The opinion of the court was delivered by: Judge Brobson
Argued: September 13, 2010
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, President Judge, HONORABLE P. KEVIN BROBSON, Judge, HONORABLE JIM FLAHERTY, Senior Judge
Appellants, Dianna Lambert and Mary Elizabeth Katz, in their capacities as executrixes of the Estates of Edward A. Lambert and Robert W. Wilsbach, Sr., respectively (hereafter, the Estates), appeal from an order of the Court of Common Pleas of Berks County (trial court) that granted summary judgment in favor of Appellee Department of Transportation (DOT). Decedents Lambert and Wilsbach died in an accident on Route 73 in Ruscombmanor Township in Berks County while riding in a vehicle driven by Wilsbach.
The Lambert Estate initiated a Complaint against DOT and the Wilsbach Estate in January 2006,*fn1 asserting various tort claims against DOT and the Wilsbach Estate. Around the same time, the Wilsbach Estate also filed a Complaint against DOT.
The Estates' Complaints aver the following facts. DOT designed Route 73, the construction of which was completed in 1959. Route 73 has one lane in each direction. The shoulder of the westbound lane of Route 73 has a width that is less than the width of a motor vehicle. Guard cables are located to the right of the shoulder on the westbound lane and the guard cables border a ten-foot embankment.
On January 18, 2004, at about 7:49 a.m., decedent Wilsbach was driving a vehicle in the westbound lane of Route 73. Wilsbach's vehicle struck the guard cables and posts on the right side of the highway, crossed over the guard cables (knocking down three supports for the guard cables), struck a tree, spun around, and slid down the embankment. (Lambert Complaint, ¶¶ 13-14; Wilsbach Complaint, ¶¶ 10-12.) The three occupants in the vehicle (Wilsbach, Lambert, and another individual) were killed in the accident.
The Complaints seek damages based on negligence, wrongful death, and survival actions. The Complaints aver that DOT was responsible for the design, maintenance, and repair of Route 73, including the guard cables, and that DOT and its employees' negligence were the proximate cause of Lambert's and Wilsbach's deaths. The Complaints contend generally that DOT and its employees acted negligently by failing to replace the allegedly outdated guard cables on Route 73 with guardrails of a different and more appropriate design, failing to inspect properly the guard cables, failing to design and maintain the shoulder in a safe manner that would permit a driver to recover from a skid or loss of control, and by violating the laws and regulations of the Commonwealth. (Lambert Complaint, ¶21; Wilsbach Complaint, ¶ 17.) The Complaints assert that DOT knew or should have known of these alleged problems relating to the guard cables and shoulder.
DOT filed answers and new matters to the Complaints. Thereafter the parties engaged in discovery. The Estates engaged the services of a traffic engineer, John Comiskey, who prepared a report regarding the relationship between the accident and the conditions and design of the highway. (Estates' Response to DOT's Motion for Summary Judgment, Exhibit A.) The report concluded that, based upon the volume of traffic on Route 73, DOT's 1990 road design criteria required a highway carrying that volume of traffic to have shoulders at least ten feet in width. The report also observed that, based upon Commonwealth sign requirements, the speed limit on Route 73 at the location of the accident was fifty-five miles per hour. The report concluded that although the State Police accident report determined that Wilsbach had been driving too fast for the icy conditions on the roadway at the time of the accident, Wilsbach had not exceeded the speed limit. Further, the report stated that if the shoulder had been ten feet wide, Wilsbach "should" have been able to recover from the loss of control he experienced as a result of the icy conditions on the roadway.
DOT filed a motion for summary judgment, which the trial court granted on November 30, 2009. The trial court concluded that no material issue of fact remained and that the Estates failed to establish that the exception to the Commonwealth's sovereign immunity under Section 8522(b)(4) of the Judicial Code (Code), 42 Pa. C.S. § 8522(b)(4), relating to dangerous conditions of Commonwealth real property, applied. In their statement of matters complained of on appeal, the Estates contended that the trial court erred in concluding that DOT's alleged failure to construct a wider shoulder and to inspect and maintain the guard cables do not fall within the real estate exception to sovereign immunity. The Estates also asserted that the question of whether the condition of the shoulder/guard cables constituted a dangerous condition of Commonwealth real estate is a question of fact for a jury.
The trial court disagreed. In its Rule 1925(a)*fn2 opinion, citing Dean v. Department of Transportation, 561 Pa. 503, 751 A.2d 1130 (2000), the trial court, addressing only the question of whether the guard cables constituted a dangerous condition of the highway, concluded that the Estates had not averred facts or adduced evidence supporting their claim that the guard cables fell within the real estate exception to sovereign immunity. The trial court, however, did not address the question of whether the facts averred in the Complaints support the Estates' contention that the shoulder constituted a dangerous condition of the highway.
On appeal, the Estates raise the following issues: (1) whether the trial court erred in granting summary judgment when the Estates asserted that DOT had failed to design/construct the shoulder of Route 73 in accordance with its own post-construction design criteria and that the non-compliant width of the shoulder created a dangerous condition of the road falling within the immunity exception contained in Section 8522(b)(4) of the Code; and (2) whether the trial court erred in concluding that DOT's alleged failure to repair or replace badly corroded guard cables precludes DOT from claiming sovereign immunity as an affirmative defense. In raising these issues, the Estates also contend that the trial court should have permitted a jury to determine whether the shoulder or guard cables constituted dangerous conditions of the highway.*fn3
Commonwealth agencies are generally immune from civil suit for tort liabilities unless the General Assembly waives sovereign immunity. See 1 Pa. C.S. § 2310; and 42 Pa. C.S. § 8521. Section 8522(a) of the Code, which is often referred to as the "Sovereign Immunity Act," 42 Pa. C.S. § 8522(a), authorizes the imposition of liability against Commonwealth agencies for damages arising out of a negligent act where the damages would be recoverable under the common law or a statute creating a cause of action if the injury were caused by a person to whom the defense of sovereign immunity is not available. To meet the threshold requirement under Section 8522(a) of the Code, a plaintiff must prove the requisite elements of negligence: (1) the defendant's duty or obligation recognized by law; (2) a breach of that duty; (3) a causal connection between the defendant's conduct and the resulting injury; and (4) actual damages. Talarico v. Bonham, 650 A.2d 1192 (Pa. Cmwlth. 1994).
The Pennsylvania Supreme Court has stated that the "duty of care a Commonwealth agency owes to those using its real estate is such as to require that the condition of the property is safe for the activities for which it is regularly used, intended to be used or reasonably foreseen to be used." Snyder v. Harmon, 522 Pa. 424, 435, 562 A.2d 307, 312 (1989). Motorists have a corresponding duty to use the highways in the ordinary and usual manner with reasonable care. Glover v. Dep't of Transp., 647 A.2d 630 (Pa. Cmwlth. 1994), appeal denied, 540 Pa. 606, 655 A.2d 994 (1995).
However, by virtue of Section 8522(a) of the Code, "a Commonwealth agency may have breached a duty owed yet not be liable unless the breach is coincidental with an exception" to Section 8522(a) of the Code. Bendas v. Twp. of White Deer, 531 Pa. 180, 183, 611 A.2d 1184, 1186 (1992). To defeat the defense of sovereign immunity, the plaintiff must also establish that his or her allegations fall within one of the nine enumerated exceptions to sovereign immunity set forth in Section 8522(b) of the Code. Dean, 561 Pa. at 508, 751 A.2d at 1132. Because of our General ...