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10/10/97 NELLIE L. WALLACE v. DEPARTMENT

October 10, 1997

NELLIE L. WALLACE, ADMINISTRATRIX OF THE ESTATE OF ANDREW J. WALLACE, DECEASED, APPELLANT
v.
THE DEPARTMENT OF TRANSPORTATION OF THE COMMONWEALTH OF PENNSYLVANIA; THE CITY OF EASTON; JOHN DOE, EMPLOYEE OF THE COMMONWEALTH OF PENNSYLVANIA; AND JOHN DOE, EMPLOYEE OF THE CITY OF EASTON



Appealed From No. 1995-C-8190. Common Pleas Court of the County of Northampton. Judge MORAN.

Before: Honorable Doris A. Smith, Judge, Honorable Dan Pellegrini, Judge, Honorable Emil E. Narick, Senior Judge. Opinion BY Judge Pellegrini.

The opinion of the court was delivered by: Pellegrini

OPINION BY JUDGE PELLEGRINI

FILED: October 10, 1997

Nellie L. Wallace, Administratrix of the estate of Andrew J. Wallace, (Decedent), appeals an order of the Court of Common Pleas of Northampton County (trial court), granting the Department of Transportation's (Department) motion for summary judgment and dismissing Wallace's complaint.

Decedent was driving on State Route 611 in Easton when his car allegedly struck either a pothole or the curb causing him to lose control of the vehicle, which crossed three feet of grass, knocked over a chain link fence, and plummeted into the Delaware River, causing him to drown. Route 611 was a road that the Department "adopted" from the City of Easton pursuant to what is commonly known as Act 262 of the State Highway Law. *fn1 Under Sections 521 and 522 of the State Highway Law, *fn2 the Department assumes responsibility for the "base [and] surface courses" ... "between the curb lines" but assumes no duty for traffic regulations, parking or the general use of the streets.

Wallace filed a wrongful death action against the Department and Easton *fn3 alleging that Decedent "lost control of the operation of the car when one of its wheels struck either a pothole or the curb alongside the highway." Wallace also alleged that the Department, *fn4 among other things, failed to install a barrier to prevent cars from leaving the road.

The Department filed preliminary objections to the complaint alleging Wallace had failed to assert a duty owed to Decedent that had been breached. It alleged that the allegations of the complaint did not fall within the real estate exception to immunity under Section 8522(b)(4) of the Sovereign Immunity Act. *fn5 It also demurred because, under Sections 521 and 522 of the State Highway Law, it has no duty to regulate traffic, parking or the general use of the streets and is responsible only for the base or surface courses "between curb lines."

In determining whether the conduct fell within the real estate exception, the trial court granted the Department's preliminary objection to Wallace's contention that it had been negligent in failing to install a guardrail based on this Court's decision in Rothermel v. Department of Transportation, 672 A.2d 837 (Pa. Commw. 1996). Under Rothermel, the real estate exception to immunity only applies when the dangerous condition or defect actually causes rather than just facilitates the injury. The trial court also held that the State Highway Law limited the duty of the Department to the maintenance of the base and surface courses of the roadway, and that it had no duty to make the road safe for third parties beyond the duty to make the surface courses in good repair. However, because the curb and pothole were defects of the highway itself, the trial court allowed those claims to proceed.

When the case was called for trial, the Department made an oral motion for summary judgment contending that Wallace had not been able to submit an expert report that the curbing in issue was the cause of the accident, cause of the automobile leaving the highway, and the eventual cause of Decedent's death. The trial court granted the Department's motion because Wallace could present no evidence in support of her contention that a pothole or defective curb caused the accident, and it dismissed the remainder of Wallace's complaint and entered judgment for the Department and against Wallace. This appeal followed. *fn6

No longer contending that the cause of the accident was a pothole or defective curb, Wallace contends before us that the trial court erred in granting the preliminary objections to her allegation that the Department failed to properly construct or maintain a guardrail. She argues that this Court's decision in Rothermel v. Department of Transportation, (supra) , is contrary to the legislative intent of the Sovereign Immunity Act and should be overruled, because it looks only to the cause of the accident, not the injury, and further limits recovery only to those injuries caused directly by the real estate, even when the Department's negligence constitutes a substantial, contributing factor.

Even if we were to assume that Rothermel should be reversed, and that the alleged cause of the accident fell within the real estate exception to immunity, Wallace would still have to establish negligence at common law. To do so, Wallace must establish that, among other things, the Department breached "a duty or obligation recognized by the law, requiring [it] to conform to a certain standard of conduct, for the protection of others against unreasonable risks." Morena v. South Hills Health System, 501 Pa. 634, 462 A.2d 680 (1983). The fundamental inquiry here then is whether there exists a duty which flows from the Department to Wallace. See Bendas v. Township of White Deer, 531 Pa. 180, 611 A.2d 1184 (1992).

The Department argues that Wallace has failed to establish that it owed Decedent any duty since, under Section 521 of the State Highway Law, the Department's duty with respect to the state road is specifically and narrowly limited. ...


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