Angell v. Dereno
| Decision Date | 10 March 2016 |
| Docket Number | No. 458 C.D. 2015,458 C.D. 2015 |
| Citation | 134 A.3d 1173 |
| Parties | Pamela ANGELL, Individually and as the Administratrix of the Estate of Thomas W. Bauer, Jr., Deceased, Appellant v. James F. DERENO, Ross Township, and West View Borough. |
| Court | Pennsylvania Commonwealth Court |
Katie A. Killion, Pittsburgh, for appellant.
John M. Giunta, Pittsburgh, for appellee West View Borough.
Christian D. Marquis, Pittsburgh, for appellee Ross Township.
BEFORE: MARY HANNAH LEAVITT, Judge1 , P. KEVIN BROBSON, Judge, and ANNE E. COVEY, Judge.
OPINION BY Judge LEAVITT
.
Pamela Angell, individually and as administratrix of the estate of Thomas W. Bauer, Jr. (Decedent), appeals two orders of the Court of Common Pleas of Allegheny County (trial court) granting summary judgment to Ross Township and West View Borough (collectively, Municipalities), defendants in Angell's tort action. Angell seeks to recover damages for her son's death, which she attributes to the dangerous condition of a road where her son's motorcycle was clipped by an oncoming truck, within feet of the boundary between Ross Township and West View Borough. Angell's expert opined that had the Municipalities installed traffic control devices, the fatal accident would not have occurred. Angell contends that the trial court erred in dismissing the Municipalities from her action by finding facts that were for a jury to decide and by not giving her expert's report and deposition evidence any probative value. For the reasons that follow, we reverse both orders.
The accident occurred on Bellevue Avenue, a narrow two-lane, two-way road without shoulders or a center line marking. Bellevue Avenue runs through a residential neighborhood, and the Municipalities permit parking on one side of the road, which further narrows the room for passing vehicles.2 Bellevue Avenue, which runs north and south, meets Schwitter Avenue in a T-shaped intersection. The boundary line between the Municipalities bisects Bellevue Avenue in the middle of the crossing with Schwitter Avenue. Bellevue north of the intersection lies in Ross Township, and Bellevue south of the intersection lies in West View Borough.
The intersection of Schwitter Avenue and Bellevue Avenue is located at the top of a hill. After crossing the boundary from West View Borough to Ross Township, Bellevue immediately descends a steep hill. Vehicles traveling in either direction on Bellevue cannot see oncoming vehicles until they reach the crest of the hill at the intersection with Schwitter, where both roads are level.
On May 9, 2011, in mid-day, Decedent was heading down the hill on Bellevue on his motorcycle. At the same time, James F. Dereno was heading up the hill in his pickup truck. Just below the intersection of Bellevue and Schwitter, in Ross Township, Decedent collided with Dereno. Dereno's left front bumper hit Decedent's motorcycle, doing minor damage to Dereno's truck. However, the force of the impact was enough to cause Decedent's motorcycle to fly over the guardrail on the east side of Bellevue and land at the bottom of the steep embankment protected by the guardrail. Decedent was 19 years old.
Angell filed a wrongful death and survival action against Dereno, Ross Township and West View Borough. Her complaint alleged that Dereno "negligently travel[ed] in the Decedent's lane or the middle of the road so as to cause the collision with the Decedent." First Amended Complaint, ¶ 18(a); Reproduced Record at 29a (R.R. ___). Her complaint also alleged that the fatal accident was the direct, legal and proximate result of the Municipalities' negligence:
First Amended Complaint, ¶¶ 25, 32; R.R. 32a, 34a. The alleged dangerous condition consisted of the narrowness of Bellevue Avenue and the limited sight distance caused by the hill. First Amended Complaint, ¶¶ 13–14; R.R. 28a.
The complaint asserted that Angell's claim against the Municipalities fell within the "streets" exception to governmental immunity found in a chapter of the Judicial Code that is commonly referred to as the Political Subdivision Tort Claims Act (Tort Claims Act), 42 Pa.C.S. § 8542(b)(6)
. Section 8542(b)(6)(i) provides that a local agency may be liable for a "dangerous condition of streets owned by the local agency...." 42 Pa.C.S. § 8542(b)(6)(i).
All the defendants filed answers denying liability, and the parties engaged in discovery. At his deposition, Dereno testified that he lives on Bellevue Avenue in West View Borough and has driven on that road "at least two, three times a day seven days a week ... since July of '07." R.R. 262a. Dereno testified that Bellevue is dangerous because of the limited sight distance caused by the hill and the narrowness of the roadway. He testified that he slows down when heading up Bellevue towards the intersection because people turning from Schwitter cannot see oncoming vehicles on Bellevue. He acknowledged telling police on the day of the accident that he had been moving towards the center of the road. He did so to avoid vehicles that are often parked on the west side of Bellevue, in both Municipalities, and cannot be seen because of the limited sight distance. As it happened, there were no cars parked on his side of Bellevue that day. Dereno could not be sure he was in his own lane at the moment of collision because there are no lane markings. Dereno believed that a stop sign on Bellevue at the top of the hill on the West View side of the boundary would have made a difference because it "would make people stop and actually look and [give] the other person time to get to the crest" on the Ross Township side. R.R. 256a.
Angell also lives on Bellevue Avenue, as did her son before his death.3 She testified that Bellevue is dangerous at its intersection with Schwitter. Angell described the road as a "perfect storm" for an accident because of "the slope, the blindness, the narrowness." R.R. 265a. She had warned Decedent, who lived with her, about the danger. Angell did not know whether cars had been parked on Bellevue Avenue at the time of the accident.
Angell secured affidavits from neighbors Antonia Mahon, Tod Morrow, Wayne Kennelly and Barbara Kennelly. All described seeing officers from both Municipalities patrolling the intersection of Bellevue and Schwitter before the fatal accident. Mahon attested that prior to the accident, she personally tried to get West View to install a stop sign on Bellevue at the top of the hill before it crossed Schwitter. Barbara Kennelly attested that she has witnessed several vehicle accidents at the Schwitter and Bellevue intersection. Prior to the fatal accident, she complained to West View about the dangers posed by the hill on Bellevue and its intersection with Schwitter. After the fatal accident, both Municipalities installed warning signs on opposite sides of Bellevue stating "Danger Blind Hill Slow."
The Municipalities filed separate motions for summary judgment. Both argued that Angell's evidence did not show that they had been negligent with respect to a dangerous condition of the street or that their alleged negligence caused the accident. On April 8, 2014, the trial court denied both motions.
On November 24, 2014, Angell secured an expert report from Ronald W. Eck, P.E., Ph.D. Angell's Brief, Appendix F. Dr. Eck studied the circumstances of the accident and the conditions on Bellevue Avenue. Dr. Eck reviewed the pleadings in this case; traffic speed and volume data collected in October 2014 by David E. Wooster and Associates, Inc.; and relevant street engineering literature. Relying upon several treatises, Dr. Eck determined that Bellevue Avenue needed a minimum width of 22 to 28 feet. Dr. Eck measured Bellevue at approximately 16 feet wide at the point of the accident, 19 feet wide at the intersection with Schwitter Avenue and 18 feet wide south of the intersection, at the top of the hill where Bellevue is level. Dr. Eck also opined that the guardrail on the east side of Bellevue, as it descended into Ross Township, further reduced Bellevue's functional width. This is because motorists tend to "shy away" from a fixed obstruction, such as a guardrail, particularly where there is no shoulder. Eck Report at 5. Dr. Eck concluded that the "width of Bellevue Avenue is too narrow to fulfill its intended functions and does not comply with accepted design practices." Id. He stated that the "short crest vertical curve" at the crest of the hill prevents motorists from seeing oncoming traffic. Id.
Dr. Eck opined that the narrow roadway, on-street parking and limited sight distance over the hill created a dangerous roadway condition that was a substantial contributing factor to the crash. Dr. Eck believed that the danger should have been apparent to both Municipalities, and they should have responded with "limited sight distance" warning signs on both sides of the intersection. He opined that a head-on collision, of the sort that caused Decedent's death, was foreseeable.
Dr. Eck addressed the use of multi-way stop controls at the intersection to mitigate the dangerous conditions on Bellevue Avenue. The Federal Highway Administration provides that multi-way stop controls should be based on an engineering study, including minimum traffic values.4 PennDOT Publication 212 states that multi-way stops are not necessary for limited sight distance "unless there is no practical method of improving the sight distance or reducing the...
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