Safety First? To Install or Not to Install Guardrails on Commonwealth Roadways

A recent Pennsylvania Supreme Court decision clarifies the interpretation of the real estate exception to the Sovereign Immunity Act, 42 Pa. C.S. § 8522(b)(4). Pursuant to the Sovereign Immunity Act, the Commonwealth enjoys immunity from suit for damages in negligence, except under certain exceptions, including:

• Vehicle liability
• Medical-professional liability
• Care, custody or control of personal property
• Commonwealth real estate, highways and sidewalks
• Potholes and other dangerous conditions
• Care, custody or control of animals
• Liquor store sales
• National Guard activities
• Toxoids and vaccines

In Cagey v. Commonwealth, 2018 Pa. LEXIS 954 (Pa. Feb. 21, 2018), Joisse and Dale Cagey filed a negligence action against PennDOT, asserting that on January 26, 2015, as they were traveling southbound on State Route 551 in Beaver County, Pennsylvania, their car lost control due to snow and ice on the roadway. The vehicle spun into a guardrail next to the road. The guardrail penetrated the side of their vehicle and caused personal injury to Mrs. Cagey, the driver. Mr. Cagey filed a loss of consortium claim. The plaintiffs alleged that: (1) PennDOT negligently installed the guardrail within an area that should have been traversable by vehicles; (2) PennDOT negligently installed a dangerous “boxing glove” guardrail that was not “crashworthy”; and (3) PennDOT negligently failed to inspect or correct the “boxing glove” guardrail. PennDOT filed a motion for judgment on the pleadings, asserting that the plaintiffs’ claims did not fall within any of the exceptions to sovereign immunity.

The Pennsylvania Supreme Court had previously held in Dean v. Dep’t of Transp., 751 A.2d 1130 (Pa. 2000), that PennDOT has no duty to erect guardrails alongside Commonwealth roadways and the absence of a guardrail does not fall under the real estate exception to sovereign immunity. Since Dean, Commonwealth Courts have broadly applied this concept and found that, “[w]here a guardrail existed, the failure to design it differently or the failure to maintain it were not dangerous conditions of roadways for which immunity was waived either for Commonwealth or for local government.” Fagan v. Commonwealth, Dep’t of Transp., 946 A.2d 1123, 1127-1128 (Pa. Commw. Ct. 2006); see also Lambert v. Katz, 8 A.3d 409, 417 (Pa. Commw. Ct. 2010); Stein v. Pa. Tpk. Comm’n, 989 A.2d 80, 88 (Pa. Commw. Ct. 2010). The question considered by the Pennsylvania Supreme Court in Cagey is whether the Commonwealth owes a duty of care when guardrails have been installed in a dangerous manner.

The Cagey court held that Dean did not control because Dean dealt with the absence of guardrails. The plaintiffs argued, and the court agreed, that a “dangerous, defective guardrail” is not legally equivalent to the absence of a guardrail.

The court first examined whether the plaintiffs sufficiently alleged the three statutory requirements for waiver of sovereign immunity under §§ 8522(a) and 8522(b)(4). The court agreed that: (1) the injuries resulted from a “dangerous condition,” the defective guardrail; (2) the guardrail was installed adjacent to a highway under PennDOT’s jurisdiction and thus of “Commonwealth agency real estate”; and (3) the damages were recoverable at common law because a possessor of land owes a duty to protect invitees from foreseeable harm.

The court went on to say that the real estate exception to sovereign immunity applies to dangerous conditions of all Commonwealth real estate, not just dangerous conditions of highways. It was irrelevant whether the guardrails were installed on the highway itself or affixed to the Commonwealth real estate adjacent to it. According to the court, the guardrails were physically attached to the land and had become fixtures of the property. In re Sheetz, Inc., 657 A.2d 1011, 1013-1014 (Pa. Commw. Ct. 1995) (holding that canopies over gas pumps were “fixtures” of gas station property and “real estate”); Blocker v. City of Phila., 763 A.2d 373, 374-376 (Pa. 2000) (holding that a bleacher was not a “fixture” of real property).

Accordingly, the Cagey court held that sovereign immunity was waived and PennDOT may be held liable for damages caused by the negligent installation or design of guardrails. The court stated in a footnote that the exceptions outlined under the Sovereign Immunity Act and those provided under Pennsylvania’s Political Subdivision Tort Claims Act, 42 Pa. C.S. § 8541, would apply in the same manner.

The concurring opinion of Justice Wecht suggests not only that Dean does not apply to the instant set of facts but that Dean should be overruled. Justice Wecht states that Dean conflicts with the plain meaning of the real estate exception and creates an incentive for the Commonwealth to refrain from the installation of guardrails entirely rather than incur the cost of installing guardrails and the additional cost of exposing itself to liability if the guardrails prove uncrashworthy. Justice Wecht’s concurring opinion echoes the dissenting opinion of Justice Nigro, who states: “If, as the majority contends, the absence of a guardrail does not affect the safety of the road for travel, I question why the Commonwealth would ever place a guardrail on a highway in the first place.” Justice Wecht goes on to state that the plain language of the real estate exception is not predicated on whether the dangerous condition is the result of the “absence of a safety feature or the presence of a defective one.” Justice Wecht is critical of the public policy incentive for the Commonwealth to avoid installing necessary safety measures to the detriment of its citizens because of the fiscal implications.

*Michele is an associate in our King of Prussia, Pennsylvania office. She can be reached at 610.354.8453 or makrengel@mdwcg.com.

_{Defense Digest, Vol. 24, No. 2, June 2018. Defense Digest is prepared by Marshall Dennehey Warner Coleman & Goggin to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. ATTORNEY ADVERTISING pursuant to New York RPC 7.1. © 2018 Marshall Dennehey Warner Coleman & Goggin. All Rights Reserved. This article may not be reprinted without the express written permission of our firm. For reprints, contact tamontemuro@mdwcg.com.}