question as to whether dangerous condition existed where individuals were throwing rocks down at cars from bridge above state-maintained road
How later courts described this case
- question as to whether dangerous condition existed where individuals were throwing rocks down at cars from bridge above state-maintained road
Written by the judges who cited it.
Distinguished
Distinguished by Solyan v. Fontana, 49 Pa. D. & C.3d 84 (1988)
In large part, the plaintiffs base their claim of statutory exemption from the Pennsylvania Political Subdivision Tort Claims Act in reliance on the holding of Mistecka, supra. On the facts of the instant case, the Mistecka case is distinguishable.
The opinion
Concurring and Dissenting Opinion by
Judge Mencer :
I concur, at No. 1809 C.D. 1977, in the sustaining of the preliminary objections filed on behalf of defendants James Wilson, Robert P. Kane, and Chester County. However, I respectfully dissent to the dismissal, in these two cases, of the motions for judgment on the pleadings filed by defendant Commonwealth of Pennsylvania.
*277 The majority opinion states:
Accordingly we focus on subsection (a) (4) of that same section, 1 which subsection reads as follows:
‘ (4) Commonwealth real estate, highways and sidewalks. — Damages caused by a dangerous condition of Commonwealth real estate and sidewalks, including Commonwealth-owned real property, leaseholds in the possession of the Commonwealth and Commonwealth real property leased to private persons, and highways under the jurisdiction of Commonwealth agencies except as limited in paragraph (5).’
Thus, the first specific issue is, where there are averments of a continuing history of unknown assailants throwing rocks from a local highway bridge overpass down upon a state highway beneath, so as to injure travelers on the state highway, does that situation constitute a ‘dangerous condition’ of a highway under the jurisdiction of the Commonwealth? (Footnote added, footnote omitted.)
It seems to me that the question must be answered in the negative. Certainly it is a dangerous condition for people to throw rocks from a bridge over a Commonwealth highway, but the statute above quoted calls for the condition to be of a highway under the jurisdiction of the Commonwealth. It is admitted that the bridge from which the rocks were thrown was not a Commonwealth bridge. If barriers were to be erected to prevent future incidents, they would need to be erected on the bridge under local jurisdiction rather *278 than on the state highway. The facts here simply do not establish a condition of a Commonwealth highway, and subsection (a)(4) of Section 5110'is inapplicable to these cases.
If the majority interpretation is correct, then any off-highway activity injuring persons driving on state highways will be conditions chargeable to the Commonwealth. Today it is persistent rock throwers and tomorrow it may be a recurrent sniper’s bullets or annual deer hunters’ errant shooting. Today’s holding will logically result in the Commonwealth’s being subject to suit in every automobile accident on a state highway caused by a deer or other wild animal in crossing the road, since surely the Commonwealth is chargeable with the knowledge that such animals do so with great frequency.
Section 5110 of the Judicial Code, added by Section 2 of the Act of September 28, 1978. P.L. 788, 42 Pa. C.S. §5110(a) (4).