The School District of Philadelphia will have to face a lawsuit alleging negligence stemming from a sexual assault on a disabled student, as the Commonwealth Court of Pennsylvania ruled that the district cannot claim governmental immunity in this specific scenario.
The appellate court affirmed a lower court’s decision to deny the District’s motion for summary judgment, which sought to dismiss the case based on the Political Subdivision Tort Claims Act (Tort Claims Act). The central issue revolved around whether the Act’s exception for sexual abuse applied, even though the alleged assault was committed by another student, not a school employee.
The Allegations: An Assault on the School Bus
The case originated in November 2021 when N.N., acting as the parent and natural guardian of K.W., a 14-year-old mentally disabled child, filed a complaint against the School District of Philadelphia, along with the bus driver (David Johnson) and the bus attendant (Sandra Williamson).
K.W. relied on “Special Transportation” provided by the District as part of an Individualized Education Plan (IEP), intended to offer extra safety and supervision. According to the complaint, on March 10, 2020, while riding the bus home, K.W. was allegedly sexually assaulted by another minor male student for about 22 minutes. This incident was reportedly video-recorded.
Crucially, the complaint alleged that the bus attendant was distracted, engaged in a personal phone call during the entire assault, and that both the attendant and the bus driver—employees of the District—failed to supervise or intervene. N.N. argues that this omission of action by the District’s agents led to K.W.’s severe and permanent injuries, including emotional distress and educational setbacks.
The Immunity Battle
The School District moved for summary judgment, arguing that the Tort Claims Act generally shields local agencies from liability for criminal acts committed by third parties—in this case, the other student.
However, the Court of Common Pleas of Philadelphia County denied the motion, relying on the sexual abuse exception to immunity found in 42 Pa.C.S. § 8542(b)(9). The trial court reasoned that the immunity waiver applies when the government’s agents (the bus driver and attendant) failed to act, thereby allowing the abuse to occur.
The District appealed, asserting that the trial court erred because the statute only waives immunity if a school employee *committed* the sexual abuse, not when a third party did.
Appellate Court Confirms Jurisdiction and Applies Precedent
Before tackling the core immunity question, the Commonwealth Court first had to confirm it had the authority to hear the appeal immediately, rather than waiting for a final judgment. This required satisfying the three-prong test for a “collateral order” appeal under Pa.R.A.P. 313.
Judge Stacy Wallace, writing for the three-judge panel, determined that the appeal met all criteria. The question of governmental immunity is:
1. Separable from the underlying negligence claim;
2. Too important to delay review, as immunity is a fundamental public policy shield; and
3. If delayed, the right to immunity would be irreparably lost, because immunity protects the entity from the *suit itself*, not just from paying damages.
The court found the precedent set in *Brooks v. Ewing Cole, Inc.* (concerning sovereign immunity) persuasive, noting that governmental immunity for local agencies carries the same protection against being forced to litigate.
The Key Ruling: Negligently Enabling Abuse
With jurisdiction confirmed, the court turned to the merits, relying heavily on a recent en banc decision, *L.F.V. v. South Philadelphia High School*.
The District argued that because the Tort Claims Act generally immunizes agencies from third-party acts, and the abuse was committed by a student, immunity should stand.
The Commonwealth Court disagreed, citing *L.F.V.*, which involved similar facts where a student was assaulted by other students, and school employees failed to monitor the area.
The Court explained that the intent behind the 2019 addition of the sexual abuse exception (§ 8542(b)(9)) was precisely to hold municipalities “accountable for negligently enabling sexual abuse.”
“In other words,” the opinion stated, “for the sexual abuse exception to apply, there need not be an allegation that the local agency or one of its employees committed one of the enumerated acts. Rather, the sexual abuse exception applies if there is an allegation that the local agency negligently enabled the sexual abuse to occur.”
Because the complaint alleged that the District’s employees—the driver and attendant—were negligent by failing to supervise K.W. while the assault occurred, the court found the trial court was correct to deny summary judgment. The District cannot hide behind general immunity when a specific statutory exception applies to the negligent actions (or omissions) of its employees that facilitated the abuse.
The court concluded by affirming the trial court’s order, allowing the negligence claims against the District, the Bus Driver, and the Bus Attendant to proceed.