Reversing a line of Commonwealth Court case law that dates back a decade, the Pennsylvania Supreme Court has ruled that while the state has no duty to erect guardrails along its roadsides, it can be held liable for installing guardrails that are negligently and dangerously designed.

The justices unanimously reversed the Commonwealth Court's ruling in Cagey v. Commonwealth that the state is immune from claims seeking to hold it responsible for dangerous guardrails.

The Commonwealth Court had relied on several of its own decisions beginning with 2008's Fagan v. Department of Transportation, which expanded on the Supreme Court's 2000 ruling in Dean v. Department of Transportation that the state cannot be held liable for failing to erect a guardrail. Fagan and its progeny established that sovereign immunity also protected the state from claims related to the design or maintenance of guardrails it did install.

In Cagey, the Commonwealth Court, affirming a Beaver County trial judge's grant of the Pennsylvania Department of Transportation's motion for judgment on the pleadings, called the Fagan line of cases ”a logical and reasonable application of principles set forth by our Supreme Court, which have gone uncontradicted by our legislature.”

But the Supreme Court said its Dean ruling was “inapposite and does not control 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,” Justice Christine Donohue wrote for the court.

Instead, Donohue said, the plaintiffs in Cagey put forth claims that clearly fell within the exception to sovereign immunity for “'[a] dangerous condition of commonwealth agency real estate,'” found in Section 8522(b)(4) of the Sovereign Immunity Act.

Plaintiffs Joisse and Dale Cagey appealed from the Commonwealth Court's ruling granting the state Department of Transportation's motion for summary judgment.

The Cageys alleged that injuries they suffered when their vehicle spun out on an icy Pennsylvania highway were the result of a PennDOT-installed guardrail, according to court documents. The guardrail, they alleged, was a dangerous “boxing glove” design—with a U-shaped metal cap—that was negligently installed in an area that should have been transversable. The plaintiffs also claimed PennDOT failed to correct an uncrashworthy blunt end of the guardrail, which pierced the side of their car, causing their injuries.

Donohue—joined by Chief Justice Thomas Saylor, as well as Justices Max Baer, Debra Todd, Sallie Updyke Mundy, David Wecht and Kevin Dougherty—examined whether the Cageys' claims met the three requirements for waiver of immunity under Sections 8522(a) and 8522(b)(4) of the act.

First addressing the requirement that the injuries alleged were the result of a “dangerous condition,” Donohue said the term was unambiguous and that the Cageys sufficiently alleged such a condition by claiming the guardrail was defective, negligently installed and uncrashworthy.

Next, turning to the question of whether the allegedly defective guardrail was a condition “'of commonwealth agency real estate'” under the Sovereign Immunity Act, Donohue cited “a well-settled tenet of property law that whatever is annexed to the land becomes land.”

“Here, PennDOT undertook to permanently install guardrails alongside the highway,” Donohue said. “Accordingly, the guardrails, which are physically attached to the land, became fixtures thereof and thus part of the land itself. … 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.'”

Donohue said the Cageys also met the third and final requirement for waiver of immunity—that the alleged damages be recoverable at common law—because possessors of land owe a duty to protect invitees from foreseeable harm.

Under Section 343 of the Restatement (Second) of Torts, Donohue said, a possessor of land is liable for harm caused by a condition on the land 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.'”

“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,” Donohue said. ”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].' This allegation satisfies the foregoing common law requirement,” Donohue said.

Donohue also waved off PennDOT's attempts to cite a 2001 per curiam order by the state Supreme Court in Baer v. Commonwealth, which affirmed the lower court's Dean-based dismissal of claims against the state over an allegedly defective guardrail. Donohue said the order “carries no precedential value.”

Wecht penned a separate concurring opinion to advocate for overturning 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,” Wecht said.

But Donohue responded in a footnote that the issue in Dean was fundamentally different from the one addressed in Cagey and therefore was not properly before the court.

Donohue added, “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.”

Counsel for the Cageys, Mark J. Homyak of the Homyak Law Firm in Pittsburgh, said he felt the wording of the statute was clear.

“Somehow, the plain meaning of the statute became misconstrued and lost and the Supreme Court did the right thing,” he said.

A PennDOT spokesman said only that the agency was reviewing the court's opinion.

(Copies of the 30-page opinion in Cagey v. Commonwealth, PICS No. 18-0214, are available at http://at.law.com/PICS.)