Pennsylvania Supreme Court declares that the absence of guardrails cannot be said to be a dangerous condition of highways
By Laurence M. Kelly, Esq.
In a decision that has the distinct potential of nearly eliminating governmental liability for dangerous conditions of highways the Pennsylvania Supreme Court has held that the absence of a guardrail cannot be said to be a dangerous condition of government-owned highway and that the failure to erect a guardrail on a highway is not encompassed by the real estate exception to sovereign immunity.
In doing so the Supreme Court cited virtually no precedence and provided virtually no reasoning. It overlooked clear highway design engineering principles that had been recognized for over eighty years and, without ever so stating, overruled clear precedence from its own previous decisions dating back to 1917 which had held that the government's duty is not confined to just maintaining the bed of the highway, but extends to providing precautions to make the highway reasonably safe. Drew v. Laber, 477 Pa. 297, 383 A.2d 941 (1978); Rodgers v. Shaler Township, 164 Pa. Super. 558, 67 A.2d 806 (1949). In other decisions, the Supreme Court had previously held that in certain instances, where it is necessary to ensure that the condition of the highway is safe for travel, the activity for which the highway is regularly used, intended to be used and reasonably foreseen to be used, the law imposes an additional duty on a government party, in this case DOT, to reduce the risks posed by steep cliffs and embankments in close proximity to the highway by erecting guiderails or other barriers. Balla v. Sladek, 381 Pa. 85, 112 A.2d 156 (1955). See also Winegardner v. Springfield Township, 258 Pa. 496, 102 A. 134 (1917) holding that "[i]f a public road... is so dangerous by reason of its proximity to a precipice that common prudence requires extra precaution, in order to secure safety to travelers, the [government party] is bound to use such precaution and the omission to do so is negligence." That PennDOT's duty to the travelling public extends to placing adequate guardrails to prevent skidding cars from going off the side of the road has been clear since the Supreme Court of Pennsylvania case of McCracken v. Curwensville Borough, 309 Pa. 98, 110, 163 A. 217, 221 (1932).
The decision has the further effect of rendering all of the PennDOT design and maintenance manuals on the topic of guiderails and roadside barriers as advisory and discretionary.
This ruling came in the case of Stacey L. Dean v. Commonwealth of Pennsylvania, Department of Transportation, -- A.2d ----, 2000 WL 636258, No. 33 M.D. Appeal Docket 1999, May 18, 2000, in which the undisputed facts established that on January 26, 1991, Stacey L. Dean was a passenger in a 1987 Ford Ranger XLT operated by Ronald Eugene Bell. The truck was proceeding east on U.S. Route 22 when it fishtailed on the snow-covered roadway, causing Bell to lose control of the vehicle. As a result, the truck left the graveled portion of the highway and traveled over a steep, declining embankment where it overturned. Appellee sustained serious injuries, with resultant quadriplegia.
In a companion case, Lockwood v. City of Pittsburgh, 26 W.D. Appeal Docket 1999, also decided on the same date, the same Supreme Court held that the City of Pittsburgh's failure to install a guardrail along a curve in the road where an accident occurred is not a dangerous condition of streets for purposes of the Political Subdivision Tort Claims Act.
There were two dissenting opinions, one from Mr. Justice Nigro who recognized a guardrail as an obvious part of the highway, and that it "seems clear that an appropriately placed guardrail at the scene of the accident would have stopped Mr. Bell's truck from sliding over the embankment and therefore, would have prevented the serious injuries incurred by Ms. Dean."
Also dissenting was Madame Justice Newman noted that the test for whether the real property exception to sovereign immunity applies should depend on whether the condition of government property created a reasonably foreseeable risk of harm that actually happened. She noted that in this case, the "condition" of Commonwealth realty that the plaintiff claims was dangerous was the design of the highway. Plaintiff averred that prevailing engineering standards required the installation of guardrails in this location because of the curvature of the road and the proximity of a steep embankment. The reasonably foreseeable risk of harm created by this defectively-designed highway was that an occupant of a vehicle that leaves the paved surface would suffer more serious injuries by traveling down the embankment than if a guardrail had halted the impact.
She opined that where the plaintiff adduced evidence that prevailing engineering standards would require the inclusion of a guardrail in the design of the highway, then the plaintiff is entitled to present to the jury whether this design defect created a dangerous condition that resulted in a reasonably foreseeable risk of harm.
[Writer's note]: Justice Newman's dissent states the correct criteria for determining negligence, dangerous condition, etc. in virtually every type of case; the question is for the jury in any particular case. The Dean decision has the potential of undermining this concept as well as the entire civil justice system.
Larry Kelly, a partner in the firm of Kelly & Kelly, Montrose, is a member of PaTLA's Board of Governors and is a past chair of the Amicus Committee.
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