Mason & Dixon Lines, Inc. v. Mognet

• Decision Date: 13 July 1994
• Citation: 645 A.2d 1370,166 Pa.Cmwlth. 1
• Court: Pennsylvania Commonwealth Court
• Parties: The MASON & DIXON LINES, INC. v. Larry W. MOGNET, Jr., and Penn Eastern Corporation, Anthony Shugart, Nelson P. Shugart, the Pennsylvania Department of Transportation, and the Pennsylvania Turnpike Commission, Appellants. MASON AND DIXON LINES, INC. v. Larry W. MOGNET, Jr. and Penn Eastern Corporation v. Anthony SHUGART, Nelson P. Shugart, the Pennsylvania Department of Transportation, and the Pennsylvania Turnpike Commission, Larry W. Mognet, Jr., Appellant.

Page 1370

645 A.2d 1370

166 Pa.Cmwlth. 1

The MASON & DIXON LINES, INC. v. Larry W. MOGNET, Jr., and Penn Eastern Corporation, Anthony

Shugart, Nelson P. Shugart, the Pennsylvania

Department of Transportation, and the

Pennsylvania Turnpike

Commission, Appellants.

MASON AND DIXON LINES, INC. v. Larry W. MOGNET, Jr. and Penn Eastern Corporation v. Anthony SHUGART, Nelson P. Shugart, the Pennsylvania

Department of Transportation, and the Pennsylvania

Turnpike Commission,

Larry W. Mognet, Jr., Appellant.

Commonwealth Court of Pennsylvania.

Argued April 14, 1994.

Decided July 13, 1994.

Harry D. McMunigal and Martin S. Hohenadel, for appellants.

James R. Ronca, for appellees.

Before DOYLE and FRIEDMAN, JJ., and DELLA PORTA, Senior Judge.

DOYLE, Judge.

Larry Mognet and Penn Eastern Corporation appeal from an order of the Court of Common Pleas of Cumberland County of June 9, 1993, which granted a Motion for Summary Judgment filed by the Pennsylvania Turnpike Commission (Commission) on the basis that there was no common law duty to protect turnpike travelers from domestic animals that stray onto the roadway in the path of oncoming traffic.

The case arises out of a collision which occurred on the Pennsylvania Turnpike in North Middletown Township, Cumberland County on June 23, 1988, between a tractor trailer driven by Mognet while employed by Penn Eastern, and a tractor trailer driven by Fred Miller carrying cargo for the Mason Dixon Lines. A cow alleged to have been owned by Anthony and Nelson P. Shugart wandered onto the turnpike through a hole in a fence which was owned and maintained by the Commission. ¹ The cow somehow entered into the westbound lane of the turnpike directly in the path of Mognet's truck who was unable to avoid hitting it. Mognet lost control of his vehicle which jumped the median guardrail and collided with the tractor trailer being driven by Miller. Mognet's tractor and trailer were totally destroyed; Miller's tractor was substantially damaged, and Mason Dixon's cargo and trailer were also completely destroyed.

As a result of the accident, the parties filed numerous suits against one another in Cumberland County and Mognet filed his complaint in Dauphin County. The Commission was joined as an original defendant or added as an additional defendant in the various cases. Penn Eastern and Mognet alleged that the Commission was negligent in allowing the cow to wander onto the turnpike. Upon the Commission's motions, the cases were consolidated in Cumberland County and the Commission then filed counterclaims for the damage to the turnpike caused by the collision. On September 10, 1992, the Commission filed its Motion for Summary Judgment which the trial court granted on June 9, 1993. Penn Eastern and Mognet then filed the appeals which are presently before us.

On appeal, ² Penn Eastern and Mognet argue that the trial court erred in granting the Commission's motion for summary judgment because: (1) the Commission owed the plaintiffs, Penn Eastern and Mognet, a common law duty of care, i.e., to provide a highway safe for travel; (2) the Commission is liable under the real estate exception to sovereign immunity found at Section 8522(b)(4) of the Judicial Code, 42 Pa.C.S. § 8522(b)(4); and (3) Penn Eastern and Mognet alleged sufficient facts to preclude summary judgment.

As the trial court correctly noted, summary judgment is only appropriate when, after examining the record in favor of the nonmoving party, there is no genuine issue of material fact and the movant clearly establishes its entitlement to judgment as a matter of law. Dwight v. Girard Medical Center, 154 Pa.Commonwealth Ct. 326, 623 A.2d 913 (1993). Moreover, when considering a motion for summary judgment, the court must examine the record in the light most favorable to the nonmoving party, accepting as true all well-pleaded facts and all inferences drawn therefrom. Banker v. Valley Forge Insurance Co., 401 Pa.Superior Ct. 367, 585 A.2d 504, petition for allowance of appeal denied, 529 Pa. 615, 600 A.2d 532 (1991).

Initially, we note that under the sovereign immunity section of the Judicial Code, 42 Pa.C.S. § 8541-8564, in order to maintain an action against a Commonwealth agency, a plaintiff must show first, that the damages sought would be recoverable under common law or a statute creating a cause of action against one not having an immunity defense, and second, that the injury must fall within an exception to the general grant of immunity to the Commonwealth. 42 Pa.C.S. § 8542(a); Mascaro v. Youth Study Center, 514 Pa. 351, 523 A.2d 1118 (1987).

The trial court, in its opinion, concluded first that the Commission had no common law duty to maintain the turnpike in such a way as to keep cattle off of it, citing Bradley v. Pennsylvania Turnpike Commission, 121 Pa.Commonwealth Ct. 51, 550 A.2d 261 (1988), petition for allowance of appeal denied, 527 Pa. 588, 588 A.2d 511 (1990) (Commission has no duty to warn or protect a motorist as a business invitee from deer wandering onto the turnpike, citing Rippy v. Fogel, 108 Pa.Commonwealth Ct. 296, 529 A.2d 608 (1987) (wild animals, as ferae naturae, on the highway constitute a condition which cannot possibly be corrected)), and thus Penn Eastern and Mognet had no cause of action against the Commission. ³ The trial court did not directly address whether the cow was a "dangerous condition" within the real estate exception to sovereign immunity at 42 Pa.C.S. § 8522(b)(4) ⁴.

As directed by Section 8542(a) the Judicial Code, 42 Pa.C.S. § 8542(a), we must first determine whether the Commission owed Penn Eastern and Mognet a common law or statutory duty before we determine whether the accident falls within the real estate exception to sovereign immunity. Though not so succinctly delineated, the following is the essential argument made by Penn Eastern and Mognet in attempting to establish a duty owed to them by the Commission: the Commission has a general duty to protect the traveling public on the turnpike, which subsumes, (a) a duty to protect them against domestic animals on the roadway, (b) a duty to erect fencing to keep such animals off the turnpike, and (c) a duty to maintain that fencing for that purpose.

Mognet and Penn Eastern begin by asserting that the Commission owed a duty to protect them against animals because the Commission has a general duty to provide a safe highway. Because the cow in this case had wandered onto the highway through a hole in the fencing, Penn Eastern and Mognet argue that the turnpike was not safe. While we may agree that the Commission, by virtue of its administrative and advisory functions, has a general duty to make the physical structure of the turnpike reasonably safe for its intended purpose, Majestic v. Commonwealth, Department of Transportation, 537 Pa. 81, 641 A.2d 295 (1994); Bendas v. Township of White Deer, 531 Pa. 180, 611 A.2d 1184 (1992) (Bendas II), and while we may readily agree that a cow or any other domestic animal may cause a "dangerous condition" to exist if it strays onto any roadway, much more so the Pennsylvania Turnpike, we disagree that the Commission has the responsibility to ensure that the highway is kept clear of such animals. The argument that the Commission has a specific duty to protect the public from the incursion of animals does not necessarily follow from the general duty to provide for the safe physical structure of the turnpike itself.

Penn Eastern and Mognet cite our case of Norbert v. State Police, 148 Pa.Commonwealth Ct. 505, 611 A.2d 1353 (1992), for the proposition that the Commission bears the general duty of providing for the safe passage of the travelling public. In Norbert, the plaintiff (Norbert), was operating a truck in the westbound lane of the Pennsylvania Turnpike, and was injured when his vehicle struck a truck tire and wheel in the middle of his lane. The wheel and tire were alleged to have been the remnants from a previous accident which had been investigated by the Pennsylvania State Police. Norbert brought suit against the State Police alleging that they negligently failed to remove the tire and wheel in breach of their duty as State Policeman. Norbert brought suit against the Commission alleging that its failure to remove the tire and wheel, despite its knowledge of their presence, breached its duty to protect the safety of travellers on the turnpike.

While we acknowledged in Norbert that the Commission had some duty to provide for the safety of the travelling public, a close reading of the opinion in Norbert indicates that we purposely assumed that the plaintiff's complaint adequately alleged a duty on the part of the Commission, to test whether or not the failure to remove a tire and wheel from the roadway fell within any of the exceptions to sovereign immunity. We held that it did not because a tire and wheel lying on the highway were not a dangerous condition "of" the highway. Id. We did not hold that the Commission had a duty to protect the plaintiff from dangerous conditions "on" the turnpike as Penn Eastern and Mognet would have us find here. In the present case, the cow, like the tire in Norbert, was simply "on" the highway, and was not a dangerous condition "of" the highway.

In Norbert, we cited Department of Transportation v. Pennsylvania Public Utility Commission, 79 Pa.Commonwealth Ct. 266, 469 A.2d 1149 (1983), for the proposition that the Commission has a duty to safely maintain the physical structure of the turnpike itself. In both of these cases, the issue was who was fiscally responsible for the maintenance of bridges spanning the turnpike. In neither case was tortious conduct in any way at issue.

Regarding stray domestic animals on the road, it has long been the rule in the Commonwealth that the owner of livestock is liable for damages caused by such livestock. Bender v. Welsh, 344 Pa. 392, 25 A.2d 182 (1942). To impose liability on the Commission for wandering...