Dean v. COM., DEPT. OF TRANSP.

• Decision Date: 18 May 2000
• Citation: 561 Pa. 503,751 A.2d 1130
• Parties: Stacey L. DEAN v. COMMONWEALTH of Pennsylvania, DEPARTMENT OF TRANSPORTATION; and Ronald Eugene Bell. Appeal of Commonwealth of Pennsylvania, Department of Transportation.
• Court: Pennsylvania Supreme Court

751 A.2d 1130

561 Pa. 503

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

Appeal of Commonwealth of Pennsylvania, Department of Transportation.

Supreme Court of Pennsylvania.

Argued September 13, 1999.

Decided May 18, 2000.

Reargument Denied July 18, 2000.

D. Michael Fisher, Atty. Gen., Gerhard Schwaibold, John G. Knorr, III, Dep. Attys. Gen., for Dept. of Transp.

Michael D. Bloom, for Stacey L. Dean.

Before FLAHERTY, C.J., and ZAPPALA, CAPPY, CASTILLE, NIGRO, NEWMAN and SAYLOR, JJ.

OPINION

ZAPPALA, Justice.

We granted allocatur to determine whether the absence of a guardrail is a dangerous condition of Commonwealth realty for purposes of the real estate exception to sovereign immunity. For the reasons that follow, we hold that the failure to erect a guardrail does not constitute a dangerous condition of Commonwealth realty.¹ As the real estate exception does not apply, the Commonwealth Court erred by refusing to grant summary judgment in favor of the Commonwealth.

The undisputed facts establish that on January 26, 1991, Stacey L. Dean, Appellee, was a passenger in a 1987 Ford Ranger XLT operated by Ronald Eugene Bell. The truck was proceeding east on U.S. Route 22 when it fishtailed on the snow-covered roadway, causing Bell to lose control of the vehicle. As a result, the truck left the graveled portion of the highway and traveled over a steep, declining embankment where it overturned. Appellee sustained serious injuries, with resultant quadriplegia.

Appellee commenced an action against the Commonwealth of Pennsylvania, Department of Transportation (PennDOT), alleging that PennDOT was negligent in failing to properly shield the steep embankment with a guardrail on the portion of the highway where the accident occurred and for failing to properly design, construct and maintain a safe highway.² PennDOT filed a motion for summary judgment, which the common pleas court denied. Relying on Bendas v. Township of White Deer, 531 Pa. 180, 611 A.2d 1184 (1992), the court held that it was for the jury to determine whether the absence of a guardrail constituted a dangerous condition of Commonwealth realty.

PennDOT subsequently filed a second motion for summary judgment in light of the Commonwealth Court's en banc decision in Rothermel v. Commonwealth of Pennsylvania, Department of Transportation, 672 A.2d 837 (Pa.Cmwlth.1996). Under a nearly identical factual scenario, the court in Rothermel held that PennDOT was not liable because the absence of a guardrail, dangerous or otherwise, did not cause the accident itself, but merely facilitated the decedent's injuries. The court concluded that the cause of the accident was the unnatural and artificial accumulation of water and ice on the roadway and therefore the entry of summary judgment in favor of PennDOT was appropriate. The court noted that "[f]or 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." Id. at 842 n. 8.³

The common pleas court agreed that Rothermel controlled the instant case and granted PennDOT's motion for summary judgment. The en banc Commonwealth Court reversed the grant of summary judgment and expressly overruled its decision in Rothermel. It held that the sovereign immunity statute waives immunity based upon damages caused by a dangerous condition and is not based on the cause of the accident. Dean v. Commonwealth of Pennsylvania, Department of Transportation, 718 A.2d 374, 378 (Pa.Cmwlth. 1998). The court found this interpretation of the sovereign immunity statute consistent with "normal" negligence law that provides that there can be two or more proximate causes of injuries in a negligence action because a negligent act may be a proximate cause of damages even though other causes may have contributed to the result. Id. at 379. Accordingly, the court remanded the case for further proceedings.⁴ Summary judgment may be entered only in those cases where the record clearly demonstrates that there are no genuine issues of material fact and that the moving party is entitled to judgment as a matter of law. P.J.S. v. Pennsylvania State Ethics Commission, 555 Pa. 149, 723 A.2d 174 (1999). The record must be viewed in the light most favorable to the opposing party, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party. Id.

The question of whether the Commonwealth is entitled to summary judgment is based purely upon the statutory construction of the applicable immunity provisions. As a result of our abrogation of sovereign immunity in Mayle v. Pa. Dept. of Highways, 479 Pa. 384, 388 A.2d 709 (1978), the General Assembly enacted the Sovereign Immunity Act (Act), 42 Pa. C.S. § 8521-8528, and revived the doctrine. See also Snyder v. Harmon, 562 A.2d at 310 n. 3

. The Act provides that sovereign immunity is only waived for damages arising out of a negligent act where the common law or a statute would permit recovery if the injury were caused by a person not protected by sovereign immunity. 42 Pa.C.S. § 8522(a). In order for the Commonwealth to be found liable, a plaintiff must also establish that the cause of action falls under one of the specifically enumerated exceptions to immunity. 42 Pa.C.S. § 8522(b). Because of the clear intent to insulate government from exposure to tort liability, the exceptions to immunity are to be strictly construed. Kiley v. City of Philadelphia, 537 Pa. 502, 645 A.2d 184, 185-186 (1994).

To ascertain whether the Commonwealth owes a duty to Appellee—the duty alleged here being the installation of a guardrail along the highway where the accident occurred—we must first examine the exception to sovereign immunity which Appellee contends her claim falls under. Snyder, 562 A.2d at 311. Appellee relies on the real estate exception, which exposes the Commonwealth to liability for the following:

Commonwealth real estate, highways and sidewalks.—A dangerous condition of Commonwealth agency real estate and sidewalks, including Commonwealth-owned real property, leaseholds in the possession of a Commonwealth agency and Commonwealth-owned realty property leased by a Commonwealth agency to private persons, and highways under the jurisdiction of a Commonwealth agency....

Id. at § 8522(b)(4).

PennDOT argues that the real estate exception is inapplicable. It submits that it is liable only where a dangerous condition of real estate causes injury, not when the Commonwealth realty merely "facilitates" the injury as was the case here. Relying on our decision in Snyder v. Harmon, PennDOT also contends that it is not liable for failing to erect a guardrail as it has no duty to guard against dangerous conditions off the highway. Appellee counters that the dangerous condition was not the embankment, but rather the lack of a guardrail on the highway, which rendered the highway defective. She further contends that PennDOT's liability exists regardless of the existence of additional tortfeasors and that the issue of whether a dangerous condition exists is a question of fact for the jury.

The real property exception to governmental immunity under the Political Subdivision Tort Claims Act (PSTCA), 42 Pa. C.S. § 8542(b),⁵ was discussed in Mascaro v. Youth Study Center, 514 Pa. 351, 523 A.2d 1118 (1987).⁶ There, an action was brought against the City of Philadelphia for heinous injuries inflicted on a family by a detainee who escaped from a juvenile detention center. The theory of liability was that the negligent maintenance of the facility permitted the detainee to escape and inflict injury on the plaintiffs.

We held that the cause of action did not fall within the real property exception because acts of others may not be imputed to local agencies or their employees. We went on to hold that "the real estate exception can be applied only to those cases where it is alleged that the artificial condition or defect of the land itself causes the injury, not merely when it facilitates the injury by the acts of others, whose acts are outside the statute's scope of liability." Id. at 1124. As later explained in Crowell v. City of Philadelphia, 531 Pa. 400, 613 A.2d 1178 (1992), however, our holding in Mascaro did not absolve the government of liability in cases where a joint tortfeasor was involved. Rather, it simply indicated that the PSTCA precludes imposition of liability upon a governmental unit based upon the theory of vicarious liability. Id. at 1183.⁷ See also Kilgore v. City of Philadelphia, 553 Pa. 22, 717 A.2d 514 (1998)

(Mascaro decision should not be interpreted as extinguishing governmental liability as a joint tortfeasor).

We therefore conclude that PennDOT's reliance on the "facilitation of the injury" language in Mascaro is misplaced as the instant claim is one of concurrent causation rather than vicarious liability. Accordingly, we reject PennDOT's contention that the real estate exception does not apply merely because Appellee asserted that a concurrent cause of her injuries was the accumulation of snow on the highway.

We next examine the applicability of our decision in Snyder v. Harmon. In Snyder, the plaintiffs had stopped their car on the berm of a state highway, which was adjacent to a strip mine. In an attempt to avoid being hit by another vehicle that was also on the berm of the road, the plaintiffs exited the car, scrambled up an embankment leading to the mine, and fell into the mine. Two individuals sustained serious injuries and one person was killed in the fall. The plaintiffs filed suit against PennDOT, relying on the real estate exception to sovereign immunity. In their complaint, they alleged that PennDOT was negligent in permitting a dangerous condition to exist within its right-of-way. They further asserted that PennDOT failed to warn the public of the existence of the...