           IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Matthew J. Snyder,                      :
Executor of the Estate of               : No. 2233 C.D. 2014
Robert F. Snyder, Jr.,                  : Argued: September 17, 2015
                                        :
                            Appellant   :
                                        :
                    v.                  :
                                        :
Brecknock Township,                     :
Fiorenzo Ferretti,                      :
and Christine Ferretti                  :


BEFORE:        HONORABLE ROBERT SIMPSON, Judge
               HONORABLE ANNE E. COVEY, Judge
               HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY SENIOR JUDGE FRIEDMAN                            FILED: November 6, 2015


               Matthew J. Snyder, Executor of the Estate of Robert F. Snyder, Jr.,
(Snyder) appeals from the September 16, 2014, orders of the Court of Common Pleas
of Berks County (trial court) granting the motions for summary judgment filed by
Brecknock Township (Township) and Fiorenzo and Christine Ferretti (Ferrettis)
(collectively, Appellees). We affirm the trial court’s order regarding the Ferrettis,
reverse the trial court’s order regarding Township, and remand for further
proceedings.


               On July 25, 2008, Robert F. Snyder, Jr. (Decedent) was driving his
vehicle on Gouglersville Road, which is owned by Township. Decedent traveled off
of the road and struck a metal I-beam located on the Ferrettis’ property. A Township
speed limit sign was attached to the I-beam, which Township later removed.


             Snyder filed a wrongful death and negligence survival action against
Appellees. Snyder alleged that Gouglersville Road was unsafe and that the I-beam,
which was installed by the previous owner of the Ferrettis’ property, was dangerous.


             Snyder and Decedent’s other family members testified that they are
unaware of what caused the accident. The coroner opined that seconds before the
accident, Decedent may have had a heart attack, which caused him to travel off of the
road. At the time of the accident, Decedent was 60 years old and had lived in his
home, which was approximately one mile from the accident site, for about 14 years.
Decedent was disabled with multiple sclerosis but was able to drive a car.


             Snyder presented two police reports that detailed two earlier vehicular
accidents on the Ferrettis’ property, one in 2003 and the other in 2004. The 2003
accident involved a drunk driver who drove off of the road and hit a tree in the
Ferrettis’ front yard, which was not near the I-beam. In the 2004 accident, a driver
lost control of her vehicle and drove onto the Ferrettis’ property.


             Snyder presented the supplemental report of Kevin E. O’Conner, P.E.,
an accident reconstruction expert. O’Conner determined that the sight distance for
drivers stopped on Blimline Road looking to the left is impeded by trees and brush.
O’Conner stated that Gouglersville Road consisted of worn asphalt and that there was
loose gravel on the surface near the accident site. O’Conner stated that Decedent


                                            2
may have applied his brakes and skidded due to friction differences between the tires
on the clean surface and the tires on the gravel-covered surface. O’Conner further
stated that there were no signs warning drivers of the approaching intersection or of
the road curving at the accident site. O’Conner believes that the metal I-beam should
be removed or made safer because it is in the clear zone.1


               After reviewing and analyzing the available information, O’Conner
opined to a reasonable degree of engineering certainty as follows:

                      The geometry of Gouglersville Road was substandard
               and that the substandard geometry created a dangerous
               condition that was a substantial factor in causing [Decedent]
               to leave the road and strike the metal I-Beam. As a
               Township Road, Brecknock Township should have been
               aware of the substandard condition of Gouglersville Road.
               Brecknock Township’s failure to warn motorists of the
               dangerous substandard condition of the highway by
               installing the appropriate traffic control devices was also a
               substantial factor in causing [Decedent] to leave the
               roadway. The failure of Brecknock Township to keep the
               surface clear of loose gravel from the pavement surface
               created a dangerous condition that could contribute to a
               driver losing control of his vehicle on the sharp curve at the
               accident site and leave the road. Brecknock Township’s
               failure to remove the I-Beam even though it was within the
               Township right of way and even though the Township knew
               that the I-Beam had been struck by eastbound vehicles at
               least twice before, maintained the dangerous condition
               created by the I-Beam.



       1
          O’Conner described the clear zone as “the total roadside border area, starting at the edge of
the traveled roadway . . . that is available for safe use by errant vehicles. In other words, it is the
distance from the edge of the traveled way to the hazard.” (O’Conner Supp. Report, 8/26/14, at 7
(citation omitted).)


                                                  3
                  The installation of the I-Beam by [the] previous
            owner of the property . . . for the purpose of having those
            vehicles strike the I-Beam instead of shrubs at a location
            where it was known that vehicles were likely to leave the
            roadway due to the substandard highway geometry and the
            lack of adequate warning created a dangerous condition.
            The continued maintenance of the I-Beam by the property
            owners at the time of the accident . . . despite their
            knowledge that it had been struck before by other vehicles
            maintained the dangerous condition . . . .

                   It is also my opinion that had the dangerous
            conditions of the highway geometry been eliminated or had
            the proper traffic control devices be[en] installed and had
            the travel portion of the highway been kept free from
            foreign material [Decedent] would not have left the
            roadway and he would not have contacted the I-Beam. It is
            also my opinion that had the I-Beam not been installed or
            had it been removed and the proper clear zone been
            provided, [Decedent] would have been able to bring his car
            safely to a stop without a severe crash. Based on its
            trajectory when it struck the I-Beam, had the I-Beam not
            been there [Decedent’s] car would have contacted some
            small shrubs on the Ferrettis’ front lawn but would not have
            come in contact with their house.

(O’Conner Supp. Report, 8/26/14, at 9-10 (emphasis added).)


            In response, Appellees presented the deposition testimony of James
Franey, the only eyewitness to the accident. Franey stated that Decedent passed in
front of Franey, who was stopped at the intersection of Blimline and Gouglersville
Roads. Franey saw Decedent’s vehicle leave the roadway and strike the I-beam.
Franey stated that he did not observe any substances or slippery conditions on the
roadway and that there was no other traffic on the roadway. Franey did not see
anything that would have caused the accident.


                                         4
               Next, Appellees presented the deposition testimony of Charles S. Kiefer,
Township’s road master. Kiefer testified that he has worked on the road crew or as
master since 2005. Kiefer stated that he was not aware of any accidents involving the
I-beam before 2008. He also did not know about any complaints to Township
regarding the I-beam. Kiefer confirmed that the I-beam was located in Township’s
right-of-way.


               Finally, Appellees presented the deposition testimony of Harry T.
Martin, Jr., a former Township employee. Martin testified that he had been on
Township’s road crew from 2005 through 2010. Martin stated that he was unaware
of any accidents involving the I-beam prior to the accident at issue here. Martin
knew where the I-beam was, had seen it, and believed it was not a problem.


               Prior to filing an answer to Snyder’s complaint, the Ferrettis filed
preliminary objections asking the trial court to strike Snyder’s request for punitive
damages. The trial court struck Snyder’s request for punitive damages, without
prejudice. At the conclusion of discovery, both the Township and the Ferrettis filed
motions for summary judgment, which the trial court granted. Snyder now appeals to
this court.2
               Initially, Snyder contends that the trial court erred in granting summary
judgment for failure to adduce evidence of causation. Specifically, Snyder argues




       2
        Our review of an order granting a motion for summary judgment is limited to determining
whether the trial court erred as a matter of law or abused its discretion. Fagan v. Department of
Transportation, 946 A.2d 1123, 1125 (Pa. Cmwlth. 2008) (en banc).


                                               5
that the trial court erroneously concluded that Snyder failed to prove the reason
Decedent left the roadway.


            “Summary judgment is proper only where there is no genuine issue
concerning any material fact and the moving party is entitled to judgment as a matter
of law.” Bailets v. Pennsylvania Turnpike Commission, __ A.2d __, __ (Pa. 2015)
(No. 12 MAP 2014, filed August 31, 2015), slip op. at 6. “The evidence shall be
viewed in the light most favorable to the nonmoving party, and all doubts as to the
existence of a genuine issue of material fact must be resolved against the moving
party.” Fagan v. Department of Transportation, 946 A.2d 1123, 1125 (Pa. Cmwlth.
2008) (en banc).


            In order to state a cause of action in negligence, the plaintiff must set
forth the following elements:

            (1) a duty on the part of the defendant to conform to a
            certain standard of conduct relative to the plaintiff; (2)
            defendant’s failure to so conform; and (3) a reasonably
            close causal connection between the defendant’s conduct
            and some resulting injury to the plaintiff. Further, the
            Caldwell [v. Commonwealth, 548 A.2d 1284, 1286 (Pa.
            Cmwlth. 1988)] court held that where insufficient evidence
            exists to justify an inference of negligence and causation,
            the trial court may properly grant summary judgment in
            favor of the party against whom liability is sought.

Saylor v. Green, 645 A.2d 318, 320 (Pa. Cmwlth. 1994).


            Here, Snyder alleges in his complaint that Decedent “was lawfully
traveling east on Gouglersville Road . . . operating a 1990 Ford Escort . . .

                                         6
[i]mmediately after passing the intersection of Blimline Road, decedent’s vehicle
impacted a 6” x 6” steel I-beam, 4.8’ high . . . located approximately only 4’ from the
white fog line of Gouglersville Road . . . . As a direct and proximate result of the
crash [Decedent] sustained serious injuries which . . . resulted in his death . . . .”
(Compl., 7/21/10, at 4, 8.) The accident was the:

                direct result of the negligence, carelessness and recklessness
                of the Defendant Brecknock Township in regards to its
                construction and maintenance of Gouglersville and Blimline
                roads and its construction and maintenance of the subject I-
                beam, as specifically stated in the following subparagraphs:

                (A) Inadequately designed and maintained the geometry of
                the subject roadways, as the sharp horizontal curvature
                introduced at or near the top of the pronounced vertical
                curve did not comply with [the Pennsylvania Department of
                Transportation’s (DOT)] design criteria and was unsafe for
                the traveling public;

                (B) Inadequate sight distance on Gouglersville Road near
                the site;

                (C) Inadequate roadway markings . . . .

                (D) Inadequate traffic control devices . . . .

                (E) Inadequate surface conditions on Gouglersville R[oa]d
                ....

(Id. at 8-9.)


                Here, the trial court determined that there was no genuine issue of
material fact because Snyder failed to prove causation, i.e., the reason Decedent left
the roadway.       However, Snyder set forth in his complaint and in O’Conner’s
supplemental report that Decedent left the roadway because of the dangerous

                                               7
condition of the Township-owned roadway, including the inadequate design, sight
distance, roadway marking, traffic control devices and surface conditions. Viewing
the record in the light most favorable to Snyder, we must find that there is sufficient
evidence in the record to withstand a motion for summary judgment that Decedent
left the roadway due to the dangerous condition of Gouglersville Road. See Bailets,
slip op. at 11-13. Accordingly, Snyder presented prima facie evidence of Township’s
negligence, which, at the very least, creates an issue of material fact that precludes the
grant of summary judgment against Township.


               Next, Snyder contends that there was sufficient record evidence that the
Ferrettis’ conduct in maintaining the I-beam caused Decedent’s death. Snyder alleges
that the Ferrettis “did not touch [the I-beam] and never moved it but that they
repainted it[,] maintained it[,] after the Decedent’s accident.” (Snyder’s Br. at 24
(emphasis added).) Snyder contends that Decedent’s accident was foreseeable and
that the Ferrettis’ maintenance of the I-beam was causally related to Decedent’s
death.3


               “[L]iability may be imposed where there is a foreseeable risk of harm to
users of the highway.” Saylor, 645 A.2d at 320. The evidence of record supports the
Ferrettis’ testimony that there were only two prior accidents in their front yard and
that only one of the accidents may have involved the I-beam. It was not foreseeable
that Decedent would die from driving off of the roadway and striking the I-beam.


       3
         Snyder argues that the I-beam was installed by the previous owner to keep people from
driving onto his lawn and into his shrubbery. Thus, it “was placed with the specific intention that it
be struck by vehicles that left the road.” (Snyder’s Br. at 22.)


                                                  8
Further, Snyder does not allege that the Ferrettis installed the I-beam or left it in its
location with the intention of keeping people from driving onto their lawn.
Additionally, when the Ferrettis purchased the property, a Township speed limit sign
was already attached to the I-beam. Section 67323 of The Second Class Township
Code,4 makes it a summary offense to “destroy, remove, injure or deface” any
Township sign. Therefore, the Ferrettis could not have removed the I-beam because
it was a Township sign-pole. The record establishes that the Ferrettis did not install
or maintain the I-beam before Decedent’s accident.


               In Fagan, 946 A.2d at 1124, the estate of a deceased driver filed an
action against DOT seeking recovery for DOT’s alleged failure to design and
maintain crashworthy guardrails, proper roadway shoulders, and berms. This court
stated:

                      Our Supreme Court’s view of proximate cause, like
               its view of duty, is necessarily rooted in public policy
               considerations, that is, ideas of history, morals, justice and
               society in general in determining where the loss should fall.
               Courts faced with a causation question in leaving-the-
               pavement cases may resolve the issue with different
               language, but recent results are consistent: the loss tends to
               fall on the party with some responsibility for the vehicle
               leaving the pavement and not on an owner of land or
               objects nearby.




      4
          Act of May 1, 1933, P.L. 103, as amended, 53 P.S. §67323.


                                                9
Id. at 1128-29 (citation omitted) (emphasis added). Thus, because Snyder fails to
allege that the Ferrettis caused Decedent’s vehicle to leave the roadway, the trial
court did not err in granting the Ferrettis’ motion for summary judgment.5


               Accordingly, we affirm the trial court’s order regarding the Ferrettis,
reverse the trial court’s order regarding Township, and remand for further
proceedings.




                                           ___________________________________
                                           ROCHELLE S. FRIEDMAN, Senior Judge




       5
         Snyder also contends that the trial court erred in sustaining the Ferrettis’ preliminary
objections to Snyder’s punitive damages claim against them. However, we need not address this
issue because the trial court properly dismissed the action against the Ferrettis.


                                               10
           IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Matthew J. Snyder,                       :
Executor of the Estate of                : No. 2233 C.D. 2014
Robert F. Snyder, Jr.,                   :
                                         :
                            Appellant    :
                                         :
                   v.                    :
                                         :
Brecknock Township,                      :
Fiorenzo Ferretti,                       :
and Christine Ferretti                   :


                                        ORDER


            AND NOW, this 6th day of November, 2015, we hereby affirm the
September 16, 2014, order of the Court of Common Pleas of Berks County (trial
court) granting Fiorenzo and Christine Ferretti’s motion for summary judgment, and
reverse the trial court’s September 16, 2014, order granting Brecknock Township’s
motion for summary judgment, and remand for further proceedings.


            Jurisdiction relinquished.



                                         ___________________________________
                                         ROCHELLE S. FRIEDMAN, Senior Judge
