HomeMy WebLinkAbout95-06325
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FRANCIS TOLAN and
ROBBIN TOLAN, Individuully
und as Natural Guurdiuns for
FRANCIS TOLAN, III, u minor,
: IN THE COURT OF COMMON
: PLEAS OF CUMBERLAND
: COUNTY, PENNSYLVANIA
Pluinliffs
CIVIL ACTION. LAW
v,
NO, 95-06325
SHIPPENBURG BOROUGH AND
SOUTH HAMPTON TWP"
FRANKLIN COUNTY
: JURY TRIAL DEMANDED
NOTICE TO DEFEND
You huve been sued in court, If you wish to defcnd againsl the
claims set forth in the following pages, you musl take action within twenty
(20) days lIfter this Amended Complaint and NOlice are served, by entering
a written appearancc personally or by attorney and filing in writing with
the courl your dcfenses or objections 10 the claims set forth against you,
You are warned that if you fail to do so the case may proceed without you
and a judgmcnt may bc entcrcd against you by the court without furthcr
notice for any money claimed in the Complaint or for any other claim or
relief requestcd by the Pluintiff, You may lose money or property or other
rights important to you,
YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE, IF YOU
DO NOT HA VE ALA WYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE
THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL
HELP,
Dauphin County Lawycr Rcferrul Servicc
213 North Front Strcel
Harrisburg, PA 17101
Telcphonc: 717-232-7536
----~--~---------------
Daniel Slcrn, Esquirc
2650 North Third Strect
Hurrisburg, PA 17110
717.234.4531
Attorney for Pluintiffs
FRANCIS TOLAN and
ROBBIN TOLAN, Individuully
and as Natural Guardians for
FRANCIS TOLAN. III, a minor,
: IN THE COURT OF COMMON
: PLEAS OF CUMBERLAND
: COUNTY. PENNSYLVANIA
Plaintiffs
CIVIL ACTION - LAW
v,
NO, 95.06325
SHIPPEN BURG BOROUGH AND
SOUTH HAMPTON TWP"
FRANKLIN COUNTY
: JURY TRIAL DEMANDED
~OTICIA
Le han demandado a usted en la corte, Si usted quiere defenderse de
estas demandas expuestas en las paginas slguientes, usted tlene viente
(20) dias de plazo al partir de la fecha de la demanda Y la nOlificaclon,
Usted debe presentar una aparlencla escrita 0 en persona 0 por abogudo Y
archivar en la corte en forma escrita sus defensas 0 sus objeclones alas
demandas en contra de su persona, Sea avlsado que sl usted no se
defiende, la corte tomara medidas y puede entrar una orden contra ustcd
sin previo aviso 0 notificacion Y por cualquler queja 0 allvio que cs pcdido
en la pcticion de demanda, Usted pucde pcrdcr dincro 0 sus proplcdudcs 0
otros derechos importantes para ustcd,
LLEVE ESTA DEMANDA A UN ABODAGO INMEDlATAMENTE, SI NO
TIENE ABOGADO 0 SI NO TIENE EL D1NERO SUFlCIENTE DE PAGAR TAL
SERVICIO, V A Y A EN PERSONA 0 LLAME POR TELEFONO A LA OFlCINA
CUY A D1RECCION SE ENCUENTRA ESCRIT A ABAJO PARA A VERIGUAR DON DE
SE PUEDE CONSEGUlR ASISTENCIA LEGAL,
Dauphin County Lawycr Refcrrnl Scrvicc
213 North Fronl Strcet
Harrisburg. P A 17101
Te1cphonc: 717-232-'1536
-----------------------------------
Dunicl Stern, Esqulrc
2650 North Third Strcct
Harrisburg. PA 17110
717-234-4531
AlIorncy for Plaintiffs
FRANCIS TOLAN und
ROBBIN TOLAN, Indlviduully
und us Natural Guardians for
FRANCIS TOtAN, III, a minor,
Plaintiffs
IN THE COURT OF COMMON
PLEAS OF CUMBERLAND
COUNTY, PENNSYLVANIA
v,
CIVIL ACTION. LAW
: NO, 95-06325
SHIPPENBUHG BOROUGH AND
SOUTH HAMP'l'ON TWP"
FRANKI..IN COUNTY
DsfendanlB
JURY THIAL DEMANDED
COMPLAINT
BACKGROUND OF THIS COMPLAINT
1. Plaintiffs hove previously filed a Complaint docket.ed to No, 95-
884, naming os Defendants, Brian S, Kalb and ths Commonwealth of
Psnnsylvanla, Dept of Transportation,
2, That Complaint, a copy of which Is aUached herelD and
incorporated by reference herein, sets forth the faelual basis for the wilhln
Complaint, which arises out of on automobile/pedestrian accident
occurring on November 5, 1993 (the "first Complaint"),
3, Following the filing of the first Complaint, which alleges in
Count II various negligent uels and omissions of the Commonwealth of
Pennsylvania, Deportment of Trunsportutlon, wilh respect to the
construction and maintenance of state Route 11 where the accident
occurred, Plaintiffs through discovery and addltionalinvesUgation have
learned that the Defendants named herein, on InformaUon and belief,
share legal responsibility for the presence or ubsence of traffic control
devices, warning signs, cross-walks, or other slmllur devices for the
protecUon of pedestrians, At the site of the accident, S,H. 11 Is within
Shlppensburg Bol'O (deslgnuted within the Bol'O os West King SLl. The
boundul'Y between the Bol'O und Soulhhampton Tp, Appears to be ths
midline of S,)t II, with lhe norlhel'l1 hull' of lhe rondwllY within the Boro,
and the southern hull' within the township.
4, It is intended that the within Complaint he consolidated for
purposes of further discovery and trial with the first Complaint,
FACTS AS TO LIABILITY
5, The Defendants named herein, Shippensburg Borough and
South Hampton Township, Franklin County, arc local government units
charged with the responsibility of installing, revising, removing,
maintaining and operating various traffic control devices on state
designated highways or atths intersections of local highways and state
designated highways, as set forth In 67 Pa, Code Section 211,6 et seq" and
with the duty of designing, constructing, and maintaining roadways in a
reasonably safe condition for use by pedestrians and moter vehicle traffic
within their respective Jurisdictions,
6, On inlormation and belief, the site of the accident referred to in
the first complaint, and the areas immediately adjacent thereto wers
within the jurisdiction of the Defendants, each of whom knew or should
have known of the dangerous conditions described in the first Complaint,
7, The accident referred to In the first Complaint was
substantially caused by the negligence and carelessness of the Defendants
named herein for the reasons set forth in Paragraph 15 (A-E) of the first
Complaint, the contents of which arc Incorporated herein by reference,
8, As a direcland proximate result of the negligence and
carelessness of the Defendants named herein, the Plaintiffs have suffered
damages as set forth in the first Complaint,
9, On information and belief, the named Defendants are Jointly
liable, and jointly and severally liable with the Defendants named in the
first Complaint, to the Plaintiffs for the damages set forth in the first
complaint.
2
WHEREFORE, Plain tilTs demand judgment against Defendants as
prayed for in the first Complaint,
Respectfully submitted,
Date:
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D~n~TSt~n~E;qii;;---------
2650 North Third Street
Harrisburg, PA 17110
(717) 234-4531
Attorney for Plain tilTs
3
FRANCIS TOI.AN and
ROBBIN TOI...AN, Indlvldunlly
and aa Natural Guardians for
FRANCIS TOI.AN, III, a minor,
PlalnUlTs
: IN THN COUIt'1' OI~ COMMON
: PLgAS CW C\JMnmU,AND
: COUN'I'Y, PENNSVINANIA
,
.
: CIVIL AC'I'10N - LAW
v.
.
: NO, 95-884
BRIAN S. KALB and
COMMONWEALTH OF
PENNSYLVANIA, DEPARTMENT
OF TRANSPORTATION,
Defendant.s
,
.
: JUHV TIUAL DEMAN DIm
COMPLAINT
1. PlainUlTB Francia Tolan and Robbin Tolan are adult Indlvlduala,
huaband and wife, realdlng at 178 Pugh Drive, Shlppl!nsbullf, Pennsylvania,
17267, Ind Ire the parents of OIl! minor PlolnUlT, Francis 'lblan, Ill,
2. Francia 1olan, III Is a minor residing with his parents ond notural
guardlBDBldenUlled In the preceding avennent.
3. Defendant Brian S, Kalb Is an adult indlvlduolrcsldlng at 2661
Country Lane, Shlppcnsburg, Pennsylvanlo, 17257,
4. On November 6, 1993, Defendant waR thc OpCl'Ot.ol' of a 1978 Jeop
and was driving same on Stote Iwute 11 known OR Wcst King Street In tho
Iloroullh of Shipp ens burg, Frunklln County, Pcnnsylvunla,
6, On thnt dote ot aplJluxlmotely 11:30 (I,m., the Defendont entered
Btote Houte 11 fl'Om a (lOI'klng lot of a busln08s ostnhllshmcnt, Cl'Os8l!d two
lanes of highway and was going to go 80UUl when his vehicle Rtl'lICk the minor
PloinUlT, who was crossing West King SI.1'eetli'Om the opposilo dh'Ocllon ofthe
Defendant's vehicle, as a result of which the minor PloinlilTsustulned Ule
I"'uries BOt forth below,
6, 'I11e accldent was due 80Iely to !he negligence ond cOI'Olessness of the
Defendant In !hat:
a, He foiled to observe Ule mlnOl' PlalnUIT cl'Osslng the slt'Oet;
b, He foiled to 11'0111 the mlnOl' PlolnlllTofhls oPPl'Ollchi
c, He drove In coreless disregOl'd fOl' the sofety of the mlnol'
PloinUlT, In violation ofPennsylvonia Molor Vehicle Code Section 3714,
d, He foiled to keep his vehicle under proper oonl.1'Ol ot all Umesi
e, Having sl.n1ck !he minor Plain tilT, he failed to Immediately
bring his vehicle to 8 stop In a manner designed to reduce the sevel'ity of
Il\Iuries ultimately suffered by !he mlnol' Plalntin;
f, He failed to drive his vehicle nt n safe SlIced, ot n lime when It
was obvious that numerous podesl.1ians wel'll cl'Osslng the highway, In violation
of Pennsylvania Motor Vehicle Code SecUon 3361.
7. Dy reallOn of !he accident, Ule mlnOl' PlalntilTsustaIned huul'ies to his
lell.leg, knee and thIgh, caused by Ule Defendont's cor running oVOl'the len.
lower extremity wl!h the tire C1'Osslng UIO knee OI'ea.
8, 111e physlcalll\luries suswlned by the minor PlolntilTlnclude
extensive lIOn. tissue l"'lIIY to Ule len. knee Dnd 10wOl'Ieg, causing post-
traumotic ulcer WltJl skin necmsls secondury to tl'Oction hUUl'y and
necessitating extensive skin gl'Ofung resulllng In pel1nonent RCOl'ling,
limitation ofOve degrees of fluxion, Dnd IORR ofsenslllvlt.y In the grllll.ed IlI'OD,
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The h\luriellsuffered by the minor PlalntJff l'Csult.cd In a sClious impall'ment of
bodily functJon and penn anent, smious disfigUl'Cment of the leg,
9. As a further direct and proximate l'Csult of the Defendant's
negUpnoo, the minor PlaIntJffsufferod pain, menwlanxlety, nCl'VOusness, and
emotional distress, and loss of el\loyment of life, and will continue 10 suffel'
same for an indefinite time In Ule future,
10. As a further result oCthe aforesaid accident, the 1011101' Plaintiff has
suffered h\luries of a pcnnanent nal.w'tl, Including dlsfigUl'tlment and loss of
motion, which willllmlt his ability 10 engage In valious spOlllng and
recreatJonal actJvitJes and which will In alll'CBsonabls pl'Obability l'Csult In the
inability of the minor PlalntJff 10 engage in ccl'wln occupations os on adult,
causilll him to suffer pennanent loss of Inoome which would hove come to him
throuth llaid occupations.
11. As a further direct and proxlmat.e I'esult of the Defendant's
negJIpnoo, Plaintiffs hove Incul1'1ld reasonable and necessol'Y medical
ellpensos in an amount in excess of their first pBlty benefits undm' the Molol'
Vehicle ResponllibUty Law of Pennsylvania,
WHEREFORE, PlaintJffs demand Judgment against Defendont In an
amount In ellcess of $20,000, plus costs of suit,
12, The preccding ayel'luents ore incorpol'at.cd by reference.
13, 111e Pennsylvania Depal1rnent of'I~'unspoltationls u govemment
unit charged WIUl Ule duty of designing, consll1lct.ing and maintaining swte
highways In a reasonably safe condlUon fOl' URO by podoRltillnH IInd 1110101'
vehicle traffic,
14. '!he accident refen'Cd to herein waR 0 dh'Cct and pl'oxillllll.o result of
Improper design and construction and unplll\.cc\.cd condlUlln of Slnlo Hou\.c 11,
16. The negligence and cal'eleSSnessllftlle Dofendant, ~lllllmllnweolth
of Pennsylvania, Department ofTransport.ation, consls\.cd of:
a, Failing III Identify the area or highway upon which tho occident
OCCUlTed as a hazardous area prior to \he happening of \he occident;
b, Falling to oon'CCt 0 dangel'Ous condition which It know 01' should
have known III be dangerous;
c. Falllng III post traffic oontrol dcvlces, warning signs,
crosswalks, or other similar devices for the pl'O\.cction of pedcstl'l Rns which the
Defendant knew or should have known wel'C likely III cross \he highway at Ole
location utilized by the minor Plaintiff and 00101'8 on a regulol' basis;
d, Falling III adequa\.cly Investiga\.c the volumc of lI'lImc
customarily present on State Route 11 at OJ' ncar thc sccne of the occident, so
as to be able III properly assess \hc neod fOl' pcdesltian safety dcvlccs os
aforesaid;
e. Falling to oonsldOl' OIC fact thatthc al'Co of the highwny being
crossed by the minor Plaintiff was pl'Oxlma\.c to public schools lint! was
l'Outinely crossed by studenls going III and coming fi'Om school dlllinl{ l'el(ulOl'
school hours, and In conncction with exlt'nCIlI1'iclIlOI' activiticR,
16, As 0 dll'cct and pl'OXhllll\.c I'c9ult of tho nogllgoncc nnd clIl'elcRSnoRs
of the Dcfendont, 111 I nOl' PlolnUlTRuslnincd ROVOI'C Rnd pOlmnnollt h\llll'lcR as
.
Bet forth above, and medical expenses In ellcess of$IO,OOll, ond I'lolnUlfs will
be required to expend addlUonolsums of money In Ule fut.\II'e,
WHEREFORE, JllolnUlfs demondJudgment ogolnst. I>efcndont.ln on
amount In ellcels of $20,000, plus cosl.a of sull.
17. 'I11e preceding avennenl.a ore IncorJ1orol.cd hy reference,
18, At the time of the occident descaibcd obove, PlolnUlf Hubbln 'I'olon
was driving her car close to the Beene ofUle occldcnt In order to J1ick up the
minor Plaintilfto baing him home,
19, From her vantoge point In her COI', Plolntllf Uobbln Tolon witnessed
the Defendant's vehicle suike, run over ond drag the millOl' JlloinUlfuntJllt
came to relt.
20, As a direct and proxlmoto result. of wltncsslng the Defendont run
over her son, PlaintJlf Robbin 1'olan has sulfered fright, shock, ond mental
anl(Uish, and will In ail rea80noble probability conUnue to sulfel' some to some
dtllJ1l8 for an Indeflnll.e peaiod ofUme Into UIC future,
WHEREFOIU<~, JllolnUfTB dcmand judgmcnt agoinst Defendont In on
amount In excess of$20,OOO, plus cosl.a ofsuil.
UcsJ1ectfully submitted,
Ch.MAA-r'.R:\,...~_
Daniel Stel11, gaqull'C
1'.0, !JOll 444
New Bloomfield, JlA 1706H
(717) 1i82,4:124
At.lomey for PluinUnil
FRANCIS TOLAN and
ROBBIN TOLAN, Individually
and as Natural Guardians for
FRANCIS TOLAN, III, a minor,
Plaintiffs
: IN THE COURT OF COMMON
: PLEAS OF CUMBERLAND
COUNTY,PENNSYLVANIA
CIVIL ACTION - LAW
v,
,
: NO, 95-6325
SHIPPENSBURG BOROUGH AND
SOUTH HAMPTON TWP"
FRANKLIN COUNTY,
JURY TRIAL DEMANDED
CERTIFICATE OF SERVICE
I, Daniel Stem, Esquire, hereby certify that I served a true and
correct copy of the foregoing Complaint by mailing same by first class mail,
postage prepaid, addressed as follows:
Shipp ens burg Borough
60 West Burd St,
Shippensburg, PA 17257
Southampton Twp, (Franklin Twp.)
705 Municipal Drive
Shippensburg, PA 17257
Rolf E, Kroll, Esquire
101 Pine Street
p, 0, Box 932
Harrisburg, PA 17108-0932
Mark E, Morrison, Esquire
Torts Litigation Section
15th Floor, Strawberry Square
Harrisburg, PA 17120
Date:
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Dnn~lStern~E;q~;e------
2650 North Third Street
Harrisburg, PA 17110
Attornsy for Plaintiffs
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FRANCIS TOLAN and
ROBBIN TOLAN, Individually
and as Natural Guardians for
FRANCIS TOLAN, III, a minor,
Plaintiffs
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
NO, 95-06325
v,
SHIPPENBURG BOROUGH AND
SOUTHAMPTON TOWNSHIP,
FRANKLIN COUNTY,
DefEndante
JURY TRIAL DEMANDED
PREL!M~~~~ ~~JECTIONS ON BEHALF OF
DEFEND~T ~QYI~~PtQN TOWNSHIP. FRANKLIN COUNTY
I. MOTION TO STRIKE COMPLAINT
1, The subject lawsuit arises out of a motor vehicle-
pedestrian accident which occurred on November 5, 1993 on State
Route 11, also known as West King Street, in the Borough of
Shippensburg, Franklin County, Pennsylvania,
2. Defendant southampton Township is a political subdivision
located wholly within Franklin County. Pennsylvania,
3. Pa, R, C, p, 2103 (b) provides that an action against a
poHtical subdivision may be brought only in the county in which
the political subdivision is located,
4 , The subj ect 1awBui t has been brought in the Court of
Common pleas of Cumberland County contrary to the provisions of
Pa.R,C.P, 2103(b),
WHEREFORE, Defendant Southampton Township, Franklin County
requests that the Complaint be stricken [or failure to conform to
the Rules of civil Procedure,
"
,
CERTIFICATE OF SERVICE
AND NOW, this 8th day of April, 1996, I, C, KENT PRICE,
ESQUIRE, for the firm of THOMAS, THOMAS & HAFER, attorneys for
Defendant Southampton Township, Franklin County, hereby certify
that I have this day served the within Preliminary Objections on
Behalf of Defendant Southampton Township, Franklin County by
depositing a copy of the same in the United States Mail, postage
prepaid, at Harrisburg, Pennsylvania, addressed to:
Daniel Stern, Esquire
2650 North Third Street
Harrisburg, PA 17110
Shippensburg Borough
60 West Burd Street
Shippensburg, PA 17257
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C, Kent Pr ce, Esquire
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FRANCIS TOLAN and
ROBBIN TOLAN, Individually
and as Natural Guardians for
FRANCIS TOLAN, III, a minor,
Plaintiffs
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYINANIA
CIVIL ACTION - LAW
NO, 95-06325
v,
SHIPPENBURG BOROUGH AND
SOUTHAMPTON TOWNSHIP,
FRANKLIN COUNTY,
Defendants
JURY TRIAL DEMANDED
PRAECIPE
TO THE PROTHONOTARY I
Please withdraw the Preliminary Objections previously filed in
the above matter on behalf of Defendant southampton Township,
Franklin County,
THOMAS, THOMAS (. HAFER
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C. Kent Price, Esquire
305 North Front Street
P,O, Box 999
Harrisburg, PA 17108
(717) 255-7632
1.0, No, 06776
ATTORNEYS FOR DEFENDANT
SOllTH HAMPTON TWP, I
FRANKLIN COUNTY
DATE I
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FRANCIS TOLAN und
ROBBIN TOLAN, Indlvlduully
and as Nutural Ouardluns for
FRANCIS TOLAN, III, u minor,
I'lulnlllls
: IN THE COURT OF COMMON
: PJ.BAS all CUMBERLAND
: COUNTY,I'ENNSYJ.VANIA
: CIVIL ACTION .LAW
v,
NO, l)~,UI)n~
./
SHIPPENBURG BOROUOII AND
SOUTHAMPTON TWP"
FRANKLIN COUNTY
Defendunls
: JURY TIUALllIiMANJ>I!J>
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AND NOW pon consldcrulionof lhc wilhln Mullon tn ConsulilllllC the IIbovc,
caplioned cuse to t at filed 10 Nu, 9S.8114, fur purpuscs of IIdllllhllllll dlsmvclY 1II11llllal,
Plaintiffs' counsel huving uscertalned thulnlll>Cfendunt uhjrch Ihereln, sllld Mnllnnls
granled,
For purposes of dockellng of f'lIlulc 11nt:lll11cnls, the cllplllln Ill' the 1'lIse shllll L'IInlllln
the names of all four Defendanls, IInd the dllCkclllllmbelllsslllnclltolhe iii hi ('lIl11pllllnl
(No, 95.884) shull bc uscd,
The Prothonotary is dircctcd to file II copy of Ihls Onlcl In thc lill's of elll'h IIllhc
cases thuI are consolidated by this Ordcr,
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FRANCIS TOLAN and
ROBBIN TOLAN, Individuully
und as Natural Guardians for
FRANCIS TOLAN, III, a minor,
Pluintiffs
: IN THE COURT OF COMMON
: PLEAS OF CUMBERLAND
: COUNTY, PENNSYLVANIA
v,
: CIVIL ACTION - LAW
NO, 95-06325
SHIPPENBURG BOROUGH AND
SOUTHAMPTON TWP"
FRANKLIN COUNTY
Defendunts
: JURY TRIAL DEMANDED
PETITION TO CONSOLIDATE ACTION WITH RELATED
ACTION FILED TO NO, 95-884
AND NOW, come the Plaintiffs in the above-captioned uction, by their allomey,
Daniel Stern, Esquire, and request permission to consolidate the ubove-captioned lIction
with the related civil action l1Ied to No, 9S-884, and in support of this rcquest represent as
follows:
I , Plaintiffs are the parents of a minor, and the minor, who was injured inlln
uutomoblle/pedestrian accident occurring on November 5, 1993,
2, Plaintiffs' instituted an action 10 No, 9S-884, naming us Defendants, Briun
S, Kulb, the driver who struck the minor Plaintiff, and Pennsylvania Department of
Transportation based on a claim of hnproper design, construction nnd conditionuf the stute
route on which the accident occurred,
3, Following the filing of the first Complaint and the rcceipt of un cnllineerinll
unulysis uf the roudwuy in question, Plaintiffs' determincd that they l11uy he enlitled tu relief
ugainstthc above-numed Defendnnts, jointly, severully, sepnrutely, or in Ihe ullernntive for
thc dumuges sustained urislng out of the uccidenl. Accordinllly, they Inslilutcd suil by
filing for a Writuf Summons on NovemllCr 3, 1995, und filcd Iheir COlllplninl on Fehruury
22, 1996,
4, Since both nctions arise oUI of the sume uccident, Ihey involve elllllmon
questions of lull' and fact nffectlnll thc lIahililies of all Defendunts nUllled in caeh action,
I'laintiffs I11ny nccordlnllly join sunlc ns Defendunt's in one action pursunntto Pn It Civ,
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FRANCIS TOLAN and
ROBBIN TOLAN, Individually
and as Natural Guardians for I
FRANCIS TOLAN, III, a minor, I
Plaintiffs I
I
I
v. I
I
BRIAN S, KALB, COMMONWEALTH OF I
PENNSYLVANIA, DEPARTMENT OF
TRANSPORTATION, SHIPPENSBURG
BOROUGH and SOUTHAMPTON
TOWNSHIP (FRANKLIN COUNTY),
Defendants
. ._1:"........
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
NO. 95-0884
\ \ ;~j 'j.,.
~1
JURY TRIAL DEMANDED
REP~Y ~~~~~ O~ DEFENDANT SOUTHAMPTON TOWNSHIP
1ST F MOTION FOR st~Y JUDGMENT
Plaintiffs, in their Brief, contend that this case is
controlled by the holdings in Bendas v, White Deer TownshiD, 531
Pa, 180, 611 A,2d 1184 (1992) and McCalla v, Mura, 538 Pat 527, 649
A,2d 646 (1994), A review of those opinions, however, reveals that
they mandate the granting of Defendant Southampton's Motion for
summary Judgment,
Bendas involved an accident at the intersection of a State
road and a Township road, The theory of liability against PennDOT
was that it either negligently failed to erect traffic control
devices at the intersection, or it failed to otherwise correct a
dangerous condition. The lower court granted summary judgment in
favor of PennDOT on the basis that it owed no legal duty to the
parties. The Commonwealth Court affirmed and the supreme Court
granted allocatur.
The supreme Court held that PennDOT, as a Commonwealth agency,
owed a duty of care to those using it. r.al ..tate, such as to
require that the condition of it. property is safe for the
activities for which it is regularly used, intended to be used or
reasonably foreseen to be used. Bendas, 611 A,2d at 1186.
The supreme Court then addressed the issue of whether the
failure of PennDOT to exercise th~ above-described duty was action-
able under an exception to the Sovereign Immunity Act, 42 Pa,C.S,A.
Section 8521 et seq, In that regard the Court identified the
relevant exception as that relating to a dangerous condition of
Commonwealth real estate, highways and sidewalks, The Court then
held that summary judgment should not have been granted because the
question of what is or is not a dangerous condition is a fact issue
which must be answered by a jury.
Of interest is the fact that the Court, in a footnote,
reaffirmed that the authority granted to PennDOT and local agencies
by the Vehicle Code to erect traffic control devices is
di.aretionery and does not create a duty. Bendas, 611 A.2d at 1185
lfn, 2),
McCalla involved an accident at the intersection of a State
road and a County road. PennDOT attempted to join the county as an
additional defendant on the theory that the County's defective
design of traffic control devices located at the intersection
li,e, a STOP sign located on the county road) was the proximate
cause of the accident, The County filed preliminary objections to
its joinder on the basis that it did not have a common law or
statutory duty to erect any particular type of traffic control
device at the intersection, The preliminary objections were
sustained by the lower court and affirmed by the Commonwealth
Court.
The Supreme Court reversed and remanded the case to the lower
court for the reason that the County had a duty to make it.
highway. reasonably safe for their intended purposes, and since the
question of what is or is not a dangerous condition must be
answered by a jury, the County's preliminary objections should not
have been granted, In arriving at its decision, the Court
determined that the "dangerous condition of streets owned by the
local agency" exception, 42 Pa,C,S,A, Section 8542(b) (6) (i), was
the applicable exception to governmental immunity,
Consequently, Bendas and McCalla stand for several
propositions relevant to the present inquiry I
(1,) the authority to erect traffic control devices is
discretionary and creates no dutYI
(2.) Commonwealth and local agencies owe a duty of care
to those using the real estate, highways and sidewalks own.d by
tho.. ag.naia., such as to require that the condition of the
property be safe for the activities for which it is regularly used,
intended to be used, or reasonably foreseen to be usedl
(3,) the failure to exercise the aforesaid duty may
create a "dangerous condition" of the govarnmantal a!Janay'. r.al
a.tat., highway or .idawalk and thereby expose the agency to
liability under the applicable exception to sovereign immunity or
governmental immunitYI and
(4,) the question of what constitutes a "dangerous
condition" is one of fact to be decided by a jury,
The critical inquiry in this case, as far as the potential
liability of Southampton Township is concerned, is whether the
Plaintiffs' causes of action arise OUt of a dangerous condition of
"real estate, highways or sidewalks" that were owned by SouthUlpton
Town.hip. The answer to that question is clearly in the negative,
The causes of action arise out of an allegedly dangerous condition
of a highway owned by the Commonwealth of Pennsylvania, namely,
State Route 11.
The fact that Southampton had the discretionary authority to
place a pedestrian crosswalk over SR 11 does not create a duty to
exercise that authority in order to rectify an allegedly dangerous
condition of a highway owned by an agency other than tha Town.hip,
There being no such duty, the failure of Southampton Township to
exercise that authority is not actionable and summary judgment
should be granted in favor of Southampton Township,
Respectfully submitted
Thomas, Thomas & Hafer
c~$t?t~
p,O, Box 999
Harrisburg, PA, 17108
(717) 255-7632
Attorneys for Defendant
Southampton Township
FRANCIS TOLAN und
ROBBIN TOLAN, Individually
and as Nuturul Guurdians for
FRANCIS TOLAN, III, uminor,
Plainllffs
: IN TUB COURT OF COMMON
: PLEAS OF CUMBERLAND
: COUNTY, PENNSYLVANIA
: CIVIl. ACI'ION . LAW
v.
NO. 95.011114
BRIAN KALIl, COMMONWEALTH OF
I'ENNSYLVANIA, DEPARTMENT OF
TRANSPORTATION,
SHIPPENBURG BOROUGB AND
SOUTBAMPTON TOWNSIIIP,
FRANKLIN COUNTY
Dcfcndunts
,
\ ",' J"
Q)I, J, ,t.?
: JURY TRIAL DEMANDED
PLAINTIFFS' BRIEF IN OPPOSITION TO MOTION FOR
SUMMARY JUDGMENT OF DEFENDANT, SOUTHAMPTON TOWNSHIP
J. FAcrS:
Twclve year old Frnnees Tolun wus allcmpting 10 cross West King Streel in
Shlppensburg Borough (Stule Roulc II) ufter u Friduy nillht high school footbull gume
when he wus slruck hy u 20-yeur old drlvcr, Brian Kulb, ncar the center linc uf Ihc
roadway, The ccnter line forms lhc houndury belwcen Shippensburg Burough and
Southumplon Township, Thc highway itself Is u Mule mad,
Frun's Icft knce was run over hy Kulh's jecp. No hones werc hrokcn, but the soft
tissue dumullC wus scvcrc cnoullh to rcqulre cxtensivc skin grufllng, Fnlll's right thigh wus
the donor silc, Be has permunenl cosmetic disfigurclllellltothe left knee and to the right
thigh, us well us a limitutionof cxtensionof thc Icft knee, His mother, Rohhin Tolan, who
was in her cur on hcr way to pick Frun up, SUII' lhc uccidcnt huppen,
Suit wus Initially filcd ulluinstthe driver lIIulPA DOT, Followlnlllnspcctionof the scenc
und review of documcnls by Dwight McLeun, u profcsslonul cngineer hired by Plaintiffs, u
sepurule Complaint wus filed ullulnsl Shippenshurg Borough uod Soulhampton Township,
the twolocul govcl'lllnents whose lmullllury is lhe cenler Iinc of Stute I{ollle II. These
COlllplulllts were consolidated hy Older daled Junc 5, 19<)6, PlulntllTs' IIsled lhe cuse for
lriul on or nhout Nov, 5, 19%, for lhe Junuury, 1997, term of court. Township fIIcd It's
sumllllll'Y judglllcnl mol ion on Nov. 22, 19%.
The McLeun report IL~serts thutthc Illunicipul Dcfcndanls werc negligenl in thcir fllilure to
providc proper sittinll, idcntilicution, IInd dclinelltion of II pedestrian crossing arell;
provision of II pedeslrian phll~e in II truflic signal; und iIIulllinution of the pedcstrian
crossing,' (McLean report, p, 12), The report stutes:
Thul pedestrians frequently cross Stutc Roule II utthe uccident site
should huve becn obvious to lInyone involved with highwuy sufety,
In c10sc proximity to Ihe accident sitc are severely pedestriun
gcnerutors: the rcsidential urcll~ to both thc cust und wcst are on Stute Route
II; the schools; the athletic field; und the bowling ulley,
(Report @ 4),
A diugram of the scene prcparcd by Pluintiffs' investigutor, a retired state trooper, is
attached to this Ilrief lL~ Appendix I,
One year following this accident, PA DOT acknowledged the dunger to
pedestrians by issuing a "School Student Walking Route Certification,", declaring the
accident site to be hazardous (Appendix 2),
II, ISSUE:
Are local governments which I' ail to provide proper pedestrian crosswalks, sign age,
and lighting utlhe intersection of locul strcets und stute highways within their jurisdictions
immune fromliubilily for negligcnce when a forcseeable pedestrian uccident results from
the dangerous condition creutcd by their fuilure to act? (Suggested Answer: No)
III, ARGUMENT: LOCAL GOVERNMENTS MAYBE LIABLE TO MINOR
PEDESTRIANS FOR THEIR NEGLIGENT FAILURE TO I'ROVIDE REASONABLY
SAFE CROSS WALKS, SIGNAGE, AND ILLUMINATION ON STREETS AND
SIDEW ALKS WITHIN THEIR JURISDICTIONS,
Pennsylvllnlu Vchlclc Codc Section 61221llvcs to loculllovcrnlllcnts discretionury
authority 10 erccttruffic eolllrnl dcvices on stulc highwuys within their bounduries, This
authority is suhjectlo upproval hy PA DOT, cxcept as outlincd bclow, A specific
procedurc is eSluhlished for lhe instullution of traffic control sillnllls, "On or near the
I I'llIinlill,' ClIll1l'llIinl dlle' nlll 'f1Ccilielllly nllc~e Ihe nh,ence nl' Ii~hling ,,, II h.,i, Iilr Iinhllily, nnd
l'ermlNNilln III nmend I'lIru~rnl'h 15 Ill' Ihe Cllml'lullll i, rellne,'ed,
2
-~....
boundary of two politlcul suhdivisions udjolning caeh other", ullowinll either to petition PA
DOT for authority to install the sillnul (Section 6122 (d)),
This stututory authority is implemented hy rcllulution found ul67 PA Code Section
211,6 et seq, (Appendix 3).
The regulations IIlso provide in IlCrtlncnt purtthutuny municipality, without the
upprovul of PA DOT, muy Instull on slUle hlllhways the followinlltrufl'ic control deviccs:
(b)(3)(v) School Crossing Sillns, S2-1.
(vi) Cross Walks. cxccpt crosswulks ut other Ihun intersections,
. . .
(xviii)
Pedestrian Group Signs, R9 Series
. . .
Children Group Signs, W9 Series
. . .
School Signs, S Series
(4)(11)
(Ix)
(c) L()CClIIliIlIIlI'lIYj' Inllccordullce with Section 6122 of the Vehicle
Code (75 Pa,C,S, Seclion6122),locul uuthorilics may instull, revise,
remove, operate and muintain IIny oflicialtraflic control devlcc on highwuys
under their jurisdiction except:
( I ) Locul allthorities shull obtain Depurtment approvul
prior to instulling, revising, or removing any truffle signul on local
highwuys unless the municipulity hus rcceivcd munlcipultruflic el1gincering
certification in IIccordunce with Chupler 205 (rclating to municipal traflic
engineering certification).
(2) Locul authorities shall ohtain Dcpurtment approval
prior to installing, revising, or rcmoving uny traffic conlrol device which
WIIS installed liS purt of a TOPICS or other Department-administrated
federally funded program in uccordunce with any IIgrcement betweel1the
municiplllily IInd the Depurtment.
The Second Class Township Code gives to township supervisors the uuthority to
provide strcctlights. and to contract with electric or Ilas compunies, "10 light and illuminate
rouds IInd highwuys und othcr public pluces with electric light. gus light or other
illuminuting subslunccs," 53 I',S, Sec, 67002(u), (c), The Borough Code gives similar
uulhority to boroughs. 53 I',S, Sec, 46202(511),
It is within this rCllullltory frumework tllUtthe Township's ussertion of immunity
should be cxamlned,
The Township seeks summary judgmenl on the basis uf the ullelled ahsence of u
duty running from it to the pedestrilln/Plulntiff, arguinllthut il hus only discretlonury
authority to erectlruffic contl'lll devices acl'llss the stute highway whcre the accidenl
occllrrcd. ul1ll dtlng cases which hold thill, "there Is no conunonlaw duty on the pm1 of a
city to crccttraffic cuntrol devices," See, e.g" lIoUllh v, Coml1111nweahh of I'ennsylvanla
3
155, Pu, Cmwlth, 162,624 A2d 7110 (1993), uppcul denied 5311 Pu, 613, 645 A2d 1316,
The Township's brief does lIot address the absence of slllllalle or IIl1htlnll
as a basis for liability,
In order for Pluintiffs' cluimlo survive Ihe Defendunl's ussellion of immunity,
Pluintiffs' must show (I) lhat dumuges would he recoveruhle under the common luw or u
slalulc creutinllu cuuse of action if the injury were cuused hy u persou not huvinlluvuiluble
the defcnsc of immunhy; und (ii) tlmtthe injury fulls wilhin one of thc exceplions 10
immunity, Fidunzu v, Commonweulth, DOT, _ PU. Cmwhh, _, 655 A2d \076,
1078 (1995),
II is clear lhut. ubscnt immunity, damages arc rcco\'emhle aguiusl governmentul
Defendants for fuilure to maintain their slreets in u reasonuhly sufe collllilion for pedestrian
ll'Uvel. Fidanza, supra @ 655 A2d 10711, Plaintiffs' must show thutthe governmentul
Defendanl hud aclUul or constructivc nolicc of the dungerous condition. This hll~ been
properly pleuded and, us the McLean makcs clear, all three governmelllal Defendants had
actuul or constructive notice of the dunllerous condition created by lhe ahsence of u
crosswalk, sillnuge, und lighting, This was confirmed by PA DOT when it issued the
School Sludent Walking Route Cerlification in October. 1994,
The second thing which Plaillliffs' arc rcquired 10 prove in order 10 survive
immunhy is proof tlmtthe Defendunls' conduct fulls within one of lhe exceptions tu
govcnullentul immunity, In the instunt cuse, the relevant exceptions ure found ut42
Pu,C,S,A, Seclion 8542 (h)(4) und (6),
Subsection (4) statcs:
(4) r,.r!'s, lraffic Cfl/ll/'Ols /l1It1 sln'/'Ilighlil/g. - A dangerous
condition of trees, traffic silins, lights or other traffic controls,
street IIgbts or street IIl1htlng systems under Ihe care, custody
or control or Ihe local allency, except tlmt the e1uimuntto recovcr musl
establish thullhe dungcrous condilion created u rcusonuhlr foresceuble risk
of lhe kind of injury which wus inclIITCd und lhutthe locu agency had acluul
nolice or could rcusonuhly hc churged wilh nolice uudcr the circumstances
of the dungerous condition ul u sufficient time prior lothe evcntlo huve
tukenmeusures 10 prolectuguinstthc dangcrous condilion,
(6) Slr/','I,\',-
(I) A dungerous condition or slreels OW lied by Ihe
local allency, exceplthutlhe c1uimuntlo rccover must eSluhlish Ihulthe
danllerous condition creuted u reusonuhly foreseeuhle risk of the kin of
InJury which wus incurred und thutlhe locul ugency hud ue(uul nolice of
could reusonuhlr he churged with notice under Ihe clrcumstunces of the
dangerous condition ul a sufficlenltime prior to the event (0 huvc tuken
meusures 10 )lrnlecl against the dungernus condition.
(iI) ^ dungerous condilion of slreels owned or under Ihe
jurisdiclion of Commonweahh agencies, if ull of the following
cOllllillons ure mel:
4
<A) Thc loculullcney hus cntcred into u wrincn
conlruct with u Conunonweuhh ugcney for the muintenuncc
und I'epuir hy the loculugcney of such streets und the contruct
cither:
(I) hud not expired nr IlCen otherwisc
terminuted prilli' tolhc IlCCUlTCnce of lhe injury; or
(ii) If expired, contuincd u pruvisionthut
cxpressly estuhhshed loculullency responsihilily
heyond the term of lhe Cllnlrnct for injurics urisUlIl
out of the locululleney's wnrk,
(Ill The injury und dunllemus condition werc
directly caused hy Ihe negligent pcrfonnunce of its duties under such
eOlllrucl.
IC) The c1alnlllntmust estuhlish thutlhe
dungel'llus condltiun creuted u rcusonahly forcsecuhle risk of the
kind of injury which wus incul1'Cd undlhutlhc loculugency hud
uctuulnoticc or could rcusonuhly hc churgcd with nutice under lhe
clrcumstunccs of thc dunllel'llus conditionutu sulTiclcnttimc prior 10
the evcntlo havc tukenmeusul'Cs 10 prolcCI uguinst the dungcrous
condition,
<Emplmsis supplicd)
The cuse lull' construing the scope of the cxccptions tOllovcrnmenlal immunily is
evolving, It is now c1eur that:
I , Oovcl11mcntul immunity is to hc construed consislet1lly with
sovcrcign immunity rcllarding Ihe scope of thc cxceptions 10 immunily;
2, Governmcnts owc u dUly of carc tolhose using lheir rcul estatc,
including sll'Cets;
3, Fuilurc 10 exercise thut dUly may crcute a dungerous condition; und
4, Whut constitutes u dungcrous condition is a queslion of fact for the
jury, not a question of thc lull' for the court.
McCullu v, Mum und Commonweulth, DOT, et. ul, 5311 Pu, 527.649 A2d 646 (1994).
A dungcmus condition may inelude thc ncgligcnl fuilure 10 crcctutmlTic control
device, Ilendus v, TuwnshipofWhitedecr, 5311'u, 1110,611 A2d 11!!4 (1992),
In McCullu, snpra, our Suprcmc COUl1 permittcd PA DOT 10 join a county us an
udditlonul Dcfcndunl hused on PA DOT's urgumentlhutlhe counly's dcfective desilln of
tl'Uffic control devlccs utthe inlcrscclionof thc connly mild undthe stutc mud contrihuted to
the accident. The cOUIllY, us docs lownship hcre, urlluedthut it hlld no duty to erccl uny
pll11iculur truffic conlrol device und wus thel'cfnre Immunc, This ul'llumet1l \Vus l'Cjecled.
The Commonwealth COUl1 hus previously hcld Ihul wherc u locul govel'llmclll
undel1ukes 10 pulllllune markings onu sllllc hillh\Vuy, hut docs soncgllgently, II Is suhjeet
tolluhillty, Kcnnedy v, City of Philudelphiu 160 I'll. Cmwllh. 55!!, 635 A2d 1105 (1993),
I'luintiffs' conccdc thlll inlhis case, neilhcl' lhe lownship nnr Shippcnshurg Borough took
5
(11/.1' UCllon to remcdy the unsufc condition althc intersection of Hostetler Avc, and State
Route II. Pluintiffs cun only suy thutlo tic the upplieability of immunily 10 the completc
fuilure of the IllClIlllovenllllenttotuke IIny uctionto remedy a dungcrous condition, is to
essentially Iluurantee lhatthc dungcnlUs condition will continuc unuhuled, This cunnotllnd
should not be thc luw of Ihls Coml11onwculth,
The stUlulory und rellulutory framework prcviuusly set forth shows Ihutthe
Icgislalurc contcmplutes lhe crcctionuf needcd trnflie control dcvices, signs, and lighting,
by localllovenll11ents, To suy thutthere is u dUly to muke lhings sufe, und thulthe totul
fuilure to actmuy bc violulive of thut duty, is inconsistcnt with the Defendant's argument
that it is immune simply because it does not "own" the mud, The lull' speaks of "care,
custody 01' control," not just owncrshlp, The township hus u genernl police power to erect
the types of sufety deviccs ilemi7.ed in Ihe regulution, The right to exercise this type of
control, sOllie of which does not require the prior upprovul of PA DOT, gives the
township a sufficienl connection to this roud to allow the Pluintiff to rccovcr when the
township's inuctivlly results in the creution of u dungerous condition causing inJury to the
Plaintiff. In short, the Township's duties should not he meusured solcly by it's degree of
"ownership;" it has statutory und rellulatOlY authority to ercctlllany types of traffic control
signs und deviccs, some requiring prior approvul of DOT, others not. This framework
contemplates u duty on the part of locu1 govcnllllents to make streets within their
jurisdictions safe for school children,
Assuming argllelldo Ihutthe Court finds thutthc absencc of ownership of Slate
Route II precludes liability hused upon Ihe fuilurc to excrcise the discrelionury dUly 10 erect
a crosswlllk, IIII' lO\l'lIslrip ,\'/lOu/c/ slill he Iiahle for il '.I' lI('gligelllfililure 10 erect liglllillg
alollll il '.I' siC/(' of S/(/Ie ROlliI' II, Likewise, it could huvc erected uny of the number of
signs designuted in 67 PA Code Secllon211.6 (3) wilhout PA DOT's approvlIl. Neitherof
thesc urgulllcnls huve been addresscd hy lownship, which focused solely on the ubsence
of u crosswulk onlhe slule deslgnuted highwuy,
CONCLUSION:
j
Thc Court should find thalu fact issue cxists which prccludes sUl11mury judgment.
The iss Is whclher llI' nul u dunllcrous condillon wus creutcd hy thc lownshlp's failure to
excrcls it's 'screllonury uuthurity 10 erccl u el'llsswulk over the state highwllY, Should the
court conc u c thulnll duty WIIS owed hy lhc township hecuuse it did notuwn Ihe stute
highwuy, summary judgment Is still precluded hecuusc of lhe township's uddltionul fuilures
10 ereetlillhling uml signlllle on lund owned by It. which docs nol rcquire prior approvul of
6
L'()flY
(
COUNTY: Cumberlal/lvFrank/in
MUNICIPALITY: Shlppensburg Bora, and Soulh Hamplon rwnshp,
lNTERMEDIATE UNlTNO, 15
SCHOOL DISTRICT: Slrlppellsburg Area Sclrool Districl
SCHOOL STUDENT WALKING ROUTE CERTIFICATION
On OCloba :7, 199./, AmyB"11r /Jr{f)ford an authorized representative of The Depanment
of Trans po nation inspected the ,Ho/(I' Pilcher Higlrway, (Township or SR 001 I) in Intermediate
Unit No 15, SIIIppmsb/lrg Area Sclrool Dlslricl, between Ihe IlIIersection of SR 0011 alld
Hosleller Ave, alld Ihe illlerseClioll of SR 001 I alld Eberly Drive in Shlppensb/lrg Borollgh and
SOl/lh Hamplon Tow/lSlrlp.
The results of this investigation indicate:
Accordillg 10 Tille 6i, Chapler -/.17 of lire Penllsylwmia Code lire above rOllle Is
declared Ira:ardolls dlle 10 Ihe followlllg cOlldilloll:
, SI/Idellls mlm cross lire roadway III an area Ihalls /1Q1 cOlltrolled by
traffic control devices alld lire mlmber of vehicles IItili:illg Ihe roadway
d/lrlllg lire lime sl/ldl!/IIs ar.. 1I'lllkmg exceedr 11r" nccl!pll1ole amO/llll,
(Chapl"r ,I-I;'.-I(a)(:) alld -l-Ii.-I(b)(2)(1) alld (iijJ.
Certified by:
f~
Ilany G ffinan, P ,E,
District Engineer
Engineering District 8-0
!hpV
AI'I'ENIJI X 2, I'll, 2
FII p(I(',p<,
t
DANIEL STERN
A1TORNEY,AT,LAW
DANIEL STERN, AnORNEY
26110 NORTH THIRD STREET
HARRISBURG, PA 17110
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SHERIFF'S DEPARTMENT
157 LINCOLN WAY EAST, CHAMBERSBURG, PENNSVLVANIA 17201 (717) 261.3877
SHERIFF SERVICE 1;;Tf;~~;;~~~ FOR !!ERVICE OF pnOCES!! 1'1.... Iyp. or print
PROCESS RECEIPT. and AFFIDAVIT OF RETURN Iegiblv. 00 nol duloch anv copiu.
1I'U\INTlFF/ui-.----- .-------- ---I~-(:i)illiiNljMllill--
Fran!;..ilL1J!lan__LRlll!!lJl! 1'()I[1!L~~ a.l _ 95-6325_______.____ -.--------
3 DEFEND"Nl/!!1 4 1 WI. III WIlli 011 COMI" AINl
_.!lorollsh oLShbg'--!_~()l1~llamptoll1'wp,! F~nlll<!lll County.. SIII)U11()na_______ _______
BE.AVE { b N=;~::'~';;~~'~~'~'~:~~I:":"';'~'::l~~II;u ~~'~V~:;:'IU """'l'lI11N 01 ,,"'"'I'" V 10 IlItlVIIII .~~U': "_'"~~~=-_
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AT 7Q~!i.1111!clpl.ll_D...r '.1 Shlppenabllrg! )'8, 17257.
7.INOI(."IE UNU!!U"I. !![[lVlcr II COMMON OF I'A II DFI'1l 11111 J III IIUI
----.--..-.--------.. _._-~._.._.- ,- ---. ..--. ....--....-- .....-------,. - ..-..
Now, _.__.10__._, I. SHERIFF OF FRANKLIN COUNTY, PA, do hmoby dOJlUlllU Iho Sh,,"l1 01
____ ___ Counly 10 p)luclIhl this Wril and ,"okn Jehun thoruof nccording
to law. Thla dopulaUon bolng lIIodo nlllm "'1I1l,,"1 nnd IIsk ulUm pl,""lll' . -.--
.___._~_~.__.n..__ ~.___.__ _n__. _ _.. ____...._..
a. SPECIAL lHSTIIUC110NS OR OTHER INFORMATION THAT Will ASSIST IN EXPEDITING SERVICE:
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CERTIFICATE OF SERVICE
AND NOli, this 3rd day of April, 1996, I, C, KENT PRICE,
ESQUIRE, for the firm of THOMAS, THOMAS & HAFER, attorneys for
Defendant South Hampton Twp., Franklin County, hereby certify that
I have this day served the within Praecipe for Entry of Appearance
by depositing a copy of the same in the United States Mail, postage
prepaid, at Harrisburg, Pennsylvania, addressed tOI
Daniel Stern, Esquire
2650 North Third Street
Harrisburg, PA 17110
Mark E, Morrison, Esquire
Senior Deputy Attorney General
Torts Litigation Section
15th Floor, Strawberry Square
Harrisburg, PA 17120
Rolf E, Kroll, Esquire
Reynolds & Havas
101 Pine Street
P,O, Box 932
Harrisburg, PA 17108-0932
Shippensburg Borough
60 West Burd Street
Shippensburg, PA 17257
THOMAS, THOMAS & HAFER
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FRANCIS TOLAN and
ROBBIN TOLAN, Individually
and as Natural Guardians for
FRANCIS TOLAN, III, a minor,
Plaintiffs
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
NO. 95-0884
v,
BRIAN S, KALB, COMMONWEALTH OF I
PENNSYLVANIA, DEPARTMENT OF I
TRANSPORTATION, SHIPPENSBURG I
BOROUGH and
SOUTHAMPTON TOWNSHIP,
FRANKLIN COUNTY,
Defendants
JURY TRIAL DEMANDED
BRIEF OF DEFENDANT SOUTHAMPTON TOWNSHIP
IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT
I , FACTUAL BACKGROUND I
On November 5, 1993, at approximately 9 I 30 P ,M" Plaintiff
Francis Tolan, a 12-year old boy, was struck by an automobile as he
was attempting to cross State Route 11 in Shippensburg, At the
location of the accident, the center line of Route 11 constitutes
the boundary line between Shippensburg Borough and Southampton
Township (Franklin County) .
Plaintiffs have filed suit against Brian Kalb (the driver of
the involved vehicle), PennDOT, Shippensburg Borough and
Southampton Township.
Plaintiffs have tendered an expert report prepared by Dwight
H, McLean, P.E. ("the McLean report") which concludes that the
three governmental Defendants were negligent in failing to rectify
a dangerous condition of Route 11 created by the absence of a
.
properly installed and designated pedestrian crosswalk, The McLean
report opines, inter alia, that
The absence of a reasonably safe pedestrian
crossing at the accident site was contrary to
established standards and resulted in a
dangerous condition that was a cause of the
accident,
A copy of the McLean report is attached hereto as Exhibit "A".
II, ISSUE
Whether Plaintiffs' Complaint states a cause of action against
Defendant Southampton Township upon which relief can be granted,
Suggested answer I No,
I II. ARGUMENT
Defendant Southampton Township is a local agency subject to
governmental immunity unless the Plaintiffs' causes of action fall
within any of the exceptions to such immunity as set forth at 42
Pa.C,S,A, SB542(b) , Defendant Southampton contends that none of
the exceptions to governmental immunity is applicable to the facts
of this case and, therefore, summary judgment should be granted in
its favor,
The critical fact in this case is that Route 11 is a State-
owned highway.
The fact that the center-line of Route 11
constitutes the boundary line between Shippensburg Borough and
Southampton Township is of no legal significance insofar as the
legal liability of Shippensburg and Southampton is concerned,
An analysis of the exceptions to governmental immunity in the
context of the facts of this case reveals that none is applicable
-2-
and, therefore, that Defendant Southampton Township is entitled to
judgment as a matter of law,
A. Vehicle liability
This exception does not apply because the accident did not
arise out of the operation of a motor vehicle in th. po.....ion or
control of Defendant Southampton Township,
B. Care. custodv or control of cersonal crocerty
.
This exception does not apply because the accident did not
arise out of the care, custody or control of personal property of
others in th. po.....ion or control of Southampton Township,
C, Real crooerty
This exception does not apply because the accident did not
arise out of a dangerous condition of real property in th.
po.....ion of Defendant Southampton Township.
D, Trees, traffic controls and street liqhtinq
Plaintiffs' expert report addresses the need for what might be
considered traffic control devices in the area of the accident to
assist pedestrians in crossing Route 11 and, therefore, the
possible application of this exception will be discussed.
This exception applies where an accident arises out of a
dangerous condition of traffic signs or other traffic controls
und.r th. car., custody or control of a local agency, e,g. an
existinq sign or control which by its placement or otherwise
creates a dangerous condition. The dangerous condition must be
created by or be the result of an existinq traffic control device
-3-
because the power to erect traffic control devices is merely
discretionary and does not create a duty, Therefore, the failure
to erect traffic control devices does not constitute the breach of
a duty and does not establish a basis for the imposition of
liability, Carter v. City of Philadelohia, 137 Pa.Cmwlth, 152, 5B5
A,2d 578 (1991), In the present case no such sign or control
exists, In fact, Plaintiffs' expert opines that the dangerous
condition arises out of the absence of necessary traffic signs or
controls. Under these circumstances, the dangerous condition of
traffic signs/controls exception has no application, See Mindala
v, American Motors Coro., 518 Pa, 350, 543 A,2d 520 (1988), Brvson
v. Solomon, 97 Pa.Cmwlth, 530, 510 A.2d 377 (1986), appeal denied
519 Pa, 668, 548 A,2d 257,
E. Ytilitv service facilities
This exception does not apply because the accident did not
arise out of a dangerous condition of the facilities of steam,
server, water, gas or electric systems owned by Southampton
Township and located within rights-of-way,
F, Streets
Plaintiffs' expert report also addresses what might be
described as a dangerous condition of a street, i,e. the absence of
a pedestrian crossing area over Route 11. However, this exception
does not apply because the accident did not arise out of a
dangerous condition of a street that was owned by Southampton
Township. Route 11 is a State-owned highway. A local agency is
-4 -
immune from suit for its alleged failure to erect traffic controls
on a State-owned highway. HOUGh v, Commonwealth of PennsYlvania,
155 Pa,Cmwlth. 162, 624 A.2d 780 (1993), appeal denied 538 Pa, 613,
645 A.2d 1316/ Carter v. City of Philadelohia, 137 Pa.Cmwlth, 152,
585 A.2d 578 (1991) / Verna bv Verna v. Commonwealth of
PennsYlvania, 149 Pa.Cmwlth. 449, 613 A.2d 174 (1992) / Mvlett v.
AdamskY, 139 Pa.Cmwlth, 637, 591 A.2d 341 (1991).
G, Sidewalks
This exception does not apply because the accident did not
arise out of a dangerous condition of a sidewalk within the right-
of-way of . etreet owned by Southampton Township,
H, Care. custody or control of animals
This exception does not apply because the accident did not
arise out of the care, custody or control of animals in the
po~.e..ion or control of Southampton Township,
IV. CONCLUSION
For the reasons cited above, Plaintiffs' Complaint fails to
state a cause of action against Defendant Southampton Township,
Consequently, summary judgment should be entered in favor of
Defendant Southampton Township,
Respectfully submitted
THOMAS, THOMAS & HAFER
C-~(~~~
C. Kent Price, Esquire
P.O, Box 999
Harrisburg, PA 17108
(717) 255-7632
I,D. No. 06776
ATTORNEYS FOR DEFENDANT
SOUTHAMPTON TOWNSHIP
-5-
Exhibit A
1 . INTRODUCTION
This psdestrian knockdown accident occurred November 5, 1993, at
about 9127 p.m. in Franklin County, The accident involved
pedestrian Francis Tolan III and a 1978 Jeep CJ-7 driven by
Raymond Kalb. Tolan was injured as a result of the accident.
This investigation was performed to determine if there were
dangerous road conditione that were a cause of the accident.
2. AVAILABLB INFORHATION
1. Police Accident Report by Sgt. Terry Kennedy of the
Mid-Cumberland Valley Regional Police,
2. Investigation Report by Harriman & Engle Associates.
3, Photocopies of five 3.5"x 5" photographs of the
accident site.
4. Photocopies of ten photographs of the Kalb vehicle.
5. Copy of recorded statement of Robin Tolan.
6. Copy of recorded statement of Raymond Kalb.
7. My December 26, 1995 inspection, measurements and
photos at the accident site.
J. DBSCRIPf'ION OP 'l'HB ACCIDBNT
The Police Accident Report statesl
The operator of Vehicle .1 [Kalb] entered SR 11 from a
parking lot of a business establishment. Vehicle'l
crossed two lanes of highway and was going to go south
when the vehicle struck the pedestrian.
The pedestrian was crossing the
opposite direction pf vehicle '1.
area.
highway from the
No crosswalk was in the
Traffic was very heavy at the time due to a football
game.
The business establishment was The Treat Drive-In Restaurant.
According to the Police Report, it was dark with street lights,
there were no adverse weather conditions, and the pavement was
dry.
Mark Walker stated that on the night of the accident, he and
Fran Tolan had attended a football game at the athletic field.
Page 1
ROBSON LAPINA, INC.
After the game, they had wal ked to the bowli nq lI11ny, From the
bowling alley, they had then walked to SR II,
Tolan was crossing SR II enroute to his home located on the east
side of SR 11 and along Hostetter Avenue.
4. DBSCRIPTION OF THB ACCIDENT SITB
The collision occurred on SR 11, approximately 225 (eet south of
the intersection with Park Place,
SR 11 is oriented generally north-south end is a two-way, two-
lane, rural arterial with a center two-way left turn only lane.
Terrain is generally level. Land use is generally strip
commercial. Average Daily Traffic (ADT) volumes in 1974 were
10,200 vehicles per day (vpd) and the posted speed limit io 35
miles per hour (mph).
Approaching the point of impact from the north, SR 11 is
generally straight and level through the area of the accident
before cresting a vertical curve and continuing south.
Park Place intersects SR 11 from the west and Hostetter Avenue
intersects SR 11 from the east approximately 305 feet south of
Park Place.
The Treat Drive-In Restaurant and an Exxon service station are
located along the east side of SR 11 between Park Place and
Hostetter Avenue.
Located along the west side of SR 11 between Park Place and
Hostetter are a Valley Bank and the rear of the Shippensburg
Park Lanes bowling alley.
SR II's center lane ie separated from the reepective travel
lanes by yellow centerlines, Solid white edgelines are present
along the outside of the travel lanes. The roadway width was
measured to be approximately 30 feet between edgelines.
There are 10-foot wide pa~ed asphalt shoulders along both sides
of SR 11. There is a concrete curb along the back edge of the
west shoulder. The east shoulder matches into the driveways and
parking areas of the restaurant and service station.
The west shoulder of SR 11 north of Park Place has been made
into a right turn only lane for southbound traffic.
The roadway surface on SR II is asphaltic concrete and is
normally crowned about the centerline with a cross-slope of 0.02
ft,/ft. The longitudinal grade in the area of impact is
generally flat, The cast shoulder alopes away from the travel
lane at about 0.05 (t,/ft, while the driveway between the
restaurant and the aervice station alopes toward the roadway at
approximstely 0.07 (t./lt, .
Pago 2
ROBSON LAPINA, INC.
A concrete oidewalk 10 preoent alon<] tho woot. oide of SR 11,
The oidewalk io about 4 teet wide Bnd io approximately B feet
from the curb, The oidewalk beglno north of Park Place and
continues south of the point of impact. There is no sidewalk
along thd east side of SR II.
A line of trees is located along the west oide of SR II between
the curb and sidewalk, beginning about ISO feet south of Park
Place and ending about IS feet Routh of Hostetter Avenue. The
trees are ~paced approximately 30 feet apart,
There is a eimilar line of trees north of Park Place.
During my inopection, ehort lengthe (Ieee than 2 feet) of white
lines were observed along the curb at the Park Place
intersection. Theoe markinge were located on the north, Routh
and west legs of the intersection, No other pedestrian
croosing-related pavement markings were present at the
intersection, There is a traffic signal at the interoection.
The signal does not have a pedestrian phase.
There are no marked pedeotrian crooewalko south of the Park
Place intersoction. The next marked pedestrian crosswalk north
of the intersection io at SR II's interoection with Lurgan
Avenue, approximately 0.25 mile north.
There are street lighto along the east side of SR II, located
approximately 55 feet north of Hostetter Avenue and a second
located approximatelr 100 feet north of Park Place. There are
area lights present n the parking lots of The Treat Restaurant
and the service station, These lights are directed spotlights
and are aimed away from SR II. A oingle opotlight is also
located on the second of the seven trees south of Park Place,
with the light directed toward the bank. There is also
ornamental lantern-type lighting atop the stone walls located on
either side of Park Place at BR II,
Park Place is a two-way two-lane local street, The roadway runs
west for approximately 250 feet before turning 90. and
continuing south, peralleling BR II along the opposite side of
the bank and the front of the bowling alley. An athletic field
and parking area are located along Park Place. Park Place
continues south through the tee intersection with Park Place
West and the four-legged. interoection with Eberley Drive before
becoming a school driveway.
Harked pedestrien croeewalks were oboerved at the intersection
of Park Place and Perk Place West near the front of the bowling
alley, The crooswalk markingo on Park Place consisted of double
solid white lines with diagonal solid white lines between and
the word YIELD and a pedestrian figure facing approaching
traffic, while the crooswalk on Park Place West coneisted of two
solid white lines, A pedestrian crosswalk for north-south
movements was present at Park Place's 90. turn, consisting of
double solid white lines with diagonal solid white lines
Page 3
ROBSON LAPINA, INC.
between. These croeswalks appear to be extensions of sidewalks
along Park Place,
Hostetter Avenue, T-662, ie 4 two-way two-lane local road.
roadway runs eest from its intersect on with SR 11. There
no marked pedestrian crosswalke at HOBtetter Avenue,
The
are
Eberley Drive intereects SR 11 from the west approximately 200
feet south of Hostetter Avenue.
There are large residential developmsntr. along the west side of
Park Place and along Hostetter Avenue east of SR 11.
Junior high and senior high schools are located adjacent to and
west of SR 11 approximately 700 feet south of HOBtetter Avenue,
SR 11 in the area of the accident is Bhown in Figure 1.
5. PEDBS'l'RIANS FREOUBNTLY CROSS THE ROADWAY AT THE ACCIDENT
SI'l'E.
That pedestrians frequently cross SR 11 at the accident site
should have been obvious to anyone involved with highway safety.
In alose proximity to the accident site are several pedestrian
generators I the residential areas to both the east and west of
SR 11, the schools, the athletic field and the bOWling alley.
Mrs. Augie Walker stated that the parents of children needing to
crOSB SR 11 had long been concerned about the danger.
Mark Walker stated that immediately following the accident,
approximately fifty persons gathered around the accident
location.
Mrs. Robin Tolan, Fran Tolan's mother, stated that SR 11 was
very congested, both vehicles and pedestrians, in the area at
the time of the accident, She further stated that the location
and method used by her son to cross SR 11 the night of the
accident were the same as those used by Fran Tolan and others to
return home after sahool each dey.
,
PaDOT, in October, 1994, issued a SCIlOOL STUDENT WALKING ROUTE
CERTIFICATION to the Shippensburg Area School District,
identifying SR 11 between Hostetter Avenue and Eberley Drive as
hazardous, stating'
,..students must cross the roadway in an area that is not
controlled br traffic control dev ces and the number of
vehicles uti izing the roadway during the time students
are walking exceeds the acceptable amount,
Pedeetrians, including school Btudents, routinely croeRed 5R 11
in the area of the accident,
Page 4
~
ROBSON LAPIHA, INC.
6. DANGEROUS ROADWAY CONDITIONS WI/ICII WERE A CAUSE OF 'rill':
ACCIDBN'I'
The frequent pedostrian crossings introduce numerous pointd of
conflict between the pedestrians and the vehicles uaing the
roadway.
The results of that conflict are well documented. The U. S.
Department of Transportation (USDOT) 1982 Synthesis of Safety
Research Rel~ted to Traffic Control and Roadway Elements, Volume
2', concerning pedeatrian safety, states I
In 1979, 9,400 pedestrian fatalities resulted from about
120,000 pedestrian accidents in the united states. This
repreaenta about 20 percent of all motor vehicle related
fatalitiea and 0.7 percent of all accidents. Over 90
percent of the nonfatal pedestrian accidents resulted in
pedestrian injuries,..
Another USDOT publication' atates, concerning pedestrian safetYI
Colliaions bet~een pedeatrians and motor vehiclea.,.
continue to be aerioua safety problema in the U. S. In
1989, for example, 6,552 pedestrians were killed, which
represents 14.4 percent of the Nation's 45,555 motor
vehicle fatalitiea. An eatimated 119,000 pedestrians
were injured...
The above demonstrates that the conflict between a pedestrian
and a motor vehicle is extremely hazardous to the pedestrian.
This hazard level is increased during periods of darkness.
USDOT's synthesis I
Pedestrian accidents occur more frequently at night, in
spite of reduced volumes of pedestrian and motor vehicle
traffic. In 1979, 54 percent of the pedestrian fatalities
occurred at night....
The roadway in the area of the accident is unreasonably
dangerous because there are inadequate safety provisions for the
large number of pedestrians who cross the high traffic roadway.
Recognizing the hazards to a pedestrian crossing a roadway, the
highway engineering community has identified countermeasures to
reduce the risks associated with pedestrian crossings. Those
measures include I proper siting, identification and delineation
of the pedestrian crossing I provision of a pedestrian phase in a
traffic signall and illumination of the pedestrian crossing.
These countermeasures are discussed below.
7. EXISTING PEDESTRIAN CROSSINGS AT pARJ{ PLACE ARE INADBQUATE
To be a viable pedestrian safety feature, a crosswalk must meet
Page 5
'-
ROBSON LAPINA, INC.
eotabliohed otandardo. and crlleria for Bately:
SitinQ of Crooowalkol
NCIlRP'o 19BB Report J39: Pedestrians ,l/Id Trllffic ContI-oJ
Measures' identifieo, aB conditions when marked croBRwalkR are
leaot beneficial and poosibly harmful:
When poorly located",
.
When crooowalko are palDted In an attempt to relocate
pedeBtrian movemento,
The 19BB report aloo lioto, ao a disadvantage of marked
crooowalko:
Pedeotriano won't uoe them if they feel they are
inconvenient,
The USDOT'o Synthesis of Safety Research: Pedestrians/l otateo:
Unjuotified and poorly located marked crooowalko may
cauoe an increaoed expenoe to the taxpayero for
inotallation and maintenance not juotified in terms of
improved public safety, Such crooswalks may tend to
increaoe the hazard to pedeotrians and motorioto alike.
Marked pedeotrian crosswalko were present on all three lego of
the intersection of SR 11 and Park Place at the time of the
Tolan accident. These crooswalks allowed pedeotriano to move
north-oouth acroos Park Place in line with the existing
sidewalks along the weot eide of SR II and eaot-weot across sn
11.
Pedestrians crossing SR 11 at Park place had three options
available upon reaching the east side of SR II. Theoe were:
enter The Treat Drive-in Reotaurant, walk north (back to
traffic) along the paved shoulder of the heavily travelled SR II
approximately 500 feet to the next business on the east oide of
SR 11, or walk approximately 300 feet Routh to Ilootetter Avenue
along the paved shoulder crossing a series of intervening
drivewayo.
While oome pedestriano may.croos SR II to The Treat Restaurant,
the predominant movemento are to the north and south along SR
11. Both of theoe pedestrian movemento are more safely made
along the oirlewalk along the west side of SR II rather than
along the roadway's east ohoulder, Therefore, pedestrians
moving to some point other than the reotaurant would not
reasonably croos at the signal but would use the oidewalk to a
point clooer to their d~stination, at which time they would then
cross the rosdway at an unmarked crossing.
I
I
Students having to croso SR II to the schools would travel a
reaoonably direct route from the schools to SR II, utilizing
I
I
Page 6
ROBSON LAPIHA, INC.
,.-;'""'. ....,,~,.......'"'.1"'1ftI"""
exieting eidewalke and croeswalke, and thon crOBS tho roadway in
tho vicinity of Hostetter Avenue and continue along Hostetter to
the east, This ie consiotent with the croooing point identifiod
by PaDOT in their SCHOOl. STUDENT WALKING HOllTg CEHTIFICATION.
It io unreaeonable that otudento needing to crooo SR 11 to
Hootetter Avenue will walk approximately 300 feet past Hootetter
Avenue, croso SR 11 and then walk back to 1I00tetter Avenue along
an expooed shoulder,
For pedeotri&no in the aroa of the athletic field and the
reoidential area west of Park Place wiohing to crooo SR 11, the
exioting network of oidewalko and crooowalko gonerally directo
them to the east aide of Park Placo oppooite the interoection of
Park Place and Park Place West near the {rant and olightly south
of the bowling alley. From this point, the moot direct route to
SR 11 places the pedeotrian near the rear of the bowling alley
in the area of the Hootetter Avenue intersection,
Again, it is unreasonable that pedestrians needing to croos SR
11 to Hostetter Avenue will walk approximately 300 feet out of
their way to cross at the marked crossing at Park place to then
walk back to Hoetetter Avenue along an exposed shoulder.
The existing marked crosowalk at the interoection of SR
Park Place is not properly eited to safely accommodate
pedestrians crossing to the east side of SR 11,
Pedestrian Croninq Identification and DelineaUon I
A pedestrian crossing a roadway is unexpected, is a violation of
the driver's expectancy, and increases the risk to the
pedestrian, particularly if croseing at night.
11 and
I.
AASHTO's Highway Design and Operational Practices Related to
Highway Safety' statesl
...protection of pedestrians at crosswalks should be
provided through standard traffic control devices as
specified in the Manual on Uniform Traffic Control
Devices, including signs, pavement markings and signals
with pedestrian indications.
Appropriate traffic control devices should be installed to alter
the driver's expectation, to direct pedestrians to oafe crossing
points, and to reduce the risk to the pedestrian.
Traffic control devices include signs and pavement markings,
USDOT's Planning Design and Maintenance of Pedestrian Facilities
states .... it ie important to take oteps that provide the
motorists with advance warning that pedeotrian activity can be
expected." Such otepo include "properly installed advance
warning signs",
Page 7
ROBSON LAPIHA, INC.
UGOUT's Manual on Uniform Traffic Control Devices' statesl
Advance Croooing oignd shou.,J be uscu to alert vehicle
operators to unexpected ~ntries into the roadway by
pedestrians, true';.. bicycliots, animals, and other
potent,al con1lic\~. These crossings may be relatively
"Oil j illed, or may occur randomly over a substantial
distance oC roadway.
Where such crossings are confined to a single lL~ation,
the Advance Wanting 5i'.ln may be supplemented... tho
'"rOBBing po\.nt may be identified by a CrosBing nl.gn..,
and
Cro~Bing signs may be used ,.,~s a me~ns of assisting
the 'Jehicle operator in defining the sr"cific point of
crossing, Such signs should br used on1r at locations
that are unusually hazardous or at 10catLons not readily
apparent. When used, the Crossing Sign should be locatEd
immediately adjacent to tho crossing location. Crossing
Riyns are normally lilnited to nonmotorizeJ crossings, such
as pedestrians...,
PaDOT's Publication 08, Official 'J'nlfFic :ontrol Devices'
identifies the pedeetrian Crossing 5iqn (WII-2) as the warning
sign for use "... to warn of recurring unexpl:' ted rrossing of
pedeBtrians,"
Publication 68, concerning the delj~qation of the pedestrian
cl~SBin", statesl
...wLare no advance etop line is provided or where vehicle
speeds exceed 35 miles per haUL or wh..re crosswalks are
unexpected, it may be desirable to increase the width of
the crosswalk line up to 24 inches in width, CrobBwalk
lines on both sides of the crosswal~ should extend across
the full width 0f the pavement....
and
For added visibility, t-ho area ~f the crosswalk may be
marked with wh.i te diagonal line~ at a 450 angle or I'i! h
white 10nYLtucilno.l 11 " . at a !l00 angle to the lins u! the
croF6w,Jllt.... Thld t.ype of marking is intended for IIse,..
At locations wher.. physical conditions are such that added
visibility 01 the c~osswalk is deRired or at ~laces where
a pou"stI ian crosswalk might not be eXpc~ '- ,~.
Photographs tak..n subsequent to the accide~t. show approHmately
6-inch wide solid white lines deli neatir"1 the crub"walks at the
Park P'~ce intersection.
Traffic control signage preeent along S1 11 included a School
(51-I) \oiarning sign for southbou:IJ rlrivers, located
I'ago
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ROBSON LAPiNA, INC.
approximetely 170 feet north of Park Place and a Signal Ahead
(WJ-J) warning sign for northbound traffic, located south of
Hostetter Avenue. There were no Pedestrian Crossing warning
signs present on SR 11 in the area of the accident.
Existing traffic control signs and pavement markings along SR 11
in the area of the accident did not clearly identify and
delineate the pedestrian crosswalks at Park Place.
Traffic SiQnal Pedestrian Phasel
Pedestrians attempting to cross a signalized intersection must
have the opportunity to cross without excessive delay and with
sufficient time to do so safely.
The traffic signal at the intersection of SR 11 and Park Place
is a semi-actuated signal, tripped only by vehicles approaching
the intersection on Park Place, with a constant green arrow for
southbound vehicles turning right from SR 11 onto Park Place.
The eignal does not have a pedestrian phase.
At the time of my inspection, traffic on Park Place was sporadic
and the oignal was cycling at irregular intervals. Therefore, a
pedestrian attempting to cross SR 11 at the signal would be
subjsct to irregular and often excessive delays in order to
cross the roadwar with SR 11 traffic stopped. Additionally, a
pedestrian c~oss ng either the north or west leg of the
intersection must be aware that, even under the red phase for SR
11 through traffic, southbound right-turning traffic still has a
constant green arrow.
USDOT's Manual on Uniform Traffic Control Devices' (MUTCD),
concerning pedestrian crossings at signalized intersections,
states 1
The design and operation of traffic control signals must
take into consideration the needs of pedestrian as well as
vehicular traffic. Where minimum numbers of pedestrian
movements regularly occurl
1. Signal indications must be visible to pedestrians...
2. The~e must be,an opportunity to cross without
exces8ive delay. Pedestrian actuation shall be
installed at traffic control signals where the
signal operation does not otherwise provido this
oPl--ortunity,
3, Podestrians should be provided with '''I fficient time
to crnes the roadway,..
Pedestrian actuation can be accomplished bI the installation of
push buttons at the applicable crossing po nts with the
accompanying Push Uutton for Green Light Sign (RlO-J).
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ROBSON LAPINA, INC.
PftOOT'o Publication 68 statesl
The Push nut ton for Groen Light Sign (RI0-3) shall be
authorized for use wherc it is desired to permit
pedestrians to register a demand for the green signal,.,.
The R10-3 sign should be mounted parallel to the desired
crossing, immediately above the push button, The arrow
shall ~oint in the d rection of the crossing,
Without pedestrian actuation of the signal and a pedcstrian
signal phase, pedestrians attempting to cross SR 11 at the
existing marked crosswalko at Park Place do not have the
normally provided opportunity to safely cross the roadway.
Illumination of Pedestrian CrosoinQsl
The National Cooperative Ilighway Research Program's (NCIlRP)
Synthesis of Highway Practice 139, Pedestrians and Traffic-
Control Measures' identifies, as a countermeasure to nighttime
pedestrian accident situations, lighting of the crooswalk.
The American Association of State Ilighway and Transportation
Officials (AASHTO) 1974 Highway Design and Operational Practices
Related to Highway Safety' states that illumination".. .has bsen
shown to have a beneficial effect on night pedestrian
accidents,"
USDOT's Synthesis I
Lighting the roadway at night increases the visibility of
the roadway and its immediate environm~nt, permitting the
driver to maneuver more efficiently and safely.
and
Where no or very poor quality lighting is upgraded to the
quality of light specified in the current ANSI practice
the previously cited research impliesl
1. Pedestrian involved night accidents are reducsd more
than those involving other road users. In general,
ths reduction appeare to be about 50 percent....
2. The most serious types of night accidents are reduced,
Fatal night accidents are reduced by about 50
percent....
PaDOT's 1986 Change 12 to the 1981 Design Manual, Part 2' and
1990 Design Manual, Part 211, concerning illumination of
pedestrian crossing, statesl
There are a number of feotures thot should be considered
in projects which have been used to safely accommodate
pedestrians", some of these can be used as
Page 10
ROBSON LAPINA, INC.
countermoaaures to reduce the potential 101 podeatrian
accidenta, '~eae includel
8, Improvements at inatallation of lighting
U6DOT'a Planning Design and Maintenance of Pedestrian Facilities
atateal
CroaBwelk illumination ia an important consideration in
increasing pedestrian aafety during dorkneas, Vehicle
headlampa often do not provide Bufficlent illumination to
permit the motorist to identify pedeatrian pI-esence""
Illumination of the pedestrian crosswalk hao been recognized as
an effective countermeasure in reducing the riaka to pedestrians
croseing a roadway at night.
USDOT's Planning Design and Maintenance of Pedestrian
Facilities' recommends lighting levelB in exceaa of I foot-
candle (fc) at pedeatrian walka and continueBI
...In general, illumination ahould be considered as
warranted when the night viaibility requires lighting in
order to provide the mutual sight distance capabilitiee
described as necessary in AASHTO. 6pecific
locational characteristics that should be considered for
crosswalk illumination includel
Areas adjacent to pedestrian generating centers and
parking lots,
Any location where the improvement of nighttime
visibility will reduce the potential of vehicle-
pedestrian conflict.
The Police Report indicates that, at the time of the accident,
it was dark, with street lights preeent.
However, the existing street lights along 6R 11 area one
approximately 250 feet south of and one approximately 100 feet
north of Park Place. There are no street lights at the Park
Place intereection.
.
There are area lights present in the parking lata of The Treat
Restaurant end the service atation. Ilowever, theae lights are
directed spotlighta and are aimed away from 6R 11, A single
spotlight is alao located on the aecond of the aeven trees aouth
of Park Place, with the light directed toward the bank,
Therefore, these lights provide no direct lighting of the
crosswalks at Park Place,
Pedestriane crossing sn II at Park Place crosa in an area that
is not cleerly marked or otherwise identified to the approaching
driver,
Page 11
ROBSON LAPIHA, INC.
(
This is an extremeiy hazardous nltuation (or the pedestrian
attempting to croes the roadway and, therefore, illumination of
the crossing is warranted Lo redUGe t.ho potential of vehicle-
pedestrian conflict,
Summarvl The exieting marked crosswalk at the intersection of
SR 11 and Park Place is not properly sited to safely accommodate
pedestrians crossing SR 111 does not clearly identify and
delineate the intended pedostrian croooing, doeR not have a
pedostrian phase in the existing traffic oignal, and doeR not
have adequate illumination,
The exioting marked crooowalko and traffic signal at Park Place
do not adequately and oafely provide for pedestriano crosoing SR
11.
8. A PBDESTRIAN CROSSING SHOULD IUlVE BEEN PRESENT AT HOSTETTBR
AVBIIUB
The American AnociatiQn of State Ilighway and Tranoportation
Officials (AASHTO) 1984 A Policy on Geometric Design of Highways
and Streets' stateol
The major pedestrian-vehicular conflict usually occurs
at intersectiono. On lower classes of arterials,
espeoially at interleotions with minor cross streets where
turning movements are light, pedestrian faoilities are
usually limited to orosswalk markings. Features that help
the pedestrian inolude fixed-source lighting, refuge
islands, barriers and signalo.
...at-grade crosswalks will remain the predominant form of
crossing. Minimum conflict and hazard result if the
crosswslks are properly placed, designed, maintained, and
operated. [po 589)
USDOT's 1989 Planning Design and Maintenance of Pedestrian
FecllltlesJ statesl
Crosswalks are areas on the surface street system used
by pedestrians to cross roadways, Tho purpose of
crosswalks is to conoentrate pedestrian movements to
selected areas, thereby, reducing the potential number of
conflict points between pedestrians and motor vehicles.
and further states that orosswalksl
...serve to channelize pedestrians and warn motorists of
possible pedestrian presence,
Locations where crosswalko should be used are identified in
USDOT's Planning Design and Maintenance of pedestrian
Fllei 11 ti es I
Page 12
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ROBSON LAPINA, INC.
In urban and rural areas whenever there ia B need tor
increaaed visibility and dosiqnation of the cronsinq
area,
When multiple pedestrian crossing locations exist and a
marked crossing would serve to channelize pedestrian
croesing at a single location,
When the best location for pedestrians to cross may be
unclear due to geometric or traffic operational
conditions.
and
All other locations where there is a need to clarify
the preferred crossing location when the proper
location for crossing would be otherwise confusing.
Properly sited and identified crosswalks are a recognized safety
feature which should be provided to assist pedestrians in safely
crossing the roadway.
In determining the location for a pedestrian crossing, the
movements of pedestrians must be evaluated. Those familiar with
pedestrian safety recognize that pedestrians will generally
utilize the shortest route to their destination.
The 1987 National Cooperative Highway Research Program (NCHRP)
Report 294A, Planning and Implementing pedestrian Facilities in
Suburban and Developing Rural Areas'o states I
...It is not realistic to expect that pedestrians will go
far out of their way to cross at a signal when their
destination is right across the street. One local
feasibility study ...indicated that about 90 percent of
the pedestrian crossings were being made mid-block. This
is not atypical of the crossing patterns in suburban
areas...
The NCHRP report continues.
...It has long been recognized that pedestrians eeek the
most direct route between points, Although the perception
of risk may alter the paths to some pedestrians,
observation of pedestrian behavior suggests that most
pedestrians will increase their risk to make their route
shorter. The solution is not to attempt to discourage
this behavior by increasing the risk, but to accommodate
observed pedestrian tendencies and to make street crossing
more convenient and less of a risk.
Pedestrians, inclUding students, routinely cross SR 11 at
Hostetter Avenue.
r SR 11 is a high-volume highway, The hazards to pedestrians
ROBSON LAPINA, INC.
Page 13
attempting to croes such a roadway are obvious,
Considering the high pedentrian uoe, 4 marked pedeotrian
crooowalk in a recognized oafely fealuro whleh Hhould have been
provided at lIostetter Avenue,
As a part of the installation of a croHowalk at 1I0stetter
Avenue, appropriate traffic control warning devices and
illumin~tion should aloo have been installed lo assist
pedestrians in sefely crossing the roadway,
9. TRAFFIC CONTROL DEVICBS PRESBNT AT OTIIBR "EDBSTRIAN CROSSING
IN THE ARBJl OF TIIB ACCIDENT
During my inspection, traffic control dovicoo in use at other
pedestrian crossings in the area of the Tolan accident were
observed,
Marked pedestrian crosswalks at the intersection of Park Place
and Park Place West consisted of double solid white lines across
all three legs of the tee intersection, with the double white
lines on Park Place being augmented by diagonal solid white
lines between and the word YIELD and a pedeotrian figure facing
approaching traffic.
A pedestrian croeowalk for north-south crossinge was present at
Park Place's 90. turn, consisting of double eolid white lines
with diagonal solid white lines between.
At the intersection of SR 11 and Lurgan Avenue, epproximately
0.25 mile north of Park Place, there are marked pedestrian
crosswalks consieting of two solid white lines on each of the
three legs of the intersection. The intersection has both
vehicular and pedestrian signals. The pedestrian signals are
actuated by push buttons located on the corners of the
intersection.
street lights are preeent at the marked pedestrian crooswalks on
Park Place at ite 90. turn and at its intereection with Park
Place West and also at the signalized crosswalks at the
intersection of SR 11 and Lurgan Avenue, north of Park Place.
At the unsignalized intersection of Lurgan Avenue and another
local road, the three legs of the intersection each have a
marked pedestrian crosswalk consisting of two solid white lines
the width of the roadway.
Approximately 0.5 mile north of Park Place, at the unsignalized
intersection of SR 11 and a local street, marked pedestrian
crosswalks are present on each leg of the intersection, The
markings consist of two solid white lineo the width of the
roadway, The word YIELD is also visible to drivers approaching
on SR 11 prior to the crosowalk,
ROBSON LAPINA, INC.
Page 14
~ -..
~t approximately live locations along &R II north of Park Place
and in the Borough of Shippensburq, pedestrian crosswalks were
marked by alternating white and yellow solid squares the full
width of the roadway, AdditionBlly, the word YIELD and a
pedestrian figure facing approaching traffic were on the
pavement and a Pedestrian Crossing (WII-2) warning sign, with a
PED XING supplemental plate, was located on the right side of
the roadwey,
.
pedeetrian crosswalks along SR II at both signalized and
unsignalized intersections generally were marked for a distance
of approximately 1.5 miles north of Park Place,
with this observed emphaeis on marked pedestrian crosswalks
along both SR 11 and adjoining local roads, it is hard to
understand the absence of adequat~ pedestrian crossings at Park
Place and Hostetter Avenue.
10. ICNOfiLEDGE OF THE DANGBROUS CONDITION
The presence of the marked pedeetrian crosswalks at the Park
Place intersection indicates knowledge that pedestrians were
crossing SR 11 in the area of the accident and that Buch
croesings were considered hazardous.
In olose proximity to the accident site are several significant
pedestrian generators I the residential areas to both the east
and west of SR 11, the schools, and the athletic field.
Mark Walker stated that on the night of the accident, he and
Fran Tolan had walked to the bowling alley. Walker stated that
thia waa their usual practice due to the heavy vehicular traffic
on SR 11 following the game. Walker stated that they would stay
at the bowling alley for a while to allow traffic to lessen and
that they would then cross SR 11 enroute to their homes.
Mrs. Augie Walker stated that the parents of children needing to
cross SR 11 had long been concerned about the danger and that
the Blue/Grey football booster club had requested Representative
Jeff Coy check with PaDOT as to why the unsafe conditions along
SR 11 in the area of the accident existed.
Mrs. Walker also stated t~at unsuccessful attempts had been made
to obtain police assistance in directing traffic after events at
the ball field.
Mrs. Robin Tolan, Fran Tolan'e mother, atated that SR 11 was
very congested, both vehicles and pedestrians, in the area at
ths time of the accident. She further stated that the location
and method used by her son to cross SR II the night of the
accident were the same as those used by Pran Tolan and others to
rsturn home after school each day,
PaDOT, in October, 1994, issued a GCIIOO!, STUDENT WAl,KlNG HOUTll
Page IS
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ROBSON LAPINA, INC.
CERTIFICIITION to the 'Shippensburg IIn~a School lllstrict,
identifying SR II betwsen Hostetter IIvenue and Eherlsy orive as
hazardous, statingl
,.,studonts must cross the roadway in an area that is 0Q1
controlled by traffic control deviceu and the number of
vehicles utilizing the roadway during the time students
are walking exceeds the acceptable amount.
The area along SR II appears to be stable, lis such, the
conditions present at the time of PaDOT's inspection would have
been essentially the same as those present in November, 1993.
Therefore, the hazardous condition identified by PaDOT existed
at the time of the accident,
Anyone involved in highway safety should have been aware of the
dangerous condition created by pedestrians crossing SR II, a
high volume Conunonwealth arterial, at Park Place, utilizing a
crosswalk which is improperly sited, without adequate
identification and delineation of the crosswalk, without a means
to actuate the traffic signal and without appropriate
illumination.
Equally obvious to anyone involved in highway safety should have
been the dangerous condition created by pedestrians crossing SR
11 at Hostetter Avenue in the absence of a properly installed
marked crosswalk.
Both PaDOT and the local governments were aware of the dangerous
conditions created by pedestrians crossing SR 11 in the vicinity
of the accident.
Failure to properly address pedestrians crossing SR II was not
prudent, allowed a dangerous condition to continue and was a
cause of the accident.
J J . FINDINGS
I:
I:
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,
\
certainty, and
becomes available,
Within the bounds of reasonable engineering
subject to change if additional information
it Is my professional opinion thatl
1. Pedestrians, including school students, routinely
crossed SR 11 in the area of the accident,
2. The roadway in the area of the accident is
unreasonably dangerous because there are inadequate
safety provisions for the large number of pedestrians
who cross the high traffic roadway,
3. The existing marked crosswalks and traffic signal at
Park Place do not adequately and safely provide for
pedestrians croesing sn II,
Page 16
ROBSON LAPINA, INC.
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RHFBRBNCBS
1. Official Traffic Control Devices, Publication 68,
Commonwealth of Pennsylvania, Department of Transportation,
Harrisburg, PA (Nov. 1982)
2. Highway.Design and Operational Practices Related to Highway
Safety, Second Edition, American Association of State
Highway and Transportation Officials, Washington, D. C.
(1974 )
3. Synthesis of Safety Research Related to Traffic Control and
Roadway Elements, Vol. 2, FIIWA-TS-82-233, U. S. Department
of Transportation, Washington, D. C. (December 1982)
4. Safety Effectiveness of Highway Design Features, Volume VI,
FHWA-RD-91-049, U. S, Department of Transportation,
Washington, D, C. (1991)
5. Planning Design and Maintenance of Pedestrian Facilities,
FHWA-IP-88-019, U. S. Department of Transportation,
Washington, D. C. (March 1989)
6. Synthesis of Highway Practice 139, Pedestrians and Traffic-
Control Measures, National Cooperative Highway Research
Program, Transportation Research Board, Washington, D. C.
(November 1988)
7. Design Manual, Part 2, Department of Transportation,
Commonwealth of Pennsylvania, Harrisburg, PA (1981)
8. Manual on Uniform Traffic Control Devices, U. S. Department
of Transportation, Washington, D. C. (1988)
9. A Policy on Geometric Design of Highways and Streets,
American Association Of State Highway and Transportation
Officials, Washington, D. C. (1984)
10. Synthesis of Highway Practice 294A, Planning and
Implementing Pedestrian Facilities in Suburban and
Developing Rural Areas. National Cooperative Highway
Research Program, Traneportation Research Board, Washington,
D. C. (June 1987)
11. Design Manual, Part 2, Department of Transportation,
Commonwealth of Pennsylvania, Harrisburg, PA (1990)
12. Synthesis of Safety Research, Pedestrians, FHWA-SA-91-034,
U. S. Department of Transportation, Washington, D. C.
(August 1991)
ROBSON LAPINA, INC.
Page 18
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