Patton v. Com., Dept. of Transp.

• Decision Date: 05 January 1996
• Citation: 669 A.2d 1090
• Parties: W. Donald PATTON, Administrator of the Estate of Brenda L. Patton, Deceased v. COMMONWEALTH of Pennsylvania, DEPARTMENT OF TRANSPORTATION, Appellant.
• Court: Pennsylvania Commonwealth Court

Page 1090

669 A.2d 1090

W. Donald PATTON, Administrator of the Estate of Brenda L Patton, Deceased v. COMMONWEALTH of Pennsylvania, DEPARTMENT OF TRANSPORTATION, Appellant.

Commonwealth Court of Pennsylvania.

Argued Oct. 17, 1995.

Decided Jan. 5, 1996.

John M. Abel, Deputy Attorney General, for appellant.

William E. Haggerty, for appellee.

Before PELLEGRINI and KELLEY, JJ., and KELTON, Senior Judge.

KELTON, Senior Judge.

This case arises from the death of Brenda L. Patton when a large tree limb, overhanging the state highway on which she travelled, fell onto her car. Donald Patton (Patton), Administrator of Brenda Patton's estate, filed a wrongful death and survival action in the Court of Common Pleas of Chester County against the Commonwealth of Pennsylvania, Department of Transportation (DOT), alleging that DOT was negligent in maintaining the roadway and tree. A jury returned a verdict in favor of Patton. DOT appeals from the April 10, 1995 order of the trial court, denying DOT's motion for post trial relief and ordering DOT to pay delay damages. ¹ We affirm. ²

The principal issues before us are whether the trial court erred in determining that Patton had adequately established 1) that DOT owed a common law duty to correct the recognizable hazard created by the tree and 2) that the cause of action falls under the real estate exception to sovereign immunity contained in the Judicial Code, 42 Pa.C.S. § 8522(b)(4).

Background

The facts, as indicated in the trial court's April 10, 1995 opinion, are summarized as follows. On June 1, 1988, Brenda Patton was driving on King Road, a designated state highway in Chester County, when a large limb from a tree fell on her car, killing her. The limb fell from a tree within the Commonwealth right-of-way. The tree had been topped over twenty years ago. No one is sure who topped the tree. The limb had been growing at a forty-five degree angle across the roadway.

At trial, Patton presented expert testimony that the artificial topping of the tree caused the tree to decay and the limb to fail. According to Patton's expert, a topped tree should raise a "red flag" to a well trained tree inspector. Patton introduced DOT's maintenance manual and a United States Forest Service Training video to demonstrate DOT's own guidelines for reasonable care. Additionally, for the purpose of showing control or ownership, Patton presented evidence that DOT removed the tree after the accident.

After the trial, the jury returned a verdict in favor of Patton in the amount of $767,000.00. DOT filed post trial motions. The trial court rejected each assignment of error, but molded the verdict to reflect the statutory cap of $250,000.00 under 42 Pa.C.S. § 8528.

In denying DOT's motions, the trial court stated that Patton's expert testimony, if believed by the jury, was sufficient to show that the dangerous condition of the tree was discoverable by reasonable means. The trial court determined that Patton produced sufficient evidence that the tree was within the care, custody, and control of DOT to be within the real estate exception to sovereign immunity. The court rejected DOT's contention that the 8522(b)(5) "pothole" exception rather than the 8522(b)(4) real estate exception to sovereign immunity applies in this case. The court stated that a decayed tree is not the type of dangerous condition contemplated under the "pothole" exception. Additionally, the court stated that the evidence presented showed that the decay of the tree was not caused solely by nature, but was initiated by the artificial topping of the tree. The court held that no notice, either actual or constructive, is required under the 8522(b)(4) real estate exception and, therefore, rejected DOT's request for a jury charge on notice.

By order of May 24, 1995, the trial court adopted its April 10, 1995 opinion and order as the opinion of the court for purposes of appeal.

On appeal to this Court, DOT argues that Patton failed to establish a legally cognizable duty on the part of DOT because the evidence presented failed to show that the defect was discoverable by reasonable inspection. DOT also argues that courts have recognized that rural property owners, like DOT, are not saddled with the same duty to inspect natural conditions as urban property owners. DOT additionally argues that the trial court sanctioned theories of liability, including a "failure to inspect" theory, that are barred by sovereign immunity.

DOT also argues that the dangerous condition of the tree was caused by natural, rather than artificial, elements; therefore, DOT contends that if any exception to immunity is applicable, it is the 8522(b)(5) "pothole" exception, requiring actual written notice. In the alternative, DOT argues that the trial court erred in refusing its requested point for charge which stated that if the jury found that the allegedly dangerous condition was artificially created, they must determine whether DOT had actual or constructive notice. ³ DOT also argues that Patton failed to establish that the tree was located within the Commonwealth right-of-way.

Discussion

Duty

In order to maintain a cause of action against a Commonwealth party, the plaintiff must first show that the damages would be recoverable under common law or a statute creating a cause of action if the injury were caused by a person not having available the defense of sovereign immunity. 42 Pa.C.S. § 8522(a); Fidanza v. Department of Transportation, 655 A.2d 1076 (Pa.Cmwlth.), petition for allowance of appeal denied, 542 Pa. 677, 668 A.2d 1138 (1995). The plaintiff must then show that the cause of action falls within one of the exceptions to the general grant of immunity contained in the Judicial Code. 42 Pa.C.S. § 8522(b); Fidanza.

To recover under a cause of action in negligence, the plaintiff must establish: 1) a duty recognized by the law, requiring the actor to conform to a standard of conduct for the protection of others against foreseeable risks; 2) a failure of the actor to conform to the required standard; 3) a causal relationship between the conduct and the resulting injury; and 4) actual loss or damage to the interests of another. Fidanza.

Our Supreme Court has recognized that DOT, although not an insurer against all defects in highways, is required to maintain highways in a reasonably safe condition for travel. Bendas v. Township of White Deer, 531 Pa. 180, 611 A.2d 1184 (1992); See also Good v. City of Philadelphia, 335 Pa. 13, 6 A.2d 101 (1939). Regarding the duty which DOT owes as a possessor of land, this Court, in Miranda v. City of Philadelphia, 166 Pa.Cmwlth. 181, 646 A.2d 71 (1994), applied to DOT the following standard set forth in the Restatement (Second) of Torts § 342 (1965), which provides:

A possessor of land is subject to liability for physical harm caused to licensees by a condition on the land, if, but only if,

(a) the possessor knows or has reason to know of the condition and should realize that it involves an unreasonable risk of harm to such licensees, and should expect that they will not discover or realize the danger, and

(b) he fails to exercise reasonable care to make the condition safe, or to warn the licensees of the condition and the risk involved, and

(c) the licensees do not know of or have reason to know of the condition and the risk involved.

Miranda, 646 A.2d at 74 (emphasis deleted).

In Miranda, this Court affirmed the trial court's dismissal of a suit against DOT for the plaintiff's failure to establish notice, on the part of DOT, of a dangerous condition of its real estate. In that case, the plaintiff stipulated that DOT had no actual notice of an excavation, undertaken by the Philadelphia Gas Works on a state highway, but argued that DOT had constructive notice of the condition by virtue of its ownership of the street. The trial court rejected the plaintiff's argument that DOT had constructive notice solely by virtue of its ownership of the street. Reviewing the evidence presented, the court determined that DOT had no reason to know of the dangerous condition, which had been in existence for only thirteen days. The trial court, thus, concluded that the plaintiff had failed to state a cause of action in negligence.

Accordingly, where, as here, injury does not result from faulty construction work on the part of DOT, the liability of DOT, as a possessor of land, arises only when DOT has either had actual or constructive notice of the risk of unreasonable harm. Fidanza; Miranda. Before DOT can be charged with constructive notice of a dangerous condition, that condition must have been apparent upon a reasonable inspection. Fidanza.

Patton's tree experts testified that the tree posed an obvious hazard. Specifically, Kenneth C. Miller, an expert in arboriculture, testified that the tree raised an "obvious red flag" due to its topping and the propensity of its weight toward the roadway. (Original Record, Hearing of November 10, 1993, N.T. at 303-304.) Dr. Miller explained that topping opens up the tree's entire defense system. (N.T. at 305.) He stated that decay will progressively invade the tree from top to bottom. (N.T. at 305.) He opined that, in this case, the limb fell due to poor attachment caused by decay, originating in the top, and the effects of wind and rain. (N.T. at 306.) Additionally, Gregory L. Layton, a certified arborist, testified that when the top of a tree is removed, another limb will take over as a central leader. (N.T. at 235.) Mr. Layton estimated that the fallen limb was approximately 40 to 45 feet long and weighed at least five tons. (N.T. at 228-29.) He opined that because of decay, the socket holding the limb could no longer hold its weight. (N.T. at 234.) Mr. Layton stated that he automatically considers a tree, such as this, with no central top and a limb protruding at a 45-degree angle, as a hazard requiring removal. (N.T. at 229.)

Additionally, Kevin Munley, a roadside development...