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GARDNER v. CONSOLIDATED RAIL CORP.

524 Pa. 445 (1990)

573 A.2d 1016

Robert C. GARDNER, a minor by his parents and natural guardians, Russell Q. GARDNER and Eleanor Maisey, in their own right, Appellants, v. CONSOLIDATED RAIL CORPORATION SEPTA and City of Philadelphia, Appellees. Robert LYNCH, a minor, By and Through his mother, Charlesetta BROWN and Charlesetta Brown, Appellants, v. NATIONAL RAILROAD PASSENGER CORPORATION (AMTRAK), Consolidated Rail Corporation (Conrail), Southeastern Pennsylvania Transportation Authority (SEPTA) and City of Philadelphia, Appellees.

Supreme Court of Pennsylvania.

Reargued January 22, 1990.

Decided April 26, 1990.

Attorney(s) appearing for the Case

Gregory John Hannon, Stanley M. Shingles, Donald E. Matusow, Philadelphia, for appellants.

Michael McGilvery, Perry S. Bechtle, Philadelphia, for Conrail/SEPTA at No. 22.

David Faust, Philadelphia, for AMTRAK, CONRAIL & SEPTA at No. 40.

Seymour Kurland, City Sol., Miriam Brenaman, Chief Asst. City Sol., for City of Philadelphia at Nos. 22 & 40.

Before NIX, C.J., and LARSEN, FLAHERTY, McDERMOTT, ZAPPALA, PAPADAKOS and CAPPY, JJ.

OPINION OF THE COURT

FLAHERTY, Justice.

These cases, consolidated for appeal, raise the question of whether a city may be held liable when children going to or from holes in city-owned fences are injured on neighboring land through instrumentalities not created by the city and not in the city's control.

In Gardner, a seven year old boy was injured by a train on land owned by a third party after he climbed through a hole in a fence bordering...

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