Rothermel v. Commonwealth, Department of Transportation

672 A.2d 837, 1996 Pa. Commw. LEXIS 87

• Court: Commonwealth Court of Pennsylvania
• Decided: March 6, 1996
• Status: Published

Opinions

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 McAr-dle 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^] 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 Ben-das 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 hable 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 negligently⁵ 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 negligence.”).

Accordingly, if Administrators could establish that the conditions along Route 54 in the area of the accident, i.e., the slope of the embankment and the proximity of the embankment to the roadway, were such that, without a guiderail, Route 54 would not be safe for travel, they would have met the first requirement for establishing a cause of action against DOT at common law.⁶

Nevertheless, a Commonwealth agency may have breached a duty owed yet not be liable unless the breach is coincidental with an exception to the Act. Thus, although Administrators could, potentially, maintain an action at common law against DOT, their claim will be barred unless it falls within one of the enumerated exceptions to sovereign immunity.

Administrators assert that DOT’s failure to install a guiderail along the roadway where the accident occurred falls within the real estate exception to sovereign immunity. Specifically, they argue that the absence of a guiderail created a dangerous condition of Commonwealth realty and that, therefore, DOT should not be shielded from liability. Moreover, Administrators contend that the trial court erred in granting partial summary judgment for DOT because, under Bendas v. Township of White Deer, 531 Pa. 180, 611 A.2d 1184 (1992) and Fidanza v. Commonwealth of Pennsylvania, Department of Transportation, 655 A.2d 1076 (Pa.Cmwlth.1995), the jury should have been permitted to determine whether the absence of a guiderail created a dangerous condition. DOT, however, maintains that the trial court was correct in granting partial summary judgment because the condition, even if dangerous, is not a condition of the realty itself that caused decedents’ injuries. We agree.

The expressed legislative intent to insulate the Commonwealth and its political subdivisions from liability requires courts to interpret the exceptions to sovereign immunity narrowly against injured plaintiffs. Mascaro v. Youth Study Center, 514 Pa. 351, 523 A.2d 1118 (1987). Where the statutory language is unambiguous, we are not free to change the clear meaning of the words to reach a desired result. Our supreme court has held that the unambiguous language of section 8522(b)(4) indicates that a dangerous condition “must derive, originate from or have as its source the Commonwealth realty.” Snyder. Moreover, a dangerous condition or defect of the land itself must cause, not merely facilitate, the injury in order for the real estate exception to apply. Fidanza; Babcock v. Commonwealth of Pennsylvania, Department of Transportation, 156 Pa.Cmwlth. 69, 626 A.2d 672 (1993).

Administrators’ reliance on Fidanza and Bendas is misplaced. Although, in both cases, the court held that the issue of what constitutes a dangerous condition is a question of fact, not law, and is to be decided by the jury, neither Fidanza nor Bendas are dispositive here. Administrators’ argument fails to recognize that, even if a jury could find a dangerous condition to have existed, the real estate exception imposes two additional requirements that must be met before a court may abrogate DOT’S sovereign immunity: the condition must be one of the Commonwealth realty and the condition must be related causally to the accident. The question of whether or not these further requirements are satisfied, unlike that of whether or not a dangerous condition existed, is a preliminary determination to be made by the trial court as a matter of law. See Hall v. Acme Markets, Inc., 110 Pa.Cmwlth. 199, 532 A.2d 894 (1987).⁷

Here, the absence of a guiderail on Route 54, dangerous or otherwise, did not cause the accident itself but, at most, merely facilitated the decedents’ injuries and produced more severe consequences. See Babcock (affirming grant of partial summary judgment for DOT where alleged dangerous condition, log lying on embankment off road, merely facilitated accident).⁸ The alleged cause of the fatal accident was an unnatural and artificial accumulation of water and ice on the roadway. If accepted as true by the factfinder, it was this condition rather than the lack of guiderail that made the decedents’ car spin out of control and leave the highway. Because Administrators have failed to establish a causal connection between the decedents’ accident and the condition of the property within DOT’s control, the real estate exception to state sovereign immunity, 42 Pa.C.S. § 8522(b)(4), does not apply.⁹ Therefore, Administrators have not met the second requirement for maintaining a cause of action against DOT for damages arising out of a negligent act.

Accordingly, we hold that, as a matter of law, DOT is immune from liability for any injuries which may have been facilitated by the absence of a guiderail along Route 54.¹⁰ We, therefore, affirm the trial court’s grant of partial summary judgment for DOT, and remand this case for a trial on the remaining issues.

ORDER

AND NOW, this 6th day of March, 1996, the order of the Court of Common Pleas of Carbon County, dated March 28, 1995, is affirmed, and the case remanded for trial on the remaining issues.

Jurisdiction relinquished.

1 .The trial court granted summary judgment on the latter two allegations: the failure to provide and maintain a clear zone and the failure to provide and maintain a guiderail. Of these, only the guiderail is at issue in this appeal. The question of whether DOT negligently permitted the unnatural and artificial accumulation of water and ice on Route 54 is not in front of the court at this time.

2 . 42 Pa.C.S. § 8522(a).

3 . 42 Pa.C.S. § 8522(b)(4). Section 8522(b)(4), the real estate exception to sovereign immunity, provides, in pertinent part, that the defense of sovereign immunity will be waived when the damages are caused by "[a] dangerous condition of Commonwealth agency real estate and sidewalks, including ... highways under the jurisdiction of a Commonwealth agency.”

4 . When reviewing an order granting summary judgment, our scope of review is limited to a determination of whether the trial court committed an error of law or abused its discretion. Mason & Dixon Lines, Inc. v. Mognet, 166 Pa.Cmwlth. 1, 645 A.2d 1370 (1994).

5 . The elements of a cause of action in negligence are as follows: (1) a duty recognized by law, requiring the actor to conform to a certain standard of conduct; (2) a failure of the actor to conform to that standard; (3) a causal connection between the conduct and the resulting injuries; and (4) actual loss or damage to the interests of another. Morena v. South Hills Health System, 501 Pa. 634, 462 A.2d 680 (1983).

6 . As to whether Administrators would have a cause of action against DOT for violation of a statutory duty, DOT only has a general statutory duty to maintain and repair all roads and highways under its jurisdiction. See section 407 of the State Highway Law, Act of June 1, 1945, P.L. 1242, 36 P.S. § 670-407 and section 2002 of the Administrative Code of 1929, Act of April 9, 1929, P.L. 177, as amended, 71 P.S. § 512(a)(8). There are no statutes mandating that DOT provide a shoulder on a roadway, install guiderails or keep the berm of state roadways free of debris.

7 . In Hall, the appellants contended that the trial court erred in granting summary judgment because genuine issues of fact remained; namely, whether a “dangerous condition” existed at the time of the accident. They argued that whether a condition is dangerous is for a jury alone. We noted that:

While it is true that this is an issue which must be determined by the factfinder, it does not enter into the determination of whether a claim against a party is barred by immunity. The question of whether a "dangerous condition” exists arises only after it has been determined that suit is allowed under the exceptions to sovereign immunity found in 42 Pa.C.S. § 8522(b). The determination of whether a suit is barred by official or sovereign immunity is solely a matter of law.

Id. at 895.

8 . It is important to recognize the distinction between the cause of the accident and the cause of the injuries resulting from the accident. For purposes of deciding the applicability of the real estate exception to sovereign immunity, it is the cause of the accident — the event that set the accident in motion — that is determinative.

Here the ice and snow on the roadway caused the accident; if the decedents had never hit the ice and spun across the road, they would have never gone over the embankment. On the other hand, even if a guiderail had been in place along Route 54, the accident would still have occurred. Although a guiderail may have prevented the accident's unfortunate result, decedents’ fatal injuries, it would not have prevented the accident from happening.

9 . Because there is no causal relationship between the alleged dangerous condition here and the accident, we need not decide if the absence of a guiderail on Route 54 was a dangerous condition of the property.

10 . Our ruling merely precludes recovery for injuries sustained due to the lack of a guiderail. Administrators may still recover for any injuries caused by an unnatural and artificial accumulation of ice and snow resulting from a defectively designed and maintained Commonwealth roadway, provided they successfully establish such alleged dangerous condition. In such case, DOT will be liable for all proximately caused injuries, including those aggravated or incurred by the car leaving the road and hitting the trees.