The opinion of the court was delivered by: Judge Leavitt
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge, HONORABLE MARY HANNAH LEAVITT, Judge, HONORABLE KEITH B. QUIGLEY, Senior Judge.
Pamela Stein, on behalf of the Estate of Paul Stein, appeals an order of the Court of Common Pleas of Allegheny County (trial court) entering judgment in favor of the Pennsylvania Turnpike Commission (Commission), defendant in Stein's wrongful death action. The trial court determined that the Commission could not be held liable for fatal injuries sustained by Paul Stein (Decedent) when his car hydroplaned, spun off the roadway and struck a guardrail. In this case, we consider whether sovereign immunity has been waived for a claim where it is alleged that a negligently designed guardrail has caused bodily injury. We affirm the trial court's holding that an exception from sovereign immunity has not been established for such a claim.
The facts surrounding the location of Decedent's accident are as follows. Decedent was injured while driving eastbound on the Pennsylvania Turnpike near Exit 56, the Monroeville interchange, where there is a bend in the road. The eastbound highway surface consists of asphalt; has two travel lanes; and a paved berm the width of a travel lane. Where Decedent's accident occurred, there is a gap in the guardrail on the outside edge of the road, leaving the highway open to an adjacent hill that slopes upward from the road. At the east end of the gap, the guardrail resumes. It does not resume at the side of the road; rather, it resumes in the adjacent hillside and then turns down the hill to meet the road. From the viewpoint of the driver traveling east on the turnpike, the guardrail is turned back at a near right angle from the road. The end of the guardrail located in the hillside is protected by a U-shaped piece of metal known as a "boxing glove." Complaint ¶14; Reproduced Record at 7a (R.R. ___).
The accident took place the afternoon of September 15, 2003, during a heavy rain. Decedent's car hydroplaned and spun off the roadway through the gap in the guardrail onto the grassy hill. The vehicle continued spinning as it turned down the hill, hitting the "boxing glove" end of the guardrail with such force that the sides of the boxing glove folded back, creating a sharp, chisel-like shape. The folded back metal impaled Decedent's vehicle on the passenger side and drove into the vehicle. In doing so, the guardrail amputated Decedent's right leg below the knee; Decedent's loss of blood caused his death.
Pamela Stein filed a wrongful death and survival action against the Commission. She alleged negligence, particularly with respect to the design of the guardrail, which she identified as the proximate and immediate cause of Decedent's death. Stein also alleged that the road surface at the point of the accident is "polished asphalt" and that the "polished roadway, very heavy rain, and slow drainage of the turnpike over the flat road surface were factors that resulted in a hydroplaning situation triggering the event of this accident." Complaint ¶¶8, 15; R.R. 6a, 7a. She further alleged as follows:
29. All of Plaintiff's damages as hereinafter related are the direct and proximate result of the negligence of Defendant, Pennsylvania Turnpike Commission, in that it:
(a) Fitted the end of the [guardrail] fronting oncoming traffic with a non-crashworthy terminal as defined by §2:12.7A of the PennDOT Design Manual, Part 2, Chapter 12.
(b) Failed to affix a [guardrail] end treatment with an impact attenuating treatment at the upstream end.
(c) In the alternative, failed to bury the upstream end of the [guardrail] into the back slope.
(d) Failed to design the terminal end of the [guardrail] such that there [was] no exposed rail element upon which a vehicle could become impaled.
(e) Failed to adhere to appropriate existing standards in affixing a non-crashworthy [guardrail] end treatment to the upstream end of the [guardrail] in question.
(f) Maintained the Pennsylvania Turnpike's macadam surface in a highly polished state near the point of the accident, thereby increasing the risk that in adverse weather, Mr. Stein's vehicle would ...