Page v. City of Philadelphia

• Decision Date: 18 July 2011
• Citation: 25 A.3d 471
• Parties: Marc PAGE, Appellantv.CITY OF PHILADELPHIA and Pennsylvania Department of Transportation.
• Court: Pennsylvania Commonwealth Court

25 A.3d 471

Marc PAGE, Appellant

v.CITY OF PHILADELPHIA and Pennsylvania Department of Transportation.

Commonwealth Court of Pennsylvania.

Submitted on Briefs Feb. 4, 2011.Decided July 18, 2011.

Kenneth M. Rodgers, Philadelphia, for appellant.Alan C. Ostrow, Divisional Deputy City Solicitor, Philadelphia, for appellee City of Philadelphia.Claudia M. Tesoro, Senior Deputy Attorney General, Philadelphia, for appellee Department of Transportation.BEFORE: McGINLEY, Judge, and BROBSON, Judge, and FRIEDMAN, Senior Judge.OPINION BY Judge BROBSON.

Appellant Marc Page (Page) appeals from two orders of the Court of Common Pleas of Philadelphia County (trial court), both dated July 15, 2010. By those orders, the trial court granted motions for summary judgment filed by the City of Philadelphia (City) and the Pennsylvania Department of Transportation (DOT). For the reasons that follow, we affirm.

On June 30, 2009, Page filed a complaint against the City and DOT, averring that he sustained serious injuries on February 23, 2008, when he lost control of his car while driving on the 1100 Block of Allegheny Avenue in Philadelphia. (Reproduced Record (R.R.) at 18r.) Page averred that he lost control due to black ice caused by the “melt and refreeze” of improperly removed snow and ice from the highway. ( Id.)

In response, DOT filed a motion for summary judgment, alleging that Page's claim failed to state a cause of action against DOT. DOT alleged that it was not responsible for the removal of snow at that location because it had an agreement with the City for snow removal of state designated highways. ¹ ( Id. at 52r.) DOT also argued that Page's alleged accident was caused by a defect on the property, not a defect of the property, and, the accident did not fit within any exception to sovereign immunity set forth in what is commonly referred to as the Sovereign Immunity Act.², ³ ( Id. at 249r.)

The City also filed a motion for summary judgment, alleging that at the time of Page's accident, there was a snow removal agreement in place between the City and DOT, whereby the City agreed to remove ice and snow from certain state highways, including Allegheny Avenue. ( Id. at 4r.) The City maintained that it had no common law duty to remove ice and snow from the street, and, therefore, the City was not liable for the condition of a street once the roadway was adopted as a state highway. Further, the City contended that municipalities can be responsible only for a condition of the street that derives, originates, or has as its source the street itself, and Page's claim regarding the removal of snow and ice from the highway does not fall within the “streets exception” to governmental immunity under what is commonly referred to as the Political Subdivision Tort Claims Act (Tort Claims Act). ⁴

Page presented the report of Richard E. Daniels, a professional engineer, who evaluated whether the snow and ice removal practices of the City complied with safe engineering practice. ( Id. at 332r.) Mr. Daniels testified that he conducted an investigation of the incident roadway. His evaluation of the incident circumstances revealed that the existence of ice at the incident location was consistent with a failure of the City to apply uniformly and effectively salt to the roadway. ( Id. at 332r–36r.) Mr. Daniels reported that had the City applied a uniform and effective application of salt to the roadway, the ice would have melted and drained away from the area of the incident in a manner similar to other areas of the roadway. ( Id.)

In granting DOT's motion for summary judgment, the trial court concluded that the real estate exception to the Sovereign Immunity Act, 42 Pa.C.S. § 8522(b)(4), did not apply because Page did not prove that the black ice derived or originated from, or had as its source Allegheny Avenue itself. ( Id. at 326r.) In granting the City's motion, the trial court similarly concluded that Page did not prove that the black ice constituted a dangerous condition of a street and derived or originated from Allegheny Avenue or had Allegheny Avenue as its source. ( Id. at 329r.) Finally, as to Page's argument that summary judgment was premature due to a genuine issue of material fact, the trial court noted that the existence of a snow and ice removal contract between DOT and the City was not a genuine issue. ( Id. at 328r.) The trial court rationalized that no reasonable jury, faced with the evidence presented, could have concluded anything other than that the contract existed, and, as a result, there was no error in granting DOT's summary judgment motion. ( Id. at 328r.)

Page appealed the trial court's orders, raising the following issues for our review: ⁵

1. Whether DOT, under Sections § 8522(b)(4) and (5) of the Sovereign Immunity Act, has an obligation to effectively remove ice and snow from its designated highways in such a way that it does not create a dangerous condition in the removal of such snow, causing injury to a motorist on the highway?

2. Whether the City was entitled to summary judgment where Page sought to offer expert evidence to establish the City failed to properly remove ice and snow from a highway under its care, custody, and control causing a condition which in turn caused an injury to Page, a motorist on the highway?

3. Whether the City was entitled to grant of summary judgment where Page sought to establish liability under Section 8542(b)(6)(ii) of the Tort Claims Act, for removing ice and snow in an improper manner, causing a condition of melt and refreeze, which subsequently injured a motorist using the state-designated highway which the City had contracted to maintain by removal of ice and snow?

A. DOT's Summary Judgment Motion

We begin by addressing Page's argument that the trial court erred in entering summary judgment for DOT because the black ice was a dangerous condition that falls within the exceptions established in Sections 8522(b)(4) and (5) of the Sovereign Immunity Act. Specifically, Page argues that he has a cause of action against DOT due to the negligent conduct of DOT's designee in improperly removing the ice and snow from Allegheny Avenue, which created a foreseeable, dangerous condition consisting of the artificial accumulation of black ice.

Summary judgment may be granted only in those cases where the record clearly shows 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. Pa. State Ethics Comm'n, 555 Pa. 149, 153, 723 A.2d 174, 176 (1999). On a motion for summary judgment, the record must 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 his favor. Id. The question of whether the Commonwealth is entitled to summary judgment is based purely upon the statutory construction of the applicable immunity provisions. Dean v. Dep't of Transp., 561 Pa. 503, 508, 751 A.2d 1130, 1132 (2000).

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 and the cause of action falls under one of the specifically enumerated exceptions to immunity. Section 8522 of the Sovereign Immunity Act, 42 Pa.C.S. § 8522. Initially, Page must meet the threshold requirement that the alleged damages would be recoverable under the common law or a statute against a party not protected by sovereign immunity by proving the following elements of negligence: (1) the defendant's duty or obligation recognized by law; (2) a breach of that duty; (3) a causal connection between the defendant's conduct and the resulting injury; and (4) actual damages. Talarico v. Bonham, 168 Pa.Cmwlth. 467, 650 A.2d 1192, 1195–96 (1994).

We disagree that Page established that DOT owed a duty or obligation to him. “[I]n reviewing whether a duty exists the court must determine the relationship between the parties and balance the various competing interests and costs involved in providing the requested protection. This requires a determination of the probability of harm in conjunction with the inconvenience of acting to prevent that harm.” Mindala v. Am. Motors Corp., 518 Pa. 350, 358, 543 A.2d 520, 524 (1988). DOT is statutorily charged with the exclusive responsibility for repairing and maintaining state highways under Section 704 of the State Highway Law, Act of June 1, 1945, P.L. 1242, as amended, 36 P.S. § 670–407. The State Highway Law, therefore, imposes a duty on DOT to the general public to clear snow and ice on state highways. Huber v. Cmwlth., 122 Pa.Cmwlth. 82, 551 A.2d 1130, 1133 (1988), appeal denied, 525 Pa. 637, 578 A.2d 931 (1989). In addition, DOT owes a general duty to those using its real estate to maintain the condition of the property under its jurisdiction so that it is safe for the activities for which it is regularly used, intended to be used, or reasonably foreseen to be used. Snyder v. Harmon, 522 Pa. 424, 434, 562 A.2d 307, 312 (1989). Moreover, this Court has determined that just because DOT has a general statutory duty to repair and maintain state highways pursuant to the State Highway Law, it does not create a cause of action for a specific plaintiff. Huber, 551 A.2d at 1134. (Emphasis added.)

Here, Page is asking us to conclude that the duties of DOT described above include a specific duty owed to Page to clear or treat natural accumulations of snow and ice. We disagree. In Huber, we concluded that the State Highway Law does not impose a specific statutory duty on DOT to protect an individual from the natural accumulations of ice and snow resulting from a snowstorm, and no such duty exists at common law. Id. We cannot, therefore, interpret DOT's general duty of snow removal to include a specific duty to protect Page from the harm he suffered in this case. “A contrary...