The opinion of the court was delivered by: Mary Hannah Leavitt, Judge
Submitted: September 10, 2012
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE P. KEVIN BROBSON, Judge
Carol J. Rodriguez, on behalf of the Estate of Aurelio Rodriguez (Decedent), appeals an order of the Court of Common Pleas of York County (trial court) granting the motion for summary judgment filed by the Pennsylvania Department of Transportation (PennDOT), defendant in Rodriguez's negligence and wrongful death actions. The trial court concluded that PennDOT could not be held liable for fatal injuries sustained by Decedent when the car he was operating on a highway was struck by an oncoming car that had left its lane of travel and traveled through the grass median strip. In this case, we consider whether sovereign immunity has been waived for a claim where it is alleged that PennDOT's failure to erect a median barrier 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 accident occurred on U.S. Route 30, in Hellam Township, York County, near the bridge over the Susquehanna River that separates Lancaster and York Counties. At that location, Route 30 has two lanes for eastbound travel and two lanes for westbound travel. The highway is straight and the lanes are separated by a flat grass median strip approximately 30 feet wide at the accident site.
On August 12, 2001, at approximately 1:50 a.m., Decedent was driving westbound on Route 30 in an Eagle Talon, with two passengers. At the same time, Scott Shoffstall was driving a Hyundai Accent eastbound on Route 30, with one passenger. As Shoffstall approached the bridge, he lost control of his vehicle for unknown reasons, left the roadway, traveled through the grass median and struck Decedent's vehicle head-on in the right-hand westbound lane. Decedent and one of his passengers, as well as Shoffstall and his passenger were all pronounced dead at the scene. The other passenger in Decedent's vehicle was seriously injured but survived.
Carol Rodriguez, Decedent's widow and estate administratrix, filed a negligence and wrongful death action against PennDOT. Her complaint alleged that PennDOT knew or should have known that vehicles at the accident site can cross the grass median strip and enter oncoming lanes, which created an unreasonably dangerous condition. Her complaint further alleged that PennDOT was solely responsible for Decedent's death because PennDOT was negligent in failing to prevent crossover accidents with a median barrier between the eastbound and westbound lanes of traffic. Complaint ¶7; Reproduced Record at 43a.*fn1
PennDOT filed an answer and new matter admitting that it was responsible for maintaining Route 30, but denying that it was negligent in any way. PennDOT asserted the defense of sovereign immunity.
The parties engaged in lengthy discovery. Rodriguez secured an expert report from forensic engineering consultant Kevin E. O'Connor, P.E., dated December 2, 2009. O'Connor studied PennDOT's manuals and found that by PennDOT's own standards, which take into account the size of the median strip and the daily volume of traffic in the area, a median barrier should have been placed at the accident site as of 1993. Based on accident reconstruction data, O'Connor estimated that the Shoffstall vehicle was traveling 80 miles per hour at the time of the accident. O'Connor opined that had a median barrier been in place at the accident site, the collision with Decedent's vehicle would not have occurred because the barrier would have prevented the Shoffstall vehicle from entering the westbound lanes.
PennDOT moved for summary judgment, asserting that it is immune from a claim based on a failure to install a median barrier. The trial court granted summary judgment in PennDOT's favor. Relying on Dean v. Department of Transportation, 561 Pa. 503, 751 A.2d 1130 (2000), and its progeny, the trial court concluded that PennDOT is immune from suit because the real estate exception to sovereign immunity does not apply and PennDOT had no duty to build a median barrier. The present appeal followed.*fn2
Rodriguez raises one issue for our review. Rodriguez argues that the trial court erred in granting summary judgment in PennDOT's favor when Rodriguez's claim that PennDOT was negligent in failing to install a median barrier does, in fact, fall within the real estate exception to sovereign immunity.
Pursuant to what is commonly known as the Sovereign Immunity Act, Commonwealth agencies are generally immune from liability for a negligent act unless: (1) the alleged negligent act falls within one of the nine exceptions to sovereign immunity; and (2) damages would be recoverable under the common law or a statute if the injury were caused by a person not having available the defense of sovereign immunity. 42 Pa. C.S. §8522(a). In order for a Commonwealth party to be held liable, the plaintiff must establish that the cause of action falls under one of the specifically enumerated exceptions to immunity. Fagan v. Department of Transportation, 946 A.2d 1123, 1126 (Pa. Cmwlth. 2008). Immunity is specifically waived "for damages caused by . [a] dangerous condition of Commonwealth agency real estate and sidewalks . and highways under the jurisdiction of a Commonwealth agency." 42 Pa. C.S. §8522(b)(4).*fn3
The seminal case dealing with sovereign immunity and highways is Dean, 561 Pa. 503, 751 A.2d 1130. In that case, the plaintiff was injured when the truck in which the plaintiff was a passenger left the road and went down a steep embankment. The plaintiff brought a negligence action against PennDOT for failing to place a guardrail at the accident site. Our Supreme Court held that failing to erect a guardrail is not encompassed by the real estate exception to sovereign immunity because the absence of a guardrail cannot be said to be a dangerous condition of the real estate that resulted in a reasonably foreseeable injury to ...