The URL can be used to link to this page

Home My WebLink About1997-3446 Civil THOMAS FITZHUGH, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA : vs. : CIVIL ACTION – LAW : NO. 97-3446 COMMONWEALTH OF : PENNSYLVANIA, DEPT. OF : TRANSPORTATION, : Defendant : : vs. : : CHESTER DAVIS, : Additional Defendant : JURY TRIAL DEMANDED IN RE: DEFENDANT’S MOTION FOR SUMMARY JUDGMENT BEFORE BAYLEY, P.J., AND HESS, J. OPINION AND ORDER On August 11, 1996, Plaintiff’s decedent, Thomas Fitzhugh, was involved in a car accident along SR 11, a two-lane undivided highway. Defendant Davis crossed into Decedent’s lane as he went around a curve in the road, hitting Decedent’s vehicle head-on. Decedent suffered severe injuries, of which he later died. Plaintiff commenced this action on June 26, 1997, alleging negligence on the part of Defendant PennDOT for failure to erect a median barrier along the portion of the road where the accident occurred. Defendant Davis was joined to the action in August 1997. Discovery was thereafter conducted, and Defendant PennDOT now moves for summary judgment on two grounds: (1) that Plaintiff has failed to state a cause of action, because he has failed to show that Defendant PennDOT had a duty to erect a median barrier at the scene of the accident; and (2) that Plaintiff has failed to state a cause of action, because as a matter of law PennDOT’s failure to erect a median barrier is not encompassed by the real estate exception to sovereign immunity, NO. 97-3446 CIVIL enacted at 42 Pa.C.S.A. 8522(b)(4). We believe that defendant’s second contention is dispositive and thus we need not address the first. In 1978, the Pennsylvania Supreme Court abrogated the doctrine of sovereign immunity, see Mayle v. Pa. Dept. of Highways, 388 A.2d 709 (1978). In response, the Pennsylvania Assembly enacted 42 Pa.C.S.A. 5110, the predecessor of 42 Pa.C.S.A. 8522, which revived the doctrine, but provided several limited exceptions to it. See id. Section 8522(b)(1-9). Section 8522(b)(4), the “real estate” exception to the doctrine, provides that a Commonwealth entity’s sovereign immunity is waived when there is “[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 highways under the jurisdiction of a Commonwealth agency to private persons, and Commonwealth agency .” Id. (emphasis added). The Pennsylvania Supreme Court has stated that “[b]ecause of the clear intent to insulate government from exposure to tort liability, the exceptions to immunity are to be strictly construed.” Dean v. Com., Dept. of Transp., 751 A.2d 1130, 1132 (Pa. 2000) (citation omitted). Although the Pennsylvania Supreme Court has not passed on the issue of whether the failure to install a median barrier constitutes a “dangerous condition,” it has ruled that the Commonwealth’s failure to install a guard rail is not encompassed by the exception. Dean v. Com., Dept. of Transp., Id. In the Dean case, a motorist lost control of his vehicle in the snow and drove off the highway and down a steep embankment into a ditch. Id. at 1131. The car’s passenger suffered severe injuries when the car overturned. Id. The passenger subsequently 2 NO. 97-3446 CIVIL sued PennDOT, alleging that the department’s failure to install a guard rail constituted a “dangerous condition” to which the real estate exception of Section 8522(b)(4) applied. The Supreme Court disagreed, holding that the department’s failure to erect a guard rail was not encompassed by the exception. Id. at 1134. In so holding the Court quoted with approval the holding of Snyder v. Harmon, 562 A.2d 307 (Pa. 1989): Sovereign immunity is waived pursuant to [the real estate exception] where it is alleged that the artificial condition or defect of the land itself causes an injury to occur. The 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, 751 A.2d at 1133-34, quoting Snyder, 562 A.2d at 312. The Dean Court elaborated, “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. at 1134. Of interest was the lower court’s observation caused that it was the snow-covered road and not the absence of a guard rail that the accident. Id. at 1131. The Dean decision was followed by the Pennsylvania Commonwealth Court in Simko v. County of Allegheny, 869 A.2d 571 (Pa. Cmwlth Ct. 2005). The Simko Court, in disposing of another “guardrail” case, elaborated on the Dean rationale: The [Supreme] Court [in the Dean decision] concluded [that] a contrary holding could expose the Commonwealth to unlimited liability, a result clearly not intended by the legislature in enacting the immunity statute. … [T]he Court noted the legislature can correct any misinterpretation of immunity statutes by amending the law so as to explicitly waive immunity for dangerous conditions of guardrails. Id. at 574 (citations omitted). While the Supreme Court has not yet passed on this issue, the Commonwealth Court has addressed the issue of sovereign immunity in the context of median barriers. In Svege v. 3 NO. 97-3446 CIVIL Interstate Safety Service, 862 A.2d 752 (Pa. Cmwlth Ct. 2004), the Commonwealth Court relied upon Dean to hold that a Commonwealth agency’s failure to erect a larger median barrier was not encompassed by the exception. Id. at 755. Svege involved a case in which a truck had smashed through the median barrier on the Pennsylvania Turnpike causing a collision. Although the facts in this case are distinguishable, the rationale for granting Defendant PennDOT’s motion for summary judgment is the same. Just as in Dean, Simko, and Svege, the plaintiff has alleged that the failure to erect a barrier – or a different barrier from the one in place – is encompassed by the real estate exception. The real estate exception, however, deals with “artificial conditions or defects in the land,” not a decision of the agency on what kind of barrier to erect, if one at all. Moreover, a decision permitting this Plaintiff to sue for failure to erect a median barrier on this road would open PennDOT to liability anytime someone is injured in a crossover accident on a two-lane highway, as the placement of a median barrier would likely prevent most of those accidents. Although Plaintiff has gone to great lengths in an attempt to show that a contrary holding can be limited to the unique facts of this case, tomorrow’s plaintiffs will argue that PennDOT should have also installed a median barrier on the highway, where the absence of such a barrier caused an errant driver to cross into the other lane. Just as the Simko Court refused to permit plaintiffs to sue Commonwealth entities for median barriers that were “too small,” we refuse to permit plaintiffs to sue PennDOT for deciding not to erect a median barrier at all. ORDER th AND NOW, this 30 day of April, 2007, the motion of the Commonwealth of 4 NO. 97-3446 CIVIL Pennsylvania, Department of Transportation for summary judgment is GRANTED. BY THE COURT, _______________________________ Kevin A. Hess, J. Eric G. Zajac, Esquire For the Plaintiff Daniel R. Goodemote, Esquire For PennDOT Andrew W. Norfleet, Esquire For Additional Defendant :rlm 5 THOMAS FITZHUGH, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA : vs. : CIVIL ACTION – LAW : NO. 97-3446 COMMONWEALTH OF : PENNSYLVANIA, DEPT. OF : TRANSPORTATION, : Defendant : : vs. : : CHESTER DAVIS, : Additional Defendant : JURY TRIAL DEMANDED IN RE: DEFENDANT’S MOTION FOR SUMMARY JUDGMENT BEFORE BAYLEY, P.J., AND HESS, J. ORDER th AND NOW, this 30 day of April, 2007, the motion of the Commonwealth of Pennsylvania, Department of Transportation for summary judgment is GRANTED. BY THE COURT, _______________________________ Kevin A. Hess, J. Eric G. Zajac, Esquire For the Plaintiff Daniel R. Goodemote, Esquire For PennDOT Andrew W. Norfleet, Esquire For Additional Defendant :rlm