                         [J-66-2017] [MO: Donohue, J.]
                 IN THE SUPREME COURT OF PENNSYLVANIA
                              WESTERN DISTRICT


JOISSE A. CAGEY AND DALE J. CAGEY, :         No. 36 WAP 2016
HER HUSBAND,                       :
                                   :         Appeal from the Order of the
                Appellants         :         Commonwealth Court entered July 28,
                                   :         2016 at No. 2650 CD 2015, affirming
                                   :         the Order of the Court of Common
           v.                      :         Pleas of Beaver County entered
                                   :         December 4, 2015 at No. 10716 of
                                   :         2015.
COMMONWEALTH OF PENNSYLVANIA, :
DEPARTMENT OF TRANSPORTATION,      :         ARGUED: October 17, 2017
A COMMONWEALTH AGENCY,             :
                                   :
                Appellee           :


                             CONCURRING OPINION


JUSTICE WECHT                                DECIDED: FEBRUARY 21, 2018

      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.1     I agree as well that Dean v.

Commonwealth, Department of Transportation, 751 A.2d 1130 (Pa. 2000), does not

control the outcome of this case, as Dean was predicated upon the absence of a

1      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).
guardrail, rather than the presence of a defective one. I write separately to suggest that

this Court should overrule Dean. Not only does Dean conflict with the plain meaning of

the real estate exception, it also creates a perverse incentive for the Commonwealth to

forego the installation of guardrails entirely, confident that it cannot be held liable for any

harm that ensues, rather than install guardrails at considerable cost and expose itself to

liability if those guardrails prove uncrashworthy.

       To understand Dean, we first must examine the case upon which it relied. In

Snyder v. Harmon, 562 A.2d 307 (Pa. 1989), plaintiffs climbed a seven-foot high

embankment adjacent to the highway in an effort to flee a rogue vehicle.          Unwittingly,

they fell into a privately-owned strip mine on the far side. In the plaintiffs’ suit against

the Commonwealth, the Commonwealth moved for summary judgment, invoking

sovereign immunity under the Act. The trial court granted the Commonwealth’s motion,

finding that the plaintiffs had failed to plead sufficient facts showing that the

Commonwealth realty—rather than the privately-owned mine—was dangerous.                    On

appeal, the Commonwealth Court reversed, ruling that the absence of safety features

on the Commonwealth realty protecting against the mine’s hazards created a genuine

issue of material fact as to the dangerousness of the Commonwealth realty sufficient to

waive sovereign immunity.

       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,

intended to be used or reasonably foreseen to be used.” Snyder, 562 A.2d at 312.

However, this Court observed that, in order to satisfy the real estate exception, the




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“dangerous condition [at issue] must derive, originate from or have as its source the

Commonwealth realty.” Id. at 311. This Court barred the plaintiffs’ claim, because the

danger of which they complained (i.e., the privately-owned mine) did not derive from

Commonwealth realty.      Unlike the Commonwealth Court, this Court held that the

absence of safeguards on Commonwealth realty to protect against the mine did not

render the Commonwealth’s realty dangerous for purposes of the real estate exception.

In the Snyder Court’s view, the absence of the specific safeguards that the plaintiffs

alleged should have been installed could not constitute defects of the land itself. Id. at

312-13 (“[T]he absence of lighting so as to create a deceptive appearance of the

shoulder of the road cannot be said to be either an artificial condition or a defect of the

land itself.”).

        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, 751 A.2d

at 1131.     The plaintiffs alleged that PennDOT was negligent in failing to install a

guardrail to protect against the dangerous embankment.            Relying upon Snyder’s

“absence of lighting” language, this Court held the Commonwealth immune, ruling that

“the Commonwealth's failure to erect a guardrail on the highway is not encompassed by

the real estate exception. . . [because] the absence of a guardrail cannot be said to be a

dangerous condition of the real estate that resulted in a reasonably foreseeable injury.”

Id. at 1134. “[K]eeping in mind that the exceptions to sovereign immunity are to be

narrowly construed,” and ignoring the fact that the embankment that caused the injury

was on Commonwealth realty, the Dean Majority reasoned that the Commonwealth




                            [J-66-2017] [MO: Donohue, J.] - 3
waives immunity only when the highway itself is rendered “unsafe for the purposes for

which it was intended, i.e., travel on the roadway.”       Id.   Thus, although the Dean

Majority acknowledged that whether a dangerous condition exists is a question of fact

for the jury, it held nonetheless that “the allegations in the instant case do not pass the

initial threshold necessary under the immunity provisions to raise a question of fact

regarding whether a dangerous condition existed.” Id. at 1135 n.10.

       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.” Id. at 1135 (Nigro, J., dissenting). In a

separate dissent, Justice Newman argued that the Commonwealth waived immunity

when “the condition of government property created a reasonably foreseeable risk of

harm that actually happened.” Id. (Newman, J., dissenting).           In Justice Newman’s

view, because the injury was foreseeable, and was caused by a dangerous condition of

Commonwealth real estate (i.e., the declining embankment, the absence of a

safeguard, or a combination of the two), the Commonwealth had a duty to install

reasonable safety features to protect against that danger. Because the Commonwealth

failed to do so, the Commonwealth realty as a whole (including the highway and the

surrounding embankment) was rendered dangerous, and the Commonwealth waived

immunity, pursuant to the real estate exception.

       The holding and reasoning of the Dean Majority contradict the plain meaning of

the real estate exception, and Dean should be overruled.           Dean’s stark dichotomy

between the presence and absence of a guardrail confounds Section 8522’s explicit




                            [J-66-2017] [MO: Donohue, J.] - 4
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 invitees2 by a condition on her land if she knows, or has reason to

know, of a latent, unreasonable risk of harm that she should expect the guest not to

discover or recognize, and if she fails to render that condition reasonably safe. Atkins v.

Urban Redevelopment Auth. of Pittsburgh, 414 A.2d 100, 103 (Pa. 1980) (adopting the

Restatement (Second) of Torts § 343).3 This is particularly so for possessors of land

adjacent to a highway. See RESTATEMENT (SECOND) OF TORTS § 368 (1965).4




2      Although the Cageys characterize themselves as licensees, I agree with the
Majority that, pursuant to Atkins v. Urban Redevelopment Auth. of Pittsburgh, 414 A.2d
100, 103 n.2 (Pa. 1980), the Cageys are better characterized as invitees. See also
RESTATEMENT (SECOND) OF TORTS § 332 (1965).
3       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 § 343 (1965).
4      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).



                            [J-66-2017] [MO: Donohue, J.] - 5
       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.5 Nor does the statute concern

itself at all with the question of whether the alleged danger complained of impedes

travel on the roadway itself, or looms on the adjacent berm.             Although “one is

admonished to listen attentively to what a statute says[;] [o]ne must also listen

attentively to what it does not say.” Felix Frankfurter, Some Reflections on the Reading

of Statutes, 47 COLUM. L.REV. 527, 536 (1947). Importantly, “it is not for the courts to

add, by interpretation, to a statute, a requirement which the legislature did not see fit to

include.”   Commonwealth v. Johnson, 26 A.3d 1078, 1090 (Pa. 2011) (quoting

Commonwealth v. Rieck Inv. Corp., 213 A.2d 277, 282 (Pa. 1965)).

       In point of fact, the Majority’s holding necessarily leaves little, if any, of Dean’s

reasoning intact.6 Dean’s ruling that the Commonwealth waives immunity only when

the highway is “unsafe for the purposes for which it was intended, i.e., travel on the


5      See Winegardner v. Springfield Twp., 102 A. 134, 135 (Pa. 1917) (“It is the duty
of a township to exercise reasonable care to keep its highways in a safe condition for
ordinary travel . . . . This duty is not confined to maintaining the bed of the road in a
solid and safe condition and clear of obstructions, but extends to the erection of barriers
or other devices for guarding unsafe or dangerous places on or along the road. If a
public road through a township is so dangerous by reason of its proximity to a precipice
that common prudence requires extra precaution, in order to secure safety to travelers,
the township is bound to use such precaution, and the omission to do so is
negligence.”).
6      See generally In re Paulmier, 937 A.2d 364, 370-71 (Pa. 2007) (opining that
overruling precedent is appropriate when two cases are irreconcilable).



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roadway,” Dean, 751 A.2d at 1134, is patently irreconcilable with the Majority’s salutary

conclusion that “the real estate exception to sovereign immunity . . . applies to

dangerous conditions of all Commonwealth real estate, not just dangerous conditions of

highways.” Maj. Op. at 9-10.7



7      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 14 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, 751 A.2d at 1134. Indeed, at the time, Justice Nigro saw
that language as decisional, see Dean, 751 A.2d at 1135 (Nigro, J., dissenting) (“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.”), as have countless Commonwealth Court panels since. The Majority
cannot now transform dispositive and precedential language in Dean into material that
is not “decisional” simply by declaring that, while it rejects Dean’s words, it somehow
does not reject or overrule Dean’s conclusion.
        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., 170 A.3d 414, 447 n.49 (Pa. 2017) (“We would encourage the perpetuation of
poorly reasoned precedent were we to permit ourselves to revisit the soundness of our
case law only when expressly invited to do so based upon a given party's tactical
decision of whether to attack adverse case law frontally (always a gamble against long
odds) or to attempt more finely to distinguish the adverse decisions. The scope of our
review is not so circumscribed.”) (citing Freed v. Geisinger Med. Ctr., 5 A.3d 212, 231
(Pa. 2010) (noting that testing the validity of the Superior Court's ruling distinguishing
one of our prior cases may entail reviewing the validity of the precedent in question))).



                            [J-66-2017] [MO: Donohue, J.] - 7
      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 statutory8 and common-law duty to

make its highways reasonably safe for the purposes for which they are used, Dean

tacitly insists that the Commonwealth need not install guardrails at all, even when they

are obviously necessary to highway safety.       I fear that this Court unwittingly has

subordinated the Commonwealth’s duty to protect its citizens to Dean’s implicit concern

for protecting the public fisc.9 We must presume that the General Assembly did not

intend such an absurd or unreasonable result. See 1 Pa.C.S. § 1922(1).

      For the reasons stated above, I would overrule Dean,10 apply the duty set forth in

Snyder, and adopt the test outlined by Justice Newman in her Dean dissent. Under


8     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”).
9     See Dean, 751 A.2d at 1134 n.9 (“Following the dissent's position to its logical
conclusion would expose the Commonwealth to unlimited liability, a result clearly not
intended by the legislature in enacting the sovereign immunity statute.”).
10     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
(continued…)

                           [J-66-2017] [MO: Donohue, J.] - 8
Snyder, the Commonwealth has a duty to ensure that “the condition of [Commonwealth]

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. Under the real estate

exception, the Commonwealth waives immunity when “the condition of government

property created a reasonably foreseeable risk of harm that actually happened.” Dean,

751 A.2d at 1135 (Newman, J., dissenting).         A vehicular accident is a reasonably

foreseeable consequence of highway travel. As such, although the Commonwealth is

not the guarantor of every passing highway visitor’s safety, see id. at 1134, n.8, the

Commonwealth has a duty to ameliorate latent dangers on the roadway and make the

surrounding area that it owns or controls reasonably safe in the event of an accident. If

the Commonwealth fails to do so, either by failing to install a guardrail where necessary

or by installing a defective one, the Commonwealth has created a reasonably

foreseeable risk of harm.      When a plaintiff is injured by an unsafe condition on

Commonwealth realty, whether the condition is created by omission or commission,

under circumstances that would otherwise impose liability on a private landowner, the

Commonwealth is exposed to potential liability regardless of whether the danger was

associated with the highway itself or with its immediate surroundings. In the instant

case, a defective guardrail affixed to Commonwealth realty allegedly injured the Cageys

after they veered off the road. Applying the aforementioned test, the Cageys have



(…continued)
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.



                            [J-66-2017] [MO: Donohue, J.] - 9
pleaded sufficient facts to show that the Commonwealth has waived immunity pursuant

to the real estate exception.

       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, must 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.11

       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.




11     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, 751
A.2d at 1136 (Newman, J., dissenting). Similarly, the absence of a guardrail does not,
in and of itself, waive Commonwealth immunity. As noted supra, waiver of immunity is
inherently limited by traditional negligence principles like reasonableness, foreseeability,
and causation.



                           [J-66-2017] [MO: Donohue, J.] - 10
