# Walsh v. City of Philadelphia

> Supreme Court of Pennsylvania · January 9, 1991 · 526 Pa. 227

URL: https://www.frixlaw.com/law-library/cases/9638597

## Case

- **Full name:** Thomas WALSH, Jr., Appellant, v. CITY OF PHILADELPHIA, Appellee
- **Court:** Supreme Court of Pennsylvania
- **Decided:** January 9, 1991
- **Citations:** 526 Pa. 227; 585 A.2d 445; 1991 Pa. LEXIS 6
- **Precedential status:** Published
- **Opinion:** Dissent by McDERMOTT
- **Judges:** Cappy, Flaherty, Larsen, McDERMOTT, McDermott, Nix, Papadakos, Zappala
- **Cited by:** 57 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9638597

## How later opinions describe it (automated extraction)

- holding plaintiff could recover under recreational use statute where injury occurred on city's basketball court
- holding that Act does not apply to inner-city playground

## Opinion text

McDERMOTT, Justice,
dissenting.
I dissent from the opinion of the majority for several reasons. The first reason concerns the statement contained in footnote 3, which recites that the appellee, City of Philadelphia, waived the defense of immunity under the Political Subdivision Tort Claims Act, 42 Pa.C.S.A. § 8542. Recently in In re Tax Claim Unit of Northampton County, 522 Pa. 230 , 560 A.2d 1388 (1989) this court determined that the defense of governmental immunity was a defense incapable of waiver. Here, although the claim arguably fell within one of the exceptions to that immunity, 42 Pa.C.S.A. § 8542(b)(3), the above referred to statement is in sharp contravention to our prior assessment of the law in that area. Secondly, a plain reading of the Recreational Use Act does not support the majority’s interpretation that the act was intended only to apply to owners of unimproved realty. In fact in the definition of land, as contained in the act, the term “land” was stated to include: roads; water; watercourses; private ways and buildings; structures and machinery or equipment when attached to the realty. 68 P.S. § 477-2(1). Clearly the inclusion of these items belies the majority’s conclusion that only owners of unimproved realty are protected. To so hold is to ignore the spirit of the legislature which in enacting the statute “balanced danger against a benefit to a great number of people; allowing a use of facilities with immunity from liability, great and *246 small, so that many could have what the possible consequences for an injury to one, would make improvident to give to any.” Rivera v. Philadelphia Theological Seminary, 510 Pa. 1, 34 , 507 A.2d 1, 18 (1986). See also Commonwealth of Pennsylvania Department of Environmental Resources v. Auresto, 511 Pa. 73 , 511 A.2d 815 (1986), Hahn v. United States, 493 F.Supp. 57 (D.C.Pa.1980) and Watson v. City of Omaha, 209 Neb. 835 , 312 N.W.2d 256 (1981).
Accordingly, I dissent and join the dissent of Mr. Chief Justice NIX.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9638597. Public record. Not legal advice.