holding that DOT was liable for injuries to a motorist on a state highway caused by an overhanging tree limb that fell on the motorist’s vehicle, where the tree itself was located within DOT’s right- of-way
How later courts described this case
- holding that DOT was liable for injuries to a motorist on a state highway caused by an overhanging tree limb that fell on the motorist’s vehicle, where the tree itself was located within DOT’s right- of-way
- highlighting testimony from property owners that the tree grew adjacent to the roadway but within the Commonwealth right-of-way
- referencing the testimony of the “owners of the property on which the tree stood”
Written by the judges who cited it.
The opinion
PELLEGRINI, Judge,
concurring.
Although I concur in the result of the opinion of this court, I write separately to address the issue of whether there was sufficient evidence to establish that the tree was a dangerous condition of Commonwealth real estate under the Sovereign Immunity Act, 42 Pa.C.S. § 8522(b)(4).
Brenda Patton was killed by a tree limb falling onto her car while driving along King Road, a designated state highway in West Whiteland Township. The pictures in the record show that King Road is a residential street, and that the tree was within a few feet of the cartway of the road and near a driveway. Because the allegation against the Department of Transportation (DOT) in this case was that the tree itself was defective, rather than just the limb, Patton had the burden of proving that the tree was “of’ Commonwealth real estate, that is, within the opened right-of-way of King Road, in order to state a cause of action within the real estate exception to Sovereign Immunity. See Snyder v. Harmon, 522 Pa. 424 , 562 A.2d 307 (1989).
The majority opinion holds that Patton provided sufficient evidence that the tree was within the Commonwealth right-of-way because the landowner whose property abutted King Road testified that the tree was within DOT’s right-of-way, the tree was within feet of the roadway, and DOT marked the tree for removal and had it removed after the accident. The taking or existence of a right-of-way must be done through official action. The “best evidence” of the extent of the right-of-way would be the deed, survey, plot, subdivision plan or opening ordinance that created the street. However, because there were no objections to any of Patton’s evidence on this issue, that evidence is sufficient to meet Patton’s burden that the tree was within DOT’s right-of-way. Accordingly, I concur.