HomeMy WebLinkAbout93-1768 Civil KELLY D. MESSIER, : IN THE COURT OF COMMON PLEAS OF
Individually and as Executrix : CUMBERLAND COUNTY, PENNSYLVANIA
of the Estate of Steven A. :
Messier, Deceased, :
Plaintiff :
:
v. : CIVIL ACTION - LAW
:
DEBORAH E. SMITH, RICHARD :
LEE WEAVER, DELANO M. :
LANTZ and DONORE J. LANTZ, :
his wife, DEPARTMENT OF :
TRANSPORTATION OF THE :
COMMONWEALTH OF PENNSYLVANIA, :
and DICKINSON TOWNSHIP, :
Defendants : NO. 1768 CIVIL 1993
IN RE: MOTION OF DEFENDANT DICKINSON TOWNSHIP FOR
SUMMARY JUDGMENT; and MOTION OF DEFENDANTS DELANO M. LANTZ
and DONORE J. LANTZ FOR SUMMARY JUDGMENT
BEFORE HESS* and OLER, JJ.
ORDER OF COURT
AND NOW, this ~ ~ day of April, 1995, after careful
consideration of Defendants' motions for summary judgment, for the
reasons stated in the accompanying Opinion, it is ORDERED as
follows:
1. The motion of Defendant Dickinson Township for summary
judgment is DENIED; and
2. The motion of Defendants Delano M. and Donore J. Lantz
for summary judgment is DENIED.
BY THE COURT,
* Hess, J., did not participate in the consideration or
disposition of this case.
Edward E. Guido, Esq.
26 West High Street
Carlisle, PA 17013
Attorney for Plaintiff
William A. Addams, Esq.
28 South Pitt Street
Carlisle, PA 17013
Attorney for Defendants Lantz
John M. Abel, Esq.
Deputy Attorney General
Commonwealth of Pennsylvania
Office of the Attorney General
Torts Litigation Section
15th Floor, Strawberry Square
Harrisburg, PA 17120
Attorney for Defendant, Department
of Transportation
Michael D. Rentschler, Esq.
3211 North Front Street
Harrisburg, PA 17108
Attorney for Defendant Weaver
James M. Sheehan, Esq.
320E Market Street
P.O. Box 1268
Harrisburg, PA 17108-1268
Attorney for Defendants
Dickinson Township
Deborah E. Smith
156 South Hanover Street
Carlisle, Pa 17013
Defendant
: rc
KELLY D. MESSIER, : IN THE COURT OF COMMON PLEAS OF
Individually and as Executrix : CUMBERLAND COUNTY, PENNSYLVANIA
of the Estate of Steven A. :
Messier, Deceased, :
Plaintiff :
:
v. : CIVIL ACTION - LAW
:
DEBORAH E. SMITH, RICHARD :
LEE WEAVER, DELANO M. :
LANTZ and DONORE J. LANTZ, :
his wife, DEPARTMENT OF :
TRANSPORTATION OF THE :
COMMONWEALTH OF PENNSYLVANIA, :
and DICKINSON TOWNSHIP, :
Defendants : NO. 1768 CIVIL 1993
IN RE: MOTION OF DEFENDANT DICKINSON TOWNSHIP FOR
SUMMARY JUDGMENT; and MOTION OF DEFENDANTS DELANO M. LANTZ
and DONORE J. LANTZ FOR SUMMARY JUDGMENT
BEFORE HESS* and OLER, JJ.
OPINION and ORDER OF COURT
Oler, J.
This case is a negligence action arising out of a two-car
collision in Dickinson Township in which Deborah E. Smith
(Defendant-Smith) was the driver of one of the vehicles and Steven
A. Messier (Decedent) was her passenger. Presently before the
Court are motions for summary judgment filed by Defendant Dickinson
Township and by Defendants Delano M. Lantz and Donore J. Lantz
(Defendants-Lantz). For the reasons stated in this Opinion, both
motions will be denied.
STATEMENT OF FACTS
Plaintiff is Kelly D. Messier, an adult individual residing at
183 Prospect Street, Ashland, Massachusetts; she is the widow, and
*Hess, J., did not participate in the consideration or
disposition of this case.
NO. 1768 CIVIL 1993
executrix of the estate, of Decedent. Defendant Dickinson Township
is a municipal body organized and existing under the laws of the
Commonwealth of Pennsylvania, with offices at 219 Mountainview
Road, Mount Holly Springs, Cumberland County, Pennsylvania.
Defendants-Lantz are a married couple, residing at 603 West Old
York Road, Carlisle, Cumberland County, Pennsylvania.
The accident precipitating this action occurred on Monday,
February 8, 1993, at approximately 6:00 p.m., in Dickinson
Township, Cumberland County, Pennsylvania. At that time,
Defendant-Smith and Decedent were travelling south on Burnthouse
Road, a two-way highway under the care and control of Dickinson
Township. Defendant-Smith was the driver of the vehicle, and
Decedent was in the front passenger's seat. They were co-workers
in the employ of Facilities Resource Management Company and were on
their way to pick up another fellow employee en route to Gettysburg
College to make a presentation on behalf of their employer. At
this same time, Richard Lee Weaver (Defendant-Weaver) was operating
a 1985 Ford Econoline van in an eastbound direction on West Old
York Road (SR 174), a two-way highway under the care and control of
the Pennsylvania Department of Transportation. At the intersection
of Burnthouse Road and SR 174, the vehicles driven by Defendant-
Smith and Defendant-Weaver collided, resulting in the death of
Decedent.
According to Defendant-Smith, as she approached the
2
NO. 1768 CIVIL 1993
intersection of Burnthouse Road and SR 174, she encountered a stop
sign.~ The stop sign was positioned 27 feet, 11 inches back from
the intersection.2 Additionally, on the northwest corner of the
intersection were a fence and some trees on the private property of
Defendants-Lantz.3
Defendant-Smith testified that she could not recall exactly
where she stopped in her approach to the intersection in question,
but that it was somewhere between the stop sign and the yellow line
in the middle of SR 174.4 In response to a question as to why she
did not stop at the stop sign, Defendant-Smith responded that "you
couldn't see in either direction if you were to stop at the stop
sign."s Moreover, she testified that, even after pulling forward
to a point where she felt she could see far enough in both
directions on SR 174 to make a judgment as to whether to proceed,
there was some obstruction caused by a fence on her right.6 The
fence was on the property of Defendants-Lantz, and the vehicle of
~ Deposition of Deborah E. Smith, February 24, 1994, N.T. 9
(hereinafter Smith Depo., N.T. ~.).
2 Deposition of Leonard Lander, February 24, 1994, N.T. 20
(hereinafter Lander Depo., N.T. __.).
3 Deposition of Delano M. Lantz, July 7, 1994, N.T. 15-18
(hereinafter Lantz Depo., N.T. __.).
Smith Depo., N.T. 9.
Smith Depo., N.T. 11.
Smith Depo., N.T. 28-29.
3
NO. 1768 CIVIL 1993
Defendant-Weaver was approaching from her right. According to
Defendant-Smith, at no time did she see Defendant-Weaver's vehicle
approaching.
Trooper Leonard Lander of the Pennsylvania State Police, who
investigated the accident, testified that, if a person stops at the
stop sign in question, there is a blind spot preventing the person
from seeing to his or her west.? According to Trooper Lander, this
blind spot is caused by the fence and a line of trees on the
property of Defendants-Lantz.8 There had been talk around the
barracks to which Trooper Lander was assigned that the intersection
in question was a "bad" intersection, because in order to see to
the right an individual in Defendant-Smith's situation had to pull
up beyond the stop sign to the intersection.9 Trooper Lander also
testified, however, that the positioning of the stop sign and fence
did not make it more difficult for a driver to see clearly to the
right, since just prior to entering the intersection one could see
to the right.~°
By letter dated May 15, 1986, Defendants-Lantz notified
Dickinson Township of the alleged dangerous condition of the
Lander Depo., N.T. 21-22.
Lander Depo., N.T. 21-22.
Lander Depo., N.T. 22-24.
Lander Depo., N.T. 41.
4
NO. 1768 CIVIL 1993
intersection in question.~ According to Defendant-Delano M. Lantz,
the Township responded by sending several letters.~2 He recalled
that there might have been some discussions with Roy Shambaugh,
Dickinson Township Secretary at the time, to the effect that the
State controlled any decisions with regard to speed limits and the
posting of signs along SR 174, and, specifically, at the
intersection in question.TM Correspondence was sent by the
Dickinson Township Board of Supervisors to PennDot concurring in
the letter of Defendants-Lantz as to the condition of the
intersection.TM PennDot responded by letter dated June 12, 1986,
after performing engineering studies, advising that a multi-way
stop was not justified at the intersection in question, and that
the lowest measured sight distance from Burnthouse Road exceeded
the minimum safe stopping sight distance required when travelling
55 mph.~5 It was also concluded by PennDot that a 45-mph speed
limit was justified on SR 174.~6
Following the accident which is the subject of this lawsuit,
Plaintiff had an engineering report prepared with regard to the
Lantz Depo., Exhibit 1.
Lantz Depo., N.T. 9-10.
Lantz Depo., N.T. 9-10.
Deposition of Ronald C. Wolf, October 12, 1994, Exhibit 1.
Lantz Depo., Exhibit 3.
Id.
5
NO. 1768 CIVIL 1993
accident.~7 The engineer concluded that the available sight
distance to the right was not safe for a posted speed of 24 mph,
let alone the 45-mph speed limit on Burnthouse Road.~8
The procedural history of this case with regard to Defendant
Dickinson Township and Defendants-Lantz is as follows: Plaintiff
filed a complaint on May 27, 1993. As to Defendant-Dickinson
Township, Plaintiff averred that the municipality was negligent in
the following respects:
a. Allowing a dangerous condition to exist at
the aforementioned intersection;
b. Failing to exercise its authority to
require Defendants Lantz to remove the sight
obstructions on their premises which
substantially contributed to the dangerous
condition existing at said intersection;
c. Failing to warn the motoring public of
said dangerous intersection;
d. Failing to insure the existence of minimum
safe sight distances as defined in Chapter 441
of the Pennsylvania Code; and
e. Failing to take necessary and reasonable
steps to improve the safety of the
intersection.~9
As to Defendants-Lantz, Plaintiff alleged that they were
negligent in the following respects:
~7 See Affidavit, Preliminary Engineer's Report of the Steven
Messier Accident.
~8 Affidavit, Preliminary Engineer's Report of the Steven
Messier Accident, at 5.
~9 Plaintiff's Complaint, paragraph 23.
6
NO. 1768 CIVIL 1993
a. Erecting or otherwise maintaining the
fence;
b. Planting or otherwise maintaining the
numerous trees;
c. Failing to recognize that the existence of
said trees and fence posed an unreasonable
risk of harm to the motoring public;
d. Failing to move, remove or otherwise alter
the fence to improve the visibility at the
intersection;
e. Failing to remove, trim or otherwise alter
the trees to improve the visibility at the
intersection;
f. Creating or maintaining the condition
which posed an unreasonable risk of harm to
the motoring public.2°
Defendant-Smith filed cross-claims against Defendant Dickinson
Township and Defendants-Lantz. Defendants-Lantz filed an answer to
Plaintiff's complaint on June 29, 1993, denying that the fence and
trees on their property were an obstruction to visibility at the
intersection.2~ Defendant Dickinson Township filed an answer with
new matter and cross-claims against all other defendants on June
30, 1993, asserting immunity pursuant to the Political Subdivision
Tort Claims Act.22
Presently before the Court is a motion for summary judgment of
Plaintiff's Complaint, paragraphs 16-17.
Answer of Defendants-Lantz, paragraph 16.
See Answer of Defendant, Dickinson Township with New Matter
and Crossclaim; Act of October 5, 1980, P.L. 693, §221(1), 42 Pa.
C.S. ~8541 et. seq.
7
NO. 1768 CIVIL 1993
Dickinson Township, contending that (1) Dickinson Township is
entitled to immunity pursuant to the Political Subdivision Tort
Claims Act; (2) Dickinson Township had no duty to remove or order
removed the vegetation or fence that allegedly obstructed the sight
distance at the intersection in question; (3) Dickinson Township
had no actual or constructive notice of the hazards within its
control at the intersection in question; (4) Dickinson Township was
under no duty to erect, re-position, or supplement traffic control
devices at the intersection in question; and (5) the injury and
death of Decedent was not caused by the negligent acts of Dickinson
Township or its employees.23 Also before the Court is a motion for
summary judgment of Defendants-Lantz, contending that they are
entitled to judgment as a matter of law because they were not
negligent in the maintenance of their property and because any
obstruction to visibility was not the proximate cause of the
accident.24
DISCUSSION
Motion for Summary Judqment. Pennsylvania Rule of Civil
Procedure 1035(b) provides that summary judgment "shall be rendered
if the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, show that
23 See Motion of Dickinson Township for Summary Judgment.
~4 See Motion for Summary Judgment of Defendants-Lantz,
paragraphs 8-9.
8
NO. 1768 CIVIL 1993
there is no genuine issue as to any material fact and that the
moving party is entitled to judgment as a matter of law." In this
regard, "[t]he moving party has the burden of proving the non-
existence of any genuine issue of fact." Thompson Coal Co. v. Pike
Coal Co., 488 Pa. 198, 204, 412 A.2d 466, 468-469 (1979). "A fact
is 'material' if its determination could affect the outcome of the
case, and a dispute concerning a material fact is 'genuine' where
the evidence is such that a reasonable jury could return a verdict
for the non-moving party." Barlow v. Greenridge Oil Co., 744 F.
Supp. 108, 110 (W.D. Pa. 1990), citing Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 106 S. Ct. 2505, 91L. Ed. 2d 202 (1986).
Additionally, "It]he record must be examined in the light most
favorable to the non-moving party." Schacter v. Albert, 212 Pa.
Super. 58, 62, 239 A.2d 841, 843 (1986). "All doubts as to the
existence of a genuine issue of a material fact must be resolved
against the moving party." Thompson Coal Co. v. Pike Coal Co., 488
Pa. 198, 204, 412 A.2d 466, 469 (1979). A court should grant
summary judgment "only in the clearest of cases, where the right is
clear and free from doubt." Id.
Motion of Dickinson Township for Summary Judqmen~.
Pennsylvania municipalities are generally provided with immunity
from tort claims under the Political Subdivision Tort Claims Act
contained in the Judicial Code, which provides in part as follows:
Except as otherwise provided in this
subchapter, no local agency shall be liable
9
NO. 1768 CIVIL 1993
for any damages on account of any injury to a
person or property caused by any act of the
local agency or an employee thereof or any
other person.2s
Exceptions to this immunity are provided for in Section 8542
of the Judicial Code, which states, in part:
(a) Liability imposed. - A local agency
shall be liable for damages on account of an
injury to a person or property within the
limit set forth in this subchapter if both of
the following conditions are satisfied and the
injury occurs as a result of one of the acts
set forth in subsection (b):
(1) The damages would be
recoverable under common law or a
statute creating a cause of action
if the injury were caused by a
person not having available a
defense under section 8541 (relating
to governmental immunity generally)
or section 8546 (relating to defense
of official immunity); and
(2) The injury was caused by
the negligent acts of the local
agency or an employee thereof acting
within the scope of his office or
duties with respect to one of the
categories listed in subsection (b).
As used in this paragraph,
"negligent acts" shall not include
acts or conduct which constitutes a
crime, actual fraud, actual malice
or willful misconduct.2~
Subsection (b) of Section 8542 provides that "[t]he following
2s Act of October 5, 1980, P.L. 693, §221(1), 42 Pa. C.S.
§8541.
~6 Act of October 5, 1980, P.L. 693, ~221(1), as amended, 42
Pa. C.S. ~8542(a).
10
NO. 1768 CIVIL 1993
acts by a local agency or any of its employees may result in the
imposition of liability on a local agency: ...
(6) Streets. -
(i) A dangerous condition of streets
owned by the local agency, except
that the claimant to recover must
establish that the dangerous
condition created a reasonably
foreseeable risk of the kind of
injury which was incurred and that
the local agency had actual notice
or could reasonably be charged with
notice under the circumstances of
the dangerous condition at a
sufficient time prior to the event
to have taken measures to protect
against the dangerous condition.27
In a case with facts similar to those alleged in the present
action, the Pennsylvania Supreme Court has recently held that a
county has a duty to make its highways reasonably safe for their
intended purpose. McCalla v. Mura, Pa. , 649 A.2d 646, 649
(1994); see also Cook v. South Middleton Township, No. 2283 Civil
1992 (Cumberland Co.)(March 24, 1995) (Bayley, J.). In McCalla, a
collision occurred at the intersection of a state road and a county
road. In a subsequent action for damages, the state attempted to
join the county as an additional defendant, arguing that its
defective design of traffic control devices on the road it
controlled was a proximate cause of the accident. The county
27 Act of October 5, 1980, P.L. 693, S221(1), as amended, 42
Pa. C.S. S8542(b)(6)(i).
11
NO. 1768 CIVIL 1993
responded that it had no statutory or common law duty to erect any
traffic control devices at the intersection. The trial court, in
an order affirmed by the Commonwealth Court, granted the county's
preliminary objections. In reversing the order of affirmance by
the Commonwealth Court, the Supreme Court cited its earlier
decision in Bendas v. Township of White Deer, 531 Pa. 180, 611A.2d
1184 (1992).
In Bendas, the Court had noted that the Commonwealth owed a
duty to those using its real estate to keep the property safe for
the purposes for which it was regularly intended to be used,
regularly used, or reasonably foreseen to be used. Id. at 183, 611
A.2d at 1186. In McCalla, the Court observed that in Bendas it
decidedthat failure to exercise the duty "may create a 'dangerous
condition' to the Commonwealth's real estate, highway or sidewalk,
and expose the Commonwealth to liability under an exception to the
Sovereign Immunity Act, 42 Pa. C.S. Section 8522(b)(4) and most
importantly decided that the question of what constitutes a
'dangerous condition' is one of fact for a jury to decide."
McCalla v. Mura, Pa. , , 649 A.2d 646, 649 (1994),
quoting Bendas v. Township of White Deer, 531 Pa. 180, 184-85, 611
A.2d 1184, 1186-87 (1992). The Bendas Court had therefore held
that summary judgment was inappropriate where there was arguably a
dangerous highway condition caused by action or inaction on the
part of the State.
12
NO. 1768 CIVIL 1993
Although in Bendas the Court was interpreting the Sovereign
Immunity Act,28 the Bendas rationale was applied in McCalla, which
involved the Political Subdivision Tort Claims Act, because the two
acts were similar and the Court had previously held that they
should be interpreted consistently. McCalla v. Mura, Pa... ,
· , 649 A.2d 646, 649 (1994); see also Crowell v. Philadelphia,
531 Pa. 400, 410 n.8, 613 A.2d 1178, 1183 n.8 (1992). The McCalla
Court concluded that the county "does have a duty to make its
highways safe for their intended purpose, and [that,] since the
question of what is or is not a dangerous condition must be
answered by a jury," the county's preliminary objections should
have been denied. McCalla, Pa. at , 649 A.2d at 649.
On the basis of the foregoing authority, we cannot grant
Dickinson Township's motion for summary judgment. The claim
against Dickinson Township arguably falls within the exception to
immunity provided for in 42 Pa. C.S. §8542(b)(6). Dickinson
Township arguably had a duty to Plaintiff to maintain its highways
in a safe condition, including an obligation to place traffic
control devices in proper locations. Since the failure to do so
could create a dangerous condition, and since a determination as to
what constitutes a dangerous condition is generally a matter for
the jury, summary judgment in favor of Defendant-Township would be
28 Act of October 5, 1980, P.L. 693, ~221(1), as amended, 42
Pa. C.S. ~8521 et. seq.
13
NO. 1768 CIVIL 1993
inappropriate.
Motion of Defendants-Lantz for Summary Judgment. Section
6112(a) of the Vehicle Code imposes a duty on a landowner to remove
certain traffic hazards under certain circumstances:
(a) General rule. -- It is the duty of the
owner of real property to remove from the
property any tree, plant, shrub or other
similar obstruction, or part thereof, which by
obstructing the view of any driver constitutes
a traffic hazard.29
Moreover, this duty is also to be found in the common law. In
Hudson v. Grace, the Pennsylvania Supreme Court held that
one who is in possession of land adjacent or
in close proximity to a public highway must
exercise reasonable care to avoid injury to
the travelling public arising from
unnecessarily dangerous conditions created by
him on the land, where the consequences of a
failure to do so are reasonably foreseeable.
Hudson v. Grace, 348 Pa. 175, 180, 34 A.2d 498, 501 (1943).
In Harvey v. Hanson, 299 Pa. Super. 474, 445 A.2d 1228 (1982),
Plaintiff brought a negligence action against a landowner for
maintenance of his land in a way which allegedly obstructed her
view as she entered an intersection. In reversing the trial
court's order granting summary judgment in favor of the landowner,
the Pennsylvania Superior Court held that the issue of causation in
such circumstances was one for the jury. Harvey v. Hanson, 299 Pa.
Super. 474, 445 A.2d 1228 (1982).
Act of June 17, 1976, P.L. 162, ~1, 75 Pa. C.S. ~6112(a).
14
NO. 1768 CIVIL 1993
In the present case, several factors militate against granting
summary judgment in favor of Defendants-Lantz. Defendant-Smith
testified that, even when she pulled out to what she considered a
safe distance, her view was still obstructed by the fence on the
property of Defendants-Lantz. Trooper Lander testified that it was
necessary to pull up beyond the stop sign in order to get a clearer
view. Finally, an engineer retained by Plaintiff following the
accident concluded that there was not a sufficient sight-line at
the intersection. The question of whether such evidence was
indicative of causal negligence on the part of Defendants-Lantz is,
we believe, one for the trier of fact.
ORDER OF COURT
AND NOW, this [~ day of April, 1995, after careful
consideration of Defendants' motions for summary judgment, and for
the reasons stated in the accompanying Opinion, it is ORDERED as
follows:
1. The motion of Defendant Dickinson Township for summary
judgment is DENIED; and
2. The motion of Defendants Delano M. and Donore J. Lantz for
summary judgment is DENIED.
BY THE COURT,
s/ J. Wesley Oler, Jr.
Wesley Oler, Jr., J.
15
Edward E. Guido, Esq.
26 West High Street
Carlisle, PA 17013
Attorney for Plaintiff
William A. Addams, Esq.
28 South Pitt Street
Carlisle, PA 17013
Attorney for Defendants Lantz
John M. Abel, Esq.
Deputy Attorney General
Commonwealth of Pennsylvania
Office of the Attorney General
Torts Litigation Section
15th Floor, Strawberry Square
Harrisburg, PA 17120
Attorney for Defendant, Department
of Transportation
Michael D. Rentschler, Esq.
3211 North Front Street
Harrisburg, PA 17108
Attorney for Defendant Weaver
James M. Sheehan, Esq.
320E Market Street
P.O. Box 1268
Harrisburg, PA 17108-1268
Attorney for Defendants
Dickinson Township
Deborah E. Smith
156 South Hanover Street
Carlisle, Pa 17013
Defendant
: rc