Lead Opinion
OPINION
We must determine whether a claim alleging that the City of Pittsburgh was negligent in failing to install a guardrail along a curve in the road where an accident occurred falls within the streets exception to governmental immunity set forth in the Political Subdivision Tort Claims Act, 42 Pa.C.S. § 8542(b)(6). In Dean v. Commonwealth of Pennsylvania, Department of Transportation,
The undisputed facts establish that on November 24, 1990, James Lockwood was a passenger in an automobile оperated
The administrator of Lockwood’s estate, Appellant, filed a wrongful death and survivаl action against the City and Allegheny County, which joined Wilson as an additional defendant. The County was subsequently dismissed from the case when it was discovered that it did not own the road in question. At trial, Appеllant contended that the City was negligent in failing to maintain its roadways. He alleged that the absence of a guardrail on the road where the accident took place created a foreseeable risk of injury and was a substantial factor in causing Lockwood’s death. Expert testimony was presented in support of these assertions. The City maintained that it was immune frоm suit under the Tort Claims Act.
On March 13, 1996, the jury entered a verdict finding both the City and Wilson fifty percent liable. The common pleas court, however, subsequently granted the City’s motion for post-trial relief and entered judgment notwithstanding the verdict based on the Commonwealth Court’s then recent opinion in Rothermel v. Commonwealth of Pennsylvania, Department of Transportation,
On appeal to the Commonwealth Court, Appellant argued that the entry of judgment in favor оf the City was inconsistent with our Court’s decision in Crowell v. City of Philadelphia,
Judgment notwithstanding the verdict can be entered only if the movant is entitled to judgment as a matter of law or if the evidence is such that no two reasonable minds could disagree that the outcome should have been rendered in favor of the movant. Moure v. Raeuchle,
The determination of whether judgment was properly entered in favor of the City begins with an examinаtion of the applicable provisions of the Tort Claims Act. This Act legislatively raises the shield of governmental immunity against any damages on account of injury to a person or proрerty caused by any act of a local agency or employee thereof. 42 Pa.C.S. § 8541. By way of exception to the rule of governmental
The exceрtion at issue here is the streets exception to immunity, which exposes a local agency to liability for:
A dangerous condition of streets owned by the local agency, exceрt 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 local agency had actual notice or could be charged with notice under the circumstances of the dangerous condition at a sufficient time prior to the event to have taken measurеs to protect against the dangerous condition.
42 Pa.C.S. § 8542(b)(6).
In support of his argument that entry of judgment in favor of the City was improper, Appellant relies on the Commonwealth Court’s decision in Dean v. Commonwealth,
The en banc Commonwealth Court reversed the entry of summary judgment in favor of the Commonwealth. In reject
In an opinion also filed today, our Court reversed, although on entirely different grounds, and reinstated the grаnt of summary judgment in favor of PennDOT. We held that the Commonwealth’s failure to install a guardrail did not fall into any of the enumerated exceptions to sovereign immunity. We reasoned that “the absence of a guardrail cannot be said to be a dangerous condition of the real estate that resulted in a reasonably foreseeable injury to [the plaintiff].” At 1134. Our Court explained that thе “lack of a guardrail does not render the highway unsafe for the purposes for which it was intended, i.e., travel on the roadway.” Id. at 1134. We found that “the legislature did not intend to impose liability upon the government whenever a plaintiff alleged that his or her injuries could have been avoided or minimized, had the government installed a guardrail along the roadway.” Id. Our conclusion was basеd on the fact that the exceptions to immunity should be narrowly construed and that the General Assembly did not expressly waive immunity for the condition of guardrails. Id.
As we have held that the Sovereign Immunity Act аnd the Tort Claims Act are to be interpreted consistently, Kilgore v. City of Philadelphia,
Notes
. In Rothermel, a driver lost control of her vehicle due to an ice patch on the roadway. The car veered off the road, down an embankment, and struck a tree. Both the driver and passenger were killed. The passenger's estate filed suit against the driver's estate for negligent operation of the vehicle and against the Cоmmonwealth, Department of Transportation (PennDOT), for failing to maintain a guardrail along the roadway.
The Commonwealth Court held that PennDOT was not liable because the absence of a guardrail, dangerous or otherwise, did not cause the accident itself, but merely facilitated the decedent's injuries. The court concluded that the cause of the accident wаs the unnatural and artifi
. Judge Pellegrini conсurred in the result. Judge Flaherty filed a dissenting opinion wherein he found that the majority's attempt to distinguish Crowell was unavailing. He further opined that the causation analysis employed in Rothermel regarding the distinction between "cause oi the accident" and "cause of the injury” should be overruled.
. Appellant also contends that the lower courts erroneously distinguished Crowell v. City of Philadelphia on the basis that the instant case did nоt involve any "active negligence” on the part of the City. To the contrary, Appellant maintains that the jury expressly found that the City was legally responsible for the death of Lockwood as a joint tortfeasor.
Dissenting Opinion
dissenting.
For the reasons outlined in my dissenting opinion in Dean v. Commonwealth,
Dissenting Opinion
dissenting.
I dissent for the reasons set forth in my dissenting opinion in Dean v. Commonwealth,