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09/11/97 DEENA SMITH AND STEVEN SMITH v.

September 11, 1997

DEENA SMITH AND STEVEN SMITH, HER HUSBAND, APPELLANTS
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION



Appealed From No. 1994-1630. Common Pleas Court of the County of Centre. Judge BROWN, JR., President Judge.

Before: Honorable James Gardner Colins, President Judge, Honorable Joseph T. Doyle, Judge, Honorable Bernard L. McGINLEY, Judge, Honorable Doris A. Smith, Judge, Honorable Dan Pellegrini, Judge, Honorable Rochelle S. Friedman, Judge, Honorable Jim Flaherty, Judge. Dissenting Opinion BY Judge Pellegrini. (Judge Doyle joins in this Dissenting opinion).

The opinion of the court was delivered by: Friedman

OPINION BY JUDGE FRIEDMAN

FILED: September 11, 1997

Deena Smith and Steven Smith, her husband, appeal from an order of the Court of Common Pleas of Centre County (trial court) which granted the Pennsylvania Department of Transportation's (DOT) motion for summary judgment and dismissed the Smiths' complaint. We reverse and remand.

On January 23, 1992, Deena Smith was a passenger in the car of her business colleague, Melissa Schmader, when Schmader lost control of her vehicle while travelling south on State Route 350. Both Smith and Schmader suffered injuries when Schmader's vehicle spun across the northbound lane and, after leaving the road, hit a tree along the east berm.

On January 19, 1992, the Smiths filed a complaint against Schmader and DOT, *fn1 alleging, inter alia, that DOT was negligent in: (1) permitting icy patches to accumulate on State Route 350, thereby causing a dangerous condition of the real estate; (2) failing to clear the roadway of the dangerous condition of ice accumulation; (3) improperly constructing and designing the highway; (4) permitting the existence of a tree in dangerously close proximity to the roadway; (5) failing to have guardrails or other barriers on the side of the road; and (6) failing to have proper signs indicating the roadway direction. (Smiths' complaint at 5-6.) In its answer, DOT specifically denied all material allegations of the Smiths' complaint.

On April 18, 1996, DOT filed a motion for summary judgment, alleging that it is immune from suit pursuant to section 8522(a) of what is commonly referred to as the Sovereign Immunity Act (Act), *fn2 and that it is not within the relevant exception set forth in section 8522(b)(4) of the Act. *fn3 Pursuant to section 8522 of the Act, 42 Pa.C.S. § 8522, determination of whether a plaintiff has stated a cause of action against a Commonwealth agency for damages arising out of a negligent act requires a two-pronged analysis. A plaintiff must first show that: (1) the damages sought would be recoverable under the common law or a statute creating a cause of action if the injury were caused by one not having available the defense of sovereign immunity; and (2) the injury falls within one of the exceptions to the sovereign immunity granted the Commonwealth. After considering the evidence, the trial court concluded that the Smiths failed to state a cause of action in negligence; *fn4 thus, the trial court granted DOT's motion for summary judgment without reaching the second prong of the analysis. It is from the trial court's order that the Smiths now appeal. *fn5

Initially, we note that summary judgment is only appropriate when, after examining the record, there is no genuine issue of material fact and the movant clearly establishes its entitlement to judgment as a matter of law. Mason & Dixon Lines, Inc. v. Mognet, 166 Pa. Commw. 1, 645 A.2d 1370 (Pa. Commw. 1994). Moreover, when considering a motion for summary judgment, the court must examine the record in the light most favorable to the nonmoving party, accepting as true all well-pleaded facts and all inferences to be drawn therefrom. Id.

On appeal, the Smiths concede that DOT owes no duty to motorists to remove natural accumulations of ice and snow. However, the Smiths contend that their complaint states a cause of action in negligence by alleging that DOT breached its common law duty under Bendas v. Township of White Deer, 531 Pa. 180, 611 A.2d 1184 (1992) to maintain State Route 350 in a condition safe for its intended purpose. The Smiths assert that, regardless of the accumulation of ice and snow, DOT's negligent construction and design of the roadway, coupled with the lack of proper signs and guardrails, was sufficient to cause the accident; thus, according to the Smiths, DOT may be held liable for Deena Smith's injuries.

In Bendas, the supreme court clearly recognized that DOT, by virtue of its administrative and advisory functions, owes a general duty to those using its real estate to ensure "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." Id. at 183, 611 A.2d at 1186 (quoting Snyder v. Harmon, 522 Pa. 424, 435, 562 A.2d 307, 312 (1989)). We agree with the Smiths that, under Bendas and Snyder, DOT's duty to make its highways safe for their intended purpose includes a duty to properly design and construct those highways. However, DOT contends, and the trial court agreed, that there is nothing in either the Smiths' allegations or their expert's report which would indicate that, "separate and apart from the icy/snowy condition of the roadway, a defect or defects caused the vehicle to slide off the roadway backwards into a tree." (DOT's brief at 7.) We disagree.

In support of their allegations of improper construction and design, the Smiths introduced an expert report, which states in relevant part that:

this comparison shows that SR 350 is substandard in pavement and shoulder width, horizontal curvature, vertical grade and clear zone width. Having a steeper grade and sharper curve with limited sight distance should have alerted PaDOT to the need to erect warning signing to alert drivers, ...


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