Kosmack v. Jones

807 A.2d 927, 2002 Pa. Commw. LEXIS 665
CourtCommonwealth Court of Pennsylvania
DecidedAugust 26, 2002
StatusPublished
Cited by2 cases

This text of 807 A.2d 927 (Kosmack v. Jones) 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
Kosmack v. Jones, 807 A.2d 927, 2002 Pa. Commw. LEXIS 665 (Pa. Ct. App. 2002).

Opinion

OPINION BY

Judge LEADBETTER.

The Pennsylvania Department of Transportation (PennDOT) appeals from the entry of judgment in favor of the Estates of Joseph Kosmack, Jane Kosmack, Phyllis Ward, and Mary Carter (the Kosmack family) by the Court of Common Pleas of Cambria County.

Although the record in this case is voluminous and encompasses three cases involving dozens of parties, the facts pertinent to our disposition may be summarized as follows. This case arises from an accident that occurred in the westbound lanes of State Route 22 (highway), a four-lane limited access highway which runs through Cambria County, during a snowstorm on February 24, 1994. Twenty-six vehicles had either collided or stopped on or adjacent to the paved portion of the highway near the highway’s Summit exit when a tractor-trailer owned by National Freight, Inc. (National) and operated by James C. Jones (Jones) proceeded into the melee and collided with a van occupied by the Kosmack family, who were killed. At the time of the accident, a whiteout1 caused by a snowstorm substantially reduced visibility in the area.

The initial claim in this case was filed by the Estates of the Kosmack family (referred to hereinafter as the Kosmack Estates or plaintiffs) against National and Jones. National and Jones, in turn, joined the other twenty-six drivers involved in the accident and PennDOT. Prior to trial, a settlement was reached between the Kosmack Estates and all of the parties except PennDOT. The settlement was a “Mary Carter” agreement, which provided that National would pay $3,000,000.00 to the Kosmack Estates and would receive, in exchange, 80% of any recovery obtained by the plaintiffs against non-settling defendants after the first $100,000.00 of the recovery, which the plaintiffs would retain.2 The claim against PennDOT proceeded to trial.

At trial, the Kosmack Estates and National presented the testimony of an expert in highway design. The expert opined that the whiteout conditions were exacerbated by the “damming” of wind blowing against the incline formed by the high fill used to raise the highway, which caused [930]*930snow to blow over the road. The expert further opined that the problem of blowing show could have been reduced by the construction of a snow fence along the highway. He concluded, therefore, that the highway design and the lack of a snow fence were substantial causative factors in bringing about the accidents.

After the trial, PennDOT presented a motion for a directed verdict, which was denied. The jury then returned a verdict in the amount of $2,285,000.00, finding that National and Jones were 75% negligent and that PennDOT was 25% negligent. PennDOT filed timely post-trial motions, which were denied. The Kosmack Estates filed a motion for an award of delay damages, which was granted. On November 8, 2000, judgment was entered in favor of the Kosmack Estates.

On appeal, PennDOT raises several issues, only two of which we need address. Specifically, PennDOT challenges the adequacy of the testimony of plaintiffs’ expert, Ronald Eek3 and further argues that sovereign immunity bars plaintiffs’ claims.4

In making its first argument, Penn-DOT relies in significant part upon Starr v. Veneziano, 560 Pa. 650, 747 A.2d 867 (2000). In Starr, our Supreme Court held that to establish a duty of care on the part of a municipality to install a traffic control device, a plaintiff must establish that: 1) the municipality had actual or constructive notice of the dangerous condition that caused the plaintiffs injuries; 2) the pertinent device would have constituted an appropriate remedial measure; and 3) the municipality’s authority was such that it can fairly be charged with the failure to install the device. Id. at 659, 747 A.2d at 873.

The court explained that to satisfy the second requirement, appropriateness, a plaintiff must establish that the relevant traffic control would have constituted a proper and effective measure to mitigate the hazard at the intersection. Id. at 660, 747 A.2d at 873. Such a requirement “arises naturally from the nature of the duty alleged, as it would be both illogical and contrary to public policy to deem a governmental entity obligated to install or erect a device which would be inappropriate to the location at issue.” Id.

In Starr, the plaintiffs expert opined that a no-left-turn sign constituted a potential remedy for the dangerous traffic condition at issue. The court found the expert’s testimony deficient because his proposed solution was unsupported by any traffic or engineering investigation of the intersection in question and the system of intersections along the route. Id. The court stated that other aspects of the expert’s testimony rendering it insufficient were the expert’s failure to offer even a conclusory opinion on the issue of whether a left turn was appropriate to the intersection or to establish that a signal would have been feasible or beneficial to the larger system of traffic control in the area. Id. at 661, 747 A.2d at 873-74.

[931]*931Although Starr was written in the context of a municipality’s duty to take remedial measures where a dangerous condition becomes known, we believe its analysis applies with equal force to the duty of a government agency to adopt particular design standards in the first instance. Indeed, the need for such an appropriateness requirement is particularly compelling where the duty of care alleged involves second-guessing the design of so monumental an undertaking as a highway traversing the mountainous western region of Pennsylvania. After careful review of ap-pellees’ expert’s testimony, we find it insufficient to establish that PennDOT had a duty to design the highway differently or install a snow fence.

Despite testifying that the location and design of the road were improper, the expert’s report and testimony lack any concrete suggestion as to how and where the road could have been built to prevent snow from blowing over it, let alone any engineering investigation of how such a solution would have been effective and feasible. Merely to suggest, as appellees’ expert does, that lowering the grade of the road would have diminished the tendency of snow to blow across the highway is insufficient, inasmuch as appellees’ expert must establish that a proposed solution is both feasible and beneficial to the overall safety of the highway. The lack of such testimony is particularly troubling given the complexity and number of engineering and regulatory issues which must be considered in designing a highway such as the one at issue in this case. Since the design of Route 22 was the product of a process which required PennDOT to address a multitude of concerns other than preventing blowing snow, a plaintiff bears the burden of establishing that there is an alternative design which would have addressed all concerns.

Even more fundamentally, unlike the expert in Starr, who testified that a no left turn sign would have prevented the accident, Dr. Eck said only that lowering the grade of the road would “diminish or reduce the tendency of snow to be blown across this highway.” (N.T. 12/9/99 at 150).

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807 A.2d 927, 2002 Pa. Commw. LEXIS 665, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kosmack-v-jones-pacommwct-2002.