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holding that "[w]hen PennDOT installs a guardrail, sovereign immunity is waived if the agency's negligent installation and design creates a dangerous condition"
Summary of this case from Wise v. Huntingdon Cnty. Hous. Dev. Corp.Opinion
No. 36 WAP 2016
02-21-2018
Joisse A. CAGEY and Dale J. Cagey, Her Husband, Appellants v. COMMONWEALTH of Pennsylvania, Department of Transportation, a Commonwealth Agency, Appellee
Mark J. Homyak, Esq., for Appellant. Andrew C. Spears, Esq., Handler, Henning & Rosenberg, L.L.P., for Appellant Amicus Curiae. John G. Knorr III, Esq., Kemal A. Mericli, Esq., Pennsylvania Office of Attorney General, Henry James Salvi, Esq., for Appellee.
Mark J. Homyak, Esq., for Appellant.
Andrew C. Spears, Esq., Handler, Henning & Rosenberg, L.L.P., for Appellant Amicus Curiae.
John G. Knorr III, Esq., Kemal A. Mericli, Esq., Pennsylvania Office of Attorney General, Henry James Salvi, Esq., for Appellee.
SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.
OPINION
JUSTICE DONOHUE
We granted allocatur to determine whether the Pennsylvania Department of Transportation ("PennDOT") is liable for injuries caused by negligently and dangerously designed guardrails erected on Commonwealth real estate. The case presents an opportunity to clarify the contours of the real estate exception to sovereign immunity, see 42 Pa.C.S. § 8522(b)(4), especially in light of the Commonwealth Court's expansive treatment of our prior decision in Dean v. Dep't of Transp. , 561 Pa. 503, 751 A.2d 1130 (2000). In Dean , we held that PennDOT has no duty to erect guardrails alongside Commonwealth roadways. Id. at 1134. Here, however, the question is whether the Commonwealth owes a duty of care when PennDOT has in fact installed a guardrail alleged to be dangerous. Pursuant to the plain language of the Sovereign Immunity Act, 42 Pa.C.S. §§ 8521 – 8528 (the "Act"), we find that the General Assembly has waived PennDOT's immunity as a bar to damages caused by dangerous guardrails affixed to Commonwealth real estate. Dean is inapposite and does not control under the facts presented here. We reverse the decision of the Commonwealth Court and remand for further proceedings consistent with this Opinion.
The Act was enacted in response to this Court's decision in Mayle v. Pennsylvania Dep't of Highways , 479 Pa. 384, 388 A.2d 709 (1978), wherein we abolished the common law doctrine of sovereign immunity. Pursuant to the Act, the Commonwealth generally enjoys immunity from suit for damages in negligence except under certain circumstances set forth therein. See 42 Pa.C.S. §§ 8521 – 8522. Specifically, as discussed in more detail infra, section 8522(a) of the Act waives immunity in the instances set forth in section 8522(b)"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 not having available the defense of sovereign immunity." Id. , § 8522(a). Pertinent to the case at bar, the defense of sovereign immunity may not be raised when the real estate exception, 42 Pa.C.S. § 8522(b)(4), applies.
On June 22, 2015, Joisse and Dale Cagey (the "Cageys") filed a negligence action against PennDOT. In their complaint, the Cageys alleged that on January 26, 2015, they were travelling southbound on State Route 551 in Beaver County, Pennsylvania when they encountered snow and ice on the roadway. Cageys' Complaint at 2. As a result of these conditions, Joisse Cagey ("Mrs. Cagey"), the driver of the car, lost control of the vehicle, which spun off the roadway and slammed into a guardrail adjacent to the road. Id. at 3. The guardrail penetrated the side of the vehicle, resulting in substantial injuries to Mrs. Cagey, including toe, foot and leg fractures. Id.
The Cageys sought damages for Mrs. Cagey's injuries and for Mr. Cagey's loss of consortium. Id. at 6–7. Specifically, they alleged that their damages were the result of the following: (1) PennDOT's negligent installation of a guardrail within an area that should have been traversable by vehicle; (2) PennDOT's negligent installation of a dangerous "boxing glove" guardrail that was not "crashworthy"; and (3) PennDOT's negligent failure to inspect or correct the "boxing glove" guardrail. Id. at 5. On July 9, 2015, PennDOT filed an answer and new matter in which it raised the defense of sovereign immunity.
On September 8, 2015, PennDOT filed a motion for judgment on the pleadings, in which it argued that the Act barred the Cageys' claims. PennDOT argued that the Cageys' causes of action did not fall within any of the enumerated exceptions to its sovereign immunity. On October 13, 2015, the Cageys filed a reply in which they conceded that the trial court was bound by existing Commonwealth Court decisions interpreting Dean . Thus, on December 4, 2015, the trial court granted PennDOT's motion for judgment on the pleadings.
The Cageys timely appealed to the Commonwealth Court where they argued that its prior decisions have improperly expanded this Court's holding in Dean . In Dean , we specifically held that the "failure to erect a guardrail on the highway is not encompassed by the real estate exception to sovereign immunity." Dean , 751 A.2d at 1134 (observing 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"). While our decision in Dean was limited to the question of whether PennDOT has an obligation to install guardrails, subsequent Commonwealth Court decisions expanded our ruling to provide sovereign immunity protection in circumstances where the Commonwealth installed guardrails but did so in an allegedly negligent manner. For example, in Fagan v. Commonwealth, Dep't of Transp. , 946 A.2d 1123 (Pa. Commw. 2006), the plaintiff argued that the Commonwealth was not immune from suit where the complaining party alleged that guardrails were negligently designed or maintained. See id. at 1125–26. Declining to limit Dean to its facts (i.e. the absence of a guardrail), the Commonwealth Court in Fagan determined that "where a guardrail existed, the failure to design it differently or the failure to maintain it were not dangerous conditions of roadways for which immunity was waived either for the Commonwealth or for local government." Id. at 1127–28.
In the case sub judice, the Commonwealth Court acknowledged that it had consistently applied the holding in Fagan to other similar cases. Cagey v. Commonwealth, Dep't of Transp. , 2650 C.D. 2015, at 4, 2016 WL 4068321(Pa. Commw. July 28, 2016) (unreported opinion) (citing, e.g. , Lambert v. Katz , 8 A.3d 409, 417 (Pa. Commw. 2010) ; Stein v. Pa. Tpk. Comm'n , 989 A.2d 80, 88 (Pa. Commw. 2010) ). On the basis of this precedent, the Commonwealth Court affirmed the trial court's order granting PennDOT's motion, explaining that its decisions following Dean "represent a logical and reasonable application of principles set forth by our Supreme Court, which have gone uncontradicted by our legislature." See Cagey , 2650 C.D. 2015 at 6.
In reaching its conclusion, the Commonwealth Court rejected the Cageys' argument that its interpretation of the real estate exception to sovereign immunity is contrary to the common law duty of a possessor of land. Ostensibly ignoring the statutory requirement set forth at section 8522(a) of the Act, the Commonwealth Court held that "where a Commonwealth agency enjoys immunity from tort liability, it is irrelevant that a private person would be liable for a similar act." Id. (citing Page v. City of Phila. , 25 A.3d 471, 476 (Pa. Commw. 2011) ).
On appeal, the Cageys argue that Dean is inapplicable to the facts of this case because Dean establishes only that the Commonwealth's failure to install a guardrail does not give rise to a waiver of sovereign immunity under section 8522(b)(4). Cageys' Brief at 5 (citing Dean , 751 A.2d at 1133 ). They posit that the Commonwealth Court has "erroneously extrapolated" from Dean that a "dangerous defective guardrail" is legally and logically equivalent to the absence of a guardrail. Id. at 7–11. The Cageys also argue that section 8522(b)(4) creates a single real estate exception—not separate "highway" and "real estate" exceptions—imposing liability for injuries caused by any and all dangerous conditions of Commonwealth realty. Id. at 13. In this regard, they disapprove of the Commonwealth Court's focus, which follows Dean , on whether a guardrail renders "the highway unsafe for its intended purpose of travel." Id. at 12 (quoting and criticizing Stein v. Pa. Tpk. Comm'n , 989 A.2d 80 ). Finally, highlighting our rules governing statutory construction, the Cageys assert that the plain language of the Act waives sovereign immunity for any "dangerous condition" of Commonwealth real estate for which there would be a common law duty of care owed. Id. at 13–17 (citing 42 Pa.C.S. § 8522(a) ). Because, at common law, a possessor of land would be liable for the installation of a dangerous guardrail adjacent to a highway, see, e.g., Restatement (Second) of Torts §§ 307, 368 ; Scarborough v. Lewis, 523 Pa. 30, 565 A.2d 122, 126 (1988), the Cageys contend that the General Assembly clearly intended PennDOT to be liable in the case at bar. Cageys' Brief at 16–17.
PennDOT argues that our decision in Dean compels the result reached by the Commonwealth Court. The agency posits that Dean "did not turn on the absence of an 'artificial condition,' but [instead on] ... the fact that the failure to install a [guardrail] had nothing to do with the safety of travel on the roadway." PennDOT's Brief at 13. Because the guardrail in this case "had no effect on the Cageys' ability to travel safely on the roadway," PennDOT urges it cannot be liable for injuries caused by the guardrail regardless of whether it was negligently designed and installed on Commonwealth real estate. See id. PennDOT insists that there is a distinction between its "general duty to keep property safe for its intended use," which extends to all Commonwealth real estate, and the "specific duty to keep property safe for vehicular travel ," which extends only to "the traveled portion of the highway" and therefore does not apply here. Id. at 14 (emphasis original). While conceding that the holding in Dean "is precisely that PennDOT does not have a duty to install guardrails," PennDOT argues that the "underpinning" of that holding is that PennDOT does not have a duty to ensure the safety of vehicles careening off the roadway. Id. at 15 (emphasis original).
The instant action requires us to engage in statutory interpretation. Pursuant to the Statutory Construction Act, "the object of all interpretation and construction of statutes is to ascertain and effectuate the intention of the General Assembly." 1 Pa.C.S. § 1921(a). It is well settled that the best indication of the General Assembly's intent may be found in a statute's plain language. See id. , § 1921(b). Thus, "when the language of a statute is plain and unambiguous and conveys a clear and definite meaning," we must give the statute this plain and obvious meaning. Mohamed v. Commonwealth Dep't of Transp. , 615 Pa. 6, 40 A.3d 1186, 1194 (2012).
The Act provides, in relevant part:
(a) Liability imposed .—The General Assembly, pursuant to section 11 of Article I of the Constitution of Pennsylvania, does hereby waive, in the instances set forth in subsection (b) only and only to the extent set forth in this subchapter and within the limits set forth in section 8528 (relating to limitations on damages), sovereign immunity as a bar to an action against Commonwealth parties, 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 not having available the defense of 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).
42 Pa.C.S. § 8522(a), (b)(4). Accordingly, in order for liability to be imposed on PennDOT, three statutory requirements must be met. First, the injury must have resulted from a "dangerous condition." Id. , § 8522(b)(4). Second, the dangerous condition must be a condition "of Commonwealth agency real estate." Id. Third, the damages must be recoverable under common law "if the injury were caused by a person not having available the defense of sovereign immunity." Id. , § 8522(a).
Paragraph five of section 8522(b) provides:
(5) Potholes and other dangerous conditions.— A dangerous condition of highways under the jurisdiction of a Commonwealth agency created by potholes or sinkholes or other similar conditions created by natural elements, 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 Commonwealth agency had actual written notice of the dangerous condition of the highway a sufficient time prior to the event to have taken measures to protect against the dangerous condition. Property damages shall not be recoverable under this paragraph.
42 Pa.C.S. § 8522(b)(5).
Our standard of review over a decision sustaining a judgment on the pleadings requires us to determine whether, on the facts averred, the law makes recovery impossible. Emerich v. Phila. Ctr. for Human Dev., Inc. , 554 Pa. 209,720 A.2d 1032, 1034 (1998). Accordingly, we must review the Cageys' complaint to determine whether they have sufficiently alleged the three above-listed statutory requirements for waiver of sovereign immunity under sections 8522(a) and 8522(b)(4) of the Act. We begin with the first requirement that their injuries resulted from a "dangerous condition." 42 Pa.C.S. § 8522(b)(4). The term "dangerous condition" is unambiguous and plainly encompasses any condition that presents a danger. See id. The Cageys averred that the guardrail causing their injuries was a "dangerous condition" in that it was defective, negligently-installed and uncrashworthy. Cageys' Complaint at 5. Specifically, they alleged that a dangerous "blunt end" or "boxing glove" terminal end treatment of the guardrail speared and penetrated the driver's side door, resulting in "significantly more severe injuries" to Mrs. Cagey than if she had not been speared by the "boxing glove" end treatment. Id. at 4–5. Thus, on the facts averred, it cannot be said that the law would, with certainty, prevent recovery.
We have explained that the same principles apply to a judgment on the pleadings as apply to a preliminary objection in the nature of a demurrer:
All material facts set forth in the complaint as well as all inferences reasonably deducible therefrom are admitted as true for the purpose of this review. The question presented by the demurrer is whether on the facts averred the law says with certainty that no recovery is possible. Where a doubt exists as to whether a demurrer should be sustained, this doubt should be resolved in favor of overruling it.
Emerich , 720 A.2d at 1034 (internal citations omitted).
Next, with respect to the second statutory requirement, the Cageys averred that the allegedly defectively designed guardrail installed adjacent to a highway under PennDOT's jurisdiction is a condition "of Commonwealth agency real estate." 42 Pa.C.S. § 8522(b)(4). We find this statutory requirement to be unambiguous as well. As an initial matter, we note that the real estate exception to sovereign immunity is broad in that it applies to dangerous conditions of all Commonwealth real estate , not just dangerous conditions of highways. See id. While highways are specifically mentioned in section 8522(b)(4), it is clear from the word "including" that the General Assembly intended to indicate that highways are merely one form of Commonwealth real estate for the purposes of this exception. Given the breadth of this exception, it is largely irrelevant whether the guardrails are, technically, on the highway itself or are instead affixed to Commonwealth real estate adjacent thereto. The operative question is whether the guardrail at issue was a dangerous condition of Commonwealth real estate, not whether it was a dangerous condition on a highway.
It is a well settled tenet of property law that whatever is annexed to the land becomes land. See Clayton v. Lienhard , 312 Pa. 433, 167 A. 321, 322 (1933) (citing the ancient maxim—quicquid plantatur solo, solo cedit—and concluding that "all fixtures whilst attached to the freehold are, for the time being, a part of the realty"). Here, PennDOT undertook to permanently install guardrails alongside the highway. Accordingly, the guardrails, which are physically attached to the land, became fixtures thereof and thus part of the land itself. Compare In re Sheetz, Inc. , 657 A.2d 1011, 1013–14 (Pa. Commw. 1995) (holding that canopies over gas pumps were "fixtures" of gas station property and therefore "real estate" (albeit for purposes other than the Sovereign Immunity Act) because they were affixed by bolts to the land, thereby evidencing an "intent of permanence" by the owner), with Blocker v. City of Phila. , 563 Pa. 559,763 A.2d 373, 374–76 (2000) (finding that a bleacher was not a "fixture" of real property for purposes of Philadelphia's immunity under the Tort Claims Act because "it rested on, but was not attached to, the ground"); see also Dean , 751 A.2d at 1135 (Nigro, J., dissenting) (expressing the view that a guardrail is "an obvious part of the highway").
The Tort Claims Act provides: "Except as otherwise provided in this subchapter, no local agency shall be liable for any damages on account of any injury to a person or property caused by any act of the local agency or an employee thereof or any other person." 42 Pa.C.S. § 8541. One exception to local agency immunity is for "the care, custody or control of real property in the possession of the local agency." Id. , § 8542(b)(3). Recognizing that the Tort Claims Act and the Sovereign Immunity Act deal with the same subject matter, this Court has sought to interpret the two statutes consistently, while also acknowledging that "the plain language chosen by the legislature cannot be ignored in doing so." Jones v. Se. Pa. Transp. Auth. , 565 Pa. 211, 772 A.2d 435, 440–42 (2001) (internal citations omitted).
Because the guardrail at issue was affixed to Commonwealth real estate, making it legally indistinguishable from the land upon which it was erected, the Cageys sufficiently alleged that the dangerous condition (the negligently installed "boxing glove"-style guardrail) was a condition "of Commonwealth agency real estate." 42 Pa.C.S. § 8522(b)(4) ; see also Snyder v. Harmon , 522 Pa. 424, 562 A.2d 307, 311–13 (1989) (explaining that the "unambiguous language" of section 8522(b)(4) indicates that the dangerous condition must be an "artificial condition or a defect of the land itself" and "must derive, originate from or have as its source the Commonwealth realty") ; Jones v. Se. Pa. Transp. Auth. , 565 Pa. 211, 772 A.2d 435, 443–44 (2001) (holding that salt scattered upon a SEPTA train platform was not a dangerous condition "of Commonwealth agency real estate" because the "substance or object" on Commonwealth real estate was not alleged to be "the result of a defect in the property or in its construction, maintenance, repair or design").
We noted in Snyder that "the critical word in the statutory language is the word 'of'," and we set forth the following dictionary definition for this preposition: "used to indicate derivation, origin or source." See Snyder , 562 A.2d at 311, n. 5.
Regarding the third and final requirement that the alleged damages be recoverable at common law, see 42 Pa.C.S. § 8522(a), it is well settled that possessors of land (here, as discussed, to include the guardrail) owe a duty to protect invitees from foreseeable harm. See Carrender v. Fitterer , 503 Pa. 178, 469 A.2d 120, 123 (1983). In Carrender , we discussed section 343 of the Restatement (Second) of Torts with approval and explained that pursuant to that provision, a possessor of land is liable for harm caused by a condition on the land if he:
In Atkins v. Urban Redevelopment Auth. of Pittsburgh , 489 Pa. 344, 414 A.2d 100, 103 n.2 (1980), this Court endorsed the definition of "invitee" as set forth in the Restatement (Second) of Torts § 332. An "invitee" is, inter alia, "a person who is invited to enter or remain on land as a member of the public for a purpose for which the land is held open to the public." See Reinoso v. Heritage Warminster SPE LLC , 108 A.3d 80, 83 n.4 (Pa. Super. 2015) (quoting Restatement (Second) of Torts § 332 ). This provision of the Restatement explains that "where land is held open to the public, there is an invitation to the public to enter for the purpose for which it is held open. Any member of the public who enters for that purpose is an invitee...." Restatement (Second) of Torts § 332, Comment d. By way of example:
Where a strip of private land abutting upon the public sidewalk is so paved that it is indistinguishable from the sidewalk, the possessor holds it open to the public as provided for public use for the purpose of passage, and anyone so using it is an invitee. The possessor's duty to use reasonable care to keep such land in proper and safe condition is not far removed from his obligation to the public upon the highway itself, or to those who stray a few feet from it in the course of travel.
Id. In their brief, the Cageys mischaracterize themselves as "licensees" without substantial explanation. See Cageys' Brief at 15. As discussed infra, however, their pleadings are sufficient to satisfy the requirements for liability as to "invitees." See Cageys' Complaint at 5.
Similarly, the Cageys rely on section 368 of the Restatement (Second) of Torts, see Cageys' Brief at 16, which sets forth the duty of care owed by a possessor of land with respect to dangerous conditions adjacent to highways. Specifically, section 368 provides that a possessor of land is subject to liability when "he realizes or should realize" that the condition he created near a highway involves an unreasonable risk to persons traveling on or foreseeably deviating from the highway. See Restatement (Second) of Torts § 368. This standard is consistent with that reserved for an invitee rather than a licensee.
(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.
Id. (quoting Restatement (Second) of Torts § 343 (1965) ).
Thus, at common law, a possessor of land is liable for harm caused by a dangerous condition that he would have discovered through the exercise of reasonable care. Id. The Cageys alleged in their complaint that PennDOT negligently failed to "inspect, detect and correct the uncrashworthy blunt end and/or 'boxing glove' terminal end treatment on the [guardrail]." Cageys' Complaint at 5. This allegation satisfies the foregoing common law requirement. See Carrender, 469 A.2d at 123. Moreover, the defective guardrail is not the kind of obvious condition a possessor of land should expect an invitee to discover independently. See id. To the contrary, an invitee on Commonwealth real estate would expect a guardrail alongside the road to prevent or minimize harm, not to "spear" her and cause "significantly more severe injuries." Cageys' Complaint at 5. The averments of fact set forth in the Cageys' complaint meet the requirement of section 8522(a).
Accordingly, there is no question that the Cageys sufficiently alleged, pursuant to the plain and unambiguous language of sections 8522(a) and 8522(b)(4), that a "dangerous condition of Commonwealth agency real estate" caused their injuries, and that damages would have been recoverable at common law absent the protections of sovereign immunity. See 42 Pa.C.S. § 8522(a), (b)(4). Sovereign immunity is therefore waived and PennDOT may be held liable for any damages caused by the negligent installation or design of the guardrails at issue in this matter.
In so ruling, we reject PennDOT's contention that our prior decision in Dean has any applicability under the facts presented here. In Dean , we held only that a "dangerous condition of Commonwealth agency real estate" must be an artificial condition or defect of the land itself, as opposed to the absence of such a condition. Moreover, based on the plain language of the Act, we reject PennDOT's insistence that Dean requires the alleged condition to make travel "on the roadway" dangerous. We have not been asked to overrule Dean but we clarify today that our holding in Dean is limited to the facts presented there, namely, a circumstance in which PennDOT failed to install a guardrail. When PennDOT installs a guardrail, sovereign immunity is waived if the agency's negligent installation and design creates a dangerous condition.
We reject the suggestion in Justice Wecht's concurring opinion that we overrule Dean , for several reasons. First, the Cageys have not asked us to overrule Dean , and the parties have not presented the Court with any sustained argument or advocacy on which to do so. While it is true that the Cageys referenced the possibility of doing so in their reply brief, Cagey's Reply Brief at 3, they did so only if the "safe for travel on the roadway" language in Dean was determined to be "one of the decisional rationales supporting the decision." Id. Herein, however, we have rejected Dean 's "safe for travel on the roadway" rationale entirely (without overruling Dean ), thus plainly demonstrating that it was not a "decisional rationale" of significance to the holding in Dean .
In this regard, we note that the lack of advocacy with respect to overruling Dean is hardly surprising, as we were not asked to and we did not grant allocatur to consider this issue. Instead, we granted allocatur to decide whether the Commonwealth Court had "improperly expanded this Court's holding" in Dean . As such, the focus of the parties, both in their briefs and at oral argument, was whether the present case could be distinguished from Dean and whether the legal principles referenced in Dean regarding the lack of a guardrail did, or did not, apply equally to a situation in which negligently designed guardrails were installed. As set forth herein, we conclude that Dean decided a fundamentally different question than the one under consideration here, and that, as such, it has no application to the facts presented in the present case.
Dean was decided based upon this Court's determination that the "dangerous condition of Commonwealth agency real estate" refers to either an artificial condition or a defect of the land itself, and that the lack of a guardrail does not fit into either of these categories. Whether that rationale has continued vitality is for another day because here, an installed guardrail is clearly an artificial condition and thus no similar question exists in the present context. For this reason, presumably, Justice Wecht agrees that Dean "does not control the outcome of this case." Concurring Op. at 470. Accordingly, no principled reason exists to overrule Dean at this time. We are not persuaded by the argument that our decision would incentivize the Commonwealth to forego the installation of needed guardrails merely to avoid potential future liability, as we will not assume that the Commonwealth would act negligently, or even recklessly, for such a purpose.
We expressly overrule Fagan and its progeny.
Finally, PennDOT posits that this Court's per curiam order in Baer v. Commonwealth, Dep't of Transp. , 564 Pa. 603, 770 A.2d 287 (2001), "had the practical effect" of giving notice to the lower courts that Dean should be interpreted broadly to preserve sovereign immunity even where PennDOT has erected a faulty guardrail on Commonwealth real estate. See PennDOT's Brief at 16–17. Because the General Assembly has failed to amend the Act in light of the numerous lower court decisions barring liability in this context, PennDOT urges us to find that the Commonwealth Court's interpretation was "in accord with the legislative intent" of the real estate exception and should not be disturbed. See id. at 18–20 (quoting Fonner v. Shandon, Inc., 555 Pa. 370, 724 A.2d 903, 906 (1999) ). We find PennDOT's argument unpersuasive.
In Baer , we affirmed an order of the Commonwealth Court "solely on the basis of our decision in Dean ." Baer , 770 A.2d 287. While we cannot say whether Baer had a "practical effect" upon the lower courts, we have unequivocally explained on multiple occasions that "the legal significance of per curiam decisions is limited to setting out the law of the case" and that such decisions are not precedential, even when they cite to binding authority. See Commonwealth v. Thompson , 604 Pa. 198, 985 A.2d 928, 937 (2009) (citing cases). We have described the rationale behind this rule as "simple and compelling"—no stare decisis effect is warranted because per curiam orders "do not set out the facts and procedure of the case nor do they afford the bench and bar the benefit of the Court's rationale." Id. at 937–38. Because Baer carries no precedential value, its purported "practical effect" upon the lower courts is irrelevant to our decision today, which expressly disavows the application of Dean to cases involving the negligent installation or design of guardrails. For the same reason, we decline to view the General Assembly's subsequent failure to amend the Act as a "seal of approval" regarding Dean 's application to defective guardrail cases. See PennDOT's Brief at 17; see also Commonwealth v. Wanamaker , 450 Pa. 77, 296 A.2d 618, 624 (1972) (indicating that inaction by the General Assembly is relevant only as to decisions wherein this Court construed a statute).
Our case law recognizes one narrow exception to this rule. If a per curiam order expressly affirms a lower court opinion on the basis of that lower court opinion, we give the order precedential force, but only as to the holding of the case. See Commonwealth v. Tilghman , 543 Pa. 578, 673 A.2d 898, 904 (1996) (explaining that under no circumstances should a per curiam opinion be interpreted as an endorsement by this Court of the lower court's reasoning as to dicta). Our order in Baer does not fit into this narrow exception as it did not affirm the lower court's decision on the basis of that court's opinion. As such, Baer carries no precedential value.
To the extent that the per curiam order in Baer could be construed to have any precedential value, it is overruled.
Having found that the Cageys' allegations fit squarely within the Sovereign Immunity Act's real estate exception, we conclude that PennDOT is not immune from suit. Accordingly, we reverse the decision of the Commonwealth Court and remand for further proceedings consistent with this Opinion.
Chief Justice Saylor and Justices Baer, Todd, Dougherty and Mundy join the opinion.
Chief Justice Saylor files a concurring opinion.
Justice Wecht files a concurring opinion.
CHIEF JUSTICE SAYLOR, Concurring
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. Penney 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) ). 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.
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).
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).
I note that Snyder , like the present case, concerned sovereign immunity and was not closely focused on the underlying substantive liability standards. Moreover, 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 S, § 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 , 178 Vt. 212, 882 A.2d 1157, 1160 (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).
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 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.
Although the Cageys characterize themselves as licensees, I agree with the Majority that, pursuant to Atkins v. Urban Redevelopment Auth. of Pittsburgh , 489 Pa. 344, 414 A.2d 100, 103 n.2 (1980), the Cageys are better characterized as invitees. See also Restatement (Second) of Torts § 332 (1965).
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 , 398 Mass. 464,497 N.E.2d 271, 273 (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). 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.
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.
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 S § 343 (1965).
JUSTICE WECHT
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 , 561 Pa. 503, 751 A.2d 1130 (2000), does not control the outcome of this case, as Dean was predicated upon the absence of a 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 , 522 Pa. 424, 562 A.2d 307 (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 "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 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 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 , 489 Pa. 344, 414 A.2d 100, 103 (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).
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).
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. 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 , 611 Pa. 381, 26 A.3d 1078, 1090 (2011) (quoting Commonwealth v. Rieck Inv. Corp. , 419 Pa. 52, 213 A.2d 277, 282 (1965) ).In point of fact, the Majority's holding necessarily leaves little, if any, of Dean 's reasoning intact. 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 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 464.
See Winegardner v. Springfield Twp. , 258 Pa. 496, 102 A. 134, 135 (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.").
See generally In re Paulmier , 594 Pa. 433, 937 A.2d 364, 370-71 (2007) (opining that overruling precedent is appropriate when two cases are irreconcilable).
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 466 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. , –––Pa. ––––, 170 A.3d 414, 447 n.49 (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. , 607 Pa. 225, 5 A.3d 212, 231 (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) ) ).
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 statutory 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. We must presume that the General Assembly did not intend such an absurd or unreasonable result. See 1 Pa.C.S. § 1922(1).
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").
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.").
For the reasons stated above, I would overrule Dean , apply the duty set forth in Snyder , and adopt the test outlined by Justice Newman in her Dean dissent. Under 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 pleaded sufficient facts to show that the Commonwealth has waived immunity pursuant to the real estate exception.
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 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 .
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.
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.
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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.