The Commonwealth Court of Pennsylvania recently struck a blow against anyone who complains about the condition of Pennsylvania's roadways and shoulders. In Bubba v. Com. of Pa. Dep't of Transp., No. 1151 C.D. 2012 (Pa. Cmwlth. Ct., Jan. 8, 2013), a motorist, Joseph Bubba ("Bubba"), was traveling as a passenger along State Route 737 in Albany Township, Berks County, PA. The driver of the car swerved to avoid an animal, hit a drop off at the edge of the shoulder, and overturned. Following the accident, Bubba brought an action against the Department of Transportation ("DOT") alleging that DOT allowed the shoulder to deteriorate, causing a dangerous elevation difference between the shoulder and the adjacent berm.
DOT filed a motion for summary judgment, arguing that it was entitled to sovereign immunity from Bubba's tort claims pursuant to Pennsylvania's Sovereign Immunity Act, 42 Pa. C.S. § 8522. The Honorable Timothy Rowley of the Berks County Court of Common Pleas agreed, finding that based on the facts presented, no exceptions existed to sovereign immunity. Bubba appealed to the Commonwealth Court arguing that DOT had a duty to maintain the shoulder immediately abutting the roadway so that it was even with the highway.
The Commonwealth Court first recognized that DOT is a Commonwealth entity that is generally immune from tort liability pursuant to the Act. The Commonwealth Court noted, however, that DOT could face exposure if: (1) Bubba could establish an action against DOT for negligence and (2) DOT's negligent conduct fell within one of nine exceptions to sovereign immunity. See 42 Pa. C.S. § 8522(b). Based on the facts at hand, the Commonwealth Court determined that Bubba could not establish a negligence action against DOT because DOT owed no duty to maintain the berm/shoulder immediately abutting the roadway.
Specifically, the Commonwealth Court pointed to the Pennsylvania Supreme Court's finding in Dean v. Dep't of Transp., 751 A.2d 1130 (Pa. 2000), in which a car fishtailed in snow, left the roadway, and overturned. Plaintiff in Dean argued that DOT was negligent for failing to install a guardrail at the side of the road. The Dean Court stated that DOT's duty of care to those using its real estate is such that DOT must ensure 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. Ultimately, the Dean Court held that it was the driver's conduct that caused the car to leave the roadway and that the absence of a guardrail did not render the road unsafe for its intended use.
The Commonwealth Court also pointed to the Commonwealth Court's opinion in Lambert v. Katz, 8 A.3d 409 (Pa. Cmwlth. Ct. 2010), which held that DOT has no duty to make roadway shoulders a certain width in anticipation that vehicles might lose control and use the shoulder to regain control. Put succinctly, shoulders are not intended for vehicular travel. DOT has no duty to groom its shoulders for vehicular travel.
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