Rothermel v. Com., Dept. of Transp.

• Decision Date: 06 March 1996
• Parties: Gerald B. ROTHERMEL, Administrator of the Estate of Maria D. Rothermel, Deceased, Appellant, v. COMMONWEALTH of Pennsylvania, DEPARTMENT OF TRANSPORTATION. Nancy McARDLE, Administratrix of the Estate of Maria McArdle, Deceased, v. COMMONWEALTH of Pennsylvania, DEPARTMENT OF TRANSPORTATION.
• Court: Pennsylvania Commonwealth Court

Page 837

672 A.2d 837

Gerald B. ROTHERMEL, Administrator of the Estate of Maria D.

Rothermel, Deceased, Appellant, v. COMMONWEALTH of Pennsylvania, DEPARTMENT OF TRANSPORTATION.

Nancy McARDLE, Administratrix of the Estate of Maria McArdle, Deceased, v. COMMONWEALTH of Pennsylvania, DEPARTMENT OF TRANSPORTATION.

Commonwealth Court of Pennsylvania.

Argued Feb. 7, 1996.

Decided March 6, 1996.

Gerald F. Strubinger, Jr., for Appellant, Gerald B. Rothermel.

Bobbie Ann Thornburg, for Appellant, Nancy McArdle.

William A. Slotter, Senior Deputy Attorney General, for Appellee.

Before COLINS, President Judge, and DOYLE, SMITH, PELLEGRINI, FRIEDMAN, KELLEY and FLAHERTY, JJ.

FRIEDMAN, Judge.

Gerald B. Rothermel, Administrator of the Estate of Maria D. Rothermel, and Nancy McArdle, Administratrix of the Estate of Maria McArdle (collectively, Administrators), appeal from an order of the Court of Common Pleas of Carbon County (trial court) granting partial summary judgment for the Pennsylvania Department of Transportation (DOT). The trial court held that sovereign immunity shielded DOT from liability for failure to erect a guiderail along a state highway and for failure to provide a clear recovery zone beyond the highway right-of-way.

On February 3, 1989, Maria McArdle and Maria Rothermel were returning from college via State Route 54 when McArdle apparently lost control of her car on an icy patch of road. The car veered off the road, down an embankment, and struck a stand of trees, killing both of its passengers. No guiderail was in place in the area of the accident.

On February 6, 1990, Gerald B. Rothermel filed a wrongful death/survival action against both Nancy McArdle, as administratrix of the estate of Maria McArdle, and DOT. The complaint alleged that the decedent, Maria McArdle, was negligent, careless and reckless in the operation of her motor vehicle and that DOT was, likewise, negligent in permitting the unnatural and artificial accumulation of water and ice on the roadway, in failing to provide and maintain a clear zone beyond the right-of-way and in failing to provide and maintain a guiderail along the roadway. ¹

On October 9, 1990, Nancy McArdle, in turn, filed a wrongful death/survival action against DOT, making allegations substantially similar to those made in the Rothermel action. McArdle and Rothermel subsequently reached a stipulated settlement by an order entered on September 19, 1991, and the trial court granted leave to Rothermel to enter a discontinuance of his claims against Nancy McArdle. The Rothermel and McArdle actions against DOT were subsequently consolidated for the purposes of trial.

In its answer, DOT specifically denied all material allegations of both complaints, including the charges that State Route 54 was in a dangerous condition at the time of the accident, that DOT permitted an unnatural or artificial accumulation of snow or ice and that DOT failed to provide and maintain a clear zone and a guiderail beyond the right-of-way or was under any duty to do so. DOT also alleged that, because it is immune from suit pursuant to section 8522(a) of what is commonly referred to as the Sovereign Immunity Act (Act), ² and is not within the relevant exception set forth in section 8522(b)(4) of the Act, ³ the action against it should be barred.

On December 7, 1994, DOT filed a Motion for Partial Summary Judgment, averring that the embankment and the trees which were, in part, the cause of the decedents' deaths, are outside of the right-of-way owned by DOT. Further, DOT argued, it owes no duty either to make land adjacent to its right-of-way safe for travel or to guard against a motorist leaving the right-of-way and being injured on the adjacent land.

In opposition to DOT's motion, Administrators contended that the real estate exception to sovereign immunity set forth in 42 Pa.C.S. § 8522(b)(4) applied in this case because the defective construction and maintenance of the roadway, coupled with the absence of a guiderail, constitutes a dangerous condition that "derive[s], originate[s] from or [has] as its source the Commonwealth realty." Snyder v. Harmon, 522 Pa. 424, 433, 562 A.2d 307, 311 (1989). Moreover, Administrators argued that, under Bendas v. Township of White Deer, 531 Pa. 180, 611 A.2d 1184 (1992), the question of what constitutes a dangerous condition is one of fact to be answered by the jury and is inappropriate for resolution on summary judgment.

In its Amended Order of March 28, 1995, the trial court granted DOT's Motion for Partial Summary Judgment and certified the order for interlocutory appeal pursuant to 42 Pa.C.S. § 702(b) and Rule 1311 of the Pennsylvania Rules of Appellate Procedure. The trial court held that summary judgment is proper with regard to the allegations of negligence stemming from DOT's failure "to provide and maintain a clear zone beyond the pavement at the accident site of proper and adequate width; [and] failing to provide and maintain a roadside recovery area at the accident site free of unyielding objects." The trial court cited Babcock v. Commonwealth of Pennsylvania, Department of Transportation, 156 Pa.Cmwlth. 69, 626 A.2d 672, 675 (1993), as controlling authority for the proposition that DOT is under no duty to maintain any such "clear zone," even within its right-of-way.

The trial court further held that sovereign immunity shields DOT from liability for failure to erect a guiderail because such failure cannot be said to be either an artificial condition or a defect of the land itself which caused the accident, as required by the real estate exception. Finally, the trial court rejected Administrators' argument that Bendas prevents it from granting partial summary judgment. The trial court acknowledged that the question of what constitutes a dangerous condition is one of fact for the jury, but reasoned that, in this case, the issue was not whether a dangerous condition existed but whether, even if the condition did exist, DOT would be liable for it as a defect originating from Commonwealth realty. Because the trial court found that Administrators had alleged no defect of the land itself, it held that DOT was immune from liability with regard to the absence of a guiderail and that partial summary judgment was, therefore, proper. It is from this order that Administrators now appeal. ⁴

This appeal presents two issues: (1) whether DOT owes a duty to Administrators to maintain a guiderail in order to prevent vehicles from leaving the right-of-way; and (2) whether, if such a duty does exist, Administrators' claim falls within the real estate exception, 42 Pa.C.S. § 8522(b)(4), to the state's general grant of sovereign immunity.

Initially, we note that summary judgment is only appropriate when, after examining the record, there is no genuine issue of material fact and the movant clearly establishes its entitlement to judgment as a matter of law. Mason & Dixon Lines, Inc. v. Mognet, 166 Pa.Cmwlth. 1, 645 A.2d 1370 (1994). 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 to be drawn therefrom. Id.

Pursuant to section 8522 of the Act, 42 Pa.C.S. § 8522, in order to maintain an action against a Commonwealth agency for damages arising out of a negligent act, a plaintiff must first show that: (1) the damages sought would be recoverable under the common law or a statute creating a cause of action if the injury were caused by one not having available the defense of sovereign immunity; and (2) the injury falls within one of the exceptions to the sovereign immunity granted the Commonwealth.

Addressing first the issue of whether DOT has a common law or statutory duty to maintain State Route 54 in a condition safe for its intended purpose, Administrators allege that DOT is responsible for the design, construction, maintenance, and repair of Route 54 and, therefore, does indeed have a general duty to provide a safe roadway. They further allege that DOT breached that duty by negligently ⁵ failing to install and maintain a guiderail, thereby creating a dangerous condition of the highway, and that DOT's negligence was the direct and proximate cause of the decedents' injuries. DOT, on the other hand, does not deny its general duty to make the roadway safe, but denies that it is under any duty to redesign, change or update the design of state highways, or to provide and maintain a guiderail. DOT also specifically denies that any dangerous condition existed on State Route 54, that it had notice of any such condition or that it was negligent in any manner with respect to the accident.

In Snyder v. Harmon, 522 Pa. 424, 562 A.2d 307 (1989), the Pennsylvania Supreme Court clearly recognized that DOT, by virtue of its administrative and advisory functions, owes a general duty to those using its real estate to ensure "that the condition of the property is safe for the activities for which it is regularly used, intended to be used or reasonably foreseen to be used." Id. at 435, 562 A.2d at 312. In certain instances, where it is necessary to ensure that the condition of the highway is safe for travel, the activity for which the highway is regularly used, intended to be used and reasonably foreseen to be used, the common law imposes an additional duty on a government party, in this case DOT, to reduce the risks posed by steep cliffs and embankments in close proximity to the highway by erecting guiderails or other barriers. Balla v. Sladek, 381 Pa. 85, 112 A.2d 156 (1955). See also Winegardner v. Springfield Township, 258 Pa. 496, 102 A. 134 (1917) (holding that "[i]f a public road ... is so dangerous by reason of its proximity to a precipice that common prudence requires extra precaution, in order to secure safety to travelers, the [government party] is bound to use such precaution and the omission to do so is...