The opinion of the court was delivered by: Senior Judge McCLOSKEY
Submitted: January 16, 2009
BEFORE: HONORABLE DAN PELLEGRINI, Judge, HONORABLE ROBERT SIMPSON, Judge, HONORABLE JOSEPH F. McCLOSKEY, Senior Judge.
Karen L. Pritts, Administratrix, and Robert T. Caldwell, Administrator of the Estate of Autumn L. Caldwell, and as the parents and natural guardians of Autumn L. Caldwell (hereafter Appellants) appeal from the order of the Court of Common Pleas of Somerset County (trial court) that granted the motion for summary judgment filed on behalf of the Department of Transportation (DOT). We affirm.
On August 15, 2001, Appellants filed an amended complaint against DOT and Joshua McClintock. Appellants alleged that Ms. Caldwell, age seventeen, was operating a motor vehicle on "Legislative Route SR 653" when her vehicle left the highway and hit a tree located "approximately 7' 6" south of the south edge of the highway." (R.R. at 7-8). Mr. McClintock was a passenger in the vehicle. Ms. Caldwell died due to injuries sustained in the accident. Appellants alleged that DOT failed to properly maintain the highway. Alternatively, Appellants alleged that Mr. McClintock was actually operating the vehicle at the time of the accident.
DOT filed a motion for summary judgment. DOT argued that Appellants had not provided any evidence that could establish that a dangerous road condition caused the vehicle to leave the paved portion of the highway. As such, DOT alleged that it was immune from liability. Appellants' responded to the motion by alleging that Ms. Caldwell lost control of her vehicle, went down an embankment and impacted a tree, which was within DOT's right-of-way.
In his deposition testimony, Mr. McClintock claimed that Ms. Caldwell was driving the vehicle at the time of the accident. He stated that prior to the accident, Ms. Caldwell did not say anything and that he did not remember skidding on the road. Mr. McClintock indicated that he just remembered seeing and then hitting a tree.
Pennsylvania State Police Trooper Craig Polinsky also provided deposition testimony. Upon arriving at the accident scene, he witnessed Ms. Caldwell inside the driver compartment of the vehicle. He claimed that it was apparent that she had been driving the vehicle at the time of the accident. Her body was underneath the dashboard on the driver's side of the vehicle and the steering wheel had collapsed.
Trooper Polinsky stated that he spoke with Mr. McClintock at the accident scene. Mr. McClintock informed him that Ms. Caldwell had allowed her vehicle to drift off of the highway several times prior to the accident. Mr. McClintock also stated that the reason the vehicle was drifting from the highway was due to Ms. Caldwell's inattentiveness and that the final time she allowed the vehicle to drift from the highway caused her to lose control and hit the tree.
Appellants provided an accident reconstruction report and affidavit prepared by Larry Williams, an investigator for Laurel Highland Investigations, Inc., and a report and affidavit by Richard Hughes, a professional consulting engineer. The reports found that the area where the accident occurred did not have reflective markings on the shoulder of the highway or guiderail protection. Further, the reports alleged that the tree impacted by Ms. Caldwell was within DOT's "clear zone." (R.R. at 137).*fn1
The trial court noted that sovereign immunity is only waived in negligence actions where the common law or a statute would permit recovery for the injury and the cause of action meets one of the specifically enumerated exceptions to immunity. See Sections 8522(a) and (b) of the Judicial Code, 42 Pa. C.S. §8522(a), (b). Further, the exceptions to immunity are to be strictly construed. Dean v. Department of Transportation, 561 Pa. 503, 751 A.2d 1130 (2000).
In support of their claim, Appellants relied on the real estate exception to sovereign immunity pursuant to Section 8522(b)(4) of the Judicial Code, 42 Pa. C.S. §8522(b)(4). This Section provides that the Commonwealth can be held liable for injuries caused by a dangerous condition of its real estate, highways and sidewalks. However, the trial court, in reviewing case law, determined that immunity is only waived under this section where it was a dangerous condition of the Commonwealth highway that actually caused a person's vehicle to leave the paved portion of the highway. As Appellants' did not allege that a dangerous condition of the highway itself caused Ms. Caldwell's vehicle to exit the paved portion of the road, the trial court found that the real estate exception to sovereign immunity did not apply. As such, the trial court granted DOT's motion for summary judgment. Appellants thereafter filed a notice of appeal with the trial court.
On appeal,*fn2 Appellants argue that the trial court erred in granting DOT's motion for summary judgment. We disagree.
Summary Judgment is appropriate only where there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Pa. R.C.P. No. 1035.2. To successfully challenge a motion for summary judgment, a party must show through depositions, interrogatories, admissions or affidavits that there are genuine issues of ...