Later courts went against this
Disagreed with by Ludwin v. Port Authority Transit Corp., 102 Pa. Commw. 36 (1986)
In reaching our conclusion, we reject the reasoning of this Court in Johnson v. Southeastern Pennsylvania Transportation Authority, 91 Pa. Commonwealth Ct. 587, 498 A.2d 22 (1985) that only a cause of action under Section 344 of the Restatement (Second) of Torts (1965) need be proved in order that a plaintiff may maintain a cause of action against a governmental subdivision for a third-party criminal attack.
The opinion
Dissenting Opinion by
Judge Craig:
The order of the Court of Common Pleas of Philadelphia County granting a motion for judgment in favor of the City of Philadelphia should be affirmed because the claim by Esther and William Johnson, appellants, was barred by governmental immunity conferred upon the city by the Political iSubdivision Tort Claims Act, Act of November 26,1978, P.L. 1399, §§201, 202, as amended, formerly 53 P.S. §§5311.201, 5311.202, repealed by Act of October 5, 1980, P.L. 693, §333.
*594 Section 202(b)(3) of that former statute, applicable to the 1980 facts here, provided an exception to governmental immunity with respect to the “care, custody or control of real property.” However, the complaint in this case contained no averments concerning any physical dealings of the city with respect to the real property. Essentially, all of the averments with respect to liability related to the city’s failure to control criminal activity on real property in the city’s possession. Such a failure of control does not come within the real property exception any more than a school district’s alleged failure properly to control the conduct of a ballgame on a school playing field. Lewis v. Hatboro-Horsham School District, 77 Pa. Commonwealth Ct. 287, 465 A.2d 1090 (1983); Wimbish v. School District of Penn Hills, 59 Pa. Commonwealth Ct. 620 , 430 A.2d 710 (1981).
Our decision in Mascaro v. Youth Study Center, 89 Pa. Commonwealth Ct. 388 , 492 A.2d 786 (1985), is distinguishable because application of the real property exception in that case rested upon averments in the complaint that neglect and disrepair of the physical facilities of the institution had contributed to the escape ¡of the inmate who injured the plaintiffs.
This case, however, really involves the city’s control of criminals, not the city’s control of real property.
In effect, the majority approach would invoke the real property exception to municipal immunity whenever a complaint avers that municipal fault was involved, and that, the injury ¡simply occurred on municipal premises. However, where statutory immunity is applicable, it applies despite municipal fault. Because claims against municipalities very commonly arise from occurrences upon municipal premises, the majority approach here diminishes greatly the immunity sought to be conferred by the law.