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Baer v. Commonwealth6/17/1998
Argued April 15, 1998
Suzette Jackson and Larry Jackson, individually, and Suzette Jackson as administratrix of the estate of Marissa Jackson, her daughter, and as trustee ad litem on behalf of the heirs of Jennet Hersh, her mother, (collectively, Appellants) appeal from an order of the Court of Common Pleas of Somerset County (trial court) which granted the summary judgment motion filed by the Commonwealth of Pennsylvania, Department of Transportation (DOT).
The factual and procedural history in this consolidated appeal is as follows. On March 12, 1993, Suzette Jackson and decedents, Marissa Jackson and Jennet Hersh, were occupants in a vehicle driven by additional defendant, Albert Hersh (Hersh). Hersh was proceeding west on State Route 1008 in Somerset County when the brakes of his vehicle failed and the car lost all power while going down a hill. Hersh was unable to negotiate a right hand curve at the bottom of the hill, and the vehicle crossed over the eastbound lane and broke through a wooden guardrail on the south side of the road.The car then struck a tree, seriously injuring Suzette Jackson and fatally injuring her daughter and mother. Hersh subsequently pled guilty to the criminal charge of Homicide by Vehicle while driving under the influence .
Appellants filed a praecipe for a writ of summons on March 7, 1995. A second amended complaint (Complaint) was filed December 29, 1995, alleging that DOT negligently designed, constructed and maintained a defective roadway and guiderail system, which constituted a dangerous condition of Commonwealth agency real estate that directly and proximately caused and/or were substantial contributing factors to the claimed damages and injuries. On June 15, 1995, DOT filed a complaint to join Hersh as an additional defendant. On February 6, 1996, DOT also filed an Answer to Appellants' Complaint, along with New Matter raising the affirmative defense of sovereign immunity. During discovery, numerous depositions were taken and interrogatories were answered by DOT. On September 30, 1996, DOT filed a motion for summary judgment. The trial court granted DOT's motion for summary judgment on March 4, 1997, and this appeal followed.
Appellants ask us to determine, generally, whether the trial court's grant of the motion for summary judgment was proper. This court's review of a trial court's grant of summary judgment is limited to a determination of whether the trial court erred as a matter of law or abused its discretion. Salerno v. LaBarr, 632 A.2d 1002 (Pa. Cmwlth. 1993), appeal denied, 537 Pa. 655, 644 A.2d 740 (1994). Summary judgment should be granted only if there exists no genuine issue of material fact and,after reviewing the record in the light most favorable to the non-moving party, the moving party is entitled to judgment as a matter of law. Jones v. Cheltenham Township, 543 A.2d 1258 (Pa. Cmwlth. 1988). We now hold that the trial court did not err in granting summary judgment because insufficient evidence existed in this case to support an inference of common law negligence.
Where, as here, a plaintiff seeks to overcome the defense of sovereign immunity, the plaintiff must meet two distinct requirements. First, the plaintiff must establish a common law or statutory cause of action against a Commonwealth party under section 8522(a) of what is commonly referred to as the Sovereign Immunity Act (Act), 42 Pa.C.S. §8522(a). Second, the plaintiff must demonstrate that the cause of action falls within one of the exceptions to sovereign immunity set forth in section 8522(b) of the Act, 42 Pa.C.S. §8522(b). Felli v. Department of Transportation, 666 A.2d 775 (Pa.Cmwlth. 1995).
As to the first requirement
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