The opinion of the court was delivered by: Judge Friedman
Argued: November 13, 2008
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, President Judge HONORABLE ROCHELLE S. FRIEDMAN, Judge (P) HONORABLE ROBERT SIMPSON, Judge.
Daniel and Debra Clark (the Clarks) appeal from the January 3, 2008, order of the Court of Common Pleas of Bucks County (trial court) that denied the Clarks' motion for post-trial relief requesting the removal of a compulsory non-suit granted in favor of the Department of Transportation (DOT). We affirm.
This case arises from a tragic single-vehicle accident. On July 19, 2002, during a summer storm, Debra Clark was driving westbound on Street Road, a state highway located in Warrington Township; her nineteen-year-old son, Daniel, was riding in the front passenger's seat. As the Clarks' vehicle approached the intersection of Street Road and Griffiths Road, a decayed tree fell across Street Road, striking the car and crushing its roof. Daniel suffered a spinal cord injury and was rendered a paraplegic as a result of the accident.
DOT's right-of-way on Street Road measures sixteen and one half feet in either direction from the center line. The trunk of the tree that fell was located approximately thirty-five feet from the center line and had a limb that overhung Street Road, extending to the center line. When the tree fell, it separated from its trunk base, leaving an eleven-foot stump located eighteen and one half feet beyond DOT's right-of-way on property owned by Karl and Edeltraud Miller.
On June 27, 2003, the Clarks filed a personal injury action against DOT, alleging that the accident and resulting injuries were a direct and proximate result of DOT's negligent failure to maintain Street Road in a safe condition. Specifically, the Clarks alleged that DOT: failed to correct a known, defective condition of the state highway; permitted a decayed tree to overhang its right-of-way, thereby creating a hazardous condition at the accident site; failed to warn traveling motorists about the hazardous condition of the tree; failed to discover the hazardous condition existing at the accident site; failed to properly maintain the tree, thereby exposing vehicles to danger; and violated DOT regulations relative to state highway maintenance. (Complaint, ¶26, R.R. at 21a-22a.)
The case ultimately proceeded to trial, which commenced before a jury on November 28, 2007.*fn1 At the close of all the evidence, DOT moved for a compulsory non-suit pursuant to Pa. R.C.P. No. 230.1.*fn2 Stressing that the tree that injured Daniel Clark was not located on Commonwealth property, the trial court concluded that the Clarks did not introduce evidence sufficient to establish a waiver of DOT's sovereign immunity and granted a non-suit in DOT's favor. By order dated January 3, 2008, the trial court denied the Clarks' post-trial motion to remove the non-suit and, subsequently, entered judgment for DOT. The Clarks now appeal to this court.*fn3
The Clarks argue that the trial court erred in granting DOT's motion for compulsory non-suit, thereby removing from jury consideration the question of whether, under the circumstances presented, the tree and/or limb constituted a dangerous condition of Commonwealth real estate so as to fall within the real estate exception to sovereign immunity.*fn4
Initially, we point out that Commonwealth parties, including DOT, generally are immune from tort liability under sections 8521-8528 of the Judicial Code, 42 Pa. C.S. §§8521-8528, commonly known as the Sovereign Immunity Act (Act). Pursuant to section 8522(a) of the Act, the defense of sovereign immunity is waived only for damages arising out of a negligent act where the common law or a statute would permit recovery if the injury were caused by a person not protected by sovereign immunity. 42 Pa. C.S. §8522(a). To hold the Commonwealth party liable, the plaintiff also must establish that the cause of action falls under one of the exceptions to sovereign immunity contained in section 8522(b), 42 Pa. C.S. §8522(b). Because the clear intent of the legislature is to insulate government from exposure to tort liability, the exceptions to sovereign immunity are to be strictly construed. Dean v. Department of Transportation, 561 Pa. 503, 751 A.2d 1130 (2000).
In this case, the Clarks contend that their cause of action falls within the exception to immunity at 42 Pa. C.S. §8522(b)(4), which provides as follows:
(b) Acts which may impose liability.-The following acts by a Commonwealth party may result in the imposition of liability on the Commonwealth and the defense of sovereign immunity shall not be raised to claims for damages caused by: .
(4) Commonwealth real estate, highways and sidewalks.-
A dangerous condition of Commonwealth agency real estate and sidewalks, including Commonwealth-owned real property, leaseholds in the possession of a Commonwealth agency and Commonwealth-owned real property leased by a Commonwealth agency to private ...