Opinion
No. 1181 C.D. 2012
04-30-2013
Jolinda Effinger and Michael Effinger, her husband and Jolinda Effinger and Michael Effinger as guardians of Landon Rivera, a minor, and Dominique Rivera, a minor, Appellants v. Rhonda L. Porterfield a/k/a Rhonda Lee Porterfield-Roberts; Pennsylvania Department of Transportation a/k/a PennDot
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE BONNIE BRIGANCE LEADBETTER, Judge (P.) HONORABLE MARY HANNAH LEAVITT, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY PRESIDENT JUDGE PELLEGRINI
Jolinda and Michael Effinger, on behalf of themselves and as guardians of minors Landon and Dominique Rivera (collectively, Effingers), appeal from an order of the Court of Common Pleas of Greene County (trial court) granting the Department of Transportation's (Department ) motion for judgment on the pleadings. For the reasons that follow, we affirm.
On August 5, 2010, the Effingers were in a vehicle driven by Appellant Jolinda Effinger traveling northbound on Interstate 79 in Franklin Township, Greene County, when another vehicle struck theirs on an overpass, causing the vehicle to spin out of control, go up over the parapet of the bridge, and fall approximately 60 feet to the ground below. The Effingers were seriously injured in the accident. They sued the driver of the other vehicle, as well as the Department, alleging that their injuries were caused in part by the negligent design of the bridge because the side wall of the bridge was of insufficient height to keep vehicles from going over the side and falling to the ground below. The Department filed an answer with new matter denying the allegations and contending that it was immune from suit because the height and strength of the parapet does not amount to a dangerous condition of Commonwealth real estate and, therefore, the real estate exception to sovereign immunity did not apply.
The Effingers' case has been settled with respect to the driver of the other vehicle.
The real estate exception to the Act commonly referred to as the Sovereign Immunity Act, 42 Pa. C.S. §8522(b), provides that sovereign immunity will be waived and liability may be imposed on a Commonwealth party, where damages are caused by "a dangerous condition of Commonwealth agency real estate and sidewalks, including ... highways under the jurisdiction of a Commonwealth agency."
Relying primarily on our decision in Svege v. Interstate Safety Service, Inc., 862 A.2d 752, 754-55 (Pa. Cmwlth. 2004), in which we determined that the Department did not create a dangerous condition in Commonwealth real estate by not installing a higher or sturdier median where such a barrier might be safer, the trial court granted the Department's motion for judgment on the pleadings. The court held that while a higher guardrail or bridge wall might make the bridge safer, the lack of a higher or more durable barrier is not a dangerous condition of the real estate. The Effingers then filed this appeal, contending that the trial court erred in finding that a bridge parapet of insufficient height to keep vehicles from going up and over the side did not constitute a dangerous condition of Commonwealth real estate.
Our scope of review of the trial court's grant of judgment on the pleadings is limited to a determination of whether the trial court abused its discretion or committed an error of law. Felli v. Department of Transportation, 666 A.2d 775, 776 n.2 (Pa. Cmwlth. 1995). --------
As noted by the trial court, the seminal case involving whether a condition falls within the real estate exception is Dean v. Commonwealth, 561 Pa. 503, 751 A.2d 1130 (2000). In Dean, the appellee was a passenger in a truck of which the driver lost control on a snow-covered road. The truck left the highway, traveled over an embankment and rolled down the hill before coming to a stop at the bottom. The appellee was seriously injured and sued the Department, alleging that it was negligent because it failed to install a guardrail along the highway. Our Supreme Court disagreed and determined that "the Commonwealth's failure to erect a guardrail on the highway is not encompassed by the real estate exception to sovereign immunity." Dean, 561 Pa. at 511, 751 A.2d at 1134. While that case involves the failure to install a guardrail, not the purported negligent design of a roadway, it also held that the inquiry of whether the condition was a dangerous condition of the highway turns on whether the alleged dangerous condition renders a highway unsafe for its intended purpose, i.e., travel on the roadway. See Quinones v. Department of Transportation, 45 A.3d 467, 471-72 (Pa. Cmwlth. 2012) (holding that the lack of a median barrier did not render the highway unsafe for the purpose for which it was intended, i.e., travel on the roadway).
In Svege, the case which the trial court found controlling, we applied that standard in determining whether property was defectively designed. In that case, it was alleged that a concrete barrier, commonly known as a Jersey barrier, was defectively designed because it was of insufficient height to serve its protective function, thereby making it a dangerous condition of the real estate. In that case, an accident occurred when a tractor trailer crashed over and through a concrete barrier, located in the median of the Pennsylvania Turnpike, and landed on top of a minivan traveling in the opposite direction, killing several members of the family in the minivan. The plaintiffs contended that a barrier taller than the 32-inch barrier located at the point of the accident could have prevented the devastating losses suffered by the plaintiffs. We held that the claim did not meet the real estate exception to sovereign immunity because the Jersey barrier had not made the highway unsafe for its intended purpose, which is travel on the roadway. See also Stein v. Pennsylvania Turnpike Commission, 989 A.2d 80, 88 (Pa. Cmwlth. 2010), appeal denied, 610 Pa. 613, 20 A.3d 1214 (2011) (holding that the negligently designed end cap of a guardrail which caused injuries to someone whose car skidded off the road did not fall within the real estate exception to immunity.)
Notably, the Effingers do not contend that Svege is factually different from this case, but rather maintain that in that case, the parties had the opportunity to fully develop a factual record, whereas here, no such factual basis was established. However, the development of a record would not change the fact that even if they established "that a hypothetical barrier of greater dimensions and stability could have minimized or eliminated their injuries [that contention] was inadequate as a matter of law to hold the sovereign liable under the real estate exception." Svege, 862 A.2d at 755.
In this case, the height of the parapet had no bearing on the intended use of Interstate 79, which is travel on the roadway. While we sympathize with the Effingers' contention that a higher parapet may have prevented or lessened their injuries, "the legislature did not intend to impose liability upon the government whenever a plaintiff alleged that his or her injuries could have been avoided or minimized, had the government installed a higher parapet." Dean, 561 Pa. at 511-12, 751 A.2d at 1134. Therefore, the trial court did not err in finding that the property was not a dangerous condition of the real estate.
Accordingly, we affirm the decision of the trial court.
/s/_________
DAN PELLEGRINI, President Judge ORDER
AND NOW, this 30th day of April, 2013, the order of the Court of Common Pleas of Greene County, dated September 14, 2011, is affirmed.
/s/_________
DAN PELLEGRINI, President Judge