December 8, 2008
DANIEL CLARK AND DEBRA CLARK, APPELLANTS
PENNSYLVANIA DEPARTMENT OF TRANSPORTATION, WARRINGTON TOWNSHIP, CARL & EDELTRAUD MILLER
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 persons, and highways under the jurisdiction of a Commonwealth agency..
The Clarks argue that DOT's negligent actions clearly are encompassed within this exception to sovereign immunity. In support of this position, the Clarks rely on the testimony of Karl Miller. Mr. Miller stated that he was worried that the eight-inch diameter limb overhanging Street Road would cause considerable damage if it fell and hit a car, (N.T., 11/29/07, at 11-13, R.R. at 112a-14a), and he called DOT to inform it of this allegedly dangerous condition months prior to the accident.*fn5 The Clarks point out that, despite having this actual, advance notice, DOT failed to remove, or even investigate, this allegedly dangerous tree/limb, an omission that contravened their operational duties, as described by members of DOT's roadside maintenance workers*fn6 and as set forth in Chapter 13 of DOT's maintenance manual.*fn7
We disagree that such evidence is sufficient to bring the Clarks' action within the real estate exception to sovereign immunity.
Our Supreme Court addressed the real estate exception to sovereign immunity in the context of a Commonwealth roadway in Snyder v. Harmon, 522 Pa. 424, 562 A.2d 307 (1989). In that case, three people were seriously injured and one person was killed when they fell into a strip mine that was adjacent to a state highway and seven feet outside DOT's right-of-way. The court in Snyder determined that pursuant to the unambiguous language of the real estate exception to sovereign immunity found at 42 Pa. C.S. § 8522(b)(4), "a dangerous condition must derive, originate from or have as its source the Commonwealth realty." Snyder, 522 Pa. at 433, 562 A.2d at 311 (emphasis added). See also Jones v. Southeastern Pennsylvania Transportation Authority, 565 Pa. 211, 772 A.2d 435 (2001). Thus, the court rejected the plaintiffs' assertion that the close proximity between the state highway and the hazardous condition outside DOT's right-of-way presented an inherently dangerous condition of Commonwealth real estate.*fn8 In doing so, the court stressed that the plaintiffs did not base DOT's liability on a defective condition of Commonwealth land but, rather, on DOT's failure to take action to prevent harm from occurring when it knew or should have known of an inherently dangerous condition on land contiguous with Commonwealth property. The court observed that, "[w]hile this theory appears attractive, it is not supported by any exception to our immunity statute." Snyder, 522 Pa. at 435, 562 A.2d at 312.
This court applied the reasoning of Snyder in Marker v. Department of Transportation, 677 A.2d 345 (Pa. Cmwlth.), appeal denied, 546 Pa. 671, 685 A.2d 549 (1996). In that case, Mrs. Marker was driving on a state highway when a tree fell on her car and caused her death. Mr. Marker filed an action against DOT asserting negligent maintenance of the highway and adjacent property, and the jury rendered a verdict in his favor. The trial court upheld the verdict, rejecting as immaterial DOT's contention that the real estate from which the tree grew was outside DOT's right-ofway. However, relying on Snyder, this court stated:
[C]ontrary to the trial court's opinion . the characterization of the real estate from which a dangerous condition derives or originates from is material. If the real estate in question from which the dangerous condition derives, originates from or has as its source is not Commonwealth realty, then the Commonwealth cannot be held liable under the real estate exception to sovereign immunity.
Marker, 677 A.2d at 348. Because Mr. Marker failed to establish that the tree which fell and killed Mrs. Marker was located on Commonwealth realty, this court reversed and remanded for a judgment in favor of DOT. In doing so, we refused to evaluate DOT's duties imposed by its maintenance manuals to inspect property adjacent to highways for potential harm to users of the Commonwealth highways.
Like the plaintiff in Marker, the Clarks argue that DOT is liable because its failure to remove an allegedly dangerous limb overhanging its right-of-way violated the duties set forth in DOT's maintenance manuals. However, as in Marker, any such duties become relevant only if the Clarks satisfy the threshold legal requirement that there be a dangerous condition of Commonwealth realty; otherwise, the issue of duty is moot. Snyder; Dean. Our courts have consistently held that liability depends, first, "on the legal determination that an injury was caused by a condition of government realty itself, deriving, originating from, or having the realty as its source, and, only then, the factual determination that the condition was dangerous."*fn9 Jones, 565 Pa. at 221, 772 A.2d at 441 (quoting Finn v. City of Philadelphia, 541 Pa. 596, 605, 664 A.2d 1342, 1346 (1995)). (Emphasis added.) Here, the Clarks failed to present evidence to prove that the decayed tree trunk that caused Daniel Clark's tragic injuries derived, originated from, or had as its source Commonwealth realty; thus, the trial court properly granted non-suit in favor of DOT. Snyder.
The Clarks' attempt to liken the present case to the situation in Patton v. Department of Transportation, 669 A.2d 1090 (Pa. Cmwlth. 1996), reversed on other grounds, 546 Pa. 562, 686 A.2d 1302 (1997), must fail. In that case, the plaintiff's decedent was killed when a large tree limb overhanging the state highway fell onto her car. The evidence demonstrated that the tree itself was within DOT's right-ofway. We held that the evidence also supported a finding that the presence of the tree limb constituted a dangerous condition (due to the topping of the tree and the disproportionate size of the limb) and that DOT's failure to remove the branch prior to the accident was the type of negligence for which immunity was waived by section 8522(b)(4).
Patton is distinguishable because, in that case, the overhanging limb grew from a tree that was within the Commonwealth right-of-way, the overhanging limb constituted a dangerous condition of the road and the overhanging limb caused the fatal injuries when it fell and hit the car. In contrast, the record in the present case contains no evidence that any portion of the tree which overhung Street Road constituted a dangerous condition. Moreover, there is no evidence that any limb which overhung DOT's right-of-way separated from the decayed tree and impacted the Clarks' vehicle. Instead, the evidence established that the tree separated from its trunk and fell as a single unit from the Millers' property, well outside DOT's right-ofway. Therefore, as a matter of law, the Clarks cannot overcome DOT's entitlement to sovereign immunity.
Accordingly, we affirm.
AND NOW, this 8th day of December, 2008, the order of the Court of Common Pleas of Bucks County, dated January 3, 2008, is hereby affirmed.
ROCHELLE S. FRIEDMAN, Judge