Com., Dept. of Transp. v. Weller

574 A.2d 728, 133 Pa. Commw. 18, 1990 Pa. Commw. LEXIS 243
CourtCommonwealth Court of Pennsylvania
DecidedApril 20, 1990
Docket1718 C.D. 1989
StatusPublished
Cited by13 cases

This text of 574 A.2d 728 (Com., Dept. of Transp. v. Weller) is published on Counsel Stack Legal Research, covering Commonwealth Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Com., Dept. of Transp. v. Weller, 574 A.2d 728, 133 Pa. Commw. 18, 1990 Pa. Commw. LEXIS 243 (Pa. Ct. App. 1990).

Opinions

CRAIG, Judge.

The Commonwealth of Pennsylvania, Department of Transportation (DOT) appeals an order by Judge Rodgers of the Court of Common Pleas of Washington County awarding Helen M. Weller, daughter of Robert C. Weller (decedent), survival action damages in the amount of $368,-[21]*21865 and wrongful death action damages in the amount of $100,000.1

At approximately 5:30 a.m. on the morning of January 28, 1986, the decedent lost control of his vehicle on a bridge located on Interstate 70 and the vehicle vaulted over the bridge railing. It landed on its roof after falling approximately 20-25 feet, causing the death of Mr. Weller.

The undisputed evidence is that three and one-half inches of snow had accumulated on the ground between 7:00 a.m. on January 26 and 7:00 a.m. on January 27. An additional one inch fell by 7:00 a.m. on January 28, the morning of the accident. At the time of the accident, DOT had plowed and treated the road with anti-skid material, but the bridge was largely covered by a sheet of ice.

The dispute revolves around DOT’s plowing of the snow. At the trial, Weller contended that DOT negligently piled the snow and ice in such a fashion that it formed a “ramp” over the berm and guardrail, which the decedent’s vehicle ascended before clearing the guardrail and falling to the ground. DOT denied creating the ramp, and asserted that (1) it did not have time to remove snow and ice from the berm and guardrail on the bridge after clearing the roadway, and that (2) the speed of the vehicle caused the loss of control.

The jury found 75% of the accident attributable to DOT’s negligence. On July 31, 1989, Judge Rodgers issued an order denying DOT’s request for judgment n.o.v. or a new trial, and awarded Weller additional delay damages.

DOT now requests this court to enter a judgment n.o.v. on the grounds that either it owes no common law duty to remove ice or snow from a public highway or that Weller’s claim must be dismissed because DOT had no written notice as to the dangerous condition. Alternatively, DOT requests [22]*22a new trial on the grounds that either the trial court erred in excluding testimony as to the absence of previous complaints and accidents at the accident location or that the trial court committed prejudicial error in charging the jury that DOT’s winter maintenance manual is a regulation and provides the minimum standard of care.

1. Cause of Action

The first issue is whether Weller had a cause of action against DOT based on a claim that DOT exhibited negligent conduct in the manner in which it plowed the snow and ice on the road.

DOT, citing Huber v. Department of Transportation, 122 Pa.Commonwealth Ct. 82, 551 A.2d 1130 (1988), contends that Weller’s claim is negated because DOT owes no common law duty to remove ice or snow from a public road. However, as in Huber, this court has more specifically held that DOT has “no duty to remove or treat natural accumulations of ice and snow.” Id., 122 Pa.Commonwealth Ct. at 87, 551 A.2d at 1132. (Emphasis added).

Therefore, we must determine whether the trial court erred in accepting the jury’s conclusion that the accumulation of ice and snow which caused the decedent’s accident was an artificial, rather than a natural condition of the land, thus giving rise to a cause of action.

A natural condition of land is defined as a “condition of land [that] has not been changed by any act of a human being____” Restatement (2nd) of Torts § 363, comment b (1965).

The record before us indicates that the guardrail is approximately twenty-two and one-half inches high, but only four and one-half inches of snow fell during the forty-eight hours preceding the accident. Additionally, the investigating trooper testified that there was no evidence that the decedent’s vehicle struck the guardrail. Because the natural accumulation of snow was at least eighteen inches lower than the guardrail, the jury could reasonably conclude that only an artificial accumulation of snow would [23]*23have permitted the decedent’s vehicle to clear the guardrail without striking it.

DOT asserts that all shovelled snow is a natural incident of a snowfall, citing Vitelli v. City of Chester, 119 Pa.Commonwealth Ct. 58, 545 A.2d 1011 (1988). However, the factual situation in Vitelli involved a pedestrian crossing a city street who tripped and fell over ruts and ridges created by traffic proceeding through snow and ice which had accumulated from a snowfall. The parties disagreed as to whether additional snow had been shovelled onto the street by adjoining landowners, but this court stated that shovelled snow does not change the street’s character from natural to artificial.

In the present case, Weller is alleging that DOT negligently created the hazardous condition, not that DOT is liable due to the acts of others. Additionally, in Vitelli, there is no dispute that snow naturally accumulated on the road. Therefore, passing traffic would have naturally created ruts and ridges, with or without the alleged additional accumulation of shovelled snow. Moreover, snow shovelled onto a street is not analogous to plowing and piling of snow above a guardrail.

Because the natural accumulation of snow which fell, combined with the effects of passing traffic, would not be sufficient to allow a vehicle to vault the guardrail without striking it, the trial court did not err in accepting the jury’s finding that DOT’s plowing created an artificial accumulation of snow and ice, which rendered the guardrail ineffective and caused the decedent’s fatal accident. Therefore, although DOT has no common law duty to remove natural accumulations of ice and snow from a public road, Weller had a cause of action against DOT based on DOT’s negligent conduct in creating an artificial accumulation.

Alternatively, DOT raises the defense of sovereign immunity and argues that Weller’s claim must be dismissed because DOT did not receive written notice of the alleged dangerous condition of the bridge, as required by section 8522(b)(5) of the Judicial Code, 42 Pa.C.S. § 8522(b)(5).

[24]*24Section 8522(b) of the Judicial Code provides the following relevant exceptions to sovereign immunity.

(b) Acts which may impose liability. — The following acts by a Commonwealth party may result in the imposition of liability on the Commonwealth and the defense of sovereign immunity shall not be raised to claims for damages caused by:
(4) Commonwealth real estate, highways and sidewalks. — A dangerous condition of Commonwealth agency real estate and sidewalks, including Commonwealth-owned real property, leaseholds in the possession of a Commonwealth agency and Commonwealth-owned real property leased by a Commonwealth agency to private persons, and highways under the jurisdiction of a Commonwealth agency, except conditions described in paragraph (5).
(5) Potholes and other dangerous conditions. — A dangerous condition of highways under the jurisdiction of a Commonwealth agency created by potholes or sinkholes or other similar conditions created by natural elements,

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Com., Dept. of Transp. v. Weller
574 A.2d 728 (Commonwealth Court of Pennsylvania, 1990)

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Bluebook (online)
574 A.2d 728, 133 Pa. Commw. 18, 1990 Pa. Commw. LEXIS 243, Counsel Stack Legal Research, https://law.counselstack.com/opinion/com-dept-of-transp-v-weller-pacommwct-1990.