Uplinger v. Brown, No. 631 C.D. 2009 (Pa. Commw. Ct. 10/15/2009)
| Decision Date | 15 October 2009 |
| Docket Number | No. 631 C.D. 2009.,631 C.D. 2009. |
| Parties | Darlene Uplinger, as Adminstratrix of the Estate of Wilbur L. Uplinger, Jr., Deceased, Appellant, v. Paul F. Brown, Werner Enterprises, Inc., and Commonwealth of Pennsylvania, Pennsylvania Turnpike Commission. |
| Court | Pennsylvania Commonwealth Court |
BEFORE: LEADBETTER, President Judge; FRIEDMAN, Senior Judge; QUIGLEY, Senior Judge.
OPINION NOT REPORTED
Darlene Uplinger, as Adminstratix of the Estate of Wilbur L. Uplinger, Jr., Deceased, (Uplinger) appeals from the March 16, 2009 order of the Court of Common Pleas of Cumberland County (Trial Court), which granted the motion for summary judgment filed by the Commonwealth of Pennsylvania, Pennsylvania Turnpike Commission (Commission) based on the doctrine of sovereign immunity. We affirm.
On January 29, 2003, Commission personnel temporarily closed the eastbound lanes of traffic approximately 0.7 miles from the entrance of the Kittatinny tunnel to remove ice from inside the tunnel. A Commission supervisor operated an orange Commission pick up truck equipped with four way flashers and a beacon light on the cab. The supervisor backed the vehicle up on the right hand berm, waving a flag out of the driver's side window to warn motorists of the stopped traffic ahead.
Wilbur Uplinger, Jr. was driving a tractor trailer for ABF Freight System Inc. eastbound on the turnpike. He stopped and parked the tractor trailer, exited the tractor trailer and began to walk towards oncoming traffic past a stopped tractor trailer operated by Richard Lansberry. Paul Brown was driving a tractor trailer for Werner Enterprises and was traveling eastbound on the turnpike. Brown failed to stop his tractor trailer for the traffic backlog due to the tunnel closure. Brown's tractor trailer hit the rear of Lansberry's tractor trailer and fatally hit Wilbur Uplinger, Jr.
Uplinger filed a negligence action against the Commission, which filed a motion for summary judgment on the ground that the doctrine of sovereign immunity bars Uplinger's action against the Commission and that Uplinger failed to produce facts sufficient to demonstrate the Commission's actions were the proximate cause of the injuries sustained by Uplinger.1 The Trial Court granted the Commission's motion for summary judgment and held that the real estate exception to immunity only applies where the dangerous condition derives from, originates from, or has as its source the real property.2 The Trial Court concluded that the backlog of vehicles, which resulted when the Kittattinny tunnel was temporarily closed, did not derive from, originate from, or have the realty as its source. Uplinger appealed to this Court.3
Uplinger argues that the lack of signs or devices warning traffic of the upcoming double lane closure and the ensuing traffic backlog rendered the Turnpike unsafe for its intended purpose. Uplinger compares the lack of warning signs in this case to the facts in McCalla v. Mura, 538 Pa. 527, 649 A.2d 646 (1994), where our supreme court held that failure to erect a traffic signal exposed the county to liability.4 Uplinger also compares the facts in this case, a temporary condition of the highway, to the facts in Young v. Department of Transportation, 714 A.2d 475 (Pa.Cmwlth. 1998), rev'd on other grounds, 560 Pa. 373, 744 A.2d 1276 (2000), where there was a long term road construction project and warning signs were placed three miles prior to the construction zone. This court held that the Department of Transportation had a duty to make its highways safe for their intended purpose and that what constitutes a dangerous condition is for the jury to decide.5
As this Court agrees with the Trial Court's decision and further concludes that Judge Edgar B. Bayley's opinion thoroughly discusses and properly disposed of the arguments raised on appeal to this Court, we adopt the analysis in Judge Bayley's opinion for purposes of appellate review. Accordingly, we affirm the Trial Court's order...
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