PALLADINO, Judge.
Ann Marie Druck (Druck), William S. Druck, and Deborah A. Buschman (Buschman) (collectively Appellants) appeal from an order of the Court of Common Pleas of York County (trial court) granting partial summary judgment in favor of the Department of Transportation (DOT).1
This action stems from an automobile accident which occurred on January 25,1985. On that date, Buschman was operating her vehicle in a northerly direction on a state highway in Lower Windsor Township, York County, and Druck was operating her vehicle in a southerly direction on [184]*184the same highway, when the two vehicles collided. The drivers sued each other and DOT, claiming that the negligence of the other driver, together with the negligence of DOT caused the injuries sustained. Each driver alleged that DOT was negligent in failing to place curve warning and speed advisory signs at the curve where the accident occurred.
Immediately prior to trial, all'parties agreed that Appellants could only establish a claim of joint and several liability against DOT, and that a verdict of sole liability against DOT would not be possible. As a result of this agreement, DOT filed a motion for summary judgment based upon this court’s decision in Crowell v. City of Philadelphia, 131 Pa.Commonwealth Ct. 418, 570 A.2d 626 (1990). DOT argues that Crowell prohibits án action against a commonwealth party, when only joint and/or several liability for negligence can be proven. The trial court, holding that Crowell applied, granted DOT’s motion. This appeal followed.
On appeal, Appellants raise two issues: (1) whether the trial court erred in applying Crowell to the facts in this case so as to bar recovery against the commonwealth; and (2) whether Crowell should be overruled because it misconstrues applicable precedent and is contrary to this commonwealth’s comparative negligence statute.2
Summary judgment may be granted only “if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Pa.R.C.P. No. 1035(b). Our scope of review of a trial court’s grant of summary judgment is limited to a determination of whether the trial court abused its discretion or committed an error of law. Herman v. Greene County Fair Board, 112 Pa.Commonwealth Ct. 615, 535 A.2d 1251 (1988).
[185]*185Appellants argue that Crowell should not bar the action against DOT, because Crowell interprets the immunity provisions applicable to local agencies, not the section applicable to commonwealth parties. However, both the Pennsylvania Supreme Court and this court have recognized the similarity between the governmental and sovereign immunity provisions, and have relied upon cases in one area, when confronted with a similar problem in the other. See Snyder v. Harmon, 522 Pa. 424, 562 A.2d 307 (1989); Mascaro v. Youth Study Center, 514 Pa. 351, 523 A.2d 1118 (1987); Chambers v. Southeastern Pennsylvania Transportation Authority, 128 Pa.Commonwealth Ct. 368, 563 A.2d 603 (1989). Accordingly, we conclude, that the reasoning in Crowell is equally applicable to cases arising under either the governmental immunity or sovereign immunity provisions.
We must now turn to the question of whether Crowell should be overruled, as the Appellants alternatively argue. In Crowell, the plaintiffs brought a wrongful death and negligence action against a drunk driver, Harry B. Lewis (Lewis), who crossed over a median divider at a turn in the road on the Schuylkill expressway and struck plaintiffs’ vehicle. Just before the curve where the accident occurred, a traffic directional sign, erected by the City of Philadelphia (City), warned drivers that the road ahead curved to the left. In fact, the road curved to the right. A jury trial resulted in a verdict for the plaintiffs, with the jury attributing eighty percent of the liability to Lewis, and the remaining twenty percent to the City. The City filed a post-trial motion, requesting judgment notwithstanding the verdict on the theory that the claims against the City were barred by 42 Pa.C.S. § 8541.3 A panel of this court, relying upon the Pennsylvania Supreme Court’s opinion in Mascaro [186]*186v. Youth Study Center, 514 Pa. 351, 523 A.2d 1118 (1987), and this court’s opinions in Gallagher v. Bureau of Correction, 118 Pa.Commonwealth Ct. 516, 545 A.2d 981 (1988) and Moore v. Department of Justice, 114 Pa.Commonwealth Ct. 56, 538 A.2d 111 (1988), held that section 8542(b)(4)4 required that “the dangerous condition of the traffic directional sign, standing alone ...” Crowell, 131 Pa. Commonwealth Ct. at 425-426, 570 A.2d at 630, had to cause the injury before the City could be liable. The court then made the following observation:
We do observe that this decision effectively eradicates joint tortfeasor liability on the part of a local agency under Section 8542(b)(4). We are hard-pressed to think of a situation involving the concurrent negligence of a local agency where it cannot be said that the agency’s negligence merely facilitated the harm caused. Indeed, if the rationale of this case is applied to other governmental immunity exceptions, including those pertaining to the Commonwealth, the joint tortfeasor liability of any governmental unit will be difficult to establish under any exception. See, e.g. Gallagher.
Further, although this is the first opinion to identify the virtual impossibility of proving the liability of a local agency where the local agency’s negligence is concurrent with that of another tortfeasor, we believe we are simply [187]*187stating what is implicit in the Supreme Court’s Mascaro opinion.
Id., 131 Pa.Commonwealth Ct. at 426-427, 570 A.2d at 631 (emphasis in original).
After a thorough review of Crowell, and the cases cited therein, we conclude that the panel in Crowell erred when it suggested that joint tortfeasor liability was no longer available against a governmental unit. The panel was correct, however, in holding that the City was not liable to the Crowells, not because the City could not be a joint tortfeasor, but because the criminal conduct of Lewis, i.e. driving while under the influence, was a superseding cause which absolved the City of any liability. See Mascaro; Moore.
Gallagher, relied upon by the panel in Crowell
Free access — add to your briefcase to read the full text and ask questions with AI
PALLADINO, Judge.
Ann Marie Druck (Druck), William S. Druck, and Deborah A. Buschman (Buschman) (collectively Appellants) appeal from an order of the Court of Common Pleas of York County (trial court) granting partial summary judgment in favor of the Department of Transportation (DOT).1
This action stems from an automobile accident which occurred on January 25,1985. On that date, Buschman was operating her vehicle in a northerly direction on a state highway in Lower Windsor Township, York County, and Druck was operating her vehicle in a southerly direction on [184]*184the same highway, when the two vehicles collided. The drivers sued each other and DOT, claiming that the negligence of the other driver, together with the negligence of DOT caused the injuries sustained. Each driver alleged that DOT was negligent in failing to place curve warning and speed advisory signs at the curve where the accident occurred.
Immediately prior to trial, all'parties agreed that Appellants could only establish a claim of joint and several liability against DOT, and that a verdict of sole liability against DOT would not be possible. As a result of this agreement, DOT filed a motion for summary judgment based upon this court’s decision in Crowell v. City of Philadelphia, 131 Pa.Commonwealth Ct. 418, 570 A.2d 626 (1990). DOT argues that Crowell prohibits án action against a commonwealth party, when only joint and/or several liability for negligence can be proven. The trial court, holding that Crowell applied, granted DOT’s motion. This appeal followed.
On appeal, Appellants raise two issues: (1) whether the trial court erred in applying Crowell to the facts in this case so as to bar recovery against the commonwealth; and (2) whether Crowell should be overruled because it misconstrues applicable precedent and is contrary to this commonwealth’s comparative negligence statute.2
Summary judgment may be granted only “if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Pa.R.C.P. No. 1035(b). Our scope of review of a trial court’s grant of summary judgment is limited to a determination of whether the trial court abused its discretion or committed an error of law. Herman v. Greene County Fair Board, 112 Pa.Commonwealth Ct. 615, 535 A.2d 1251 (1988).
[185]*185Appellants argue that Crowell should not bar the action against DOT, because Crowell interprets the immunity provisions applicable to local agencies, not the section applicable to commonwealth parties. However, both the Pennsylvania Supreme Court and this court have recognized the similarity between the governmental and sovereign immunity provisions, and have relied upon cases in one area, when confronted with a similar problem in the other. See Snyder v. Harmon, 522 Pa. 424, 562 A.2d 307 (1989); Mascaro v. Youth Study Center, 514 Pa. 351, 523 A.2d 1118 (1987); Chambers v. Southeastern Pennsylvania Transportation Authority, 128 Pa.Commonwealth Ct. 368, 563 A.2d 603 (1989). Accordingly, we conclude, that the reasoning in Crowell is equally applicable to cases arising under either the governmental immunity or sovereign immunity provisions.
We must now turn to the question of whether Crowell should be overruled, as the Appellants alternatively argue. In Crowell, the plaintiffs brought a wrongful death and negligence action against a drunk driver, Harry B. Lewis (Lewis), who crossed over a median divider at a turn in the road on the Schuylkill expressway and struck plaintiffs’ vehicle. Just before the curve where the accident occurred, a traffic directional sign, erected by the City of Philadelphia (City), warned drivers that the road ahead curved to the left. In fact, the road curved to the right. A jury trial resulted in a verdict for the plaintiffs, with the jury attributing eighty percent of the liability to Lewis, and the remaining twenty percent to the City. The City filed a post-trial motion, requesting judgment notwithstanding the verdict on the theory that the claims against the City were barred by 42 Pa.C.S. § 8541.3 A panel of this court, relying upon the Pennsylvania Supreme Court’s opinion in Mascaro [186]*186v. Youth Study Center, 514 Pa. 351, 523 A.2d 1118 (1987), and this court’s opinions in Gallagher v. Bureau of Correction, 118 Pa.Commonwealth Ct. 516, 545 A.2d 981 (1988) and Moore v. Department of Justice, 114 Pa.Commonwealth Ct. 56, 538 A.2d 111 (1988), held that section 8542(b)(4)4 required that “the dangerous condition of the traffic directional sign, standing alone ...” Crowell, 131 Pa. Commonwealth Ct. at 425-426, 570 A.2d at 630, had to cause the injury before the City could be liable. The court then made the following observation:
We do observe that this decision effectively eradicates joint tortfeasor liability on the part of a local agency under Section 8542(b)(4). We are hard-pressed to think of a situation involving the concurrent negligence of a local agency where it cannot be said that the agency’s negligence merely facilitated the harm caused. Indeed, if the rationale of this case is applied to other governmental immunity exceptions, including those pertaining to the Commonwealth, the joint tortfeasor liability of any governmental unit will be difficult to establish under any exception. See, e.g. Gallagher.
Further, although this is the first opinion to identify the virtual impossibility of proving the liability of a local agency where the local agency’s negligence is concurrent with that of another tortfeasor, we believe we are simply [187]*187stating what is implicit in the Supreme Court’s Mascaro opinion.
Id., 131 Pa.Commonwealth Ct. at 426-427, 570 A.2d at 631 (emphasis in original).
After a thorough review of Crowell, and the cases cited therein, we conclude that the panel in Crowell erred when it suggested that joint tortfeasor liability was no longer available against a governmental unit. The panel was correct, however, in holding that the City was not liable to the Crowells, not because the City could not be a joint tortfeasor, but because the criminal conduct of Lewis, i.e. driving while under the influence, was a superseding cause which absolved the City of any liability. See Mascaro; Moore.
Gallagher, relied upon by the panel in Crowell for the proposition that the actions of the third party need not be criminal to prohibit liability being placed upon the governmental unit, is also distinguishable. In Gallagher an inmate at the State Correctional Institution at Rockview (SCIR) filed suit against the commonwealth alleging a defect in commonwealth property after his left ring finger was severed when his cellmate closed the cell door. At the time the inmate was using the door to climb down from the upper bunk in the cell. This court held that the commonwealth was not liable because the cell door was not defective for the purpose for which it was designed, but was being used for a purpose not intended, i.e. a ladder.
In the matter now before this court, there is no allegation that any of the other defendants were engaged in criminal conduct, which would be a superseding cause as in Mascaro and Moore. Nor was the highway being used for some activity other than its intended purpose. We conclude that it was not the legislative intent to bar joint liability in the circumstances of this case. Accordingly, we overrule Crowell in so far as it holds that a governmental unit can never be jointly liable with a non-governmental unit, and affirm in all other respects.
Having concluded that Crowell does not preclude a governmental unit from being jointly liable, we reverse the [188]*188decision of the trial court, and remand this matter for proceedings consistent with this opinion.
ORDER
AND NOW, April 15, 1991, the order of the Court of Common Pleas of York County in the above-captioned matters is reversed. The above-captioned matters are remanded for proceedings consistent with this opinion.
Jurisdiction relinquished.