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HomeMy WebLinkAbout2005-291 Civil DARLENE UPLINGER, AS : IN THE COURT OF COMMON PLEAS OF ADMINISTRATRIX OF THE ESTATE : CUMBERLAND COUNTY, PENNSYLVANIA OF WILBUR L. UPLINGER, : DECEASED, : PLAINTIFF : : : V. : : PAUL F. BROWN, WERNER : ENTERPRISES, INC., AND : COMMONWEALTH OF : PENNSYLVANIA, PENNSYLVANIA : TURNPIKE COMMISSION, : DEFENDANTS : 05-0291 CIVIL TERM IN RE: MOTION FOR SUMMARY JUDGMENT OF DEFENDANT COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA TURNPIKE COMMISSION BEFORE BAYLEY, J. AND EBERT, J. OPINION AND ORDER OF COURT Bayley, J., March 16, 2009:-- This suit was instituted by Darlene Uplinger, Administratrix of the Estate of Wilbur L. Uplinger, against Paul F. Brown, Werner Enterprises, Inc., and the Commonwealth of Pennsylvania, Pennsylvania Turnpike Commission. The Turnpike Commission filed a motion for summary judgment based on sovereign immunity. It maintains that Uplinger’s death was not caused by a condition of the Turnpike and thus does not fall within an exception to sovereign immunity. The case was briefed and argued on February 4, 2009. The following facts are not in dispute. On January 29, 2003, Wilbur Uplinger was driving a tractor trailer eastbound in 05-0291 CIVIL TERM the Pennsylvania Turnpike approaching the Kittatinny Tunnel. The tunnel was temporarily closed in order to remove a buildup of ice. Turnpike personnel called the Pennsylvania State Police to assist in monitoring the backlog of vehicles caused by the closure. The State Police did not have personnel available. Kenneth Wilson, a supervisor at the tunnel, operated an orange pickup truck equipped with an electronic light board and single bulbs in each corner that were blinking. He moved the pickup truck on the right hand eastbound lane berm before the point where vehicles were stopping on the roadway. Wilbur Uplinger brought his tractor trailer to a stop in the right lane at the point where traffic was backed-up. A passenger vehicle stopped behind Uplinger’s trailer. Another tractor trailer operated by Richard Landsberry stopped behind the passenger vehicle. Uplinger got out of his tractor and walked to the rear of his vehicle. Defendant, Paul Brown, was operating a tractor trailer for defendant, Werner Enterprises, Inc., eastbound toward the backed-up traffic. After he had passed Wilson’s pickup truck with the blinking lights on the right berm, his vehicle struck the rear of Landsberry’s trailer and hit and killed Uplinger. The Pennsylvania Turnpike Commission had a “Tunnel Stoppage Procedures Emergency/Schedule.” These procedures cover all tunnel traffic stoppages including those necessitated by tunnel de-icing. The Pennsylvania State Police are to be contacted first to “be on the backlog.” If not available Turnpike personnel are to perform that task. The procedure provides that “someone must be on the backlog.” -2- 05-0291 CIVIL TERM Plaintiff has produced experts who are of the opinion that the policy guidelines for the stoppage of traffic are inadequate and the advanced warning provided to motorists of backed-up traffic at the time of Uplinger’s death was inadequate. Plaintiff maintains that these circumstances created a hazardous condition for which a jury should be allowed to decide if the Turnpike Commission was causally negligent in Uplinger’s death. Plaintiff has averred and maintains that at the time Uplinger was killed the negligent failure of the Turnpike to have an adequate temporary warning to motorists that traffic was backed-up was a condition of the Turnpike real estate which is an exception to sovereign immunity. Washington v. Baxter, In 719 A.2d 733 (Pa. 1998), the Supreme Court of Pennsylvania set forth the standard for deciding a motion for summary judgment. A court: . . . must view the record in the light most favorable to the non-moving party, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party. Pennsylvania State University v. County of Centre, 532 Pa. 142, 143-145, 615 A.2d 303, 304 (1992). In order to withstand a motion for summary judgment, a non- moving party “must adduce sufficient evidence on an issue essential to his case and on which he bears the burden of proof such that a jury could return a verdict in his favor. Failure to adduce this evidence establishes that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.” Ertrel v. Patriot-News Co., 544 Pa. 93, 101-102, 674 A.2d 1038, 1042 (1996). Under the Sovereign Immunity Act, a Commonwealth party is immune from liability for damages arising out of a negligent act unless, (1) the damages would be recoverable under the common law or under a statute if the injury were caused by a -3- 05-0291 CIVIL TERM person not having available the defense of sovereign immunity, and (2) the alleged negligence falls within one of nine exceptions where sovereign immunity is waived. 42 Pa.C.S. Section 8522(a). A Commonwealth party includes a Commonwealth agency. 42 Pa.C.S. Section 8501. The Pennsylvania Turnpike Commission is a Commonwealth Bradley v. Pennsylvania Turnpike Commission, agency. 151 Pa. Commw. 51, (1988). The exception set forth in Section 8522(b)(4), provides: A dangerous condition ofreal estate Commonwealth agency and including sidewalks, Commonwealth-owned real property . . . in the highways possession of a Commonwealth agency . . . and under the jurisdiction of a Commonwealth agency . . . . (Emphasis added.) For the real estate exception to sovereign immunity to apply, the injury must have been caused by a condition of the government realty itself, deriving, originating Finn v. City of Philadelphia, from, and having the realty as its source. 664 A.2d 1342 1 (Pa. 1995). What is necessary to pierce immunity is proof of a defect in the real estate Id. Finn itself. In , the plaintiff slipped on an accumulation of grease while walking on a sidewalk adjacent to city-owned property in Philadelphia. The Supreme Court of Pennsylvania concluded: We have a perfectly designed constructed sidewalk, undamaged, upon which an unidentified individual or individuals deposited a foreign __________ 1 Finn applied the real estate exception to the statute governing immunity of political subdivisions, 42 Pa.C.S. Section 8542(b)(3), which is interpreted the same as the statute governing Commonwealth immunity at issue in the present case under 42 Williams v. Philadelphia Housing Authority Pa.C.S. Section 8522(b)(4). See , 873 A.2d 81 (Pa. Commw. 2005). -4- 05-0291 CIVIL TERM substance which caused appellant’s injury. . . . [t]he dangerous condition did not derive, originate from or have its source the sidewalk. In the language of the statutory exception to government immunity, the dangerous condition was on the sidewalk, not of the sidewalk, and thus is insufficient to create liability in the city. Osborne v. Cambridge Township, In 736 A.2d 715 (Pa. Commw. 1999), there was an automobile accident in which Osborne was killed. Osborne was driving a pickup truck when it was dark and raining hard with poor visibility. He went over a knoll and soon after struck a large fallen oak tree that was lying in a dip in the road across both lanes. In a wrongful death and survivor action, Osborne alleged that Cambridge Township was negligent for its failure to take measures to warn the public that the large Finn v. tree had fallen across its road for which it had received timely notice. Citing City of Philadelphia, supra, the Commonwealth Court concluded: Because Finn controls, the dangerous condition to fall within the street exception must arise from the real estate, street or sidewalk rather than from something that has fallen onto the real estate, street or sidewalk. Because the fallen tree was not “of” the real estate but “on” the real estate, the street exception to governmental immunity does not apply and judgment should have been entered in favor of the township. (Footnote omitted.) Nestor v. Commonwealth In , 658 A.2d 829 (Commw. Ct. 1995), Nestor suffered injuries when his motorcycle struck the rear of a vehicle being driven by Heslte Ealy. At the time of the accident, Nestor was traveling south in the passing lane of Route 18 in North Franklin Township, Washington County. While he was attempting to pass two vehicles, one driven by Elaine Johnson and the other by Ealy, Ealy began to cross the passing lane in order to enter and park at a convenience store. Although Nestor -5- 05-0291 CIVIL TERM immediately slammed on his brakes and skidded, he was unable to avoid Ealy’s vehicle and, as a result of the impact, was thrown from his motorcycle, suffering serious injuries. Nestor brought suit against the Department of Transportation (DOT), alleging that it was negligent because the traffic control devices constituting the marked passing zone and posted speed limit where the accident occurred constituted a dangerous condition. DOT joined Ealy as an additional defendant. A jury found Nestor was 40% causally negligent, Ealy was 40% causally negligent, and DOT was 20% causally negligent. In a post-trial motion, DOT sought a judgment n.o.v. which was granted on the grounds that Nestor’s cause of action did not fall within the real property exception to sovereign immunity. On appeal, the Commonwealth Court of Pennsylvania stated: [w]e must determine whether DOT should be immune from liability or whether the real property exception is applicable. In this case, the jury found that DOT had created or maintained a dangerous condition along Route 18 in the area of we conclude that, as a matter of law,the facts do the accident. Nonetheless, not establish the existence of a dangerous condition of Commonwealth realty . (Emphasis added.) Dean v. Commonwealth of Pennsylvania, Department of Transportation, In 751 A.2d 1130 (Pa. 2000), the plaintiff was injured when he was a passenger in a vehicle that fishtailed on a snow covered roadway then left it and traveled over a steep, declining embankment where it overturned. Plaintiff instituted an action against PennDOT alleging that it was negligent in failing to properly shield the steep -6- 05-0291 CIVIL TERM embankment with a guardrail at the location where the accident occurred. The Supreme Court vacated an order of the Commonwealth Court and reinstated an order of a trial court granting summary judgment to PennDOT. The Court found that “the issue here is not whether a dangerous condition in fact existed, but whether PennDOT would be liable for it under the real estate exception to sovereign immunity.” It concluded “that the Commonwealth’s failure to erect a guardrail on the highway is not encompassed by the real estate exception to sovereign immunity.” It found “that the legislature did not intend to impose liability upon the government whenever the plaintiff alleged that his or her injuries could have been avoided or minimized had the government installed a guardrail along the side of the highway.” Finn v. City of Philadelphia, supra, In the Supreme Court stated that the exception to immunity only applies when the dangerous condition derives from, originates from, or has as its source the real property. The backlog of vehicles which resulted when the Kittatinny Tunnel was temporarily closed did not derive from, originate from, or have the realty as its source. Like the accumulated grease on the FinnOsborne sidewalk in , or the fallen oak tree lying in a dip in the road in , or the lack Deanof of a guardrail in , the condition here did not constitute a dangerous condition the realty . For the foregoing reasons we find that the exception to sovereign immunity at 42 Pa.C.S. Section 8522(b)(4) does not apply. The Pennsylvania Turnpike Commission is immune from suit. -7- 05-0291 CIVIL TERM -8- 05-0291 CIVIL TERM ORDER OF COURT AND NOW, this day of March, 2009, the motion of defendant, Commonwealth of Pennsylvania, Pennsylvania Turnpike Commission for summary judgment, IS GRANTED. By the Court, Edgar B. Bayley, J. Matthew S. Crosby, Esquire For Plaintiff Kandice J. Giurintano, Esquire For Defendants :sal -9- DARLENE UPLINGER, AS : IN THE COURT OF COMMON PLEAS OF ADMINISTRATRIX OF THE ESTATE : CUMBERLAND COUNTY, PENNSYLVANIA OF WILBUR L. UPLINGER, : DECEASED, : PLAINTIFF : : : V. : : PAUL F. BROWN, WERNER : ENTERPRISES, INC., AND : COMMONWEALTH OF : PENNSYLVANIA, PENNSYLVANIA : TURNPIKE COMMISSION, : DEFENDANTS : 05-0291 CIVIL TERM IN RE: MOTION FOR SUMMARY JUDGMENT OF DEFENDANT COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA TURNPIKE COMMISSION BEFORE BAYLEY, J. AND EBERT, J. ORDER OF COURT AND NOW, this day of March, 2009, the motion of defendant, Commonwealth of Pennsylvania, Pennsylvania Turnpike Commission for summary judgment, IS GRANTED. By the Court, Edgar B. Bayley, J. Matthew S. Crosby, Esquire For Plaintiff Kandice J. Giurintano, Esquire 05-0291 CIVIL TERM For Defendants :sal -2-