Powell v. Drumheller

• Citation: 153 Pa.Cmwlth. 571,621 A.2d 1197
• Parties: Mary E. POWELL, As Administratrix of the Estate of Vincent E. Powell, Deceased, Appellant, v. David A. DRUMHELLER and Commonwealth of Pennsylvania, Department of Transportation and Winner Ford of Newark and Calderon Bros., Inc., Appellees.
• Decision Date: 21 April 1993
• Court: Pennsylvania Commonwealth Court

Page 1197

621 A.2d 1197

153 Pa.Cmwlth. 571

Mary E. POWELL, As Administratrix of the Estate of Vincent

E. Powell, Deceased, Appellant, v. David A. DRUMHELLER and Commonwealth of Pennsylvania,

Department of Transportation and Winner Ford of

Newark and Calderon Bros., Inc., Appellees.

Commonwealth Court of Pennsylvania.

Argued Dec. 16, 1992.

Decided Feb. 19, 1993.

Reargument Denied April 21, 1993.

Esther L. Hornik, for appellant.

John P. Capuzzi, Deputy Atty. Gen., for appellees.

Before DOYLE, COLINS, PALLADINO, McGINLEY, SMITH, PELLEGRINI and FRIEDMAN, JJ.

PELLEGRINI, Judge.

Mary E. Powell (Powell), as Administratrix of the Estate of Vincent A. Powell, Deceased, appeals an order of the Court of Common Pleas of Chester County (trial court), sustaining the preliminary objections of the Pennsylvania Department of Transportation (DOT) and dismissing Powell's amended complaint ¹ because DOT was insulated from liability due to intervening acts of a third party.

Powell brought a wrongful death and survival action against DOT and other defendants, jointly and severally, following the death of Vincent Powell when another driver collided with Vincent Powell's vehicle. According to Powell's amended complaint, ² the accident occurred when the other driver, David Drumheller, attempted to pass another vehicle and collided with Vincent Powell's oncoming automobile, killing him. The amended complaint alleged that the accident was caused by Drumheller's negligent operation of his vehicle and by operating it under the influence of alcohol. (Paragraphs 24 and 25). Further, the amended complaint alleged that Drumheller later pled guilty to vehicular homicide and driving under the influence of alcohol in connection with the incident.

Powell alleged that DOT was also negligent, contending that DOT created a dangerous condition over one of its highways which it had a statutory duty to maintain. Powell further alleged that DOT had a duty to mark streets it controlled and, more specifically, that DOT was negligent by:

(a) failing to make a centerline delineating the directions and lanes travel;

(b) failing to make a centerline designating a no passing zone;

(c) failing to have a regulatory sign (Do Not Pass) restricting passing;

(d) setting a speed limit that was too high for the available sight distance (stopping);

(e) setting a speed limit that was too high for the available sight distance (passing);

(f) failing to have a shoulder or lateral cleared area to provide room for an emergency maneuver or to provide an escape route;

(g) failing to maintain the shoulders of the road by allowing vegetation to overgrow to the edge of the pavement;

(h) failing to construct and maintain the site where the accident occurred in such a manner as to protect travelers from dangers which by the exercise of normal foresight, careful construction and reasonable inspection should have been anticipated and avoided.

Paragraph 27 of amended complaint.

DOT filed preliminary objections ³ in the nature of a demurrer to those allegations on the grounds that as a commonwealth party, sovereign immunity insulated it from liability because a criminal act of a third party caused Vincent Powell's death. The trial court agreed, dismissing Powell's argument that suit may proceed against DOT under the real estate, highway and sidewalk exception to sovereign immunity set forth at 42 Pa.C.S. § 8522(b)(4). ⁴ The present appeal followed, with Powell raising the issue of whether sovereign immunity bars her action against DOT. ⁵

DOT contends that Drumheller's conduct is such that it is an "act of others" that precludes imposition of liability on it under 42 Pa.C.S. § 8522(b)(4). ⁶ Whether commonwealth parties and local agencies are immune from liability where the conduct of a third party is alleged to have resulted in injuries to the plaintiff has been a subject that has caused the courts of this Commonwealth much difficulty.

After a number of decisions from this court generally holding that local agencies in certain circumstances could be held liable for their negligent acts, even though criminal acts of third parties intervened, ⁷ our Supreme Court, in the seminal Mascaro v. Youth Study Center, 514 Pa. 351, 523 A.2d 1118 (1987), a case involving a local agency, first addressed this issue. Mascaro involved two juvenile offenders who escaped from a juvenile detention center. Both escapees immediately proceeded to burglarize the Mascaro home, rape and physically abuse the mother and daughter in the presence of the rest of the family. The husband/father, unable to live with the tragedy, committed suicide. The family brought suit against the local agency, claiming negligent maintenance of the detention center pursuant to § 8542(b)(3) ⁸ of what is commonly called the Political Subdivision Tort Claims Act. Although concluding that the allegations of the complaint fell within the real property exception, and that the cause of action would exist if the local agencies were private parties, the Supreme Court found that the liability was precluded because of the language of 42 Pa.C.S. § 8541. ⁹ Our Supreme Court held that acts of the local agency or its employees which make the property unsafe for the purposes for which the property is regularly used are acts to which liability attaches, but since "[a]cts of others ... are specifically excluded in the general immunity section (42 Pa.C.S. § 8541), and are nowhere discussed in the eight exceptions," 514 Pa. at 362, 523 A.2d at 1124, the local agency was not held liable. ¹⁰

Quoting language in Chevalier v. City of Philadelphia, 516 Pa. 316, 532 A.2d 411, 413 (1987), a case involving a local agency which held that the Mascaro rationale precludes third-party liability on the Commonwealth or its local agencies, this court, in Moore v. Commonwealth, Department of Justice, 114 Pa.Commonwealth Ct. 56, 60, 538 A.2d 111, 113 (1988), held for the first time in a case involving the Commonwealth that:

The General Assembly has not waived the immunity of the "Commonwealth or its local agencies for harm caused by [criminal acts of] third persons in any of the [immunity] exceptions." ¹¹

Extending the Mascaro rationale to include non-criminal conduct, this court in Crowell v. City of Philadelphia, 131 Pa.Commonwealth Ct. 418, 570 A.2d 626, appeal granted, 525 Pa. 550, 582 A.2d 1311 (1990), held that governmental activity not only must be "a" cause of the accident, but "the" cause of the accident. If a third-party's negligence in any way contributed to the accident, then, the court reasoned, the governmental activity "itself" did not cause the accident. The Crowell holding had an enormous impact because it effectively eradicated joint tortfeasor liability being imposed on any governmental unit when any negligence by a third party is involved. Crowell, 131 Pa.Commonwealth Ct. at 425-426, 570 A.2d at 630.

Backing away from that result, this court, in Buschman v. Druck, 139 Pa.Commonwealth Ct. 182, 590 A.2d 53 (1991), a case also involving a collision of two vehicles on a DOT highway which was allegedly defectively designed, held by a majority of judges, many writing separately, that we erred in holding a commonwealth party or local agency could not be sued merely because there was another joint tortfeasor. Overruling Crowell in part, the court concluded that the limitation on liability established by Mascaro should only apply to situations where the act of the third party is not merely a substantial factor in bringing about the injury, but is in the nature of a superseding cause to the negligence of the commonwealth party or local agency. This court agreed that criminal conduct caused the collision, but we were unable to agree when and under what theory non-criminal negligence would act to preclude liability based upon third-party conduct.

The Supreme Court, finally, in two cases decided on the same day, ¹² addressed the government's liability when a third party was involved. In Dickens v. Horner, 531 Pa. 127, 611 A.2d 693 (1992), the plaintiff was seriously injured when an automobile travelling at a high rate of speed in a police chase struck her. The police officer initiated the chase because he believed that the actor (Horner) was driving under the influence of drugs and without a driver's license. Overturning the decision of the Commonwealth Court ¹³ that the decision to initiate a pursuit and failure to exercise due care fell within the vehicle exception to immunity, the Supreme Court, without mentioning Crowell or Buschman, held that the criminal acts of third parties are causes which absolve the local government from liability for the harm caused by third parties. Dickens' analysis, while mentioning the Mascaro rationale, appears to rely more on "the general rule that the criminal and negligent acts of third parties are superseding causes which absolve the original actor from liability." ¹⁴ Dickens, 531 Pa. at 127, 611 A.2d at 695.

The other case decided was Crowell v. City of Philadelphia, 531 Pa. 400, 613 A.2d 1178 (1992), the case that began the present controversy. Crowell dealt with whether third-party non-criminal negligence could preclude joint tortfeasor liability from being imposed on a governmental unit. In Crowell, the plaintiffs' three year old son was killed by a driver who crossed over the median divider at a curve in the road and struck plaintiffs' vehicle. Just before the curve where the accident occurred, the traffic directional sign, erected by the City of Philadelphia, warned drivers that the road curved to the left when it, in fact, curved to the right. At the time of the accident, the driver was drunk and ultimately pled guilty to driving while intoxicated. As to the driver's criminal conduct of driving under the influence, the Supreme Court found that it did not insulate the city from liability for wrongly placing a traffic directional sign, because there was no evidence offered at trial that...