Opinion
No. 1964 C.D. 2013
07-11-2014
William R. Barron and Carol A. Barron, individually and as Administrators of the Estate of William C. Barron, Deceased, Appellants v. Department of Transportation of the Commonwealth of Pennsylvania and Whitehall Township v. Wayne A. Vasiliou
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE ANNE E. COVEY, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY PRESIDENT JUDGE PELLEGRINI
William R. Barron and Carol A. Barron (the Barrons), Individually and as Administrators of the Estate of William C. Barron, Deceased (Decedent), appeal from an order of the Court of Common Pleas of Lehigh County (trial court) granting the Department of Transportation of the Commonwealth of Pennsylvania's (PennDOT) motion for summary judgment on the basis of sovereign immunity. For the reasons that follow, we affirm.
On September 27, 2009, Decedent was the front seat passenger of a vehicle driven by Wayne Vasiliou (Vasiliou) in Whitehall Township (Township). When Vasiliou attempted to exit westbound State Route 22 (S.R. 22) onto northbound MacArthur Road, the vehicle left the off-ramp, crossed the paved shoulder and struck the breakaway end of a guardrail. The vehicle then traveled further across a grassy "gore zone" located between S.R. 22 West and the off-ramp before crashing into a drainage culvert within the gore zone and striking a stone wall. Decedent died at the scene of the accident.
In January 2012, the Barrons filed a civil action in the trial court against PennDOT and the Township alleging, inter alia, that the gore zone between S.R. 22 West and the off-ramp constituted a dangerous condition and that PennDOT and the Township were negligent in failing to properly remedy or warn of the dangerous condition. Specifically, the complaint alleged that obstacles in the gore zone, as well as a significant drop in elevation between the roadway and the culvert, created a dangerous condition, and that PennDOT and the Township were negligent in failing to erect barricades to guard the gore zone and in failing to set and enforce a proper speed limit. After the pleadings were closed and discovery was completed, PennDOT filed a motion for summary judgment asserting that because the gore zone was not part of the roadway, the Barrons failed to establish that the real estate exception to sovereign immunity applied.
Vasiliou was joined as an additional defendant on February 23, 2012, and was served but did not respond to the pleadings. Pursuant to a Stipulation and Praecipe filed June 11, 2013, all claims against the Township were dismissed.
The Commonwealth is immune from suit except where the General Assembly has specifically waived immunity. Brown v. Department of Transportation, 11 A.3d 1054, 1056 (Pa. Cmwlth. 2011); 1 Pa. C.S. §2310. The "real estate exception" to sovereign immunity, Section 8522(b)(4) of the act commonly known as the Sovereign Immunity Act, 42 Pa. C.S. §8522(b)(4), provides:
(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:
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(4) Commonwealth real estate, highways and sidewalks.-A dangerous condition of Commonwealth agency real estate and sidewalks, including Commonwealth-owned real property, lease-holds 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, except conditions described in paragraph (5).
Applying Lambert v. Katz, 8 A.3d 409 (Pa. Cmwlth. 2010) and Bubba v. Department of Transportation, 61 A.3d 313 (Pa. Cmwlth. 2013), in which this Court held that PennDOT's duty does not extend to the shoulder of a highway because the shoulder is not intended for vehicular travel, the trial court explained:
[I]t is clear that the recovery area [here] is even further removed from the shoulder of the roadway. The gore is off of any paved portion of the roadway and was certainly not intended for vehicular travel. Because the gore and surrounding area is not intended for vehicular travel or control, it is beyond the narrow duty PennDOT owes; and, as such, [the Barrons] are unable to establish a necessary element to set forth a prima facie case of negligence.(Trial Court's October 11, 2013 Opinion at 12). Moreover, the trial court held that any obstacles in the gore zone, including the drainage culvert, did not render the highway unsafe for travel and, therefore, the Barrons failed to establish a dangerous condition of the highway such that the real estate exception to sovereign immunity is applicable. Finally, the trial court explained that the Barrons failed to "distinguish the instant case from the long list of cases that make it clear that the real estate exception to sovereign immunity is not applicable to a case in which the erection of a guardrail could have prevented the death of [a motorist]." (Id. at 15). Accordingly, the trial court granted PennDOT's motion for summary judgment. This appeal by the Barrons followed.
"In order to recover damages under the real estate exception, the plaintiff must show not only that there was a dangerous condition of the Commonwealth's real estate, but also that the damages would be recoverable under the common law or by statute, had the injury been caused by a person not having available the defense of sovereign immunity." Brown, 11 A.3d at 1056; 42 Pa. C.S. §8522(a).
See, e.g., Dean v. Department of Transportation, 751 A.2d 1130, 1134 (Pa. 2000) ("the legislature did not intend to impose liability upon the government whenever a plaintiff alleged that ... his or her injuries could have been avoided or minimized, had the government installed a guardrail alongside the roadway.")
Our review of a grant or denial of summary judgment is limited to determining whether the trial court committed an error of law or an abuse of discretion. Quinones v. Department of Transportation, 45 A.3d 467, 469 n.1 (Pa. Cmwlth. 2012). "Summary judgment is appropriate only when, after examining the record in the light most favorable to the non-moving party, there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law." Id. --------
On appeal, the Barrons argue that although the trial court found that the gore zone is not part of the "roadway," it is, nonetheless, Commonwealth property which PennDOT has a duty to keep safe. They contend that PennDOT has a duty to maintain the gore zone because it is located adjacent to an off-ramp, an area of frequent motor vehicle accidents, and, therefore, is different than the shoulder of a highway. The Barrons also attempt to distinguish the instant matter from the Lambert, Bubba and Dean cases relied upon by the trial court, citing several factual differences between the gore zone and the alleged dangerous conditions in those cases, and contending that the trial court's reliance on Dean was misplaced because here, the dangerous condition is the gore zone itself, not merely the lack of a guardrail.
As our Supreme Court explained in Dean, 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." Dean, 751 A.2d at 1133-34 (quoting Snyder v. Harmon, 562 A.2d 307, 312 (Pa. 1989)). The Court went on to state that the purpose for which a highway was intended is "travel on the roadway." Dean, 751 A.2d at 1134 (emphasis added). Section 102 of the Vehicle Code defines "roadway," in relevant part, as "that portion of a highway improved, designed or ordinarily used for vehicular travel, exclusive of the sidewalk, berm or shoulder ... " 75 Pa. C.S. §102.
As the trial court recognized, the gore zone at issue here is even further removed than the shoulder from the portion of the highway intended for vehicular travel and, as such, is beyond PennDOT's duty. Even if we were to accept the Barrons' assertion that the gore zone is distinguishable from the shoulder because motor vehicle accidents occur more frequently in gore zones than in other highway locations, that would not change the fact that the gore zone is not "regularly used, intended to be used or reasonably foreseen to be used" for vehicular travel. Although the gore zone is Commonwealth real estate, and there is a possibility that vehicles may crash there, PennDOT has no duty to ensure that the area is safe for vehicular travel. See, e.g., Lambert, 8 A.3d at 412 (holding that PennDOT does not have duty to make roadway shoulder wider in anticipation that vehicles might lose control and use shoulder to regain control); Pritts v. Department of Transportation, 969 A.2d 1, 4 (Pa. Cmwlth. 2009) ("[PennDot's] duty does not extend to hazards not located on the highway.") Accordingly, the trial court did not err in holding that the Barrons could not make out a prima facie case of negligence and, thus, could not recover damages under the real estate exception.
Accordingly, the trial court's order is affirmed.
/s/_________
DAN PELLEGRINI, President Judge ORDER
AND NOW, this 11th day of July, 2014, the order of the Court of Common Pleas of Lehigh County, dated October 11, 2013, at No. 2011-C-3269, is affirmed.
/s/_________
DAN PELLEGRINI, President Judge