                          [J-66-2017][M.O. – 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
                                   :             Commonwealth Court entered on
           Appellants              :             7/28/16 at No. 2650 CD 2015 affirming
                                   :             the Order of the Court of Common
                                   :             Pleas of Beaver County entered on
                                   :             12/4/15 at No. 10716 of 2015
             v.                    :
                                   :
COMMONWEALTH OF PENNSYLVANIA, :
DEPARTMENT OF TRANSPORTATION,      :
A COMMONWEALTH AGENCY,             :
                                   :
           Appellee                :             ARGUED: October 17, 2017




                                  CONCURRING OPINION


CHIEF JUSTICE SAYLOR                             DECIDED: FEBRUARY 21, 2018

       I join the majority opinion. I acknowledge that I supported the per curiam Order

in Baer v. PennDOT, 564 Pa. 603, 770 A.2d 287 (2001), which applied the decision in

Dean v. PennDOT, 561 Pa. 503, 751 A.2d 1130 (2000), in circumstances involving

alleged negligence in the design, construction, and maintenance of guardrails. The

majority has persuaded me, nonetheless, that the outcome of Baer is undermined by a

conventional fixtures analysis.

       I wish to also touch briefly on the substantive liability standard involved. In this

regard, I observe that the decision in Snyder v. Harmon, 522 Pa. 424, 562 A.2d 307

(1989), cited by the majority, omitted reference to a reasonableness factor in discussing

PennDOT’s liability relative to an allegedly defective condition associated with real
estate under the Commonwealth’s control.          See id. at 435, 562 A.2d at 312 (“The

corresponding 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.”

(emphasis added)).

       In Pennsylvania, however, the notion of safety in the abstract was associated

with jury instructions in the strict liability arena, whereas the litmus in the negligence

arena is reasonable care and safety. Compare Tincher v. Omega Flex Inc., 628 Pa.

296, 363, 104 A.3d 328, 368 (2014) (noting that, with respect to strict product liability

claims, the question presented to a jury was whether the product lacks any element

necessary to make it safe for its intended use) (emphasis added), with Adams v. J.C.

Penny Co., 411 Pa. 653, 656-57, 192 A.2d 218, 219 (1963) (indicating that property

owners have a duty to invitees to maintain the premises in a reasonably safe condition

for its contemplated use) (emphasis added)).1 The reasonableness dynamic accounts

for cost-benefit considerations which, here, are quite salient to the Commonwealth

given the scale of its responsibilities relative to a vast collection of public roads and

highways.

       I note that Snyder, like the present case, concerned sovereign immunity and was

not closely focused on the underlying substantive liability standards.              Moreover,


1 Notably, the General Assembly has not waived immunity for strict liability claims. See
Jones v. SEPTA, 565 Pa. 211, 217 n.1, 772 A.2d 435, 439 n.1 (2001) (citing 1 Pa.C.S.
§2310) (indicating that the Commonwealth shall enjoy sovereign immunity and remain
immune from suit except as the General Assembly specifically waives immunity)); 42
Pa.C.S. §8522(a) (indicating that the General Assembly waives sovereign immunity for
damages arising out of negligent acts only); accord Rooney v. City of Phila., 623 F.
Supp. 2d 644, 662 (E.D.Pa. 2009) (holding that a local government was immune from
plaintiffs’ strict liability claims because, in Pennsylvania, exceptions to governmental
immunity are limited to claims of negligence).


                            [J-66-2017][M.O. – Donohue, J.] - 2
Snyder’s depiction of the safety standard untethered by reasonableness is inconsistent

with a wide range of decisional law. See, e.g., McKenzie v. Cost Bros., Inc., 487 Pa.

303, 309, 409 A.2d 362, 365 (1979) (reiterating the general rule that a possessor of land

has a duty to use reasonable care to make the premises reasonably safe for invitees);

Miller v. Hickey, 368 Pa. 317, 324, 81 A.2d 910, 914 (1951) (noting that a landowner is

not charged with the absolute duty of keeping his premises in a safe condition, but

rather, is responsible for correcting known defects and ensuring that the property is

reasonably safe for invitees); accord RESTATEMENT (SECOND)         OF   TORTS, §343(c)(i)

(1965), Comment d.

      While the distinction between “safety” and “reasonable safety” may seem to be

modest in a colloquial sense, it is quite significant as a matter of substantive law.

Indeed, the difference heralded a period of great uncertainty in Pennsylvania in the

product liability context. See Tincher, 628 Pa. at 375-84, 104 A.3d at 376-81. It is

important, as well, to recognize that guardrails themselves may pose inherent risks to

the traveling public in some circumstances. See, e.g., Estate of Gage v. State, 882

A.2d 1157, 1160 (Vt. 2005).        Accordingly, other jurisdictions have held that the

government’s duty is to construct and maintain its highways and shoulders -- including

guardrails -- in a reasonably safe manner, again, balancing a range of relevant factors.

See Helton v. Knox County, 922 S.W.2d 877, 883 (Tenn. 1996) (holding that, while the

standard of care imposed on governments in building and maintaining roads and

bridges is one of reasonableness, it is not its duty to maintain guardrails of sufficient

strength to prevent all accidents); see also Louisville Gas and Elec. Co. v. Roberson,

212 S.W.3d 107, 109 (Ky. 2006).2

2 There is, of course, the nuance that governments are often not the designers of
products integrated into highway system infrastructures, such as guardrails, but rather,
acquire such products through the procurement system. Such additional complexities
(continued…)
                          [J-66-2017][M.O. – Donohue, J.] - 3
       Finally, there remains a concern with cost-benefit decisions of government being

decided, or second guessed, in jury rooms. In this regard, I note that a number of other

jurisdictions apply a discretionary-functions overlay to highway system design and/or

maintenance, extending immunity to discretionary decision-making endeavors. See,

e.g., Kirby v. Macon County, 892 S.W.2d 403, 407-409 (Tenn. 1994); Keegan v. State,

896 P.2d 618, 623-25 (Utah 1995); Hennes v. Patterson, 443 N.W.2d 198, 202 (Minn.

1989); City of Jackson v. Brown, 729 So.2d 1231, 1235 (Miss. 1998); Patrazza v.

Commonwealth, 497 N.E.2d 271, 273 (Mass. 1986). The Pennsylvania General

Assembly, however, has not specifically insulated discretionary functions as such from

the effect of the immunity exceptions, leaving this Court to implement the series of

discretely-defined exceptions on their prescribed terms (subject to the strict construction

overlay).3 Accordingly, while I have some reservations about the policy implications of

this case, I agree with the majority that the result is appropriately tethered to the terms

of the immunity statute.




(…continued)
may also be relevant to the liability assessment in this arena, and, again, because
liability is not sharply in focus here, I would refrain from making specific
pronouncements.

3  This is not to say that the discretionary-functions dynamic might not, in some
circumstances, be relevant within the framework of a strict construction analysis. No
such arguments are presented here, however, and thus I will refrain from further
comment along these lines as well.


                           [J-66-2017][M.O. – Donohue, J.] - 4
