Opinion
No. 1264 C.D. 2012
03-27-2013
Dontae Hayes v. Danny Rodriguez and Pennsylvania Department of Transportation Appeal of: Pennsylvania Department of Transportation
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE BROBSON
Appellant/defendant Department of Transportation (DOT) appeals by permission from an interlocutory order of the Court of Common Pleas of Lehigh County (trial court). The trial court denied DOT's motion for summary judgment, which was predicated on sovereign immunity. For the reasons set forth below, we reverse and remand.
Like too many motor vehicle accidents, this is a tragic case. Appellee/plaintiff Dontae Hayes was a passenger in a motor vehicle driven by Danny Rodriguez. Mr. Rodriguez attempted to pass a slower moving vehicle and lost control, causing the vehicle he was driving to leave the roadway. The vehicle crashed into a median guardrail, a portion of which entered the front passenger compartment of the vehicle, causing severe and permanent bodily harm to Mr. Hayes.
Mr. Rodriguez did not participate in the instant appeal.
On December 15, 2010, Mr. Hayes filed a complaint in the trial court against DOT and Mr. Rodriguez averring negligence. (Reproduced Record (R.R.) at 3a-14a.) In particular, Mr. Hayes alleged, inter alia, that DOT caused or allowed a dangerous condition to exist in the subject guardrail and failed to properly inspect, repair, or maintain the same. (Id. at 9a-10a.) DOT filed an answer and new matter, specifically denying Mr. Hayes' allegations of negligence. (Id. at 15a-20a.) DOT asserted the affirmative defense of sovereign immunity and filed a cross-claim against Mr. Rodriguez. (Id.)
Following a period of discovery, DOT moved for summary judgment, preserving its sovereign immunity defense. DOT alleged, in relevant part:
11. Neither Plaintiff nor Defendant Rodriguez know why Mr. Rodriguez lost control of the car and left the highway. See Exhibits "A", "C" and "D". . . .(Id. at 24a-27a.) In his response to the motion, Mr. Hayes admitted the core of DOT's allegations. By order dated May 4, 2012, the trial court denied DOT's motion for summary judgment. (Id. at 170a.)
12. Officer [Jonathan S.] DeSiderio's investigation did not reveal any "condition of the roadway itself, either the travel lanes or the shoulders, that caused Danny Rodriguez's vehicle to go out of control . . . and leave the paved surface". See Exhibit "B", page 56, lines 6-16.
13. Mr. [Steven M.] Schorr[, P.E., who is Plaintiff's expert witness,] offers no opinions why Mr. Rodriguez lost control of the car and left the highway. See Exhibit "E".
. . . .
18. There is no evidence from any witness or the Plaintiff's expert that the loss of control and the car's leaving the roadway were caused by any dangerous condition of the highway.
Specifically, Mr. Hayes responded:
11. Admitted in part and denied in part. It is admitted that neither Plaintiff nor Defendant Rodriguez know with certainty as to why Defendant Rodriguez lost control of the car and left the highway. Denied to the extend [sic] that Defendant Rodriguez indicated that Mr. Silvester Davis explained that he believed that a white car traveling in front of Defendant Rodriguez's car "cut him off." (Def. Exhibit "D", p. 29.) Additionally, both Plaintiff's and Defendant Rodriguez's depositions indicated that Defendant Rodriguez believed he needed new tires so that he would have sufficient tread on the tires. (Def. Exhibit "D", p. 25; Def. Exhibit "C", p. 42.) Finally, and by way of further responses, there is no dispute as to the cause of Plaintiff's injuries to the extent that a portion of the guardrail in question entered the passenger compartment of the car, severed Plaintiff's right leg, and caused other injuries. (Def. Exhibit "B", p. 58.)
12. Admitted.
13. Admitted to the extent that the information in question is relevant. More relevant in this case is the fact that it cannot be disputed that that [sic] the cause of Plaintiff's injuries was penetration of the guardrail into the passenger compartment of the care.
. . . .
18. See response to allegation #13.
On appeal, DOT argues that the trial court erred in denying its motion for summary judgment, because sovereign immunity bars Mr. Hayes' guardrail claim against DOT. We agree.
This Court's standard of review of a denial of summary judgment is limited to determining whether the trial court committed an error of law or abused its discretion. Mason & Dixon Lines, Inc. v. Mognet, 645 A.2d 1370, 1372 n.2 (Pa. Cmwlth. 1994). Our scope of review is de novo when we consider questions of law. Weaver v. Lancaster Newspapers, Inc., 592 Pa. 458, 465, 926 A.2d 899, 902-03 (2007). A court may grant a motion for summary judgment only when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Farabaugh v. Pa. Turnpike Comm'n, 590 Pa. 46, 52, 911 A.2d 1264, 1267 n.3 (2006). The right to judgment must be clear and free from doubt. Fine v. Checcio, 582 Pa. 253, 265, 870 A.2d 850, 857 (2005). In reviewing the denial of a motion for summary judgment, this Court must view "the record in the light most favorable to the non-moving party, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party." Id., 870 A.2d at 857.
We have addressed and settled issues of guardrail-related claims against the Commonwealth in a number of cases over the past decade. As we so aptly explained in Lambart v. Katz, 8 A.3d 409 (Pa. Cmwlth. 2010):
Commonwealth agencies are generally immune from civil suit for tort liabilities unless the General Assembly waives sovereign immunity. See 1 Pa. C.S. § 2310; and 42 Pa. C.S. § 8521. Section 8522(a) of the [Judicial] Code [(Code)], which is often referred to as the "Sovereign Immunity Act," 42 Pa. C.S. § 8522(a), authorizes the imposition of liability against Commonwealth agencies for damages arising out of a negligent act where the damages would be recoverable under the common law or a statute creating a cause of action if the injury were caused by a person to whom the defense of sovereign immunity is not available. To meet the threshold requirement under Section 8522(a) of the Code, a plaintiff must prove the requisite elements of negligence: (1) the defendant's duty or obligation recognized by law; (2) a breach of that duty; (3) a causal connection between the defendant's conduct and the resulting injury; and (4) actual damages. Talarico v. Bonham, . . . , 650 A.2d 1192 ([Pa. Cmwlth.] 1994).
The Pennsylvania Supreme Court has stated that the "duty of care a Commonwealth agency owes to those using its real estate . . . is such as to require 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." Snyder v. Harmon, 522 Pa. 424, 435, 562 A.2d 307, 312 (1989). Motorists have a corresponding duty to use the highways in the ordinary and usual manner with reasonable care. Glover v. Dep't of Transp., . . . , 647 A.2d 630 ([Pa. Cmwlth.] 1994), appeal denied, 540 Pa. 606, 655 A.2d 994 (1995).
However, by virtue of Section 8522(a) of the Code, "a Commonwealth agency may have breached a duty owed yet not be liable unless the breach is coincidental with an exception" to Section 8522(a) of the Code. Bendas v. Twp. of White Deer, 531 Pa. 180, 183, 611 A.2d 1184, 1186 (1992). To defeat the defense of sovereign immunity, the plaintiff must also establish that his or her allegations fall within one of the nine enumerated exceptions to sovereign immunity set forth in Section 8522(b) of the Code. Dean [v. Dep't of Transp.], 561 Pa. [503,] 508, 751 A.2d [1130,] 1132 [(2000)]. Because of our General Assembly's clear intent to insulate government from exposure to tort liability, courts must strictly construe the exceptions to sovereign immunity. Id.
The relevant exception for purposes of this case is contained in Section 8522(b)(4) of the Code, and is
referred to as the "real estate exception to sovereign immunity."[] Pursuant to Section 8522(b)(4) of the Code, a dangerous condition of Commonwealth agency real estate and sidewalks, including, but not limited to, highways under the jurisdiction of a Commonwealth agency, is one of the specifically enumerated circumstances for which our General Assembly has waived sovereign immunity. In order for the real estate exception to apply, "a claim . . . must allege that the dangerous condition" derived, originated from or had as its source the Commonwealth realty itself. Jones v. SEPTA, 565 Pa. 211, 225, 772 A.2d 435, 443 (2001) (referring to Snyder, 522 Pa. at 433, 562 A.2d at 311).Lambert, 8 A.3d at 413-14 (footnote omitted) (emphasis added).
Section 8522(b)(4) of the Code, 42 Pa. C.S. § 8522(b)(4) provides:
(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:
(Emphasis added.). . .
(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)[, relating to sinkholes and other dangerous conditions].
First, we will address whether Section 8522(b)(4) of the Code waives sovereign immunity. DOT appears to argue that Mr. Hayes failed to put forth any evidence to suggest that a dangerous condition on Commonwealth property (i.e., the roadway) caused Mr. Rodriguez's vehicle to leave the road and strike the guardrail. We agree. In Lambert, we held, inter alia, that allegedly outdated guardrails and DOT's failure to maintain them did not create a dangerous condition on Commonwealth real estate under the real estate exception to sovereign immunity. Lambert, 8 A.3d at 417. In Lambert, three people died when the vehicle in which they were traveling left the road, hit guard cables and posts, then struck a tree and descended an embankment. Id. at 411-12. We largely based our decision in Lambert on our examination of Dean.
In Dean, a truck fishtailed on a snow-covered roadway, causing the driver to veer off the road and over a steep embankment where it overturned. The incident seriously injured a passenger in the vehicle. The passenger sued DOT, alleging that her damages would have been minimized had DOT installed a guardrail along that portion of the roadway. Our Supreme Court, relying on its decision in Snyder, where it repeated the view that only alleged artificial conditions or defects of land may result in waiver under Section 8522(b)(4) of the Code, addressed the passenger's argument that the absence of a guardrail amounted to a dangerous condition of the highway and that a trial court could not address that argument in a summary judgment motion. The Supreme Court in Dean noted that Commonwealth agencies only are required to ensure that the condition of their "property is safe for the activities for which it is regularly used, intended to be used or reasonably foreseen to be used." Dean, 561 Pa. at 510, 751 A.2d at 1133-34 (quoting Snyder, 522 Pa. at 434, 562 A.2d at 312). In holding that DOT cannot be held liable for failure to erect a guardrail under Section 8522(b)(4) of the Code, the Supreme Court reasoned that the absence of a guardrail is not a dangerous condition of the Commonwealth real estate. Dean, 561 Pa. at 511-12, 751 A.2d at 1134. Specifically, it explained that a guardrail "does not render the highway unsafe for the purposes for which it was intended, i.e., travel on the roadway." Id. at 511, 751 A.2d at 1134.
The Supreme Court also noted that
the General Assembly can correct any misinterpretation of the immunity provisions by amending the statute so as to explicitly waive immunity for dangerous conditions of guardrails . . . . Absent such legislative directive,
however, we conclude that the real estate exception does not apply to the failure to install a guardrail and [DOT] is entitled to judgment as a matter of law.Id. at 512, 751 A.2d at 1334-35. To date, however, the General Assembly has not acted on the Supreme Court's invitation to "correct" its interpretation of the real estate exception to sovereign immunity with respect to guardrails.
Also, this Court has held that the Commonwealth is immune from suit regarding the design and maintenance of guardrails. Stein v. Pennsylvania Turnpike Comm'n, 989 A.2d 80, 88 (Pa. Cmwlth. 2010), appeal denied, 610 Pa. 613, 20 A.3d 1214 (2011); see also Fagan v. Dep't of Transp., 946 A.2d 1123 (Pa. Cmwlth. 2008) (holding that sovereign immunity shields Commonwealth where decedent was passenger in vehicle that for unknown reasons left road and struck turned-down guardrail, causing it to become airborne, strike utility pole and two trees, and roll over). In Simko v. County of Allegheny, 869 A.2d 571 (Pa. Cmwlth. 2005), appeal denied, 587 Pa. 703, 897 A.2d 462 (2006), we held that where a guardrail existed, the failure to maintain it or design it differently were not dangerous conditions of the road for which immunity was waived for the Commonwealth or for a local government. Simko, 869 A.2d at 575; see also Svege v. Interstate Safety Serv., Inc., 862 A.2d 752 (Pa. Cmwlth. 2004) (concluding that Pennsylvania Turnpike Commission's failure to install concrete barriers of greater dimensions and stability on turnpike did not constitute dangerous condition within meaning of Section 8522(b)(4) of Code because concrete barrier had not made the highway unsafe for its intended purpose).
In Stein, a motorist was killed when the vehicle in which he was riding hydroplaned, veered off the roadway through an opening in the guardrail onto the grassy hill, spinning down the hill, and forcefully hitting the boxing glove end of the guardrail, which severed the motorist's right leg below the knee, causing his death. Stein, 989 A.2d at 81-82. --------
Based on our review of the entire record and the foregoing precedent, we conclude that sovereign immunity shields DOT from liability in this case. Specifically, the exception in Section 8522(b)(4) of the Code does not apply, because Mr. Hayes has not identified a dangerous condition of the roadway that caused Mr. Rodriguez's vehicle to leave the roadway and strike the guardrail. As the cases cited above demonstrate, we have refused to apply the real estate exception in situations where a dangerous condition in the roadway itself did not cause a vehicle to leave the roadway. Consistent with our prior rulings, we also affirm the notion that the non-existence, design, or maintenance of guardrails does not render a highway unsafe for its intended purpose, i.e., travel on the roadway. Even reviewing the record in the light most favorable to Mr. Hayes, we conclude that the trial court erred in denying DOT's motion for summary judgment for these reasons.
Accordingly, we reverse the trial court's order and remand the matter to the trial court with instructions that the trial court enter judgment in favor of DOT.
/s/_________
P. KEVIN BROBSON, Judge ORDER
AND NOW, this 27th day of March, 2013, the order of the Court of Common Pleas of Lehigh County (trial court) is hereby REVERSED, and the matter is remanded to the trial court with instructions that it enter judgment in favor of Appellant/defendant Pennsylvania Department of Transportation.
Jurisdiction relinquished.
/s/_________
P. KEVIN BROBSON, Judge
(R.R. 123a-128a (emphasis added).)