Fagan v. Department of Transp. of Com.

• Decision Date: 15 April 2008
• Docket Number: No. 1430 C.D. 2007.,1430 C.D. 2007.
• Citation: 946 A.2d 1123
• Parties: Susan FAGAN and Michael P. Fagan, individually and as Administrators of the Estate of Michael J. Fagan, deceased, Appellants v. DEPARTMENT OF TRANSPORTATION OF the COMMONWEALTH of Pennsylvania and Margie A. Anderson, Administratrix of the Estate of Justin Glenn Martin, deceased.
• Court: Pennsylvania Commonwealth Court

946 A.2d 1123

Susan FAGAN and Michael P. Fagan, individually and as Administrators of the Estate of Michael J. Fagan, deceased, Appellants v. DEPARTMENT OF TRANSPORTATION OF the COMMONWEALTH of Pennsylvania and Margie A. Anderson, Administratrix of the Estate of Justin Glenn Martin, deceased.

No. 1430 C.D. 2007.

Commonwealth Court of Pennsylvania.

Argued February 13, 2008.

Decided April 15, 2008.

Gretchen E. Moore, Pittsburgh, for appellants.

Kemal Alexander Mericli, Sr. Deputy Attorney General, Pittsburgh, for appellee, Department of Transportation.

Before: LEADBETTER, President Judge, and McGINLEY, Judge, PELLEGRINI, Judge, FRIEDMAN, Judge, COHN JUBELIRER, Judge, SIMPSON, Judge, and LEAVITT, Judge.

OPINION BY Judge SIMPSON.

In this case we must again decide whether the Pennsylvania Department of Transportation (PennDOT) can be liable for fatal injuries incurred when a vehicle leaves the roadway. The Court of Common Pleas of Cambria County (trial court) determined PennDOT could not be liable here, and it granted summary judgment. We affirm.

For current purposes, there is no dispute over the facts of this tragic accident that occurred at about 1:20 a.m. on August 7, 2002, on William Penn Avenue, State Route 3037. Michael J. Fagan, was a passenger in a car driven by Justin Glenn Martin. For reasons that all parties agree are unknown, the northbound vehicle departed from the pavement in the area of a curve to the left. The vehicle strayed to the right, over the fog line, crossing over a gravel shoulder. The Plaintiffs offered to prove that the vehicle started to slide, brushed against a hedgerow, and knocked down flexible delineator posts. Immediately thereafter, the vehicle ramped a turned-down guardrail terminal, causing it to become airborne. It struck a utility pole, two trees, and rolled over. Report of Joseph B. Muldoon, P.E., at 2, Reproduced Record (R.R.) at 50a. Both occupants were fatally injured.

The passenger's parents, as Administrators of his estate, brought suit against PennDOT. They alleged negligence, primarily related to the guardrail. PennDOT joined the driver's estate as an additional defendant.

Thereafter, PennDOT sought summary judgment. Its two main arguments invoked immunity and the plaintiffs' failure to establish causation necessary for a negligence action.

Factually, the plaintiffs submitted the expert's report previously referenced. Through this report they offered expert opinion that guardrails abutting the shoulders must be designed and maintained so as to be acceptably crashworthy, and that the turned-down guardrail terminal should have been supplanted with a crashworthy end treatment before the accident in question. Report of Joseph B. Muldoon, P.E., at 5, R.R. at 53a. Plaintiffs also offered to prove by expert opinion that PennDOT has a responsibility to design and maintain roadway shoulders for safe passage of motor vehicles, and that the difference between the slope of the roadway and the slope of the shoulder, in combination with the gravel surface of the shoulder, was a dangerous condition which triggered loss of control over the vehicle.¹ Id. The expert offered no opinion as to the cause of the vehicle leaving the pavement.

Legally, the plaintiffs acknowledged several recent decisions of this Court which support a conclusion that PennDOT is immune. They argued, however, that those decisions strayed from Supreme Court guidance, and they urged a strict view of the Supreme Court precedent which would allow their case to go forward. As to causation, they argued that the cause of damages was not the vehicle leaving the roadway but rather the vehicle becoming airborne. Thus, they need not prove why the vehicle left the roadway.

Resolving both these issues in favor of PennDOT, the trial court granted summary judgment. Plaintiffs appealed here.

This Court's standard of review of a grant of summary judgment is limited to determining whether the trial court committed an error of law or abused its discretion. Martinowski v. Commonwealth, Dep't of Transp., 916 A.2d 717 (Pa. Cmwlth.2006), appeal denied, 594 Pa. 682, 932 A.2d 1290 (2007). The evidence shall be viewed in the light most favorable to the nonmoving party, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party. Id. Our scope of review is plenary. Scalice v. Pa. Employees Benefit Trust Fund, 584 Pa. 161, 883 A.2d 429 (2005).

On appeal, Plaintiffs advance the same arguments as before the trial court. In particular, they argue against immunity for PennDOT here and in favor of a waiver of immunity for Commonwealth real estate and highways set forth in what is commonly known as the Sovereign Immunity Act, 42 Pa.C.S. § 8522(b)(4).² Plaintiffs urge a narrow reading of our Supreme Court's decision in Dean v. Commonwealth, Department of Transportation, 561 Pa. 503, 751 A.2d 1130 (2000), limited to the facts in that case, the absence of a guardrail. Plaintiffs complain that subsequent Commonwealth Court decisions in Martinowski (defective guardrail) and Svege v. Interstate Safety Service, Inc., 862 A.2d 752 (Pa.Cmwlth.2004) (defective guardrail), improperly extended the Supreme Court's holding.

Plaintiffs urge a different analysis, based on the intended use of the Commonwealth real estate. Here, they assert the intended use of the shoulder is for vehicular traffic, and the intended use of a guardrail is to be impacted by vehicles. Because they offered to prove both were unreasonably dangerous for those intended uses, their case is different and should be allowed to proceed.

Regarding proof of causation, Plaintiffs quote a portion of the statute waiving immunity "for damages caused by ... [a] dangerous condition of Commonwealth agency real estate...." 42 Pa.C.S. § 8522(b)(4). Because they will offer expert opinion that the guardrail and shoulder were dangerous for their intended uses and that these conditions caused the injuries, they ask that their cause be submitted to a jury. They contend that they will offer proof of how the vehicle came into contact with the guardrail. Under the theory of concurrent causation, they need not prove why the vehicle left the pavement.

The Sovereign Immunity 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 the context of a common law negligence claim against PennDOT at the summary judgment stage, a plaintiff must offer proof that: 1) there is a duty recognized by law which requires the actor to conform to a standard; 2) there is a failure of the actor to conform to that standard; 3) there is a causal connection between the conduct and the resulting injury; and 4) there is actual loss or damage to the interests of another. See Martinowski.

In order for a Commonwealth party such as PennDOT 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. Dean.

In two companion cases, our Supreme Court held the absence of a guardrail was not a dangerous condition of a roadway for which immunity was waived either for the Commonwealth or for local government. Dean, 561 Pa. at 512, 751 A.2d at 1134-35;³ Lockwood v. City of Pittsburgh, 561 Pa. 515, 521, 751 A.2d 1136, 1139-40 (2000).⁴ The Court concluded a contrary holding could expose the government to unlimited liability, a result clearly not intended by the legislature in enacting the immunity statute. Dean, 561 Pa. at 512, 751 A.2d at 1134, n. 9. Also in Dean, the Court noted the legislature can correct any misinterpretation of immunity statutes by amending the law so as to explicitly waive immunity for dangerous conditions of guardrails. Id. at 512, 751 A.2d at 1134.

Following those cases, this Court held that where a guardrail existed, the failure to design it differently or the failure to maintain it were not dangerous conditions of roadways for which immunity was waived either for the Commonwealth or for local government. Simko v. County of Allegheny, 869 A.2d 571 (Pa.Cmwlth.2005) (immunity of local agency), appeal denied, 587 Pa. 703, 897 A.2d 462 (2006); Svege (immunity of Commonwealth agency). We also noted that the General Assembly failed to change the immunity statutes to correct any misinterpretation, despite the Supreme Court's invitation to do so. Simko.

These decisions are consistent with the direction that exceptions to immunity are to be narrowly construed. Dean; Simko. Further, it would be jurisprudentially unsound and in violation of the fundamental principle of stare decisis for this Court to unsettle an area of law which we settled recently. See Gardner v. Consol. Rail Corp., 524 Pa. 445, 573 A.2d 1016 (1990). Accordingly, we discern no error in the grant of summary judgment based on immunity from suit regarding the design and maintenance of the guardrail.

As to the condition of the shoulder, however, the same clear holdings on immunity are not present. Nevertheless, a recent decision of this Court guides our resolution and commands the conclusion that no error was present in the grant of summary judgment on a different theory.

In Martinowski, this Court addressed the elements of a negligence claim where a vehicle left the paved highway without explanation and struck a PennDOT guardrail. After a review of numerous cases,⁵ we concluded that the inability of the motorist to establish how or why she left the road prevented her from establishing one of the essential elements of her common law claim against PennDOT, causation. Accordingly, a summary judgment in favor of PennDOT was affirmed. In doing so, this Court...