Lead Opinion
OPINION
JUSTICE DONOHUE
We granted allocatur to determine whether the Pennsylvania Department of Transportation ("PennDOT") is liable for injuries caused by negligently and dangerously designed guardrails erected on Commonwealth real estate. The case presents an opportunity to clarify the contours of the real estate exception to sovereign immunity, see 42 Pa.C.S. § 8522(b)(4), especially in light of the Commonwealth Court's expansive treatment of our prior decision in Dean v. Dep't of Transp. ,
The Act was enacted in response to this Court's decision in Mayle v. Pennsylvania Dep't of Highways ,
On June 22, 2015, Joisse and Dale Cagey (the "Cageys") filed a negligence action against PennDOT. In their complaint, the Cageys alleged that on January 26, 2015, they were travelling southbound on State Route 551 in Beaver County, Pennsylvania when they encountered snow and ice on the roadway. Cageys' Complaint at 2. As a result of these conditions, Joisse Cagey ("Mrs. Cagey"), the driver of the car, lost control of the vehicle, which spun off the roadway and slammed into a guardrail adjacent to the road. Id. at 3. The guardrail *461penetrated the side of the vehicle, resulting in substantial injuries to Mrs. Cagey, including toe, foot and leg fractures. Id.
The Cageys sought damages for Mrs. Cagey's injuries and for Mr. Cagey's loss of consortium. Id. at 6-7. Specifically, they alleged that their damages were the result of the following: (1) PennDOT's negligent installation of a guardrail within an area that should have been traversable by vehicle; (2) PennDOT's negligent installation of a dangerous "boxing glove" guardrail that was not "crashworthy"; and (3) PennDOT's negligent failure to inspect or correct the "boxing glove" guardrail. Id. at 5. On July 9, 2015, PennDOT filed an answer and new matter in which it raised the defense of sovereign immunity.
On September 8, 2015, PennDOT filed a motion for judgment on the pleadings, in which it argued that the Act barred the Cageys' claims. PennDOT argued that the Cageys' causes of action did not fall within any of the enumerated exceptions to its sovereign immunity. On October 13, 2015, the Cageys filed a reply in which they conceded that the trial court was bound by existing Commonwealth Court decisions interpreting Dean . Thus, on December 4, 2015, the trial court granted PennDOT's motion for judgment on the pleadings.
The Cageys timely appealed to the Commonwealth Court where they argued that its prior decisions have improperly expanded this Court's holding in Dean . In Dean , we specifically held that the "failure to erect a guardrail on the highway is not encompassed by the real estate exception to sovereign immunity." Dean ,
In the case sub judice, the Commonwealth Court acknowledged that it had consistently applied the holding in Fagan to other similar cases. Cagey v. Commonwealth, Dep't of Transp. , 2650 C.D. 2015, at 4,
In reaching its conclusion, the Commonwealth Court rejected the Cageys' argument that its interpretation of the real estate exception to sovereign immunity is contrary to the common law duty of a possessor of land. Ostensibly ignoring the *462statutory requirement set forth at section 8522(a) of the Act, the Commonwealth Court held that "where a Commonwealth agency enjoys immunity from tort liability, it is irrelevant that a private person would be liable for a similar act."
On appeal, the Cageys argue that Dean is inapplicable to the facts of this case because Dean establishes only that the Commonwealth's failure to install a guardrail does not give rise to a waiver of sovereign immunity under section 8522(b)(4). Cageys' Brief at 5 (citing Dean ,
PennDOT argues that our decision in Dean compels the result reached by the Commonwealth Court. The agency posits that Dean "did not turn on the absence of an 'artificial condition,' but [instead on] ... the fact that the failure to install a [guardrail] had nothing to do with the safety of travel on the roadway." PennDOT's Brief at 13. Because the guardrail in this case "had no effect on the Cageys' ability to travel safely on the roadway," PennDOT urges it cannot be liable for injuries caused by the guardrail regardless of whether it was negligently designed and installed on Commonwealth real estate. See
The instant action requires us to engage in statutory interpretation. Pursuant to the Statutory Construction Act, "the object of all interpretation and construction of statutes is to ascertain and effectuate the intention of the General Assembly." 1 Pa.C.S. § 1921(a). It is well settled that the best indication of the General Assembly's intent may be found in a statute's plain language. See id. , § 1921(b). Thus, "when the language of a statute is plain and unambiguous and conveys a clear *463and definite meaning," we must give the statute this plain and obvious meaning. Mohamed v. Commonwealth Dep't of Transp. ,
The Act provides, in relevant part:
(a) Liability imposed .-The General Assembly, pursuant to section 11 of Article I of the Constitution of Pennsylvania, does hereby waive, in the instances set forth in subsection (b) only and only to the extent set forth in this subchapter and within the limits set forth in section 8528 (relating to limitations on damages), sovereign immunity as a bar to an action against Commonwealth parties, 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 not having available the defense of 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).
42 Pa.C.S. § 8522(a), (b)(4).
Our standard of review over a decision sustaining a judgment on the pleadings requires us to determine whether, on the facts averred, the law makes recovery impossible. Emerich v. Phila. Ctr. for Human Dev., Inc. ,
Next, with respect to the second statutory requirement, the Cageys averred that the allegedly defectively designed guardrail installed adjacent to a highway under PennDOT's jurisdiction is a condition "of Commonwealth agency real estate." 42 Pa.C.S. § 8522(b)(4). We find this statutory requirement to be unambiguous as well. As an initial matter, we note that the real estate exception to sovereign immunity is broad in that it applies to dangerous conditions of all Commonwealth real estate , not just dangerous conditions of highways. See id. While highways are specifically mentioned in section 8522(b)(4), it is clear from the word "including" that the General Assembly intended to indicate that highways are merely one form of Commonwealth real estate for the purposes of this exception. Given the breadth of this exception, it is largely irrelevant whether the guardrails are, technically, on the highway itself or are instead affixed to Commonwealth real estate adjacent thereto. The operative question is whether the guardrail at issue was a dangerous condition of Commonwealth real estate, not whether it was a dangerous condition on a highway.
It is a well settled tenet of property law that whatever is annexed to the land becomes land. See Clayton v. Lienhard ,
Because the guardrail at issue was affixed to Commonwealth real estate, making it legally indistinguishable from the land upon which it was erected, the Cageys sufficiently alleged that the dangerous condition (the negligently installed "boxing glove"-style guardrail) was a condition "of Commonwealth agency real estate." 42 Pa.C.S. § 8522(b)(4) ; see also Snyder v. Harmon ,
Regarding the third and final requirement that the alleged damages be recoverable at common law, see 42 Pa.C.S. § 8522(a), it is well settled that possessors of land (here, as discussed, to include the guardrail) owe a duty to protect invitees
(a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees, and
(b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and
(c) fails to exercise reasonable care to protect them against the danger.
Thus, at common law, a possessor of land is liable for harm caused by a dangerous condition that he would have discovered through the exercise of reasonable care.
Accordingly, there is no question that the Cageys sufficiently alleged, pursuant to the plain and unambiguous language of sections 8522(a) and 8522(b)(4), that a "dangerous condition of Commonwealth agency real estate" caused their injuries, and that damages would have been recoverable at common law absent the protections of sovereign immunity. See 42 Pa.C.S. § 8522(a), (b)(4). Sovereign immunity is therefore waived and PennDOT may be held liable for any damages caused by the negligent installation or design of the guardrails at issue in this matter.
In so ruling, we reject PennDOT's contention that our prior decision in Dean has any applicability under the facts presented here. In Dean , we held only that a "dangerous condition of Commonwealth agency real estate" must be an artificial condition or defect of the land itself, as opposed to the absence of such a condition. Moreover, based on the plain language of the Act, we reject PennDOT's insistence that Dean requires the alleged condition to make travel "on the roadway" dangerous. We have not been asked to overrule Dean
Finally, PennDOT posits that this Court's per curiam order in Baer v. Commonwealth, Dep't of Transp. ,
In Baer , we affirmed an order of the Commonwealth Court "solely on the basis of our decision in Dean ." Baer ,
Having found that the Cageys' allegations fit squarely within the Sovereign Immunity Act's real estate exception, we conclude that PennDOT is not immune from suit. Accordingly, we reverse the decision of the Commonwealth Court and remand for further proceedings consistent with this Opinion.
Chief Justice Saylor and Justices Baer, Todd, Dougherty and Mundy join the opinion.
Chief Justice Saylor files a concurring opinion.
Justice Wecht files a concurring opinion.
Paragraph five of section 8522(b) provides:
(5) Potholes and other dangerous conditions.- A dangerous condition of highways under the jurisdiction of a Commonwealth agency created by potholes or sinkholes or other similar conditions created by natural elements, except that the claimant to recover must establish that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred and that the Commonwealth agency had actual written notice of the dangerous condition of the highway a sufficient time prior to the event to have taken measures to protect against the dangerous condition. Property damages shall not be recoverable under this paragraph.
42 Pa.C.S. § 8522(b)(5).
We have explained that the same principles apply to a judgment on the pleadings as apply to a preliminary objection in the nature of a demurrer:
All material facts set forth in the complaint as well as all inferences reasonably deducible therefrom are admitted as true for the purpose of this review. The question presented by the demurrer is whether on the facts averred the law says with certainty that no recovery is possible. Where a doubt exists as to whether a demurrer should be sustained, this doubt should be resolved in favor of overruling it.
Emerich ,
The Tort Claims Act provides: "Except as otherwise provided in this subchapter, no local agency shall be liable for any damages on account of any injury to a person or property caused by any act of the local agency or an employee thereof or any other person." 42 Pa.C.S. § 8541. One exception to local agency immunity is for "the care, custody or control of real property in the possession of the local agency."
We noted in Snyder that "the critical word in the statutory language is the word 'of'," and we set forth the following dictionary definition for this preposition: "used to indicate derivation, origin or source." See Snyder ,
In Atkins v. Urban Redevelopment Auth. of Pittsburgh ,
Where a strip of private land abutting upon the public sidewalk is so paved that it is indistinguishable from the sidewalk, the possessor holds it open to the public as provided for public use for the purpose of passage, and anyone so using it is an invitee. The possessor's duty to use reasonable care to keep such land in proper and safe condition is not far removed from his obligation to the public upon the highway itself, or to those who stray a few feet from it in the course of travel.
Similarly, the Cageys rely on section 368 of the Restatement (Second) of Torts, see Cageys' Brief at 16, which sets forth the duty of care owed by a possessor of land with respect to dangerous conditions adjacent to highways. Specifically, section 368 provides that a possessor of land is subject to liability when "he realizes or should realize" that the condition he created near a highway involves an unreasonable risk to persons traveling on or foreseeably deviating from the highway. See Restatement (Second) of Torts § 368. This standard is consistent with that reserved for an invitee rather than a licensee.
We reject the suggestion in Justice Wecht's concurring opinion that we overrule Dean , for several reasons. First, the Cageys have not asked us to overrule Dean , and the parties have not presented the Court with any sustained argument or advocacy on which to do so. While it is true that the Cageys referenced the possibility of doing so in their reply brief, Cagey's Reply Brief at 3, they did so only if the "safe for travel on the roadway" language in Dean was determined to be "one of the decisional rationales supporting the decision."
In this regard, we note that the lack of advocacy with respect to overruling Dean is hardly surprising, as we were not asked to and we did not grant allocatur to consider this issue. Instead, we granted allocatur to decide whether the Commonwealth Court had "improperly expanded this Court's holding" in Dean . As such, the focus of the parties, both in their briefs and at oral argument, was whether the present case could be distinguished from Dean and whether the legal principles referenced in Dean regarding the lack of a guardrail did, or did not, apply equally to a situation in which negligently designed guardrails were installed. As set forth herein, we conclude that Dean decided a fundamentally different question than the one under consideration here, and that, as such, it has no application to the facts presented in the present case.
Dean was decided based upon this Court's determination that the "dangerous condition of Commonwealth agency real estate" refers to either an artificial condition or a defect of the land itself, and that the lack of a guardrail does not fit into either of these categories. Whether that rationale has continued vitality is for another day because here, an installed guardrail is clearly an artificial condition and thus no similar question exists in the present context. For this reason, presumably, Justice Wecht agrees that Dean "does not control the outcome of this case." Concurring Op. at 470. Accordingly, no principled reason exists to overrule Dean at this time. We are not persuaded by the argument that our decision would incentivize the Commonwealth to forego the installation of needed guardrails merely to avoid potential future liability, as we will not assume that the Commonwealth would act negligently, or even recklessly, for such a purpose.
We expressly overrule Fagan and its progeny.
Our case law recognizes one narrow exception to this rule. If a per curiam order expressly affirms a lower court opinion on the basis of that lower court opinion, we give the order precedential force, but only as to the holding of the case. See Commonwealth v. Tilghman ,
To the extent that the per curiam order in Baer could be construed to have any precedential value, it is overruled.
Concurrence Opinion
I join the majority opinion. I acknowledge that I supported the per curiam Order in Baer v. PennDOT ,
I wish to also touch briefly on the substantive liability standard involved. In this regard, I observe that the decision in Snyder v. Harmon ,
In Pennsylvania, however, the notion of safety in the abstract was associated with jury instructions in the strict liability arena, whereas the litmus in the negligence arena is reasonable care and safety. Compare Tincher v. Omega Flex Inc.,
I note that Snyder , like the present case, concerned sovereign immunity and was not closely focused on the underlying substantive liability standards. Moreover, Snyder 's depiction of the safety standard untethered by reasonableness is inconsistent with a wide range of decisional law. See, e.g. , McKenzie v. Cost Bros., Inc. ,
While the distinction between "safety" and "reasonable safety" may seem to be modest in a colloquial sense, it is quite significant as a matter of substantive law. Indeed, the difference heralded a period of great uncertainty in Pennsylvania in the product liability context. See Tincher ,
Finally, there remains a concern with cost-benefit decisions of government being decided, or second guessed, in jury rooms. In this regard, I note that a number of other jurisdictions apply a discretionary-functions overlay to highway system design and/or maintenance, extending immunity to discretionary decision-making endeavors. See, e.g. , *470Kirby v. Macon County ,
JUSTICE WECHT
Like the learned Majority, I believe that the plain language of the real estate exception, Subsection 8522(b)(4) of the Sovereign Immunity Act, 42 Pa.C.S. §§ 8521 -28 ("the Act"), waives Commonwealth immunity for damages caused by dangerous guardrails affixed to Commonwealth real estate.
To understand Dean , we first must examine the case upon which it relied. In Snyder v. Harmon ,
This Court reversed, holding the Commonwealth immune. This Court acknowledged that the Commonwealth has a duty under Section 8522 to ensure "that the condition of [its] property is safe for the activities for which it is regularly used, *471intended to be used or reasonably foreseen to be used." Snyder ,
Eleven years later, in Dean , two plaintiffs were injured after their vehicle "fishtailed on the snow-covered roadway ... [,] left the graveled portion of the highway and traveled over a steep, declining embankment where it overturned." Dean ,
In a concise dissent, Justice Nigro pointed out the obvious inconsistency in the Dean Majority's logic: "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."
The holding and reasoning of the Dean Majority contradict the plain meaning of the real estate exception, and Dean should *472be overruled. Dean ' s stark dichotomy between the presence and absence of a guardrail confounds Section 8522's explicit waiver of immunity "for damages arising out of a negligent act where the damages would be recoverable under the common law or a statute." 42 Pa.C.S. § 8522(a). It has long been axiomatic at common law that a possessor of land is subject to liability for harm caused to invitees
Under the real estate exception, the Commonwealth waives immunity for "a dangerous condition of Commonwealth agency real estate." 42 Pa.C.S. § 8522(b)(4). Neither the Act, nor any reasonable construction of its real estate exception, predicates the waiver of immunity upon whether a dangerous condition is the result of the absence of a safety feature or the presence of a defective one.
*473In point of fact, the Majority's holding necessarily leaves little, if any, of Dean 's reasoning intact.
Nevertheless, because the Majority chooses not to overrule Dean , an anomaly arises. To preserve Dean , and to apply it in tandem with the Majority's holding, creates a perverse incentive for the Commonwealth to forego the installation of guardrails entirely, lest it waive immunity when those guardrails cause injury. Under the Majority's holding, the Commonwealth waives immunity for defective guardrails. Yet, under Dean , the Commonwealth is immune if it never installs those guardrails in the first place. Thus, although the Commonwealth may have a statutory
For the reasons stated above, I would overrule Dean ,
I hasten to note that this approach would not open the proverbial floodgates to unbounded Commonwealth liability. By no means does the Commonwealth's waiver of immunity guarantee a plaintiff's recovery. While the waiver of immunity exposes the Commonwealth to potential liability, a plaintiff nonetheless must plead and prove a prima facie claim of negligence to survive the pleading stage, *475must then survive dispositive motions, and must then prevail at trial. As with all litigation-against the Commonwealth or a private party-only meritorious claims proceed.
I would overrule Dean, and I would adopt the test outlined by Justice Newman in her Dean dissent. I concur in the result and the reasoning of the Majority, subject to the limitations expressed herein.
Notably, the General Assembly has not waived immunity for strict liability claims. See Jones v. SEPTA ,
There is, of course, the nuance that governments are often not the designers of products integrated into highway system infrastructures, such as guardrails, but rather, acquire such products through the procurement system. Such additional complexities may also be relevant to the liability assessment in this arena, and, again, because liability is not sharply in focus here, I would refrain from making specific pronouncements.
This is not to say that the discretionary-functions dynamic might not, in some circumstances, be relevant within the framework of a strict construction analysis. No such arguments are presented here, however, and thus I will refrain from further comment along these lines as well.
Subsection 8522(b)(4) of the Act waives Commonwealth immunity for "[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." 42 Pa.C.S. § 8522(b)(4).
Although the Cageys characterize themselves as licensees, I agree with the Majority that, pursuant to Atkins v. Urban Redevelopment Auth. of Pittsburgh ,
Under Section 343 of the Restatement (Second) of Torts, "[a] possessor of land is subject to liability for physical harm caused to his invitees by a condition on the land if, but only if, he (a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees, and (b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and (c) fails to exercise reasonable care to protect them against the danger." Restatement (Second) of Torts S § 343 (1965).
A possessor of land who creates or permits to remain thereon an excavation or other artificial condition so near an existing highway that he realizes or should realize that it involves an unreasonable risk to others accidentally brought into contact with such condition while traveling with reasonable care upon the highway, is subject to liability for physical harm thereby caused to persons who
(a) are traveling on the highway, or
(b) foreseeably deviate from it in the ordinary course of travel.
Restatement (Second) of Torts § 368 (1965).
See Winegardner v. Springfield Twp. ,
See generally In re Paulmier ,
Today's Majority insists on keeping Dean alive (albeit on life support) notwithstanding that the Majority itself appears to confirm that its ruling here has hollowed out that precedent by "reject[ing] Dean's 'safe for travel on the roadway' rationale entirely ...." Maj. Op. at 466 n.6. The Majority maintains this precarious posture on the basis that Dean 's "safe for travel on the roadway" holding was "not a 'decisional rationale' of significance ...." Id . Respectfully, I find this view puzzling.
Dean 's "travel on the roadway" language was patently decisional: it was included within the paragraph announcing the Court's ruling; it was stated within the context of "applying this law to the instant case;" and it was prefaced as a restatement of this Court's position. See Dean ,
The Majority's view notwithstanding, the Cageys have in fact requested that we overrule Dean . See Reply Brief for Cagey at 2-3 ("If it is true that the safe for travel on the roadway language should be considered one of the decisional rationales supporting the holding in Dean , it is contrary to the broad scope of the language of the real estate exception, and should be distinguished, clarified or overruled."). I would accept this invitation. Considering the questions that arise in the context of this case, and contemplating the havoc that Dean has wrought (and continues to wreak) in our law, as well as the problems it will likely cause and perpetuate if left undisturbed, the validity of Dean 's rationale is before us today. See William Penn Sch. Dist. v. Pennsylvania Dep't of Educ. , ---Pa. ----,
See , e.g. , 36 P.S. § 670-401 (requiring that the Commonwealth "construct or improve, and thereafter maintain and repair, at the cost and expense of the Commonwealth, the highways forming the plan or system of the State highways, in the several counties and townships"); 36 P.S. § 670-416 (requiring the Commonwealth to construct sidewalks "[w]henever it shall appear that any part or portion of a State highway in any township is dangerous to the traveling public, and such danger could be materially reduced or lessened by the construction of a sidewalk").
See Dean ,
I would also clarify Snyder to the extent that its "absence of lighting" language seems to imply that the absence of any and all safety features cannot render Commonwealth realty dangerous. As noted supra , under our common law, a plaintiff may pursue a negligence claim against a landowner for failing to make her property reasonably safe, which necessarily includes the installation of reasonable safety features. Likewise, Dean 's extension of this rationale to guardrails provides yet another reason to overrule Dean .
In order to survive dispositive motions and prevail at trial, a plaintiff also must plead and prove that the Commonwealth realty at issue was, in fact, dangerous. Plainly, the Commonwealth need not install guardrails on every inch of Commonwealth-maintained highway. As noted by Justice Newman in her Dean dissent, the absence of a guardrail could not be considered a dangerous condition of Commonwealth realty when prevailing engineering standards would not mandate their inclusion. Dean ,