Fidanza v. Com., Dept. of Transp.

• Decision Date: 07 March 1995
• Parties: Louis FIDANZA, Sr. and Patricia A. Fidanza, individually and as parents and natural guardians of Louis Fidanza, Jr. and Andrea Fidanza, Appellants, v. COMMONWEALTH of Pennsylvania, DEPARTMENT OF TRANSPORTATION, v. Louis FIDANZA, Sr. and Patricia Fidanza.
• Court: Pennsylvania Commonwealth Court

Page 1076

655 A.2d 1076

Louis FIDANZA, Sr. and Patricia A. Fidanza, individually and as parents and natural guardians of Louis Fidanza, Jr. and Andrea Fidanza, Appellants, v. COMMONWEALTH of Pennsylvania, DEPARTMENT OF TRANSPORTATION, v. Louis FIDANZA, Sr. and Patricia Fidanza.

Commonwealth Court of Pennsylvania.

Argued Feb. 6, 1995.

Decided March 7, 1995.

John F. McKenna, for appellants.

Theodore J. Chylack, Sr. Deputy Atty. Gen., for appellee.

Before COLINS, President Judge, and PELLEGRINI, J., and LORD, Senior Judge.

PELLEGRINI, Judge.

Louis Fidanza, Sr. and Patricia A. Fidanza (the Fidanzas), individually and as parents and natural guardians of Louis Fidanza, Jr. and Andrea Fidanza, appeal an order of the Court of Common Pleas of Chester County (trial court) granting the motion for summary judgment filed by the Commonwealth of Pennsylvania, Department of Transportation (PennDot).

The facts of this case are not in dispute. On December 24, 1986, Patricia Fidanza, accompanied by her minor children, Louis and Andrea, was driving her car in a southerly direction on Pennsylvania Route 841 when she was forced off the roadway by an on-coming car that was travelling in a northerly direction on Pennsylvania Route 841 and had crossed over into her lane of traffic. After the Fidanzas' car left the roadway, it encountered used highway materials ¹ that caused the car to slide out of control and strike a tree. After hitting the tree, the car then slid down an embankment until it reached its final resting place in a creek bed. Patricia Fidanza and her two children suffered numerous injuries as a result of that accident.

On May 1, 1989, the Fidanzas filed an amended complaint ² against PennDot seeking damages based on allegations that the accident was caused solely by PennDot's carelessness, recklessness and negligence. Specifically, the complaint alleged that PennDot was negligent for:

• failure to provide a shoulder on said roadway for the use of motorists in an emergency situation;

• in the alternative, failure to properly design and construct the shoulder of said roadway because of the design and/or construction of the shoulder it prevented the Plaintiff's motor vehicle from re-entering the travelled surface of Pa. Rt. 841;

• failure to install and/or reinstall guardrails following construction of a bridge on Pa. Rt. 841 near the scene of the accident along with the adjacent roadway;

• failure to make repairs to Pa. Rt. 841 which would make the roadway safe for motorists lawfully on same;

• depositing used highway material adjacent to the travelled portion of the roadway, causing a condition which prevented the Plaintiff's motor vehicle from re-entering the travelled surface of Pa. 841; and

• violating the laws, statutes and regulations of the Commonwealth of Pennsylvania regarding the maintenance of state highways.

PennDot filed an answer and new matter raising the defense of sovereign immunity pursuant to 42 Pa.C.S. § 8522. It also filed a motion for summary judgment, alleging that the conduct of both the on-coming car and Patricia Fidanza were outside the scope of its duty, and that the injuries suffered by the Fidanzas were, at best, merely facilitated by any action and/or non-action on the part of PennDot. The trial court, relying on this court's holding in Buschman v. Druck, 139 Pa.Commonwealth Ct. 182, 590 A.2d 53 (1991), petition for allowance of appeal denied, 532 Pa. 666, 616 A.2d 986 (1992), denied PennDot's motion because it determined that there were no allegations that the other defendant, presumably the driver of the other car, was engaged in criminal conduct that would be a superseding cause.

PennDot filed a second motion for summary judgment arguing that it was immune from suit because the real estate exception to immunity found at 42 Pa.C.S. § 8522 did not apply. Specifically, it stated that Commonwealth realty did not cause the accident, but instead, was caused by a third-party vehicle that forced the Fidanzas off of the road. The trial court, this time relying on our holding in Babcock v. Department of Transportation 156 Pa.Commonwealth Ct. 69, 626 A.2d 672 (1993), petition for allowance of appeal denied, 536 Pa. 647, 639 A.2d 33 (1994), noted that for the real estate exception to sovereign immunity to apply, the dangerous condition had to cause the injury and had to derive, originate from or have as it source the Commonwealth realty. Because the trial court found that the accident was caused by the on-coming car rather than Commonwealth real estate which merely facilitated the accident, it granted PennDot's motion for summary judgment. This appeal by the Fidanzas followed. ³

The Fidanzas contend that the trial court erred by granting PennDot's motion for summary judgment because there was a genuine issue of material fact yet to be resolved. ⁴ Specifically, they argue that there is a disputed issue as to whether the improper shoulder, materials deposited on the roadway and lack of guardrails constituted a dangerous condition of the Commonwealth real estate which caused their injuries, thereby precluding the trial court from granting PennDot's motion for summary judgment.

I.

Pursuant to Section 8522 of the Judicial Code, 42 Pa.C.S. § 8522, in order for a plaintiff to maintain an action against a Commonwealth party for damages arising out of a negligent act, the plaintiff must show that (1) the damages would be recoverable under the common law or under a statute creating a cause of action if the injury were caused by a person not having available the defense of sovereign immunity, and (2) that the injury falls within one of the exceptions to sovereign immunity. Addressing first whether the Fidanzas would be able to recover under common law regardless of any third-party liability, the Fidanzas alleged that PennDot had a general duty to provide a safe highway because it was responsible for the design, construction, maintenance and repair of Route 841. They further alleged that its failure to provide a safe highway was negligent and the cause of their injuries.

As in the Fidanzas' complaint, the most frequent common law cause of action brought against a governmental party is negligence, and is established by meeting the following elements:

• A duty or obligation recognized by the law, requiring the actor to conform to a certain standard of conduct, for the protection of others against unreasonable risks;

• A failure on his part to conform to the standard required;

• A reasonably close causal connection between the conduct and the resulting injury; and

• Actual loss or damage resulting to the interests of another.

Farber v. Engle, 106 Pa.Commonwealth Ct. 173, 525 A.2d 864 (1987).

Addressing whether a municipality could be held liable at common law for the dangerous condition of a highway, presaging by 50 years its holding in Snyder v. Harmon, 522 Pa. 424, 562 A.2d 307 (1989), our Supreme Court in Good v. City of Philadelphia, 335 Pa. 13, 6 A.2d 101 (1939), held that although it was not an insurer against all defects in the highway, a governmental party was required to maintain its streets in a reasonably safe condition for travel. It further stated that except for faulty construction work on its part, the liability of the municipality for injuries suffered as a result of defects in the highway arose only when it had either actual or constructive notice of the dangerous condition. The court continued to explain that before a municipality could be charged with constructive notice of the dangerous condition of a roadway, that condition had to be apparent upon reasonable inspection. See also Department of Transportation v. Phillips, 87 Pa.Commonwealth Ct. 504, 488 A.2d 77 (1985).

Accordingly, if the Fidanzas can establish that PennDot had actual or constructive notice that a dangerous condition existed because there were improper shoulders, no guardrails and/or the debris on the side of the road could cause the car to continue sliding, then they would have a cause of action against PennDot at common law. ⁵

II.

Addressing the issue of PennDot's liability based on the actions of the other driver crossing into their lane of traffic, whether the Fidanzas would have a cause of action against PennDot as a joint tortfeasor is determined by our Supreme Court's recent decision in Powell v. Drumheller, --- Pa. ----, 653 A.2d 619 (1995). In Powell, our Supreme Court held that PennDot was not relieved from liability simply because another concurring cause was also responsible for producing injury. It stated that in determining whether PennDot had a common law duty to protect the public, the focus was not to be on the criminal nature of the third-party's negligent act, but on whether the third-party's action was so extraordinary as not to be reasonably foreseeable by PennDot. It then held that whether an action was so extraordinary was a question for the jury to decide.

Applying the Supreme Court's holding in Powell to this case, we will have to remand the case so that a jury can determine whether the other driver's action of crossing over into the Fidanza's lane of traffic was so extraordinary as to be unforeseeable to PennDot, thus absolving it of all liability. If the jury was to determine that the other driver's action was extraordinary and unforeseeable to PennDot, then the Fidanzas would not have a cause of action against PennDot because PennDot would be absolved of any liability. To the contrary, if the jury was to determine that the other driver's action was not extraordinary and was foreseeable to Penndot, PennDot could be jointly liable with that driver and the Fidanzas could continue to maintain their action against PennDot.

III.

Because the Fidanzas could maintain an action at common law against PennDot and thus have met the first prong of the two requirements set forth in 42 Pa.C.S. § 8522 of the Judicial Code, we must determine whether their injuries fell within one of the...