Thomas LOCKWOOD, Administrator of the Estate of James P. Lockwood, Appellant, v. CITY OF PITTSBURGH and Allegheny County, v. Eric Wilson, Appellees.
751 A.2d 1136
Supreme Court of Pennsylvania.
Argued Sept. 13, 1999. Decided May 18, 2000.
Accordingly, I respectfully dissent.
Laurence M. Kelly, Montrose, amicus curiae Trial Lawyers Assoc.
John Shorall, Susan E. Malie, Pittsburgh, for City of Pittsburgh.
David V. Weicht, John A. Robb, Pittsburgh, for Eric Wilson.
Befоre FLAHERTY, C.J., and ZAPPALA, CAPPY, CASTILLE, NIGRO, NEWMAN and SAYLOR, JJ.
OPINION
ZAPPALA, Justice.
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 exceptiоn to governmental immunity set forth in the Political Subdivision Tort Claims Act,
The undisputed facts establish that on November 24, 1990, James Lockwood was a passenger in an automobile operated
The administrator of Lockwood‘s estate, Appellant, filed a wrongful death and survival 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, Appellant contended that the City was negligent in failing to maintain its roadways. He alleged that the аbsence 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 from 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 plеas 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, 672 A.2d 837 (Pa.Cmwlth.1996).1 The
common pleas court cited Rothermel for the proposition that the cause of the accident as opposed to the cause of the injuries is controlling for purposes of dеtermining the applicability of the immunity provisions. It concluded that because the accident was caused by Wilson‘s operation of the vehicle while intoxicated rather than any negligencе on the part of the City, the City was entitled to judgment as a matter of law.
On appeal to the Commonwealth Court, Appellant argued that the entry of judgment in favor of the City was inconsistent with our Court‘s decision in Crowell v. City of Philadelphia, 531 Pa. 400, 613 A.2d 1178 (1992). The Commonwealth Court rejected Appellant‘s argument and affirmed judgment in favor of the City. It distinguished Crowell on the ground that in the instant case “there was no ‘active negligence’ on the part of the City that caused the accident in question.” Slip op. at 11 (emphasis supplied).2
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 twо reasonable minds could disagree that the outcome should have been rendered in favor of the movant. Moure v. Raeuchle, 529 Pa. 394, 604 A.2d 1003, 1007 (1992). A lower court‘s grant or denial of a judgment notwithstanding the verdict will be disturbed only for an abuse оf discretion or an error of law. Id.
The determination of whether judgment was properly entered in favor of the City begins with an examination 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 property caused by any act of a local agency or employee thеreof.
The exception 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, 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 local agency hаd 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 measures to protect against the dangerous condition.
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, 718 A.2d 374 (Pa.Cmwlth.1998), which expressly overruled its decision in Rothermel.3 In Dean, the plaintiff incurred serious injuries while she was a passenger in a car that fishtailed on a snow-covered roadway and traveled over an embankment. In her action against PennDOT, the plaintiff alleged that PennDOT was negligent in failing to properly shield the embankment with a guardrail on the portion of the highway where the accident occurred. PennDOT moved for summary judgment based on Rothermel, which the common pleas court granted.
The en banc Commonwealth Court reversed the entry of summary judgment in favоr of the Commonwealth. In reject-
In an opinion also filed today, our Court reversed, although on entirely different grounds, and reinstated the grant 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 оf the real estate that resulted in a reasonably foreseeable injury to [the plaintiff].” At 1134. Our Court explained that the “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 оr minimized, had the government installed a guardrail along the roadway.” Id. Our conclusion was based on the fact that the exceptions to immunity should be narrowly construed and that the General Assembly did not exprеssly waive immunity for the condition of guardrails. Id.
As we have held that the Sovereign Immunity Act and the Tort Claims Act are to be interpreted consistently, Kilgore v. City of Philadelphia, 553 Pa. 22, 717 A.2d 514, 516 n. 2 (1998), our decision in Dean is controlling here. Accordingly, we hold that the City‘s failure to install a guаrdrail along the curve in the road where the accident occurred is not a dangerous condition of streets and therefore does not fall into the streets exception to governmentаl immunity. As no ex-
Justice NIGRO files a Dissenting Opinion.
Justice NEWMAN files a Dissenting Opinion.
NIGRO, Justice, dissenting.
For the reasons outlined in my dissenting opinion in Dean v. Commonwealth, 561 Pa. 503, 751 A.2d 1130 (2000), I respectfully dissent.
NEWMAN, Justice, dissenting.
I dissent for the reasons set forth in my dissenting opinion in Dean v. Commonwealth, 561 Pa. 503, 751 A.2d 1130 (2000).
Notes
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 сoncluded that the cause of the accident was the unnatural and artifi-