           IN THE COMMONWEALTH COURT OF PENNSYLVANIA

John Manning                             :
                                         :
              v.                         :   No. 2151 C.D. 2015
                                         :   Argued: June 9, 2016
Commonwealth of Pennsylvania,            :
Department of Transportation,            :
                        Appellant        :


BEFORE: HONORABLE P. KEVIN BROBSON, Judge
        HONORABLE ANNE E. COVEY, Judge
        HONORABLE DAN PELLEGRINI, Senior Judge


OPINION BY JUDGE BROBSON                     FILED: July 27, 2016

              Appellant   Commonwealth       of   Pennsylvania,    Department    of
Transportation (DOT), appeals by permission from an interlocutory order of the
Court of Common Pleas for the 26th Judicial District, Montour County Branch
(trial court). The trial court denied DOT’s motion for summary judgment, which
was predicated on sovereign immunity. For the reasons set forth below, we reverse
and remand.
              On June 28, 1998, at approximately 3:00 a.m., Appellee John
Manning (Manning) was driving his vehicle in the eastbound lane of Route 642 in
West Hemlock Township, Montour County. (Reproduced Record (R.R.) at 9a.)
According to Manning, three deer jumped out onto the roadway. (Id. at 39a-40a.)
In order to avoid hitting the deer, Manning initially applied his brakes.
(Id. at 39a-40a.) When he realized, however, he would not be able to stop his
vehicle before hitting the deer, he swerved his vehicle off of the roadway.
(Id. at 39a-40a, 44a-45a.) After leaving the roadway, Manning’s vehicle struck a
drainage culvert, became airborne, and struck a tree. (Id. at 9a, 39a-40a, 44a-45a.)
Manning was ejected from his vehicle and sustained severe injuries.
(Id. at 9a, 40a, 45a.)
              On June 28, 2000, Manning filed a complaint in the trial court against
DOT and West Hemlock Township.1 (Id. at 7a-14a.) In his complaint, Manning
asserted that DOT was responsible for the maintenance of Route 642 in and around
the drainage culvert.     (Id. at 12a.)   Manning further asserted that DOT was
negligent by: (1) failing to maintain and control Route 642, including the drainage
culvert, in a safe condition for ordinary travel; (2) failing to maintain the drainage
culvert in a safe and reasonable manner; (3) failing to erect barriers, guards,
reflectors, or similar devices for the protection of motorists in and around the area
of the drainage culvert; (4) failing to post signs in the immediate area notifying
motorists of the dangerous condition caused by the drainage culvert; and (5) failing
to warn motorists of the dangerous condition caused by the drainage culvert.
(Id. at 12a-13a.)    DOT filed an answer and new matter, specifically denying
Manning’s allegations of negligence and asserting sovereign immunity as an
affirmative defense. (Id. at 15a-23a.)
              Thereafter, the parties engaged in discovery. Manning retained the
services of a professional engineer, Bernard M. Telatovich, P.E., who prepared a
report regarding the relationship between the accident and the condition and design
of Route 642. (Id. at 53a-73a.) The report concluded that the roadside area
traversed by Manning’s vehicle and the concrete/stone headwall of the drainage
culvert that Manning’s vehicle struck “posed hazards to any vehicle leaving the


       1
          Manning’s claims against West Hemlock Township were withdrawn by stipulation of
the parties. (Original Record (O.R.) at 24-25.)



                                           2
roadway.” (Id. at 60a (emphasis added).) The report also concluded that the side
slope of the roadway, which was not considered traversable, and the concrete/stone
headwall of the drainage culvert should not have been located within the “clear
zone.” (Id.) The report further concluded that had the eastbound lane of the
roadway been protected by a guiderail similar to the westbound lane, Manning’s
vehicle would not have encountered the hazardous slope or struck the hazardous
concrete/stone headwall of the drainage culvert. (Id.)
            At the conclusion of the discovery process, DOT moved for summary
judgment. DOT alleged, in relevant part:
            10.       [Manning’s] Complaint alleges that on
            June 28, 1998[,] at approximately 3:00 a.m., [Manning]
            left the roadway and struck a drainage area on the south
            side of State Route 642[,] which caused [Manning’s]
            automobile to strike a tree and eject [Manning] from the
            automobile. Id. at ¶ 7.
            11. The drainage area alleged to have caused the
            collision was located off the side of State Route 642
            within a grassy area. Id. at ¶ 7.
            12. In [his] sworn deposition testimony, [Manning]
            testified that he swerved off the roadway to avoid three
            deer that jumped out into the roadway from the right side
            of State Route 642. . . .
            ....
            20. The drainage area which [Manning] alleges is a
            dangerous condition is located adjacent to State
            Route 642. Pl.’s Compl. ¶ 18.
            21. The drainage area which [Manning] alleges to have
            struck is off of the side of State Route 642 and does not
            constitute a condition of the roadway itself.
            22. [Manning] has failed to properly plead and develop
            facts through discovery to establish that any dangerous
            condition of the travel portion of State Route 642 caused
            [Manning] to leave the roadway; on the contrary,
            [Manning] has specifically plead [sic] that deer caused
                                         3
                [him] to leave the roadway.               Depo. John Manning
                31:18-32:6 (June 23, 2004).
(Id. at 30a, 32a.) In his response to the motion, Manning admitted the principal
components of DOT’s allegations.2 By order dated August 24, 2015, the trial court
denied DOT’s motion for summary judgment.3 (Original Record (O.R.) at 50.)
DOT sought permission from this Court to appeal the trial court’s interlocutory
order pursuant to 42 Pa. C.S. § 702(b).                  (R.R. 86a-93a.)    We granted DOT
permission to appeal to consider the following issue: “Is [DOT] immune from a

       2
           Specifically, Manning responded as follows:
                1-10. Admitted.
               11. Admitted and denied. It is admitted the drainage culvert that caused
       [Manning’s] vehicle to strike a tree and ejected him from his vehicle, was located
       off the paved roadway, however, was within the area controlled and maintained
       by [DOT].
                12-13. Admitted.
                ....
              20. Denied as stated. It is admitted the drainage area is located off the
       paved portion of the highway. It is, however, within the Clear Zone of the
       highway the purpose of which is to allow recovery of a vehicle that leaves the
       paved roadway.
              21. Admitted and denied. It is admitted [the] drainage culvert, which
       caused [Manning’s] injuries[,] is located off the paved portion of the highway,
       however, it is still within the boundaries of the highway as defined by the statute.
               22. Admitted and denied. It is admitted [Manning] left the highway to
       avoid deer, which were crossing the paved portion of the roadway. The injuries
       sustained by [Manning], however, were caused when his car struck the culvert
       causing it to become airborne and ejecting him from the vehicle. . . .
(R.R. 48a, 50a.)
       3
          By order dated October 13, 2015, and upon DOT’s motion, the trial court amended its
August 24, 2015 order “to state that it involves a controlling question of law as to which there is
substantial ground for difference of opinion and that an immediate appeal from the order may
materially advance the ultimate termination of the matter.” (O.R. 54.)



                                                4
claim that it was negligent for arguably dangerous conditions of real estate located
off the area of a roadway intended for normal travel. See Section 8522(b)(4) of the
Judicial Code, 42 Pa. C.S. § 8522(b)(4).” (Id. at 94a-95a.)
               On appeal,4 DOT argues that Manning’s claims do not fall within the
“real estate” exception to sovereign immunity, because Manning’s injuries were
caused when he swerved his vehicle off of the roadway into an area not intended
for vehicular traffic.5 In response, Manning argues that his claims do fall within
the “real estate” exception to sovereign immunity, because the definition of
“highway” contained in 1 Pa. C.S. § 1991 does not restrict the term to only the
paved portion of the road. Manning maintains that, if the legislature intended to
restrict the “real estate” exception to the paved portion of the road, the legislature
could have used the more restrictive term “roadway” rather than the more
expansive term “highway.” Manning further argues that the “real estate” exception
should also apply because his injuries were caused by Commonwealth realty and

       4
          This Court’s standard of review of a denial of summary judgment is limited to
determining whether the trial court committed an error of law or abused its discretion.
Mason & Dixon Lines, Inc. v. Mognet, 645 A.2d 1370, 1372 n.2 (Pa. Cmwlth. 1994). Our scope
of review is de novo when we consider questions of law. Weaver v. Lancaster Newspapers, Inc.,
926 A.2d 899, 902-03 (Pa. 2007). A court may grant a motion for summary judgment only when
there is no genuine issue of material fact and the moving party is entitled to judgment as a matter
of law. Farabaugh v. Pa. Tpk. Comm’n, 911 A.2d 1264, 1267 n.3 (Pa. 2006). The right to
judgment must be clear and free from doubt. Fine v. Checcio, 870 A.2d 850, 857 (Pa. 2005). In
reviewing the denial of a motion for summary judgment, this Court must view “the record in the
light most favorable to the non-moving party, and all doubts as to the existence of a genuine
issue of material fact must be resolved against the moving party.” Id.
       5
         DOT also argues that Manning’s claims do not fall within the “pothole” exception to
sovereign immunity because a drainage ditch is not a pothole. While we agree with DOT’s
argument, we note that Manning did not address the “pothole” exception in his brief to this
Court, and, therefore, we will not address this issue in further detail.



                                                5
DOT’s affirmative act of placing and maintaining the drainage culvert in the “clear
zone” of the highway.
              Commonwealth agencies are generally immune from civil suit for
tort liabilities unless the General Assembly waives sovereign immunity.
See 1 Pa. C.S. § 2310; and 42 Pa. C.S. § 8521. Section 8522(a) of the Judicial
Code (Code), 42 Pa. C.S. § 8522(a), which is often referred to as the “Sovereign
Immunity Act,” authorizes the imposition of liability against Commonwealth
agencies 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 to whom the defense of sovereign immunity is not
available. To meet the threshold requirement under Section 8522(a) of the Code, a
plaintiff must prove the requisite elements of negligence: (1) the defendant’s duty
or obligation recognized by law; (2) a breach of that duty; (3) a causal connection
between the defendant’s conduct and the resulting injury; and (4) actual damages.
Talarico v. Bonham, 650 A.2d 1192 (Pa. Cmwlth. 1994).
             Even if the plaintiff can establish a prima facie case for negligence, a
Commonwealth agency will not be liable unless the breach of its duty coincides
with an exception to Section 8522(a) of the Code. Bendas v. Twp. of White Deer,
611 A.2d 1184, 1186 (Pa. 1992). To defeat the defense of sovereign immunity, the
plaintiff must also establish that his or her allegations fall within one of the nine
enumerated exceptions to sovereign immunity set forth in Section 8522(b) of the
Code. Dean v. Dep’t of Transp., 751 A.2d 1130, 1132 (Pa. 2000). Because of our
General Assembly’s clear intent to insulate government from exposure to tort
liability, courts must strictly construe the exceptions to sovereign immunity. Id. A
dangerous condition of Commonwealth agency real estate and sidewalks,


                                         6
including, but not limited to, highways under the jurisdiction of a Commonwealth
agency, is one of the specifically enumerated circumstances for which our General
Assembly has waived sovereign immunity.6              In order for this “real estate”
exception to apply, “a claim . . . must allege that the dangerous condition” derived,
originated from or had as its source the Commonwealth realty itself. Jones v. Se.
Pa. Transp. Auth., 772 A.2d 435, 443 (Pa. 2001) (referring to Snyder v. Harmon,
562 A.2d 307, 311 (Pa. 1989)).
               In this case, Manning appears to argue that DOT had a duty to
maintain a “clear zone” surrounding the paved portion of the highway so that a
motorist has an area to regain control of an errant vehicle and steer such vehicle
back onto the roadway or, in the alternative, to erect guardrails or other protective
barriers to prevent motorists from striking the drainage culvert. Prior decisions of
Pennsylvania state courts, however, clearly establish that DOT owed no such duty
to Manning.

      6
          42 Pa. C.S. § 8522(b)(4) provides:

      Exceptions to 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)[, relating
      to sinkholes and other dangerous conditions].



                                               7
             The Pennsylvania Supreme Court has stated that the “duty of care a
Commonwealth agency owes to those using its real estate[] is such as to require
that the condition of the property is safe for the activities for which it is regularly
used, intended to be used[,] or reasonably foreseen to be used.”               Snyder,
562 A.2d at 312. DOT has a duty to design and construct its highways in a manner
that makes them safe for their intended purpose.         Smith v. Dep’t of Transp.,
700 A.2d 587, 590 (Pa. Cmwlth. 1997). DOT does not have a duty to install
guardrails or other safety features along the boundaries of its highways. See Dean,
751 A.2d at 1134 (holding that DOT has no duty to install guardrails because
absence of guardrails does not render highway unsafe for its intended use);
Brown v. Dep’t of Transp., 11 A.3d 1054, 1057 (Pa. Cmwlth. 2011) (holding that
DOT has no duty to install rumble strips because their absence does not create
defect in highway).       “A highway, for purposes of sovereign immunity,
encompasses the ‘cartway,’ that is, the paved and traveled portion of the highway,
and the berm or shoulder, the paved portion to either side of the actual traveled
portion of the road, not the right-of-way. . . . [T]he right-of-way off the highway is
clearly neither intended to be used nor is regularly used for vehicular travel.”
Gramlich v. Lower Southampton Twp., 838 A.2d 843, 846-47 (Pa. Cmwlth. 2003)
(internal citations omitted), appeal denied, 851 A.2d 143 (Pa. 2004).
             In Lambert v. Katz, 8 A.3d 409 (Pa. Cmwlth. 2010), the three
occupants of a vehicle died when the vehicle struck the guard cables and posts
located on the right side of the highway, crossed over the guard cables, struck a
tree, spun around, and slid down an embankment. The vehicle’s occupants’ estates
filed civil actions against DOT, contending, inter alia, that DOT was negligent by
“failing to design and maintain the shoulder in a safe manner that would permit a


                                          8
driver to recover from a skid or loss of control.” Lambert, 8 A.3d at 412. This
Court determined that “shoulders are not intended to be used for vehicular traffic.
The travel the [e]states contend DOT should have reasonably anticipated−i.e.,
correction of out of control vehicles−constitutes vehicular travel, and, in turn, is
not activity that DOT could reasonably expect on the shoulders of its highways.”
Id. at 418. As a result, this Court concluded that the estates could not establish that
DOT was negligent, because they had not demonstrated that “DOT had a duty to
make the shoulder wider in anticipation of out of control vehicles.” Id. at 419.
             Likewise, in Bubba v. Department of Transportation, 61 A.3d 313
(Pa. Cmwlth.), appeal denied, 79 A.3d 1099 (Pa. 2013), a motorist steered her
vehicle to the right of the highway to avoid what she believed to be an animal in
the road. As she did so, the vehicle’s passenger-side tires dropped off of the
highway where the paved road abutted the dirt and gravel/berm shoulder. Bubba,
61 A.3d at 315. The driver attempted to steer the vehicle back onto the paved road,
but the vehicle jumped up from the alleged two-to-three-inch drop-off, crossed to
the other side of the highway, overturned, struck a utility pole, and crashed into a
house. Id. A passenger in the vehicle filed a civil action against DOT, contending
that DOT had a duty to maintain the dirt and gravel berm/shoulder abutting the
roadway. Id. at 316. This Court concluded that “the drop-off did not cause [the
passenger’s] injuries, [the driver’s] lack of control of her vehicle did when she
swerved to avoid the animal in the roadway. The shoulder is not intended for
vehicular travel and, accordingly, DOT owed no duty to design, construct and
maintain the shoulder drop-off.” Id. at 317.
             Similar to the complaining parties in Lambert and Bubba, Manning is
unable to establish that DOT owed him a duty. Manning’s injuries were caused by


                                          9
his act of driving his vehicle off of the paved roadway to avoid hitting the deer; his
injuries were not caused by the paved roadway. Further, the area in which the
drainage culvert is located is not the highway and is not intended for vehicular
travel. As a result, DOT owed no duty to maintain that area safe for vehicular
traffic. This Court has previously rejected the “clear zone” concept and has held
that DOT does not have a duty to maintain the area surrounding the paved portion
of the highway so that a motorist has an area to regain control of an errant vehicle
and steer such vehicle back onto the roadway.         See Bubba, 61 A.3d at 317;
Lambert, 8 A.3d at 418. In addition, DOT also did not have a duty to install
guardrails or other protective barriers to protect motorists from striking the
drainage culvert. See Dean, 751 A.2d at 1134; Brown, 11 A.3d at 1057. Because
Manning is unable to establish that DOT owed him a duty, Manning cannot prevail
in a negligence action, and summary judgment should have been granted in DOT’s
favor.
             For the reasons set forth herein, we reverse the trial court’s order and
remand the matter to the trial court with instructions that the trial court enter
judgment in favor of DOT.




                                P. KEVIN BROBSON, Judge




                                         10
           IN THE COMMONWEALTH COURT OF PENNSYLVANIA

John Manning                             :
                                         :
            v.                           :   No. 2151 C.D. 2015
                                         :
Commonwealth of Pennsylvania,            :
Department of Transportation,            :
                        Appellant        :


                                    ORDER


            AND NOW, this 27th day of July, 2016, the Order of the Court of
Common Pleas for the 26th Judicial District, Montour County Branch (trial court),
is hereby REVERSED, and the matter is REMANDED to the trial court with
instructions that it enter judgment in favor of Appellant Commonwealth of
Pennsylvania, Department of Transportation.
            Jurisdiction relinquished.




                               P. KEVIN BROBSON, Judge
