“Clarifying the contours of real estate and sovereign immunity” in Pennsylvania. An exposé on guardrail liability.
BY Morgan, Akins & Jackson
| March 8, 2018
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“Clarifying the contours of real estate and sovereign immunity” in Pennsylvania. An exposé on guardrail liability.

By: Taranae J. Hashemi

Things are changing in the Commonwealth of Pennsylvania.  Gone are the days where the doctrine of sovereign immunity afforded the Commonwealth a nearly impenetrable shield against litigation.  Slowly, courts have ruled in favor of those seeking to hold the Keystone State accountable for its actions; a trend recently followed by the Pennsylvania Supreme Court with its ruling in Cagey v. Commonwealth.[1]  Watch out, Pennsylvania…claimants are coming for you.

Cagey addresses the question of whether the Commonwealth may be held liable for installing guardrails which are alleged to be negligently and dangerously designed or maintained.  The Pennsylvania Supreme Court answered this question with a resounding, “Yes.”  Cagey v. Commonwealth, No. 36 WAP 2016, 2018 Pa. LEXIS 954, at 17 (Feb. 21, 2018).  As we are all aware, the Sovereign Immunity Act contains three requirements for waiver of immunity via 42 Pa.C.S § 8522(a) and § 8522(b)(4).  This is not the Wild West, we must have rules!  With that said, the first requirement of the Sovereign Immunity Act provides that in order to assert a cause of action, one must establish there is a “dangerous condition of commonwealth agency real estate.”  42 Pa.C.S § 8522(b)(4).  In this instance the Cagey Court determined that a negligently installed, defective, and uncrashworthy guardrail qualifies as a “dangerous condition,” thereby satisfying the first requirement.

The second requirement of the Sovereign Immunity Act necessitates that the condition which caused the harm must be a condition of “commonwealth agency real estate.”  42 Pa.C.S § 8522(b)(4).  Note: it is “a well-settled tenet of property law that whatever is annexed to the land becomes land.”  Cagey, 2018 Pa. LEXIS 954, at 12 (citing Clayton v. Lienhard, 312 Pa. 433, 167 A. 321, 322 (Pa. 1933)).  Interpreting this provision, the Cagey Court held that PennDOT permanently installed (physically attached) guardrails along the highway, thereby transforming those guardrails into fixtures and, you guessed it, making those guardrails “part of the land itself” as they are “legally indistinguishable from the land upon which [they were] erected….”  Cagey, 2018 Pa. LEXIS 954, at 13.  Ding, ding.  Round two complete.

The third and final requirement: the damages alleged must be recoverable at common law.  42 Pa.C.S § 8522(a).  I know, Intro to Property was a long time ago for some of us.  However, as our Intro to Property professors once taught us, the landowner owes invitees, e.g. those invited to enter or remain on land as a member of the public for the designated public use, a duty to protect them from foreseeable harm.  Cagey, 2018 Pa. LEXIS 954, at 14.  Still not helpful?  Okay.  Under the Restatement (Second) of Torts, § 343, one who possess land is liable for a condition of the land which causes harm if the possessor “(a) knowns or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invites and (b) should expect that they [they invitee] 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.”  Cagey, 2018 Pa. LEXIS 954, at 9.  What does that mean for Mr. and Mrs. Cagey?  It means that because they alleged PennDOT failed to “inspect, detect and correct the uncrashworthy blunt end and/or ‘boxing glove’ terminal end treatment on the [guardrail],” the common law requirement has been satisfied.  Cagey, 2018 Pa. LEXIS 954, at 15.

With this, the Court concluded 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 protection of sovereign immunity.  Sovereign immunity is therefore waived and PennDOT may be held liable for any damages caused by the negligent installation of design of the guardrails at issue in this matter.”  IdPlease pass Go; please collect $200.  Please proceed directly to Court; please engage in further proceedings consistent with the Court’s Opinion.[2]

Until next time…

[1] The facts of Cagey are as follows: Joisse and Dale Cagey were driving along a Pennsylvania’s Route 551 when their vehicle spun out on snow and ice, impacting with a PennDOT-installed guardrail.  The guardrail was alleged to be dangerous given the “boxing glove” design and its uncrashworthy blunt end and is likewise alleged to have been negligently installed in an area of land which should have been traversable.  The Cageys alleged that the blunt end of the guardrail pierced the side of their car, resulting in injuries to Mr. and Mrs. Cagey.

[2] Now, one might wonder, “doesn’t this ruling inspire the Commonwealth to forgo installation of guardrails on property so as to avoid liability for an uncrashworthy guardrail pursuant to the Dean ruling and because the Cagey Court declared the dangerous condition of Commonwealth real estate ‘must be an artificial condition or defect of the land itself, as opposed to the absence of such a condition.’?”  Cagey, 2018 Pa. LEXIS 954, at 16.  In Dean, the Court held that PennDOT has no duty to erect guardrails alongside Commonwealth roadways because “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.”  Dean v. Dep’t of Transp., 561 Pa. 503, 751 A.2d 1130 (2000).  Well, in spite of the Court’s holding in Dean and the seemingly obvious way of getting around the problem faced by the Commonwealth in Cagey, according to the Court, the answer is an unequivocal “nope.”  First of all, the Court distinguished Dean from Cagey, stating Dean is “inapposite and does not control under the facts presented.”  The Court then declared, much like a mother telling her child “I have faith that you’ll do the right thing,” As the Cagey Court stated: “[w]e 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.”  So, for now, the citizens of Pennsylvania are able to rest easy knowing legal recourse is available in the event of injury caused by fixtures on Commonwealth property.

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