Appeals from the Order of the Court of Common Pleas of Centre County in case of Helen L. Phillips, Administrator of the Estate of Vaughn E. Phillips, Deceased v. Commonwealth of Pennsylvania, Pennsylvania Department of Transportation, David Bobanik, P. Assistant District Engineer, Geme Zazworksy, P. District Maintenance Engineer, Arthur H. Reede, Jr., PennDOT County Superintendent, Lewis G. Kerstetter, PennDOT Assistant County Superintendent, William Lucas, PennDOT Employee, Carl E. McCartney, Joel Confer, AMC, Inc., Joel Confer Toyota, Inc., David Z. Ebersole and Leah K. Ebersole, Abram B. Ebersole, Logan Fire Co. No. 1, Robert Monsell, Fire Company President, and Earl Shultz, Fire Company Fire Chief, Walker Township Fire Co. and Protective Services, Inc., No. 1978-3270.
Randall G. Gale, Deputy Attorney General, with him, Mark E. Garber, Jr., Acting Chief, Torts Litigation Unit, and LeRoy S. Zimmerman, Attorney General, for appellants/appellees, Commonwealth of Pennsylvania, Department of Transportation, and Lewis G. Kerstetter.
Charles J. Weyandt, Dunaway, Weyandt, McCormick & Jones, for appellants/appellees, Joel Confer, AMC, Inc., and Joel Confer Toyota, Inc.
H. Amos Goodall, Jr., Miller, Kistler & Campbell, Inc., for appellants/appellees, Carl E. McCartney et al.
James H. Thomas, with him, Susan E. Grosh, Wenger, Byler & Thomas, for appellants/appellees, David, Leah, and Abram Ebersol.
David A. Flood, for appellant/appellee, Logan Fire Co., No. 1.
Wayne F. Shade, with him, Merritt E. McKnight, for appellee/appellant, Helen L. Phillips.
James M. Horn, McQuaide, Blasko, Schwartz, Fleming & Faulkner, Inc., for appellee, Protective Services, Inc.
Judges Williams, Jr. and Barry and Senior Judge Blatt, sitting as a panel of three. Opinion by Judge Barry. This decision was reached prior to the resignation of Judge Williams, Jr.
[ 87 Pa. Commw. Page 507]
These cross-appeals follow an order of the Court of Common Pleas of Centre County, dismissing exceptions filed by plaintiff Helen L. Phillips, Administratrix of the Estate of Vaughn Phillips, and various defendants. These exceptions were filed to a trial court order which entered judgment for Mrs. Phillips against defendant, Department of Transportation (DOT), in the amount of $319,419.92, defendant, Lewis G. Kerstetter, DOT Assistant County Superintendent, in the amount of $39,927.49 and defendant, Logan Fire Company No. 1 (Logan), in the amount of $39,927.49.
The facts, although somewhat complicated, are largely undisputed. Mrs. Phillips instituted a wrongful death and survival action on behalf of herself and four children against the above named original defendants for damages suffered as a result of the death of her husband in a two car accident on January 11, 1978. At about 9:30 p.m., a vehicle driven by Mr. Carl McCartney collided with a vehicle driven by Mr. Phillips on Pennsylvania Route 26, a two-lane highway. Mr. McCartney's car struck a large patch of ice just
[ 87 Pa. Commw. Page 508]
before impact, lost control, spun and hit Mr. Phillips' vehicle, killing him instantly. The collision occurred adjacent to the driveway of a farm occupied by, defendant, Abram Ebersol and owned by his parents, defendants David and Leah Ebersol.
The trial court found that various factors caused the development of the ice patch on Route 26. Natural water had run off land near the highway and settled on Route 26; heavy rain had fallen in the area on January 7 and 9, 1978. The Ebersol house had been flooded and, prior to the accident, the water from the house had been pumped onto an adjoining field, which, in turn, emptied into a drainage ditch and eventually ran onto Route 26.
When he was unable to empty all the water from his basement, Abram Ebersol sought assistance from Logan. On the afternoon of January 9, 1978, Logan pumped the water which emptied into the drainage ditch parallel to Route 26 and eventually ran underneath the highway.*fn1 Because of obstructions in the ditch, the amount of water intake was limited. Some of the water overflowed and ran onto the road before reaching a culvert in the ditch in front of the Ebersol house and some water followed the ditch to the culvert but flowed around it because of obstructions in the culvert. This water continued to flow along the road until it spilled onto Route 26 at a point where the highway intersected the Ebersol driveway.
Upon Logan's arrival, the ice patch extended six to eight feet across the road, was twelve to fifteen feet long and eight inches thick. When Logan completed the pumping, the size of the ice patch had increased to about fifty feet in length and eighteen inches in height.
[ 87 Pa. Commw. Page 509]
In fact, as the Logan truck departed, the testimony was that it drove over the ice that had already accumulated on Route 26. It was found, moreover, that, when Logan began pumping, the temperature was near the freezing point, dropped below freezing shortly thereafter, and remained below freezing until and when the collision between the two vehicles occurred.
On January 10, 1978, at approximately 6:40 p.m., nearly twenty-seven hours before the collision, a vehicle driven by Glenn W. Thompson, Jr., lost control on the ice patch and veered from the highway into an adjacent field. That evening DOT was notified of the ice condition and then dispatched a crew which placed a trestle and light directly adjacent to the ice condition at the berm of the road. DOT employees attempted unsuccessfully to activate the light and then departed, leaving the trestle with a light that did not function.
The trestles were owned and provided by defendant, Protective Services, Inc. (Protective Services), under a lease with DOT. Upon notice from DOT, Protective Services placed and maintained the trestles only at the time and for the place requested by DOT. Any trestle found by employees of Protective Services on DOT property was to be retrieved by them. The trial court found that the trestle used in this case was taken either from a DOT office in Bellefonte, Pa., or the supply shed in Snow Shoe, Pa. In any event, DOT employees both placed and removed the trestle, and DOT never advised Protective Services that this trestle and light were in use. Protective Services did not receive payment for the use of the trestle and light.
On the morning of January 11, 1978, Assistant County Superintendent Kerstetter observed the ice patch while on regular snow and ice patrol duty but did not correct the condition. In addition to placing the trestle and defective light, DOT applied salt and cinders to the ice patch.
[ 87 Pa. Commw. Page 510]
The trial court determined that DOT was 80% negligent, Mr. Kerstetter was 10% negligent and Logan was 10% negligent. The trial court found that DOT had the duty to maintain Route 26 in a reasonably safe condition and, because it breached this duty, its conduct was an immediate and substantial factor which brought about the accident and, it, therefore, was liable to Mrs. Phillips.
The trial court found Mr. Kerstetter negligent for his failure to observe the dangerous icy condition where Route 26 joins the Ebersol driveway, to adequately warn motorists about the dangerous condition, to remove the ice and to close Route 26 when unable to correct the condition.*fn2
The trial court also concluded that Logan was negligent since it knew the ice patch existed before it began and after it completed pumping Ebersol's basement because Logan's truck drove over the ice when it arrived and departed. Logan, furthermore, knew or should have known that pumping the water while the temperature fell ...