FRIEDMAN, Judge.
Deena Smith and Steven Smith, her husband, appeal from an order of the Court of Common Pleas of Centre County (trial court) which granted the Pennsylvania Department of Transportation’s (DOT) motion for summary judgment and dismissed the Smiths’ complaint. We reverse and remand.
On January 23, 1992, Deena Smith was a passenger in the car of her business colleague, Melissa Schmader, when Schmader lost control of her vehicle while travelling south on State Route 350. Both Smith and Schmader suffered injuries when Schmader’s vehicle spun across the northbound lane and, after leaving the road, hit a tree along the east berm.
On January 19, 1992, the Smiths filed a complaint against Schmader and DOT,1 alleging, inter alia, that DOT was negligent in: (1) permitting icy patches to accumulate on State Route 350, thereby causing a dangerous condition of the real estate; (2) failing to clear the roadway of the dangerous condition of ice accumulation; (3) improperly constructing and designing the highway; (4) permitting the existence of a tree in dangerously close proximity to the roadway; (5) failing to have guardrails or other barriers on the side of the road; and (6) failing to have proper signs indicating the roadway direction. (Smiths’ complaint at 5-6.) In its answer, DOT specifically denied all material allegations of the Smiths’ complaint.
On April 18,1996, DOT filed a motion for summary judgment, alleging that it is immune from suit pursuant to section 8522(a) of what is commonly referred to as the Sovereign Immunity Act (Act),2 and that it is not within the relevant exception set forth in section 8522(b)(4) of the Act.3 Pursuant to section 8522 of the Act, 42 Pa.C.S. § 8522, determination of whether a plaintiff has stated a cause of action against a Commonwealth agency for damages arising out of a negligent act requires a two-pronged analysis. 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. After considering the evidence, the trial court concluded that the Smiths failed to state a cause of action in negligence;4 thus, the trial court [590]*590granted DOT’s motion for summary judgment -without reaching the second prong of the analysis. It is from the trial court’s order that the Smiths now appeal.5
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.
On appeal, the Smiths concede that DOT owes no duty to motorists to remove natural accumulations of ice and snow. However, the Sniiths contend that their complaint states a cause of action in negligence by alleging that DOT breached its common law duty under Bendas v. Township of White Deer, 531 Pa. 180, 611 A.2d 1184 (1992), to maintain State Route 350 in a condition safe for its intended purpose. The Smiths assert that, regardless of the accumulation of ice and snow, DOT’s negligent construction and design of the roadway, coupled with the lack of proper signs and guardrails, was sufficient to cause the accident; thus, according to the Smiths, DOT may be held liable for Deena Smith’s injuries.
In Bendas, the 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 183, 611 A.2d at 1186 (quoting Snyder v. Harmon, 522 Pa. 424, 435, 562 A.2d 307, 312 (1989)). We agree with the Smiths that, under Bendas and Snyder, DOT’s duty to make its highways safe for their intended purpose includes a duty to properly design and construct those highways. However, DOT contends, and the trial court agreed, that there is nothing in either the Smiths’ allegations or their expert’s report which would indicate that, “separate and apart from the icy/snowy condition of the roadway, a defect or defects caused the vehicle to slide off the roadway backwards into a tree.” (DOT’s brief at 7.) We disagree.
In support of their allegations of improper construction and design, the Smiths introduced an expert report, which states in relevant part that:
[t]his comparison shows that SR 350 is substandard in pavement and shoulder •width, horizontal curvature, vertical grade and clear zone width. Having a steeper grade and sharper curve with limited sight distance should have alerted PaDOT to the need to erect warning signing to alert drivers, particularly those unfamiliar with the area, to the presence of the horizontal curve.
(Smiths’ expert report at 3.) The report also states that:
[a]s one approaches the accident site from the north, southbound SR 350 is on a combined horizontal curve and a crest vertical curve. This geometry creates a substantially worse problem for drivers in poor weather conditions than if it were a straight, level section of roadway. If one does not have to accelerate on an upgrade and then brake becuase [sic] of the subsequent downgrade, or if there was no demand for side friction generated by going around a curve, an accident associated with loss of vehicle control would be far less likely to occur even if the roadway surface was slippery. The basic rules in driving on slippery pavements are to not apply your brakes unnecessarily and not change direction suddenly. The combination of a horizontal curve and a crest verti[591]*591cal curve made both actions almost certain to occur.
(Smiths’ expert report at 4) (emphasis added). Because the Smiths’ foregoing allegations and evidence are sufficient, if believed by the factfinder, to establish that the construction and design of State Route 350 in the area of the accident was such that the roadway would not have been safe for travel, even without the natural accumulation of ice and snow, the Smiths state a proper cause of action in negligence and meet the first requirement for maintaining a cause of action against DOT. Thus, the trial court erred as a matter of law in finding otherwise.
Nevertheless, even where a Commonwealth agency may have breached a duty owed to the public, the agency cannot be held liable for the resulting damage unless the breach is coincidental with an exception to the Act. See 42 Pa.C.S. § 8522.
Free access — add to your briefcase to read the full text and ask questions with AI
FRIEDMAN, Judge.
Deena Smith and Steven Smith, her husband, appeal from an order of the Court of Common Pleas of Centre County (trial court) which granted the Pennsylvania Department of Transportation’s (DOT) motion for summary judgment and dismissed the Smiths’ complaint. We reverse and remand.
On January 23, 1992, Deena Smith was a passenger in the car of her business colleague, Melissa Schmader, when Schmader lost control of her vehicle while travelling south on State Route 350. Both Smith and Schmader suffered injuries when Schmader’s vehicle spun across the northbound lane and, after leaving the road, hit a tree along the east berm.
On January 19, 1992, the Smiths filed a complaint against Schmader and DOT,1 alleging, inter alia, that DOT was negligent in: (1) permitting icy patches to accumulate on State Route 350, thereby causing a dangerous condition of the real estate; (2) failing to clear the roadway of the dangerous condition of ice accumulation; (3) improperly constructing and designing the highway; (4) permitting the existence of a tree in dangerously close proximity to the roadway; (5) failing to have guardrails or other barriers on the side of the road; and (6) failing to have proper signs indicating the roadway direction. (Smiths’ complaint at 5-6.) In its answer, DOT specifically denied all material allegations of the Smiths’ complaint.
On April 18,1996, DOT filed a motion for summary judgment, alleging that it is immune from suit pursuant to section 8522(a) of what is commonly referred to as the Sovereign Immunity Act (Act),2 and that it is not within the relevant exception set forth in section 8522(b)(4) of the Act.3 Pursuant to section 8522 of the Act, 42 Pa.C.S. § 8522, determination of whether a plaintiff has stated a cause of action against a Commonwealth agency for damages arising out of a negligent act requires a two-pronged analysis. 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. After considering the evidence, the trial court concluded that the Smiths failed to state a cause of action in negligence;4 thus, the trial court [590]*590granted DOT’s motion for summary judgment -without reaching the second prong of the analysis. It is from the trial court’s order that the Smiths now appeal.5
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.
On appeal, the Smiths concede that DOT owes no duty to motorists to remove natural accumulations of ice and snow. However, the Sniiths contend that their complaint states a cause of action in negligence by alleging that DOT breached its common law duty under Bendas v. Township of White Deer, 531 Pa. 180, 611 A.2d 1184 (1992), to maintain State Route 350 in a condition safe for its intended purpose. The Smiths assert that, regardless of the accumulation of ice and snow, DOT’s negligent construction and design of the roadway, coupled with the lack of proper signs and guardrails, was sufficient to cause the accident; thus, according to the Smiths, DOT may be held liable for Deena Smith’s injuries.
In Bendas, the 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 183, 611 A.2d at 1186 (quoting Snyder v. Harmon, 522 Pa. 424, 435, 562 A.2d 307, 312 (1989)). We agree with the Smiths that, under Bendas and Snyder, DOT’s duty to make its highways safe for their intended purpose includes a duty to properly design and construct those highways. However, DOT contends, and the trial court agreed, that there is nothing in either the Smiths’ allegations or their expert’s report which would indicate that, “separate and apart from the icy/snowy condition of the roadway, a defect or defects caused the vehicle to slide off the roadway backwards into a tree.” (DOT’s brief at 7.) We disagree.
In support of their allegations of improper construction and design, the Smiths introduced an expert report, which states in relevant part that:
[t]his comparison shows that SR 350 is substandard in pavement and shoulder •width, horizontal curvature, vertical grade and clear zone width. Having a steeper grade and sharper curve with limited sight distance should have alerted PaDOT to the need to erect warning signing to alert drivers, particularly those unfamiliar with the area, to the presence of the horizontal curve.
(Smiths’ expert report at 3.) The report also states that:
[a]s one approaches the accident site from the north, southbound SR 350 is on a combined horizontal curve and a crest vertical curve. This geometry creates a substantially worse problem for drivers in poor weather conditions than if it were a straight, level section of roadway. If one does not have to accelerate on an upgrade and then brake becuase [sic] of the subsequent downgrade, or if there was no demand for side friction generated by going around a curve, an accident associated with loss of vehicle control would be far less likely to occur even if the roadway surface was slippery. The basic rules in driving on slippery pavements are to not apply your brakes unnecessarily and not change direction suddenly. The combination of a horizontal curve and a crest verti[591]*591cal curve made both actions almost certain to occur.
(Smiths’ expert report at 4) (emphasis added). Because the Smiths’ foregoing allegations and evidence are sufficient, if believed by the factfinder, to establish that the construction and design of State Route 350 in the area of the accident was such that the roadway would not have been safe for travel, even without the natural accumulation of ice and snow, the Smiths state a proper cause of action in negligence and meet the first requirement for maintaining a cause of action against DOT. Thus, the trial court erred as a matter of law in finding otherwise.
Nevertheless, even where a Commonwealth agency may have breached a duty owed to the public, the agency cannot be held liable for the resulting damage unless the breach is coincidental with an exception to the Act. See 42 Pa.C.S. § 8522. In support of its position that the Smiths’ cause of action does not fall within the real estate exception to sovereign immunity set forth in section 8522(b)(4) of the Act, DOT relies on a recent decision of this court, Rothermel v. Department of Transportation, 672 A.2d 837 (Pa.Cmwlth.1996). However, DOT’s reliance on Rothermel is misplaced.
In Rothermel, the plaintiffs filed a wrongful death/survival action against DOT after two college students were killed when their car hit a patch of ice, veered off the road and down an embankment, and struck a stand of trees. The only issue before us on appeal was whether the accident was caused by DOT’s alleged negligent failure to provide and maintain a guardrail. Because we concluded that there was no causal relationship between the alleged dangerous condition, i.e., the absence of a guardrail, and the accident,6 we held that the real estate exception to sovereign immunity did not apply.
In contrast to Rothermel, the plaintiffs here allege that the negligent design and construction of State Route 350 constitutes a dangerous condition of the highway which caused the accident. Because, unlike in Rothermel, this alleged dangerous condition of the real estate could have caused Deena Smith’s accident, and because we must examine the record in the light most favorable to the nonmoving party, we believe that the Smiths have met the second requirement for maintaining a cause of action against DOT for damages arising out of a negligent act.
Accordingly, we reverse the trial court’s order granting summary judgment, and, because the question of whether the design and construction of State Route 350 constitutes a dangerous condition is one of fact for the jury, see Bendas, we remand this case for trial.
ORDER
AND NOW, this 11th day of September, 1997, the order of the Court of Common Pleas of Centre County, dated July 24, 1996, is reversed and this case is remanded for trial.
Jurisdiction relinquished.