Manning v. Commonwealth

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

John Manning :

:

v. : No. 2151 C.D. 2015

: Argued: June 9, 2016

Commonwealth of Pennsylvania, :

Department of Transportation, :

Appellant :

BEFORE: HONORABLE P. KEVIN BROBSON, Judge

HONORABLE ANNE E. COVEY, Judge

HONORABLE DAN PELLEGRINI, Senior Judge

OPINION BY JUDGE BROBSON FILED: July 27, 2016

Appellant Commonwealth of Pennsylvania, Department of

Transportation (DOT), appeals by permission from an interlocutory order of the

Court of Common Pleas for the 26th Judicial District, Montour County Branch

(trial court). The trial court denied DOT’s motion for summary judgment, which

was predicated on sovereign immunity. For the reasons set forth below, we reverse

and remand.

On June 28, 1998, at approximately 3:00 a.m., Appellee John

Manning (Manning) was driving his vehicle in the eastbound lane of Route 642 in

West Hemlock Township, Montour County. (Reproduced Record (R.R.) at 9a.)

According to Manning, three deer jumped out onto the roadway. (Id. at 39a-40a.)

In order to avoid hitting the deer, Manning initially applied his brakes.

(Id. at 39a-40a.) When he realized, however, he would not be able to stop his

vehicle before hitting the deer, he swerved his vehicle off of the roadway.

(Id. at 39a-40a, 44a-45a.) After leaving the roadway, Manning’s vehicle struck a

drainage culvert, became airborne, and struck a tree. (Id. at 9a, 39a-40a, 44a-45a.)

Manning was ejected from his vehicle and sustained severe injuries.

(Id. at 9a, 40a, 45a.)

On June 28, 2000, Manning filed a complaint in the trial court against

DOT and West Hemlock Township.1 (Id. at 7a-14a.) In his complaint, Manning

asserted that DOT was responsible for the maintenance of Route 642 in and around

the drainage culvert. (Id. at 12a.) Manning further asserted that DOT was

negligent by: (1) failing to maintain and control Route 642, including the drainage

culvert, in a safe condition for ordinary travel; (2) failing to maintain the drainage

culvert in a safe and reasonable manner; (3) failing to erect barriers, guards,

reflectors, or similar devices for the protection of motorists in and around the area

of the drainage culvert; (4) failing to post signs in the immediate area notifying

motorists of the dangerous condition caused by the drainage culvert; and (5) failing

to warn motorists of the dangerous condition caused by the drainage culvert.

(Id. at 12a-13a.) DOT filed an answer and new matter, specifically denying

Manning’s allegations of negligence and asserting sovereign immunity as an

affirmative defense. (Id. at 15a-23a.)

Thereafter, the parties engaged in discovery. Manning retained the

services of a professional engineer, Bernard M. Telatovich, P.E., who prepared a

report regarding the relationship between the accident and the condition and design

of Route 642. (Id. at 53a-73a.) The report concluded that the roadside area

traversed by Manning’s vehicle and the concrete/stone headwall of the drainage

culvert that Manning’s vehicle struck “posed hazards to any vehicle leaving the

1

Manning’s claims against West Hemlock Township were withdrawn by stipulation of

the parties. (Original Record (O.R.) at 24-25.)

2

roadway.” (Id. at 60a (emphasis added).) The report also concluded that the side

slope of the roadway, which was not considered traversable, and the concrete/stone

headwall of the drainage culvert should not have been located within the “clear

zone.” (Id.) The report further concluded that had the eastbound lane of the

roadway been protected by a guiderail similar to the westbound lane, Manning’s

vehicle would not have encountered the hazardous slope or struck the hazardous

concrete/stone headwall of the drainage culvert. (Id.)

At the conclusion of the discovery process, DOT moved for summary

judgment. DOT alleged, in relevant part:

10. [Manning’s] Complaint alleges that on

June 28, 1998[,] at approximately 3:00 a.m., [Manning]

left the roadway and struck a drainage area on the south

side of State Route 642[,] which caused [Manning’s]

automobile to strike a tree and eject [Manning] from the

automobile. Id. at ¶ 7.

11. The drainage area alleged to have caused the

collision was located off the side of State Route 642

within a grassy area. Id. at ¶ 7.

12. In [his] sworn deposition testimony, [Manning]

testified that he swerved off the roadway to avoid three

deer that jumped out into the roadway from the right side

of State Route 642. . . .

....

20. The drainage area which [Manning] alleges is a

dangerous condition is located adjacent to State

Route 642. Pl.’s Compl. ¶ 18.

21. The drainage area which [Manning] alleges to have

struck is off of the side of State Route 642 and does not

constitute a condition of the roadway itself.

22. [Manning] has failed to properly plead and develop

facts through discovery to establish that any dangerous

condition of the travel portion of State Route 642 caused

[Manning] to leave the roadway; on the contrary,

[Manning] has specifically plead [sic] that deer caused

3

[him] to leave the roadway. Depo. John Manning

31:18-32:6 (June 23, 2004).

(Id. at 30a, 32a.) In his response to the motion, Manning admitted the principal

components of DOT’s allegations.2 By order dated August 24, 2015, the trial court

denied DOT’s motion for summary judgment.3 (Original Record (O.R.) at 50.)

DOT sought permission from this Court to appeal the trial court’s interlocutory

order pursuant to 42 Pa. C.S. § 702(b). (R.R. 86a-93a.) We granted DOT

permission to appeal to consider the following issue: “Is [DOT] immune from a

2

Specifically, Manning responded as follows:

1-10. Admitted.

11. Admitted and denied. It is admitted the drainage culvert that caused

[Manning’s] vehicle to strike a tree and ejected him from his vehicle, was located

off the paved roadway, however, was within the area controlled and maintained

by [DOT].

12-13. Admitted.

....

20. Denied as stated. It is admitted the drainage area is located off the

paved portion of the highway. It is, however, within the Clear Zone of the

highway the purpose of which is to allow recovery of a vehicle that leaves the

paved roadway.

21. Admitted and denied. It is admitted [the] drainage culvert, which

caused [Manning’s] injuries[,] is located off the paved portion of the highway,

however, it is still within the boundaries of the highway as defined by the statute.

22. Admitted and denied. It is admitted [Manning] left the highway to

avoid deer, which were crossing the paved portion of the roadway. The injuries

sustained by [Manning], however, were caused when his car struck the culvert

causing it to become airborne and ejecting him from the vehicle. . . .

(R.R. 48a, 50a.)

3

By order dated October 13, 2015, and upon DOT’s motion, the trial court amended its

August 24, 2015 order “to state that it involves a controlling question of law as to which there is

substantial ground for difference of opinion and that an immediate appeal from the order may

materially advance the ultimate termination of the matter.” (O.R. 54.)

4

claim that it was negligent for arguably dangerous conditions of real estate located

off the area of a roadway intended for normal travel. See Section 8522(b)(4) of the

Judicial Code, 42 Pa. C.S. § 8522(b)(4).” (Id. at 94a-95a.)

On appeal,4 DOT argues that Manning’s claims do not fall within the

“real estate” exception to sovereign immunity, because Manning’s injuries were

caused when he swerved his vehicle off of the roadway into an area not intended

for vehicular traffic.5 In response, Manning argues that his claims do fall within

the “real estate” exception to sovereign immunity, because the definition of

“highway” contained in 1 Pa. C.S. § 1991 does not restrict the term to only the

paved portion of the road. Manning maintains that, if the legislature intended to

restrict the “real estate” exception to the paved portion of the road, the legislature

could have used the more restrictive term “roadway” rather than the more

expansive term “highway.” Manning further argues that the “real estate” exception

should also apply because his injuries were caused by Commonwealth realty and

4

This Court’s standard of review of a denial of summary judgment is limited to

determining whether the trial court committed an error of law or abused its discretion.

Mason & Dixon Lines, Inc. v. Mognet, 645 A.2d 1370, 1372 n.2 (Pa. Cmwlth. 1994). Our scope

of review is de novo when we consider questions of law. Weaver v. Lancaster Newspapers, Inc.,

926 A.2d 899, 902-03 (Pa. 2007). A court may grant a motion for summary judgment only when

there is no genuine issue of material fact and the moving party is entitled to judgment as a matter

of law. Farabaugh v. Pa. Tpk. Comm’n, 911 A.2d 1264, 1267 n.3 (Pa. 2006). The right to

judgment must be clear and free from doubt. Fine v. Checcio, 870 A.2d 850, 857 (Pa. 2005). In

reviewing the denial of a motion for summary judgment, this Court must view “the record in the

light most favorable to the non-moving party, and all doubts as to the existence of a genuine

issue of material fact must be resolved against the moving party.” Id.

5

DOT also argues that Manning’s claims do not fall within the “pothole” exception to

sovereign immunity because a drainage ditch is not a pothole. While we agree with DOT’s

argument, we note that Manning did not address the “pothole” exception in his brief to this

Court, and, therefore, we will not address this issue in further detail.

5

DOT’s affirmative act of placing and maintaining the drainage culvert in the “clear

zone” of the highway.

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 Judicial

Code (Code), 42 Pa. C.S. § 8522(a), which is often referred to as the “Sovereign

Immunity Act,” 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).

Even if the plaintiff can establish a prima facie case for negligence, a

Commonwealth agency will not be liable unless the breach of its duty coincides

with an exception to Section 8522(a) of the Code. Bendas v. Twp. of White Deer,

611 A.2d 1184, 1186 (Pa. 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 v. Dep’t of Transp., 751 A.2d 1130, 1132 (Pa. 2000). Because of our

General Assembly’s clear intent to insulate government from exposure to tort

liability, courts must strictly construe the exceptions to sovereign immunity. Id. A

dangerous condition of Commonwealth agency real estate and sidewalks,

6

including, but not limited to, highways under the jurisdiction of a Commonwealth

agency, is one of the specifically enumerated circumstances for which our General

Assembly has waived sovereign immunity.6 In order for this “real estate”

exception to apply, “a claim . . . must allege that the dangerous condition” derived,

originated from or had as its source the Commonwealth realty itself. Jones v. Se.

Pa. Transp. Auth., 772 A.2d 435, 443 (Pa. 2001) (referring to Snyder v. Harmon,

562 A.2d 307, 311 (Pa. 1989)).

In this case, Manning appears to argue that DOT had a duty to

maintain a “clear zone” surrounding the paved portion of the highway so that a

motorist has an area to regain control of an errant vehicle and steer such vehicle

back onto the roadway or, in the alternative, to erect guardrails or other protective

barriers to prevent motorists from striking the drainage culvert. Prior decisions of

Pennsylvania state courts, however, clearly establish that DOT owed no such duty

to Manning.

6

42 Pa. C.S. § 8522(b)(4) provides:

Exceptions to sovereign immunity.

(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:

....

(4) Commonwealth real estate, highways and sidewalks. – A

dangerous condition of Commonwealth agency real estate and sidewalks,

including Commonwealth-owned real property, leaseholds 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)[, relating

to sinkholes and other dangerous conditions].

7

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,

562 A.2d at 312. DOT has a duty to design and construct its highways in a manner

that makes them safe for their intended purpose. Smith v. Dep’t of Transp.,

700 A.2d 587, 590 (Pa. Cmwlth. 1997). DOT does not have a duty to install

guardrails or other safety features along the boundaries of its highways. See Dean,

751 A.2d at 1134 (holding that DOT has no duty to install guardrails because

absence of guardrails does not render highway unsafe for its intended use);

Brown v. Dep’t of Transp., 11 A.3d 1054, 1057 (Pa. Cmwlth. 2011) (holding that

DOT has no duty to install rumble strips because their absence does not create

defect in highway). “A highway, for purposes of sovereign immunity,

encompasses the ‘cartway,’ that is, the paved and traveled portion of the highway,

and the berm or shoulder, the paved portion to either side of the actual traveled

portion of the road, not the right-of-way. . . . [T]he right-of-way off the highway is

clearly neither intended to be used nor is regularly used for vehicular travel.”

Gramlich v. Lower Southampton Twp., 838 A.2d 843, 846-47 (Pa. Cmwlth. 2003)

(internal citations omitted), appeal denied, 851 A.2d 143 (Pa. 2004).

In Lambert v. Katz, 8 A.3d 409 (Pa. Cmwlth. 2010), the three

occupants of a vehicle died when the vehicle struck the guard cables and posts

located on the right side of the highway, crossed over the guard cables, struck a

tree, spun around, and slid down an embankment. The vehicle’s occupants’ estates

filed civil actions against DOT, contending, inter alia, that DOT was negligent by

“failing to design and maintain the shoulder in a safe manner that would permit a

8

driver to recover from a skid or loss of control.” Lambert, 8 A.3d at 412. This

Court determined that “shoulders are not intended to be used for vehicular traffic.

The travel the [e]states contend DOT should have reasonably anticipated−i.e.,

correction of out of control vehicles−constitutes vehicular travel, and, in turn, is

not activity that DOT could reasonably expect on the shoulders of its highways.”

Id. at 418. As a result, this Court concluded that the estates could not establish that

DOT was negligent, because they had not demonstrated that “DOT had a duty to

make the shoulder wider in anticipation of out of control vehicles.” Id. at 419.

Likewise, in Bubba v. Department of Transportation, 61 A.3d 313

(Pa. Cmwlth.), appeal denied, 79 A.3d 1099 (Pa. 2013), a motorist steered her

vehicle to the right of the highway to avoid what she believed to be an animal in

the road. As she did so, the vehicle’s passenger-side tires dropped off of the

highway where the paved road abutted the dirt and gravel/berm shoulder. Bubba,

61 A.3d at 315. The driver attempted to steer the vehicle back onto the paved road,

but the vehicle jumped up from the alleged two-to-three-inch drop-off, crossed to

the other side of the highway, overturned, struck a utility pole, and crashed into a

house. Id. A passenger in the vehicle filed a civil action against DOT, contending

that DOT had a duty to maintain the dirt and gravel berm/shoulder abutting the

roadway. Id. at 316. This Court concluded that “the drop-off did not cause [the

passenger’s] injuries, [the driver’s] lack of control of her vehicle did when she

swerved to avoid the animal in the roadway. The shoulder is not intended for

vehicular travel and, accordingly, DOT owed no duty to design, construct and

maintain the shoulder drop-off.” Id. at 317.

Similar to the complaining parties in Lambert and Bubba, Manning is

unable to establish that DOT owed him a duty. Manning’s injuries were caused by

9

his act of driving his vehicle off of the paved roadway to avoid hitting the deer; his

injuries were not caused by the paved roadway. Further, the area in which the

drainage culvert is located is not the highway and is not intended for vehicular

travel. As a result, DOT owed no duty to maintain that area safe for vehicular

traffic. This Court has previously rejected the “clear zone” concept and has held

that DOT does not have a duty to maintain the area surrounding the paved portion

of the highway so that a motorist has an area to regain control of an errant vehicle

and steer such vehicle back onto the roadway. See Bubba, 61 A.3d at 317;

Lambert, 8 A.3d at 418. In addition, DOT also did not have a duty to install

guardrails or other protective barriers to protect motorists from striking the

drainage culvert. See Dean, 751 A.2d at 1134; Brown, 11 A.3d at 1057. Because

Manning is unable to establish that DOT owed him a duty, Manning cannot prevail

in a negligence action, and summary judgment should have been granted in DOT’s

favor.

For the reasons set forth herein, we reverse the trial court’s order and

remand the matter to the trial court with instructions that the trial court enter

judgment in favor of DOT.

P. KEVIN BROBSON, Judge

10

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

John Manning :

:

v. : No. 2151 C.D. 2015

:

Commonwealth of Pennsylvania, :

Department of Transportation, :

Appellant :

ORDER

AND NOW, this 27th day of July, 2016, the Order of the Court of

Common Pleas for the 26th Judicial District, Montour County Branch (trial court),

is hereby REVERSED, and the matter is REMANDED to the trial court with

instructions that it enter judgment in favor of Appellant Commonwealth of

Pennsylvania, Department of Transportation.

Jurisdiction relinquished.

P. KEVIN BROBSON, Judge