Dean v. Com., Dept. of Transp.

• Citation: 718 A.2d 374
• Parties: Stacey L. DEAN, Appellant, v. COMMONWEALTH of Pennsylvania, DEPARTMENT OF TRANSPORTATION; and Ronald Eugene Bell.
• Decision Date: 18 September 1998
• Court: Commonwealth Court of Pennsylvania

Page 374

718 A.2d 374

Stacey L. DEAN, Appellant, v. COMMONWEALTH of Pennsylvania, DEPARTMENT OF TRANSPORTATION; and Ronald Eugene Bell.

Commonwealth Court of Pennsylvania.

Argued June 10, 1998.

Decided Sept. 18, 1998.

Daniel S. Weinstock, Philadelphia, for appellant.

Gerhard Schwaibold, Harrisburg, for appellee.

Before COLINS, President Judge, and DOYLE, McGINLEY, PELLEGRINI, KELLEY, FLAHERTY and LEADBETTER, JJ.

PELLEGRINI, Judge.

Stacey L. Dean (Dean) appeals from an order of the Court of Common Pleas of Huntingdon County (trial court) granting the motion for summary judgment filed by the Commonwealth of Pennsylvania, Department of Transportation and Eugene Bell (collectively, PennDot) and determining that it was not liable for the injuries sustained by Dean.

The facts of this case are not in dispute. On January 26, 1991, Dean was a passenger in a vehicle operated by Bell. The vehicle was proceeding east on U.S. Route 22 when it fishtailed on the snow-covered highway, causing Bell to lose control of the vehicle. As a result, the vehicle went beyond the graveled highway shoulder and continued on over a steep, declining embankment where it overturned sideways. Dean sustained serious injuries resulting in quadriplegia.

Dean filed suit against PennDot alleging, among other things, ¹ that PennDot was negligent by failing to properly shield the steep embankment with a guardrail on the portion of highway at which the accident occurred. PennDot filed a motion for summary judgment that the trial court denied relying on our Supreme Court's decision in Bendas v. Township of White Deer, 531 Pa. 180, 611 A.2d 1184 (1992), holding that it was for a jury to determine if the absence of a guardrail constituted negligence. More than two years later, PennDot filed a second motion for summary judgment in light of our decision in Rothermel v. Commonwealth of Pennsylvania, Department of Transportation, 672 A.2d 837 (Pa.Cmwlth.1996), holding that even if PennDot was negligent by failing to place a guardrail on a highway, that failure did not support a theory of liability against PennDot under the sovereign immunity statute. ² PennDot argued that summary judgment was appropriate because it was not liable for Dean's injuries as it was the snow on the roadway that caused the vehicle to leave the roadway, and the absence of a guardrail merely "facilitated" her injuries by permitting the vehicle to proceed down the embankment. The trial court granted the second motion for summary judgment relying on our holding in Rothermel. Dean then petitioned this Court for permission to appeal the trial court's order granting summary judgment that we granted and is now before this Court. ³

For a plaintiff to recover damages in an action against the Commonwealth, it must prove the following:

1. The action is against a "commonwealth party" or "local agency" which includes an employee thereof;

2. The action arises out of a negligent act or omission of an agency or an employee of any agency acting within the scope of his or her employment;

3. The damages arise out of the negligent act or failure to act;

4. The damages would be recoverable at common law or under a statute creating a cause of action, e.g., wrongful death; and

5. The negligent act or omission falls within one of the exceptions to sovereign immunity set forth at 42 Pa.C.S. § 8522.

42 Pa.C.S. § 8522.

The elements of negligence that must be proven are a duty or obligation recognized by law requiring the actor to conform to a certain standard of conduct; a failure of the actor to conform to that standard; a causal connection between the conduct and the resulting injury; and actual loss or damage to the interests of another. Mason & Dixon Lines, supra.

Dean contends that she met these conditions because PennDot created a dangerous condition of the highway by failing to erect a guardrail, a duty it had at common law, and that this failure caused the car in which she was a passenger to go over the embankment. She further argues that because she suffered damages as a result of PennDot's failure to erect a guardrail, PennDot is liable under 42 Pa.C.S. § 8522(b)(4). Immunity for liability as a result of the Commonwealth's negligence is waived for a dangerous condition pursuant to 42 Pa.C.S. § 8522(b)(4) when damages are caused by:

A dangerous condition of Commonwealth agency real estate and sidewalks, including Commonwealth-owned real property lease-holds in the possession of a Commonwealth agency and Commonwealth-owned real property leased by a Commonwealth agency to private persons, and highways under the jurisdiction of a Commonwealth agency, except conditions described in paragraph (5) (relating to potholes and other dangerous conditions).

A dangerous condition of Commonwealth real estate has been defined as "a state of affairs that hampers or impedes or requires correction." Wyke v. Ward, 81 Pa.Cmwlth. 392, 474 A.2d 375, 379 (1984).

Regarding PennDot's duty to erect guardrails on the highway, Dean needed to establish PennDot's negligence. At common law, there was a duty by a government party to keep highways safe for travel to reduce dangers posed by steep cliffs and embankments that were close to the highway by erecting guardrails or other barriers. Balla v. Sladek, 381 Pa. 85, 112 A.2d 156 (1955); see also McCracken v. Curwensville Borough, 309 Pa. 98, 163 A. 217 (1932) (common law duty existed to travelling public to place adequate guardrails on road to prevent skidding cars from going off side of the road). ⁴ Additionally, in Snyder v. Harmon, 522 Pa. 424, 562 A.2d 307 (1989), our Supreme Court held that the duty of care that a Commonwealth agency owed to those using its real estate was such that it was required to make the condition of its property safe for the activities for which it was regularly used, intended to be used or reasonably foreseen to be used. ⁵ See also Yoders v. Township of Amwell, 172 Pa. 447, 33 A. 1017 (1896); ⁶ Felli v. Commonwealth, Department of Transportation, 666 A.2d 775 (Pa.Cmwlth.1995).

PennDot does not dispute that it had a duty to maintain the highway in a reasonably safe manner by erecting guardrails on the highway, ⁷ but because, like in Rothermel, the snow on the highway was the cause of Dean's injuries and the absence of the guardrail merely facilitated her injuries, it is not liable. In Rothermel, an accident was set in motion by a cause not considered a dangerous condition within the highway exception. Specifically, the driver of a vehicle lost control of her car when it slid on a patch of ice, veered off the road and went over an embankment because there was no guardrail. The driver of the car and her passenger died as a result of their injuries. Although PennDot had a duty to place adequate guardrails on the road to prevent cars from skidding off the side of the road, and that such an injury would be compensable if it fell within the real estate exception to sovereign immunity, we held that even if a jury could find the absence of a guardrail was a dangerous condition, it would have to be proven that the condition was the proximate and only cause of the injury. Finding that ice on the road was the proximate cause of the accident because it set the accident in motion and the absence of a guardrail merely facilitated the injuries and produced more severe consequences than if the guardrail had been present, we concluded that plaintiff had not proven her case.

PennDot now asks us to rely on Rothermel and find that the absence of guardrails in this case as well was not the proximate cause of Dean's injuries. While recognizing that Rothermel would foreclose recovery, Dean asks us to reconsider our holding in Rothermel and hold that the absence of the guardrail was one of the causes of her injuries utilizing the language set forth in 42 Pa.C.S. § 8522. ⁸ The issue then that we must determine is whether the absence of a guardrail can be a dangerous condition within the real estate exception when it causes or adds to injuries sustained as a result of another cause that is not a dangerous condition within any exception to immunity, but is the cause that sets the accident in motion.

In resolving that issue in Rothermel, at the core of our decision was the holding that "for purposes of deciding the applicability of the real estate exception to sovereign immunity, it is the cause of the accident--the event that set the accident in motion--that is determinative." 672 A.2d 837, 842, n. 8. Upon reflection, however, we believe that even if a condition exists that sets the accident in motion that is not considered a dangerous condition of, in this case, the highway, that does not mean that a second dangerous condition of the highway that caused a plaintiff's injuries is not actionable.

First, the sovereign immunity statute itself waives immunity based upon damages caused by a dangerous condition and is not based on the cause of the accident. 42 Pa.C.S. § 8522 does not use the word "accident" but only refers to "damages" and "injury" stating in relevant part:

The General Assembly...does hereby waive...sovereign immunity as a bar to an action against Commonwealth parties, for damages arising out of a negligent act where the damages would be recoverable under the common law or a statute creating a cause of action if the injury were caused by a person not having available the defense of sovereign immunity. (Emphasis added.)

In this case, if the absence of a guardrail is found to be a dangerous condition, because the statute itself only refers to damages and injuries and makes no mention of an "accident" causing the injuries, PennDot would be liable under the real estate exception to sovereign immunity for Dean's injuries, despite the fact that it may not be liable for the snow on the highway, the cause that set the accident in motion. ⁹

Second, this interpretation of the sovereign immunity statute is consistent with "normal" negligence law...