Erace v. Dreger

• Citation: 12 Pa. D. & C.3d 390
• Decision Date: 23 April 1979
• Docket Number: 1319
• Parties: Erace v. Dreger
• Court: Commonwealth Court of Pennsylvania

12 Pa. D. & C.3d 390

Erace v. Dreger

No. 1319

Common Pleas Court of Philadelphia County, Pennsylvania

April 23, 1979

February term, 1978.

Jay I. Bomze, for plaintiff.

Michael David Eiss, for defendant City.

OPINION

Preliminary objections to complaint.

GAFNI J.

On or about March 12, 1976, plaintiff was operating a motor vehicle in a northerly direction on 66th Street, at or near its intersection with Guyer Avenue, Philadelphia, Pa. At the same time defendant Joanne Marie Dreger was operating a motor vehicle in a westerly direction on Guyer Avenue at or near its intersection with 66th Street. Plaintiff alleges in Count I that as a result of the negligence of defendant Dreger, her motor vehicle collided with that of plaintiff, causing him serious injuries. In Count II plaintiff alleges that he sustained injuries due to the negligence of defendant City of Philadelphia. Specifically plaintiff avers that the City was:

(a) Negligent and careless in allowing and permitting the stop sign to remain missing for vehicles traveling on Guyer Avenue at or near its inter-section with 66th Street, where said defendant had or should have had knowledge or notice in time to replace or remedy said dangerous condition;

(b) Negligent and careless in failing to post warnings and signs of the missing stop sign which created a dangerous condition;

(c) Negligent and careless in failing to maintain proper traffic controls at said intersection, where said condition created a hazardous condition to plaintiff and other persons. The City's preliminary objection demurred on the ground that plaintiff's complaint failed to support a valid cause of action.

A demurrer by a defendant admits every well-pleaded material fact and all reasonable inferences therefrom for the purpose of testing the legal sufficiency of the challenged pleading: International Union of Operating Engineers v. Linesville Construction Co., 457 Pa. 220, 322 A.2d 353 (1974). In disposing of the questions of law raised by a demurrer, the issues must be resolved by the court on the basis of the pleadings alone: Duffee v. Judson, 251 Pa.Super 406, 380 A.2d 843 (1977). To sustain the demurrer, it is essential that plaintiff's complaint clearly indicate on its face that his claim cannot be sustained, and that the law says with certainty that no recovery is possible: Hoffman v. Misericordia Hospital of Philadelphia, 439 Pa. 501, 267 A.2d 867 (1970); Papieves v. Kelly, 437 Pa. 373, 263 A.2d 118 (1970). Most importantly, when the sustaining of defendant's preliminary objections will result in a denial of plaintiff's claim, or a dismissal of plaintiff's suit, preliminary objections should be " 'sustained only in cases which are clear and free from doubt.'" Dana Perfumes Corp. v. The Greater Wilkes-Barre Industrial Fund, Inc., 248 Pa.Super 295, 299, 375 A.2d 105, 107 (1977). Any doubt should be resolved in favor of overruling the demurrer: Clevenstein v. Rizzuto, 439 Pa. 397, 266 A.2d 623 (1970).

The argument underlying the City's demurrer is that because it has no mandatory duty as a matter of law to erect or maintain traffic signals, no liability can be imposed upon it for failure to exercise its discretion in such matters. It cites the language in the Act of April 29, 1959, P.L. 58, sec. 1103(a), as amended, 75 P.S. § 1103(a), that " local authorities shall have power to provide by ordinance for the regulation of traffic . . ." as the statutory basis for the proposition that it has only a discretionary duty to install and maintain traffic signals. ^[1]

The authorities upon which it relies to support its position fall into two categories: (1) those which hold that the failure of the City to exercise a discretionary duty cannot result in the imposition of liability, ^[2] and (2) those which hold that because regulation of streets is a governmental function, the doctrine of governmental immunity bars any recovery from a municipal corporation. ^[3] As will be noted hereafter, there may be a distinction under the law concerning the City's initial obligation to erect stop signs as distinguished from its duty to maintain signs once erected. This opinion, however, relates only to the latter circumstance, by reason of the complaint filed.

Specifically, plaintiff's complaint alleges that the City permitted a stop sign " to remain missing" ; that it should have had knowledge or notice in time to " replace or remedy" the situation; and, that it failed " to maintain proper traffic controls" (emphasis supplied). The inference which this court draws from these factual allegations is that plaintiff is contending the City had, at one time, placed a stop sign at the intersection of 66th Street and Guyer Avenue, and was negligent in failing to replace it when it was later missing.

Restatement, 2d, Torts, § 323, provides general guidance on the obligations assumed by one who undertakes a discretionary duty:

" Negligent Performance of Undertaking to Render Services

" One who undertakes, gratuitiously or for consideration, to render services to another which he should recognize as necessary for the protection of the other's person or things, is subject to liability to the other for physical harm resulting from his failure to exercise reasonable care to perform his undertaking, if (a) his failure to exercise such care increases the risk of such harm, or (b) the harm is suffered because of the other's reliance upon the undertaking." (Emphasis supplied.)

Section 323 has been expressly adopted as the law in Pennsylvania: DeJesus v. Liberty Mutual Ins. Co., 423 Pa. 198, 223 A.2d 849 (1966); Brown v. Travelers Ins. Co., 434 Pa. 507, 254 A.2d 27 (1969); Hamil v. Bashline, 481 Pa. 256, 392 A.2d 1280 (1978).

Recognition of the principles underlying section 323 of the Restatement 2d insofar as they apply to municipalities is found in D. Blashfield, 4 Automobile Law and Practice § 161.17 (3d ed. 1965), which notes that in a number of jurisdictions a distinction for liability purposes is drawn between the discretionary determination to erect a sign and the continuing duty to maintain such a sign:

" Thus it has been held that, while the highway authority is not liable for failure to enact an ordinance or resolution providing for traffic signs or for the failure to implement and carry out its decision to erect 'stop' signs, or for the decision to remove a 'stop' sign previously erected, or for a decision to place a 'stop' sign at a particular place, it is liable for a failure properly to maintain 'stop' signs which it has erected." 4 Blashfield, supra, § 161.17 at 333-334.

For example, in Wagshal v. District of Columbia, 216 A.2d 172 (D.C. App. 1966), an action by a motorist involved in an intersectional collision against the District of Columbia for its alleged negligence in failing to maintain a stop sign, the District of Columbia Court of Appeals held:

" . . . whereas . . . the District cannot be held liable for a failure to exercise its discretionary, quasi-legislative powers to control traffic at an intersection, here we have a situation where after a decision had been made to regulate traffic, the intersection was allowed to become unregulated and unsafe through negligence -- not pursuant to a studied, reasoned decision. The District need not have put up the sign, but once it did, it had a duty to maintain it properly in order to keep the intersection reasonably safe for motorists . . . The absence of the sign in the place where it had stood for a considerable time created an unsafe condition every bit as dangerous as a hole in the roadway or an obstruction." 216 A.2d at 174.

In Firkus v. Rombalski, 25 Wis.2d 352, 130 N.W.2d 835 (1964), the Supreme Court of Wisconsin drew a similar distinction emphasizing the reasons why liability should be imposed on the municipality:

" The town had no affirmative duty to erect the sign in the first instance, but having done so it was incumbent upon it to properly maintain the sign as a safety precaution to the traveling public who has the right to rely on its presence . . . The potentiality of a dangerous situation is greatly increased by the failure to maintain warnings upon which the public has come to rely. It is the creation of the right of reliance and its protection which is the basis of the duty. It is not unlike the doctrine of equitable estoppel in the field of contracts." 25 Wis.2d at 358, 130 N.W.2d at 838.

In the instant case, the City has allegedly undertaken to exercise a discretionary duty to regulate traffic by erecting a stop sign at a given location. It has, thereby, recognized the need to take such action for the protection of motorists who may come to rely upon the existence of that sign at that intersection in governing their driving patterns. The reasonableness of such reliance is further reinforced by the fact that, as plaintiff argues, while this stop sign was missing, all of the other intersecting streets with 66th Street in the area where plaintiff was traveling still had stop signs posted. Plaintiff, therefore, would have had no warning that a previously controlled intersection at 66th Street and Guyer Avenue was now uncontrolled for crosstraffic. By failing to exercise due care in maintaining the stop sign at that intersection, the City had arguably increased the risk of accidents involving motorists who indeed had come to rely upon the sign. Such reliance would never have been induced or developed had the City not initially installed a stop sign there. ^[4] This court concludes, therefore, that without regard to whether liability attaches for failure to exercise a non-mandatory duty, the failure to maintain a condition upon which others have come to rely could impose a continuing duty in light of plaintiff's...