or construction of real property.

II. Analysis

Local government agencies are generally immune from tort liability under

the Tort Claims Act. Wells v. Harrisburg School District, 884 A.2d 946 (Pa. Cmwlth.

2005) (finding school districts are local government agencies for purposes of 42

Pa.C.S. § 8541-42 immunity provisions). There are limited exceptions to such

immunity and an injured party may recover in tort from a local governmental agency

if:

(1) damages would be otherwise recoverable under common

law or statute; (2) the injury was caused by the negligent act

of the local agency or an employee acting within the scope

of his official duties; and (3) the negligent act of the local

agency falls within one of eight enumerated categories.

Wells, 884 A.2d at 948 (citing 42 Pa.C.S. § 8542). Section 8542(b)(3) provides an

exception to immunity for 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

1

In reviewing a trial court’s order sustaining or overruling preliminary objections, our “review

is limited to determining whether that court committed an error of law or abused its discretion.” East

Lampeter Township v. County of Lancaster, 696 A.2d 884, 886 (Pa. Cmwlth. 1997). To sustain

preliminary objections, “it must appear with certainty that the law will not permit recovery and, where

any doubt exists as to whether the preliminary objections should be sustained, that doubt should be

resolved by a refusal to sustain them.” Peerless Publications, Inc. v. County of Montgomery, 656

A.2d 547, 550 (Pa. Cmwlth. 1995).

5

real property in the possession of the local agency.” 42 Pa.C.S. § 8542(b)(3). To

recover under the real property exception, Pennsylvania courts have required a plaintiff

to “show that (a) the injury resulted from a dangerous condition that (b) stemmed from

the care, custody[,] or control of real property, not personalty.” Brewington, 149 A.3d

at 905. “Whether chattel is personalty or a fixture is a question of law for the court to

decide.” Id. at 908.

There are two approaches that can be used to determine whether to apply

the real estate exception to immunity under the Tort Claims Act.

A. The Grieff Approach – When Injury is Caused by Care, Custody or

Control of the Real Property Itself

Under Grieff v. Reisinger, 693 A.2d 195, 197 (Pa. 1997), (i.e., the “Grief

approach”), the determinative inquiry is whether the injury is caused by the care,

custody, or control of the real property itself. In Grieff, the fire chief poured paint

thinner onto the floor to remove paint from the floor. Id. at 196. The paint thinner

spread across the floor and caught fire under a refrigerator, causing severe injuries to a

bystander. Id. The Supreme Court explained that the fire chief’s alleged negligence

was in the paint removal, and paint removal clearly fell within the exception’s language

of the care of the property. Id. at 197. The Supreme Court held, therefore, that the real

property exception applied, and the chief and fire association were not immune. Id.

In Brewington, a school was conducting relay races during gym class

inside an elementary school gymnasium that had concrete walls, but did not provide

any mats or padding on the wall to prevent or minimize injury. 149 A.3d at 903. The

plaintiff, a 9-year-old student, was running too fast, could not stop, lost his footing, and

tripped and fell into the concrete wall. Id. The trial court dismissed the claim, finding

that the injury was caused by personalty, not real property; this Court reversed. We

found that “the design and layout of the gym and the construction of its walls were . . .

6

unsafe for its intended and regular use as a gymnasium; the unprotected cement wall

posed a danger to students who used it regularly for gym class; and that dangerous

condition was the cause of [the plaintiff’s] injury.” Id. at 910 (internal citations

omitted).

The Pennsylvania Supreme Court affirmed our decision in Brewington v.

City of Philadelphia, 199 A.3d 348 (Pa. 2018), finding that “the lack of padding of a

gym wall may constitute negligence in the care, custody, and control of real property,

and, thus, falls within the [Tort Claims Act’s] real property exception.” Id. at 350. The

Supreme Court held that “the real estate exception, by its express definitional terms,

includes a failure to provide safety features in situations where such a duty otherwise

exists,” “the unpadded wall directly caused [the plaintiff's] injuries, and that the wall

constitutes real property.” Id. at 357.

Similarly, in Bradley v. Franklin County Prison, 674 A.2d 363 (Pa.

Cmwlth. 1996), an inmate of the Franklin County Prison slipped and fell on wet tile

while drying off in the prison showers. The inmate commenced an action against a

prison, alleging it was negligent in installing a tile floor without a non-slip surface.

This Court considered that the prison “provided the shower facilities where running

water was a necessary and inextricable part of the design . . . .” Bradley, 674 A.2d at

366. The prison constructed the shower and area in which prisoners dried off,

“knowing and intending that water would necessarily accumulate on the floor where

bare feet must tread.” Id. Ultimately, the inmate’s allegation that his injury was caused

by the defective design, construction, or condition of the shower floor, which was

devoid of a non-slip surface, fell within the real property exception to governmental

immunity.

7

B. The Blocker Approach – When Injury is Caused by Personalty,

which is not Attached to the Real Estate, or by a Fixture, which is

Attached

Under Blocker v. City of Philadelphia, 763 A.2d 373 (Pa. 2000) (i.e., the

“Blocker approach”), the determinative inquiry is whether the injury is caused by

personalty, which is not attached to the real estate, or by a fixture, which is attached.

In Blocker, a concert patron brought an action against the City of Philadelphia alleging

that she was injured when a bleacher on which she was sitting collapsed. The plaintiff

argued that the bleacher constituted a “fixture” of real property. The Supreme Court

disagreed that the bleacher was a fixture because it was not physically affixed to the

realty. Instead, it held that the bleacher was personalty, and that, even if negligently

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

In Repko v. Chichester School District, 904 A.2d 1036 (Pa. Cmwlth.

2006), appeal denied, 923 A.2d 1175 (Pa. 2007), a student was injured while retrieving

a basketball during gym class at school, when a folding table, previously leaning on its

side against the bleachers, fell over and struck her. The trial court followed Grieff in

rejecting the school district’s assertion that the real property exception did not apply

and that it was immune from liability. On appeal, this Court reversed the trial court,

stating the following, in pertinent part:

Contrary to the trial court’s interpretation of Grieff that the

government entity was not immune because “the care of the

personalty caused a dangerous condition to occur on the real

property,” the actual holding in Grieff clearly stated that there

was no immunity due to the negligent care of the real

property—[i.e.], the floor—when paint thinner was poured

on the floor, which ignited and caused severe injuries.

Similarly, the holding in Hanna [v. West Shore School

District, 717 A.2d 626 (Pa. Cmwlth. 1998),] was based on

the injuries suffered from improperly caring for the real

property, i.e., the floor. Here, although [the plaintiff] frames

8

the issue in terms of the negligent care of the gymnasium,

which is real property, in fact, [the plaintiff] was injured by

a table that fell on her in the gymnasium. Thus, the facts in

this case are very similar to the facts in Blocker and its

progeny, which have held that the real property exception to

immunity does not apply where a person is injured by the

negligent maintenance of personalty.

Like the plaintiffs in Canon-McMillan III [School District v.

Bioni, 561 A.2d 853 (Pa. Cmwlth. 1989)], Rieger [v. Altoona

Area School District, 768 A.2d 912 (Pa. Cmwlth. 2001),] and

Blocker, [the plaintiff] was injured by an item of personalty,

and not real property. Therefore, consistent with those

opinions, we will apply the Blocker approach, and find that

the [s]chool was immune under [Section 8542 of the Judicial

Code]. To hold, as the trial court did, that an item of

personalty which injures someone on real property is within

the care, custody and control exception to immunity, would

bring almost any injury on school district property within the

real property exception to immunity. Such a holding would

defeat the purpose of immunity under the [Judicial Code],

which must be strictly construed to further the legislature’s

intent to provide immunity. Finn [v. City of Philadelphia, . .

. 664 A.2d 1342, 1344 (1995)].

Repko, 904 A.2d at 1042-43 (emphasis in original and footnote omitted). See also the

following cases which found in favor of immunity: Kniaz v. Benton Borough, 642 A.2d

551 (Pa. Cmwlth. 1994) (injury resulted when picnic table overturned); Wilson v.

Ridgway Area School District, 596 A.2d 1166 (Pa. Cmwlth. 1991) (injury related to

use of a table saw); DeRitis v. City of Philadelphia, 582 A.2d 738 (Pa. Cmwlth. 1990)

(injury caused by unsafe condition of bleacher); Canon-McMillian School District

(injury caused by malfunction of a wood lathe not attached to real property); Malone

v. City of Philadelphia, 535 A.2d 209 (Pa. Cmwlth. 1987) (injury caused by unsafe

condition of scaffolding).

9

Here, Appellant alleges that “unfettered” access to the weight room

amounts to a design flaw because it is foreseeable that a weight would be stored

improperly. Despite Appellant’s attempt to couch the cause of Student’s injury as a

problem with the care, custody, or control of the weight room, Student was not injured

as a result of the negligently constructed or designed weight room. Rather, she was

injured by an item of personalty, a weight, that fell on her foot in the weight room.

As a result, Blocker and Repko control the disposition of the instant preliminary

objections. Under these cases, if the injury is caused by personalty that is merely on

the real property, the political subdivision remains immune. As we observed in Repko,

“[t]o hold, as the trial court did, that an item of personalty which injures someone on

real property is within the care, custody and control exception to immunity, would

bring almost any injury on school district property within the real property exception

to immunity.” 904 A.2d at 1042-43.

Appellant’s claim would fail under the Grieff approach in any event

because “unfettered access” to a weight room does not constitute a condition of real

property but instead, relates to one’s ability to access property at any given moment.

To conclude that no waiver exists in this situation, would result in the assumption that

the design of all rooms in a high school filled with heavy objects with unlocked doors

are per se defective.

10

III. Conclusion

Because the real property exception applies only to real property,

Student’s injury from the weight leaning against the wall in the high school’s weight

room does not fall within the exception. The School District, therefore, is immune

under the Tort Claims Act. The order of the trial court is affirmed.

________________________________

PATRICIA A. McCULLOUGH, Judge

11

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Jamie A. Faucon, as Parent and :

Natural Guardian, Callie Faucon, :

Minor, Jamie A. Faucon, in her own :

right, :

Appellants :

:

v. : No. 1349 C.D. 2024

:

Parkland Area School District :

ORDER

AND NOW, this 21st day of October, 2025, the September 11, 2024

order of the Court of Common Pleas of Lehigh County is hereby AFFIRMED.

________________________________

PATRICIA A. McCULLOUGH, Judge