Opinion
No. 1561 C.D. 2011
07-05-2012
Robert Hindle and Victoria Hindle, Husband and Wife, Appellants v. Commonwealth of Pennsylvania, Department of Transportation
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE BERNARD L. McGINLEY, Judge (P.) HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE McGINLEY
Robert Hindle and Victoria Hindle (Robert and Victoria, collectively, the Hindles) appeal from an order of the Court of Common Pleas of Schuylkill County (common pleas court) that granted summary judgment in favor of the Pennsylvania Department of Transportation (DOT).
On or about June 1, 2009, the Hindles filed a complaint against DOT and alleged:
4. On July 22, 2007, at approximately 2:30 p.m., Plaintiff Robert Hindle was operating his 2003 Harley Davidson motorcycle northbound on Pennsylvania State Road 183 with his wife, Victoria, as a passenger on his motorcycle, and they were traveling as part of a caravan of four motorcycles.
5. State Road 183 is a two lane road with paved berm, the far right portion being broken and crumbled, with the road having an additional right-of-way area.
6. As the Plaintiffs [the Hindles] approached Blue Mountain Road, an intersecting road from the left, a station wagon also northbound, was slowing so as to make a left hand turn onto Blue Mountain Road.
7. At the above said time and place, the motorcycle immediately in front and to the left of Plaintiff's [Robert Hindle's] motorcycle slowed and proceeded to move to the right of the slowing car. Plaintiff, Robert Hindle, then began to also steer his motorcycle to the right. (emphasis added).
8. As Plaintiff Robert Hindle proceeded to the right, the station wagon suddenly and without reason or prior notice swung to the right forcing Plaintiff Robert Hindle to move further to his right to avoid being struck by the station wagon. (emphasis added).
9. When Plaintiff Robert Hindle moved further to the right of the berm area, he struck a piece of metal protruding from concrete that was imbedded into and was part of the berm of the highway. (emphasis added).
10. The striking of the piece of metal catapulted the Plaintiffs [the Hindles] forward from their motorcycle causing them to strike the berm surface seriously injuring them in the process.
11. But for the Plaintiffs' [the Hindles'] motorcycle striking the imbedded piece of metal, plaintiff Robert Hindle would have been able to safely travel around the station wagon on the berm. (emphasis added).
12. At all times prior to and including July 22, 2007, the Defendant, Commonwealth of Pennsylvania Department of Transportation, exclusively constructed, maintained, and controlled State Road 183, including the berm portion of the highway.
13. The negligence of the . . . Department of Transportation is not subject to sovereign immunity because the protruding piece of metal constituted a dangerous condition of a highway, all of which was under its control. (emphasis added).Complaint, June 1, 2009, Paragraphs 4-15 at 1-6; R.R. at 2a-7a. The Hindles sought damages for injuries and losses in the nature of "serious, painful, and possibly permanent bodily injuries, great physical pain and mental anguish, severe and substantial emotional distress, and loss of the capacity for the enjoyment of life . . . ." Complaint Count I, 17a, and Count II, 19a at 6-8; R.R. at 7a-9a.
14. The defendant, . . . Department of Transportation is liable for the injuries and losses to Plaintiffs [the Hindles] described in particular hereafter, because of its negligence.
15. The negligence . . . consisted of the following:
a. . . . [N]egligently constructed or reconstructed the berm portion of the highway and in doing so allowed a piece of metal imbedded into the berm when it knew or should have known that the protruding metal caused a dangerous condition of the highway and this dangerous condition was a hazard to any motor vehicle operator using this portion of the highway.
b. It . . . was negligent for its failure to properly inspect the highway to insure the highway was clear of hazards and constituted a clear roadside . . . .
c. It failed to properly maintain its highway . . . .
d. It failed to warn motorist . . . .
e. [I]t failed to keep the berm in good repair or in a safe condition for motorists, such as the Plaintiffs [the Hindles], who used it.
f. Despite knowing or should have known that a dangerous condition existed on its highway . . . it failed to fix the roadway to remove the metal embedded into the highway. (emphasis added).
DOT filed an answer and denied all "[a]llegations of negligence" and asserted in its new matter:
21. The Department of Transportation is immune from suit pursuant to 1 Pa. C.S. § 2310, and this action is not within any exceptions to immunity set forth in 42 Pa. C.S. § 8522; therefore, this action is barred as to the Department. (emphasis added).
22. The Department . . . did not have notice, written or otherwise, of the alleged dangerous conditions, or in the alternative, if said notice was received, it was not received in sufficient time prior to the alleged incident for the Department to have corrected or to have warned the traveling public of the alleged dangerous condition. (emphasis added).
23. There is no cause of action based upon failure to inspect or improper inspection in that sovereign immunity has not been waived for such claims.
. . . .
26. . . . Robert Hindle was contributorily/comparatively negligent; Plaintiff's [sic] claims are barred or must be reduced pursuant to the Pennsylvania Comparative Negligence Statute, 42 Pa. C.S. § 7102 . (emphasis added).
27. The alleged causal negligence of each and all other defendants is asserted; if . . . Victoria Hindle may recover damages from the Department . . . which is denied, any recovery must be diminished pursuant to the
Pennsylvania Comparative Negligence Statute, 42 Pa. C.S. § 7102.Answer of Commonwealth of Pennsylvania, Department of Transportation, to Plaintiffs' Complaint with New Matter and Cross-Claims, September 8, 2009, Paragraphs 15, 21-23, 26-27, and 30 at 3-5; R.R. at 14a-16a.
. . . .
Cross-Claim
30. Robert Hindle was causally negligent as, follows:
a) He failed to keep his motorcycle under proper control; (emphasis added).
b) He attempted to pass another vehicle on the right, when it was unsafe to do so; (emphasis added).
c) He operated his motorcycle at an unsafe speed under the circumstances; (emphasis added).
d) He failed [sic] stop his motorcycle when the circumstances required it; (emphasis added) and
e) He violated Section 3304 of the Vehicle Code.
Section 3304 of the Vehicle Code, 75 Pa. C.S. § 3304, provides:
(a) General rule.-The driver of a vehicle may overtake and pass upon the right of another vehicle only under one of the following conditions:
(1) When the vehicle overtaken is making or about to make a left turn, except that such movement shall not be made by driving off the berm or shoulder of the highway. (emphasis added).
(2) Upon a roadway with unobstructed pavement of sufficient width for two or more lines of vehicles moving lawfully in the direction being traveled by the overtaken vehicle, except that such movement shall not be made by driving off the roadway. (emphasis added).
(b) Limitation.-No passing movement under this section shall be made unless the movement can be made in safety. (emphasis added).
The following depositions were taken. Trooper Jason J. Rasmus (Rasmus), certified in reconstruction of accidents, stated that when he arrived at the scene he saw "a motorcycle laying on its side, two individuals, a male and female laying [sic] in the roadway." Deposition of Jason J. Rasmus (Rasmus Deposition), March 4, 2011, at 15; R.R. at 49a. Rasmus noticed Victoria Hindle was "moaning on the ground with a lot of scrapes." Rasmus Deposition at 16; R.R. at 50a. Rasmus observed that Robert Hindle's leg was broken. Rasmus Deposition at 16; R.R. at 50a. Rasmus reconstructed the accident scene and observed "[t]he impact with the guide rail . . . four feet of tire marks in the gravel" and "unit 1 [Robert Hindle's Harley] had damage to its right side in front along with one bent 2-inch-diameter steel pole." Rasmus Deposition at 19; R.R. at 53a. Rasmus stated that the travel lane was the area between the double yellow and white lines and was paved. The area to the right of the white line or the "tar strip" was also paved as the travel lane. Rasmus Deposition at 22; R.R. at 56a. East of the "tar strip . . . became gravel where the concrete and pipe were located." Rasmus Deposition at 22; R.R. at 56a.
Robert Hindle stated that he and his wife were the second motorcycle in a group of four. Deposition of Robert Hindle (Hindle Deposition), December 10, 2010, at 41; R.R. at 84a. Robert Hindle was riding on the right half of the northbound travel lane. He slowed down because a station wagon in front of the first motorcycle had "a blinker on making a left turn." Hindle Deposition at 42-43; R.R. at 85a. Robert stated that "Dave Vedral [operator of the first motorcycle] slowed down . . . [a]nd I believe he actually would [sic] up stopping behind the vehicle . . . [b]ecause he wasn't sure of my intentions." (emphasis added). Hindle Deposition at 48; R.R. at 86a. Robert Hindle proceeded "on the paved portion of the shoulder and slow[ed] down to give him [Dave Vedral] room to go around." Hindle Deposition at 49; R.R. at 86a. Robert Hindle observed the station wagon go to the right so that the "[b]umper and part of the front fender were over the white line." Hindle Deposition at 50; R.R. at 87a. "When I saw him do that, I moved to the right onto the gravel to give Dave the asphalt portion." Hindle Deposition at 51; R.R. at 87a. After that maneuver, Hindle stated that he was airborne and does not have any recollection as to what happened afterwards. Hindle Deposition at 51-52; R.R. at 87a.
The group of motorcycle riders were traveling in a "staggered formation" where the lead motorcycle travels on the left half of the northbound travel lane and the second motorcycle travels on the right half of the northbound lanes, followed by the third motorcycle-left half, and the fourth motorcycle-right half.
David B. Vedral (Vedral) stated that he slowed down and "[l]ooked into my rear view mirror to see where . . . Hindle was on his motorcycle [and that] [h]e was a sufficient distance behind me to make my next maneuver . . . to merge over to the right-hand side, and if that car would clear out of my way, proceed as he got out of the way." Deposition of David B. Vedral (Vedral Deposition), December 10, 2010, at 25; R.R. at 93a. Vedral stated that Robert Hindle's "motorcycle hit my motorcycle . . . [i]t was a clutch lever that dug into my tour pack." (emphasis added). Vedral Deposition at 29-30; R.R. at 94a-95a. Vedral stopped his motorcycle and observed Vicki Hindle first. "She was not moving . . . [s]he was bleeding from the face . . . [s]he was totally limp." Vedral Deposition at 41; R.R. at 97a. Vedral stayed with Vicki Hindle while "Jason Lucas and Joe and Robin were with Lance [Robert Hindle]." Vedral Deposition at 42; R.R. at 98a. Vedral approached Robert Hindle and that "[h]e had fear and pain on his face." Vedral Deposition at 43; R.R. at 98a. They did not talk at the scene. Vedral stated that sometime after the accident Robert Hindle mentioned "[t]he metal pipe grabbed his boot" and that caused the accident. Vedral Deposition at 44; R.R. at 98a.
The "tour pack" is a trunk. Vedral Deposition at 30; R.R. at 95a.
Joseph Rauscher, Jr. (Rauscher) stated that he was the last motorcycle in the group and saw the following:
There was a station wagon of some sort . . . [a]nd he had slowed down to make a left-hand turn.
. . . .
Mr. Vedral began to go around . . . it in the area that's between the white line and the gravel. Which is 3, 4 feet, I'm guessing.
And just as he—almost as he got to the gentleman that was driving the car . . . the man made a swing out to the right before he made the left hand turn, took over half of the hard surface between the right line and the edge away.
David hit the brakes to stop. Mr. Hindle then went a little bit further to the right. And I could see that the rock that's there with that pipe, I could see he lost control of the bike right there. I saw he lost control of it instantly.
. . . .Deposition of Joseph Rauscher, Jr. (Rauscher Deposition), December 10, 2010, at 21-24; R.R. at 102a-03a.
I stopped my motorcycle. I got off. We walked forward. And it was evident to me that he had hit that pipe because . . . you could see the metal had been clear of old rust. You could see something had hit it.
On June 3, 2003, DOT sought summary judgment and asserted:
6. Plaintiffs claim the Commonwealth, Department of Transportation was negligent, contending that the metal imbedded in the concrete imbedded in the berm was a dangerous condition of the highway.
7. The Department of Transportation filed an Answer, New Matter and Cross Claim in which it admitted that SR 183 is a state-designed highway under its jurisdiction and denying any negligence.
8. The parties engaged in discovery by means of written interrogatories, request for production of documents and oral dispositions.
. . . .
20. The accumulated deposition testimony indicates that Plaintiffs [the Hindles] were on a motorcycle proceeding in the northbound travel lane of SR 183 approximately two (2) feet to the left of the white edge or "fog" line; a station wagon was ahead signaling the intent to turn left; Mr. Hindle steered off the travel lane and onto the paved shoulder to the right of the white edge line to go around the station wagon; when the Hindle motorcycle was about 25 feet behind the station wagon, the station wagon moved to the right so its right tires were to the right of the white edge line; Mr. Hindle steered off the paved shoulder and onto gravel to the right of the shoulder; the motorcycle hit what appeared to be an old anchor rod in
concrete at the beginning of a section of post and cable guard fence. (emphasis added).Motion for Summary Judgment of Commonwealth, Department of Transportation, June 3, 2011, Paragraphs 6-8, 20, and 22-28 at 2-5; R.R. at 19a-23a.
. . . .
22. As a "Commonwealth party", the Department of Transportation is protected from negligence actions by sovereign immunity . . . . (emphasis added).
23. Only by pleading and proving an action which satisfies the requirements of 42 Pa. C.S. § 8522(a) and falls within one of the exceptions set forth in 42 Pa. C.S. § 8522(b) may a plaintiff recover damages from a Commonwealth party.
24. The only potentially applicable exception to sovereign immunity in this matter is the "Commonwealth real estate" exception set forth in 42 Pa. C.S. §8522(b)(4) . (emphasis added).
25. The "highway" consists of the travel lane and the paved portion of the shoulder or berm. (emphasis added).
26. The unpaved area upon which Plaintiffs [the Hindles] attempted to travel is not part of the "highway" where traffic is intended to travel, therefore, an alleged defect involving the right-of-way beyond the paved shoulder does not fall within the Commonwealth real estate exception. (emphasis added).
27. While the issue of whether a condition is dangerous is an issue of fact for the jury, the issue of whether sovereign immunity applies is a question of law for the Court's determination. (emphasis added).
28. Here, discovery is complete; Plaintiffs [the Hindles] have indicated they will not produce a liability expert's report, and Plaintiffs [the Hindles], who have the burden of proof at trial, have failed to produce evidence of facts essential to their cause of action which would require the issue to be submitted to a jury. (emphasis added).
On June 13, 2011, the Hindles responded to the motion for summary judgment:
26. Denied. The allegation is denied as follows: (a) Plaintiff [Robert Hindle] did not "intend" to travel where he did; he was forced into that area; (b) although the object struck was on a currently unpaved part of the berm, PennDot records raise a genuine issue of material fact whether it was at one time paved, but through neglect, now deteriorated or perhaps was never paved per the specifications; (c) the waiver of immunity section (5822(b)(4)) includes any dangerous condition of Commonwealth property including a right-of-way and not just highways. (emphasis added).Plaintiffs' Answer to Defendant's Motion for Summary Judgment, June 13, 2011, Paragraphs 26 and 28 at 1-2; R.R. at 141a-42a.
. . . .
28. Denied. Plaintiff's [sic] [the Hindles] brief and appendix will produce significant evidence that their claim falls within the exception to immunity or there is a genuine issue of material fact whether the area in question was paved, but deteriorated and thus within the highway subsection exception to immunity.
The common pleas court entered summary judgment in favor of DOT and concluded that the "highway exception is found not to apply, so as to waive the Commonwealth's sovereign immunity in this case . . . ." Opinion of the Common Pleas Court, August 3, 2011, at 8.
The Hindles appealed to this Court and the common pleas court ordered the Hindles to file a concise statement of matters complained of pursuant to Pa. R.A.P. 1925(b). The common pleas court then concluded:
In their statement of complaints, Plaintiffs [the Hindles] first contend that this court did not consider that Plaintiffs [the Hindles] were off the traveled portion of the roadway when the accident occurred because they were avoiding a possible collision and that, as a result, their actions were not within the application of Lambert v. Katz [, 8 A.3d 409 (Pa. Cmwlth. 2010)] . . . . Contrary to Plaintiffs' [the Hindles'] complaint, however, for purposes of ruling on the summary judgment motion, this court did, in fact, accept Plaintiffs' [the Hindles'] claim as to the reason that they had traveled off the roadway prior to the accident. Nevertheless, the court found that , regardless of Plaintiffs' [the Hindles'] reason for traveling in the area in question, the immunity exception did not encompass the place where the accident occurred.
. . . Although Plaintiffs [the Hindles] claim that a factual issue exists as to whether the object which was struck was within the paved portion of the berm, the record material clearly depicts that location as being beyond the paving.
. . . .
The decision of this court was based on a determination that material facts were not at issue. Had it believed otherwise, summary judgment would not have been granted. Rather, the matter at issue was found to be whether the applicable statutory exception to immunity granted the Commonwealth extended to the place where the motorcycle collision occurred, regardless of the reason Plaintiffs [the Hindles] had maneuvered away from the roadway. This court was concerned that the collision allegedly occurred with a deteriorated Commonwealth guardrail anchor. Nevertheless, in light of the applicable case law, it was and is believed warranted to find that the Commonwealth immunity had
not been waived in the circumstances at hand. (emphasis added).Opinion of the Common Pleas Court, September 23, 2011, 4-5.
I. Whether The Common Pleas Court Erred As A Matter Of Law When It
Failed To Apply The Highway Exception To Sovereign Immunity Pursuant
To 42 Pa. C.S. § 8522(b)(4)?
Initially the Hindles contend that the common pleas court erred as a matter of law when it failed to apply the highway exception to sovereign immunity. Specifically, the Hindles assert that the motorcycle left the roadway and entered the berm in order to avoid colliding with another vehicle. The Hindles emphasize that the emergency use of a shoulder of the road is proper when it is use to avoid a collision with another vehicle. See Downey v. Rymorowicz, 397 Pa. 205, 154 A.2d 179, 182 (1959) ("a prudent operator . . . would have stopped immediately or driven off on the berm . . . .")
This Court's review of a grant of summary judgment is limited to a determination of whether the common pleas court committed an error of law or abused its discretion. Kaplan v. Southeastern Pennsylvania Transportation Authority, 688 A.2d 736, 738 n.2 (Pa. Cmwlth. 1997). "Summary judgment is appropriate only when, after examining the record in the light most favorable to the non-moving party, there is no genuine issues of material fact and the moving party is entitled to judgment as a matter of law." Guy M. Cooper, Inc. v. East Penn School District, 903 A.2d 608, 613 (Pa. Cmwlth. 2006). In reviewing questions of law, the scope of review is plenary, as the reviewing court may examine the entire contents of the record. Weaver v. Lancaster Newspapers, Inc., 592 Pa. 458, 926 A.2d 899 (2007).
42 Pa. C.S. § 8522(b) provides:
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). (emphasis added).
Recently, in Quinones v. Pennsylvania Department of Transportation and Joyce Brunell, as Administratrix of the Estate of Jason Brunell, ___ A.3 ___ (Pa. Cmwlth. 2012) (No. 1554 C.D. 2011, filed June 5, 2012), slip opinion, this Court reviewed the application of the defense of sovereign immunity in the context of the real estate, highways, and sidewalks exception under 42 Pa. C.S. § 8522(b)(4) and revisited our Pennsylvania Supreme Court and this Court's prior legal decisions.
In Quinones, "Jason Brunell (Brunell) lost control of his northbound vehicle, crossed the grassy median, and struck a southbound vehicle driven by Ivette Quinones (Quinones). Brunell was fatally injured, and Quinones sustained severe injuries." Id., slip op. at 1. "Quinones alleged that DOT was negligent in that it defectively designed, constructed, and/or maintained S.R. 33, and that the alleged defect was the cause of the crash." Id., slip op. at 1. --------
This Court stated:
In Dean [v. Department of Transportation, 561 Pa. 503, 751 A.2d 1130 (2000)], the Pennsylvania Supreme Court held that the absence of a guardrail does not render a highway unsafe for its intended purpose-travel on the road. In that case, a vehicle fishtailed in snow, left the roadway, traveled down an embankment, and overturned. The plaintiff passenger alleged that DOT was negligent in failing to install a guardrail, and for failing to properly design, construct and maintain a safe highway. DOT filed a motion for summary judgment asserting sovereign immunity.
As to the duty owed by DOT, the [Supreme] Court stated, "[t]he corresponding 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. Dean, 561 Pa. at 510, 751 A.2d 1133-34 (quoting Snyder v. Harmon], 522 Pa. [424] at 434-35, 562 A.2d [307] at 312 (1989)). The Dean court concluded:
[T]he Commonwealth's failure to erect a guardrail on the highway is not encompassed by the real estate exception to sovereign immunity. Similar to the absence of lighting and the deceptive appearance of the shoulder of the road in Snyder, the absence of the guardrail cannot be said to be a dangerous condition of the real estate that resulted in a reasonably foreseeable injury to Appellee. Stated differently, the lack of a guardrail does not render the highway unsafe for the purposes for which it was intended, i.e., travel on the roadway . . . .
Id., 561 Pa. at 511-12, 751 A.2d at 1134 (footnotes omitted).
. . . .
Most recently, in Brown v. Department of Transportation, 11 A.3d 1054 (Pa. Cmwlth. 2011), in considering whether DOT owed a duty to install rumble strips on the highway, this Court discussed the Dean decision, noting:
[T]he [Supreme Court] concluded that DOT does not have a duty to install guardrails because the absence of guardrails does not render the highway unsafe for its intended use. The same analysis applies to rumble strips. Rumble strips, like guardrails, are safety features that may reduce the injuries caused when a car drifts off the traveled roadway, but the absence of such safety features does not make the highway unsafe for its intended use and does not, in and of itself, cause accidents to occur. Id. . . . Similarly, here, the reason [the] car left the road
was that [the driver] fell asleep while he was driving it, not that there were no rumble strips to wake him up . . . . Brown, 11 A.3d at 1057 (footnotes omitted).
In the instant matter . . . [t]he lack of the barrier did not "render the highway unsafe for the purposes for which it was intended, i.e., travel on the roadway." Dean, 561 Pa. at 511, 751 A.2d at 1134.
Further, Quinones asserts that DOT had a duty to design, construct and maintain the median with sufficient width and slope to deter crossovers. Although this Court has not explicitly ruled upon whether DOT has such a duty, the Court has addressed the issue as it pertains to the shoulder of a highway. In Lambert v. Katz, 8 A.3d 409 (Pa. Cmwlth. 2010), this Court determined that DOT did not have a duty to make the roadway shoulder wider in anticipation that vehicles might lose control and utilize the shoulder to regain control because shoulders were not intended for vehicular travel. Adhering to Dean and its progeny, as we must, we similarly conclude that the median is not intended for vehicular travel, and accordingly, DOT owed no duty to design, construct and maintain the median to deter crossovers.
. . . .
With respect to causation, this Court has held that "the real estate exception will only apply where it is alleged that an artificial condition or defect of the land itself caused an injury to occur, and not where it merely facilitates injury by the acts of others, whose acts are outside the scope of liability." Cowell [v. Department of Transportation], 883 A.2d [705 (Pa. Cmwlth. 2005)] at 709 . . . .
This Court also stated in [Fagan v. Department of Transportation, 946 A.2d 1123 (Pa. Cmwlth. 2008)]:
The failure to prove why the vehicle left its intended place on the paved portion of the highway results in a gap in the chain of causation between
intended use of the highway and contact with a PennDOT instrumentality. See Felli v. Commonwealth, Dep't of Transp., 666 A.2d 775 (Pa. Cmwlth. 1995) (a vehicle leaving the travel portion of the highway is not the ordinary and usual manner for using the highway).Quinones, slip op. at 5-9.
Fagan, 946 A.2d at 1128. The Fagan Court concluded, "courts faced with a causation question in leaving-the-pavement cases may resolve the issue with different language, but recent results are consistent: the loss tends to fall on the party with some responsibility for the vehicle leaving the pavement and not the owner of land or objects nearby." Id., 946 A.2d at 1129. The result is the same in the instant case . . . the median did not cause Quinones' injuries, Brunell's vehicle did when Brunell lost control of his car. (emphasis added and in original).
Here, the common pleas court properly concluded that "whether or not [DOT's] right of way exceeded the paved portion of the roadway or its plans or specifications called for wider paving than existed at the time of the accident, [DOT] was responsible for maintaining only that portion of the roadway used for traveling." (emphasis added). Common Pleas Court Opinion at 7.
II. Whether The Common Pleas Court Abused Its Discretion Because There
Were Genuine Issues Of Material Fact To Be Determined?
Last, the Hindles contend there was a genuine issue of material fact concerning whether a dangerous condition, i.e. "a protruding metal pipe" imbedded in the broken pavement of the berm was not properly maintained by DOT and left in an extremely deteriorated state at the time of the accident.
DOT responds that the common pleas court properly determined that to expand the exception to sovereign immunity under 42 Pa. C.S. § 8522(b)(4) beyond the roadway to the berm would essentially render DOT responsible for conditions existing within the entire area of its right of ways, including all paved shoulders and unpaved berms despite that these areas neither were intended to be used nor regularly used for travel. This Court agrees.
Here, the record reveals that the Robert Hindle observed, while in the process of making a left hand turn, the operator of the station wagon swung to the right which forced him to also swing right to avoid being struck by the vehicle. See Paragraph 8 of the Hindles' complaint at 3; R.R. at 4a. If anything, DOT's cross-claim alleged that the accident would not have occurred if it was not for Robert Hindle's negligent conduct in the operation of his motorcycle, i.e. unsafe speed, passing on the right, and failing to stop. See DOT's Answer with New Matter and Cross-Claims, Paragraph 30 at 5; R.R. at 16a. Again, pursuant to Dean and its progeny, the real estate exception under 42 Pa. C.S. § 8522(b)(4) does not apply to those instances where the land merely facilitates an injury "by acts of others who are outside the statutes scope of liability." Id. at ___, 751 A.2d at 1133.
Accordingly, this Court affirms.
/s/_________
BERNARD L. McGINLEY, Judge ORDER
AND NOW, this 5th day of July, 2012, the order of the Court of Common Pleas of Schuylkill County in the above-mentioned matter is affirmed.
/s/_________
BERNARD L. McGINLEY, Judge