The following article is an adaptation of the plaintiff’s response to motions for summary judgment filed by two defendants in a highway drop-off case. The names of any involved parties and various other identifying features have been removed to protect their privacy.
Facts of the Case
Shortly after 5:00 A.M. on a July 2006 morning, a 27-year-old upstate Pennsylvania man kissed his wife and left for work. The man proceeded south on a local state highway. While negotiating a curve under wet conditions, his vehicle encountered a drop-off at the edge of the paved portion of the highway. The drop-off caused the driver to lose control of his vehicle, starting a chain of events that resulted in his vehicle crossing the highway and striking a tree off of the highway.
A passing motorist noticed the wrecked vehicle and contacted emergency services. By the time the first emergency medical technicians had arrived on the scene, the driver had died. He left behind a wife and two children, a five year old and a two year old. The driver’s family is now suing the government agency responsible for the roadway along with the contractor who had performed a recent repaving project at the site.
Less than one year prior to this accident, the roadway had been resurfaced by the contractor. As part of this project the contractor was responsible for placing material off the highway to effectively back up the paved shoulder and prevent the existence of any drop-offs. Nevertheless, a drop-off existed at the time of the plaintiff’s accident and for some time prior to his accident. The government agency is the owner of the roadway where the accident occurred.
Procedural History
The plaintiff commenced legal action against the government agency with a Complaint in November, 2007. In the Complaint, the plaintiff alleged negligence on the part of the government agency for, among other reasons:
A) failing to properly maintain the shoulder on the roadway where the accident occurred;
B) violating state and federal regulations and industry standards regarding the height and shape of drop-offs; and
C) violating highway maintenance industry standards regarding drop-offs.
The plaintiff commenced a second action against the contractor in March, 2008. The cases were consolidated pursuant to an Order of this Court in June, 2008. The parties engaged in extensive discovery. This matter is now before the Court on motions for summary judgment from both defendants.
Standard of Review
The defendants have moved for summary judgment under “Pa. R.C.P. 1035.1 et. seq.” Rule 1035.2(2) provides the only conceivable basis for a motion for summary judgment. Under this rule summary judgment is appropriate only:
[I]f, after the completion of discovery relevant to the motion, including the production of expert reports, an adverse party who will bear the burden of proof at trial has failed to produce evidence of facts essential to the cause of action or defense which in a jury trial would require the issues to be submitted to a jury.
Pa.R.C.P. 1035.2(2).
The party bringing a motion for summary judgment “has the burden of proving that no genuine issue of fact exists.” Stimmler v. Chesnut Hill Hospital, 2009 Pa. LEXIS 2037, *20 (Pa. Sept. 30, 2009) quoting Penn Center House, Inc. v. Hoffman, 553 A.2d 900, 902-03 (Pa. 1989) (emphasis by the Court). Doubts are to be “resolved against the granting of summary judgment.” Id.
Legal Argument Against the Government Agency
Negligence has four essential elements: (1) a duty recognized by law establishing a standard of conduct, (2) a breach of that duty, and a (3) causal connection between the actor’s conduct and (4) the plaintiff’s damages. Felli v. PennDoT, 666 A.2d 775, 777 (Pa. Commw. 1995). When a government agency is the defendant, a plaintiff has the additional burden of proving a waiver of sovereign immunity.
The agency owes a duty to motorists 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 beused.” Snyder v. Harmon, 562 A.2d 307, 312 (Pa. 1989). For a violation of this duty to give rise to liability, the defendant must have actual or constructive notice of a highway defect. PennDoT v. Patton, 686 A.2d 1302, 1305 (Pa. 1997). Constructive notice exists when a “defect was apparent upon reasonable inspection.” Id. The defect that caused the decedent’s death was apparent upon reasonable inspection. Therefore, government defendant was on constructive notice of the defect, triggering its duty to make the defect safe. In breaching this duty, the defendant is liable for the death of the plaintiff. Sovereign immunity is waived under 42 Pa.C.S. § 8522(b)(4) for state highways.
The government agency raises three legal arguments as to liability in favor of its motion for summary judgment. First, plaintiff has not made out a prima facie case, i.e. plaintiff has not shown how the decedent came to be in contact with the dangerous condition of the highway. Second, insufficient evidence exists of a pavement drop-off to justify a finding of causation. Third, the government defendant did not have notice of the drop-off.
None of these arguments has merit for the following reasons. The drop-off condition is a part of the highway and this defect caused the plaintiff to lose control of his vehicle and his ensuing death. There is sufficient evidence of how the decedent’s vehicle came to be on the shoulder, the narrowness of which is itself a dangerous condition of the highway. The plaintiff’s counsel introduced the report of an expert witness, whose opinions are well-grounded in factual evidence and thus admissible to prove causation. These patent defects were obvious upon reasonable inspection and therefore the government agency had constructive notice of the defect.
A Drop-Off is a Dangerous Condition of the Highway for which Sovereign Immunity is Waived.
The government defendant has the protection of sovereign immunity unless that immunity is waived by statute. 1 Pa.C.S. § 2310. Sovereign immunity is waived for dangerous conditions of the government agency’s real estate, including highways owned and maintained by the defendant:
(4) Commonwealth real estate, highways, and sidewalks.- A dangerous condition of Commonwealth agency real estate and sidewalks, including Commonwealth owned real property, lease holds 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(b)(4).
For this exception to apply the defect “must derive, originate from or have as its source the Commonwealth realty.” Jones v. SEPTA, 772 A.2d 435, 441 (Pa. 2001).
Whether a defect derives from state realty turns on whether it was a defect of the paved portion of the highway. Gramlich v. Lower Southampton Township, 838 A.2d 843, 846-47 (Pa. Commw. 2003). The highway is defined as the paved cartway (i.e. the travel lane) and the paved shoulder. Id. citing Babcock v. PennDoT, 626 A.2d 672, 673 n. 1 (Pa. Commw. 1993). A drop-off condition exists when there is a vertical drop between a paved highway and the adjacent non-paved area. A drop-off is dangerous and can cause accidents such as the one that took the decedent’s life.
There is not any binding appellate authority in the state where the accident occurred declaring whether a drop-off is a defect of the highway itself. However, state courts have recognized the dangers posed by drop-offs since at least 1922. See Lengle v. North Lebanon Township, 117 A. 402, 404 (Pa. 1922). Other jurisdictions have also allowed recovery against the state or its subdivisions for drop-off conditions. See e.g. Morris v. Juneau County, 579 N.W.2d 690, 697-98 (Wis. 1998), Aday v. State through DOTD, 950 So.2d 928, 932-33 (La. App. 2007), Doyle v. State, 45 Ill. Ct. Cl. 194, 200 (1993), State DoT v. Manning, 288 So.2d 289, 291 (Fla. App. 1974). That a dropoff is part of the paved highway is in keeping with common sense. To say a drop-off is not part of the paved shoulder would be to say that the White Cliffs of Dover are part of the English Channel and not England. Indeed, the defendant does not dispute this, relying in their summary judgment motion instead on the alleged comparative negligence of the decedent to relieve it from liability. The drop-off is a defect of the highway itself and the Commonwealth has therefore waived its sovereign immunity.
A Shoulder That is Too Narrow for Conditions is a Dangerous Condition of the Highway for which Sovereign Immunity is Waived.
A jury is justified in finding that an improperly maintained shoulder is a dangerous condition of the highway. Fidanza v. PennDoT, 655 A.2d 1076, 1079-80 (Pa. Commw. 1995). In that case the plaintiffs alleged that the defendant was negligent in, among other ways, failing to provide a shoulder. Id. at 1077. The trial court held for the defendant on summary judgment. Id. at 1078. In reversing, the Court held that it is for the jury to determine whether the allegations of the plaintiffs, including an improper shoulder, constituted dangerous conditions. Id. at 1080.
The case at bar is similar to Fidanza. A key allegation of the plaintiff is that the government defendant failed to adequately maintain the shoulder. This allegation is bolstered by the evidence of the plaintiff’s expert, who opined that the paved shoulder along the curve of near the accident site should have been at least 4 feet wide. It is undisputed in this case that at the time of the accident the shoulder along road was 3 feet wide. The plaintiff’s expert has also stated that a wider shoulder would have prevented the accident. Both Fidanza and the case at bar deal with inadequate shoulders. Plaintiff has established a prima facie case that an improperly maintained shoulder caused the decedent’s death. It is for a jury to ultimately decide whether the shoulder in question is a dangerous condition.
Driver Error Was Not the Sole Reason Why the Decedent Ultimately Left the Travel Lane.
The government defendant asserts in its summary judgment motion that no defect of the paved portion of the roadway caused the decedent’s vehicle to leave the highway and that they are therefore immune from suit. The defendant cites a litany of cases to support its position, but none of these cases deal with actual highway defects. Instead, the plaintiffs in each of these cases attempt to recover for their injuries based on encounters with defects off of the highway. The vehicles involved in these incidents had left the highway for unknown reasons or solely through driver error. In the case at bar the decedent’s vehicle crossed the highway and encountered a tree on the side of the road opposite his travel lane due to his encounter with a too narrow shoulder and a drop-off condition, both dangerous conditions of the highway. His initial encounter with these defects was primarily due to inadequate maintenance of the highway. Sovereign immunity does not reinstate the doctrine of contributory negligence in relation to government defendant cases. Rather, it limits the liability of the government to defects of government realty. The decedent encountered a defect of government realty which caused his death. Any percentage of fault that may be his is assessed under the more modern theory of comparative negligence and is the province of a jury.
For the government agency to be liable due to a dangerous condition on its highways, a plaintiff must prove that “a dangerous condition of the highway caused the accident.” Pritts v. PennDoT, 969 A.2d 1, 3 (Pa. Commw. 2009). Thus, in Saylor the plaintiff could not recover because no defect of the highway caused the accident. Saylor v. Green, 645 A.2d 318, 320 (Pa. Commw. 1994). The same holds true in Fritz, no dangerous condition of the highway itself caused the plaintiff’s vehicle to leave the highway. Fritz v. Glen Mills School, 894 A.2d 172, 174-75 (Pa. Commw. 2006). Martinowski and Fagan both involved guardrails, which are not dangerous conditions on the highway. Martinowski v. PennDoT, 916 A.2d 717, 724-25 (Pa. Commw. 2006), Fagan v. PennDoT, 946 A.2d 1123, 1128 (Pa. Commw. 2008). In Pritts the plaintiff admitted that driver error was the reason why the vehicle left the highway. Pritts, 969 A.2d at 7.
The government defendant relies heavily on Fagan as factually similar to the case at bar. This is simply not true. Fagan’s theory of negligence was premised on inadequate maintenance of an unpaved shoulder. Fagan, 946 A.2d at 1124-25. Under Gramlich, this is not part of the highway. Gramlich, 838 A.2d at 846-47. In the present case the shoulder was paved and therefore part of the highway for which the government agency is potentially liable. Fagan also involved a situation where the plaintiff had no theory as to how the decedent’s vehicle left the paved portion of the highway, thus the subsequent accident was not foreseeable. An accident like the decedent’s was especially foreseeable as several other accidents had happened near the site of his accident. In the present case plaintiff presents expert evidence that given the conditions of the curve, had the shoulder been wider, the decedent’s vehicle would not have left the highway. It is also highly foreseeable that under wet conditions along a curve a vehicle would enter the paved shoulder. The paved shoulder should thus be of a sufficient width. A jury is justified in finding that a poorly maintained shoulder is a dangerous condition of the highway. Fidanza v. PennDoT, 655 A.2d 1076, 1079-80 (Pa. Commw. 1995).
Any Negligence on the Part of the Decedent Should Be Apportioned by the Jury under Comparative Negligence
In the state where the accident occurred, negligence on the part of a plaintiff does not bar recovery unless it exceeds the negligence of all defendants. 42 Pa.C.S. § 7102. The government agency’s statements in their summary judgment motion do not state, but imply that simple contributory negligence, i.e. any fault on the part of the plaintiff, will bar recovery in this case. Paragraph 35 of their motion states that “[a] motorist has a duty to use the highway in an ordinary and usual manner and with reasonable care.” This is uncontroversial in and of itself. It also does not reestablish simple contributory negligence. In Glover, the case cited by the defendant, the court held for the defendant because the plaintiff’s negligence was the “sole cause” of the accident. Glover v. PennDoT, 647 A.2d 630, 632 (Pa. Commw. 1994).
The government defendant edges closer to asserting simple contributory negligence in paragraph 34 of their motion. The defendant asserts that “[n]o cause of action falls within the real estate exception to sovereign immunity when the reason a vehicle leaves the roadway is driver error.” The government agency cites Pritts v. PennDoT, 969 A.2d 1 (Pa. Commw. 2009) in support of this contention. In this case the driver admitted that no highway defect caused her to leave the highway. Pritts, 969 A.2d at 5-6. If the defendant’s point is that if driver error is the only reason why a vehicle leaves the highway there is no liability for the government defendant, Pritts supports that contention. However, any implication that if driver error is one reason among many there is no liability for the government defendant is not supported by Pritts. Pritts contains no explicit statement to this effect and the facts of the case are such that driver error was the sole reason the vehicle left the paved portion of the highway. Id. The penultimate paragraph of Pritts makes this clear:
As in Dean and Gramlich, DOT owed a duty of care to maintain the highway, i.e. the paved cartway and adjacent berm in a safe condition for the intended and foreseeable use of vehicular travel. This duty does not extend to hazards not located on the highway. As Appellants have not alleged that the accident occurred due to a hazardous condition on the highway and instead allege that the accident occurred due to the driver failing to control the vehicle and remain on the paved portion of the road, the trial court did not err in granting DOT’s motion for summary judgment. Pritts, 969 A.2d at 9-10.
Again, the key is whether there is “a hazardous condition on the highway.” Whether such a hazard exists is a question of fact to be decided by the jury. Id. at 7 n. 3.
In paragraph 35 of their motion, the government agency asserts that “[a] vehicle leaving the traveled portion of the highway is not an ordinary and usual manner for using the highway.” The agency cites Felli v. PennDoT, 666 A.2d 775 (Pa. Commw. 1995) in support of this proposition. Felli does state this. Id. at 778. However, the thrust of Felli is its discussion of foreseeability. Mr. Felli could not recall why his vehicle left the roadway and no defect of the highway itself was alleged. Id. at 776. Unexplained departures from the highway are not foreseeable and therefore no duty is imposed upon the government agency to prevent accidents that result therefrom. Id. at 778-79. In this case the decedent’s vehicle crossed the highway, exited the highway, and struck a tree due to a defect of the highway. That a drop-off condition could cause this type of accident is agreed upon by all parties and is therefore eminently foreseeable. None of the appellate cases in the fourteen years since Felli have interpreted it as reinstating simple contributory negligence. It is a case about duty and foreseeability and does not prevent recovery from the government defendant in this case.
The Court, in Fagan, endorsed the approach of apportioning liability under the doctrine of comparative negligence:
[U]nlike the present case, in Von der Heide there was proof of the deceased driver’s negligence in causing his car to leave the roadway, which was apportioned with the government agency’s causal negligence under comparative negligence. Fagan, 946 A.2d at 1128.
Both defendants experts assert some negligence on the part of the decedent. Since defendants intend to introduce evidence of the decedent’s alleged comparative negligence, this matter should proceed to a jury for an appropriate apportionment of liability.
Plaintiff’s Expert’s Report Contains the Required Facts and Specificity to be Admissible at Trial to Establish the Government Defendant Breached its Duty to Plaintiff’s Decedent and this Caused Plaintiff’s Damages.
The government defendant asserts in its motion that “Plaintiff has relied solely on the unsupported conclusions of her expert that Decedent encountered a drop-off condition causing him to overcorrect his steering and lose control of his vehicle.” This is inaccurate.
The opinion of an expert witness “need not be based on absolute certainty,” however, “an opinion based on mere possibilities is not competent evidence.” Viener v. Jacobs, 834 A.2d 546, 558 (Pa. Super. 2003). The assumptions of an expert witness “must be based on such facts as the jury would be warranted in finding from the evidence.” Id. Since plaintiff’s expert’s conclusions are all based on facts that the jury could find from the evidence, his opinions are competent to defeat a motion for summary judgment.
Plaintiff has retained an expert witness in this matter who has reviewed voluminous documents, 31 deposition transcripts, and made two visits to the scene of the accident. Plaintiff’s expert compiled a report which listed eight separate conclusions, all “[t]o a reasonable degree of scientific and engineering certainty.” The conclusions most relevant to this motion states:
2. Given the context of its location, its rate of curvature, and a history of accidents borne out by testimony, the curve whereon the crash unfolded was dangerous, failing to meet the required safety standards for a design speed of 55 mph.
3. Consistent with the foregoing, the curve warranted greater attention than the adjoining straight segments during the planning phase of the resurfacing. Yet [the defendant] failed to do so.
4. Apart from failing to meet the R-R-R requirements which call for a minimum width of 4 ft., the [defendant] should have specified that the paved portion (asphalt) of the shoulder be extended outward and tapered. This would have prevented the formation of an edge drop-off while enhancing the safety of pedestrians and bicyclists as well as motorists.
6. The manner in which the decedent’s pick-up truck went out of control and its ensuing collision with the tree are consistent with a drop-off induced crash.
7. [The government defendant], during its planning phase, did not pay due regards to inevitable safety issues surrounding the curve whereon the accident unfolded.
All these conclusions are adequately sounded in facts the jury could find from the evidence.
The key fact is the existence of a drop-off where the decedent lost control of his vehicle. The existence of a drop-off is confirmed from a variety of sources. The photographs of the accident scene clearly show that a drop-off existed. The plaintiff’s expert’s own measurements from his site visitation establish that a drop off was present from the intersection on the road on which the accident took place to a spot 157 feet north of the tree that the decedent’s vehicle impacted. The other defendant (the contractor)’s, own expert also measured a drop-off in this area, which he estimates as 1 inch at the point 135 feet north of the tree. These measurements were taken after the accident, but are probative nonetheless because no drop-off should have existed so soon after a comprehensive repave. This is clearly evidence a jury could use to find that a drop-off existed on the roadway at the time of the decedent’s accident. Therefore, Plaintiff’s expert is also justified in basing his conclusions on this evidence.
The second fact to be established is that the decedent lost control of his vehicle at a point along the highway where the drop-off existed. Plaintiff’s expert uses the report of an accident reconstruction expert to establish that this happened approximately 135 feet north of the tree. The government defendant has not attacked the competency of the accident reconstruction expert’s calculation. This location is “well within the zone of danger where the drop-off was present.” The plaintiff’s expert’s measurements established a zone of danger where the drop-off could cause an accident like the decedent’s because any drop-off is a dangerous condition. An exact measurement at the exact location is not required because:
[T]he friction differential between the left tires on the wet asphalt and the right tires making contact with the shoulder back-up material could cause a vehicle to fishtail thereby exacerbating a drop-off encounter irrespective of its height. The standard rule in preventing and/or eliminating drop-off is to keep the edge of the pavement flush with the adjacent topography. This has been policy for over six decades as indicated by “A Policy on Highway Types: (AASHO, 1940) on p. 4: “The shoulders should be constructed and maintained flush with the edge of pavement so that at all reasonable speed cars leaving the pavement either to stop or to avoid collisions may do so without serious jarring or danger of the drivers losing control.” Report of Plaintiff’s Expert, p. 7.
Further, an employee for the contractor defendant stated in his deposition that even small drop-offs are unacceptable, stating “[i]t has to be flush.” The accident reconstruction expert’s report establishes that the decedent lost control of his vehicle within this zone of danger because any drop-off is a dangerous condition.
The defendant’s expert agrees that a drop-off existed at that location. Plaintiff’s expert is therefore justified in concluding that a drop-off existed which caused the decedent to lose control of his vehicle, resulting in his death. The disagreement between the experts is regarding the severity of the drop-off as it relates to driver loss of control. The government defendant relies on the testimony of two State Troopers who were at the accident scene who disagree with plaintiff’s expert’s assessment.
One of the Troopers did not take the advanced course that might have qualified him as an expert in accident reconstruction. The other Trooper denied being the accident reconstructionist on this accident. If a jury chooses to believe either Trooper instead of plaintiff’s expert, it may do so. However, summary judgment “cannot be used to provide for trial by affidavits or trial by depositions.” Stimmler v. Chesnut Hill Hospital, 2009 Pa. LEXIS 2037, * 21 (Pa. Sept. 30, 2009). Plaintiff’s expert’s conclusions are based on facts a jury could find. Thus a question of material fact exists which defeats any motion for summary judgment.
Furthermore, the government agency does not even address the width of the shoulder. It is undisputed that the shoulder was only 3 feet wide at the time of the accident. Since a shoulder should be at least 4 feet wide, this alone presents enough evidence to overcome a motion for summary judgment and send this case to a jury.
The Government Agency had Constructive Notice of the Defect
For the state to be liable for a defect on its highways, it must have actual or constructive notice. PennDoT v. Patton, 686 A.2d, 1302, 1305 (Pa. 1997). Constructive notice turns on whether “the defect was apparent upon reasonable inspection.” Id. Whether a defect is obvious enough to justify a finding of constructive notice is a matter for the jury. Id. at 1305-06. Finally, notice can be presumed when the defendant creates the defect. See Golden v. Philadelphia, 57 A.2d 429, 430 (Pa. Super. 1950), Myers v. Penn Traffic Co., 606 A.2d 926, 929 (Pa. Super. 1992).
Evidence exists that the drop-off condition existed from the time the contractor finished repaving the roadway. Therefore, the government defendant can be held responsible for the creation of the defect and notice can be inferred. Golden, 57 A.2d at 430. The government agency attempts to circumvent this rule by citing to Miller v. Lykens Borough Authority, 712 A.2d 800 (Pa. Commw. 1998). Miller, however, deals with latent defects. What the Millers contend is that when an agency creates a dangerous condition, negligence and notice are intertwined. While this may be true where the dangerous condition is obvious, e.g., if the Authority did not fill in the cut at all, the more precise issue, and the one involved in this case is whether the agency is charged with notice of a latent defect caused by its antecedent conduct. Miller, 712 A.2d at 802. A drop-off and narrow shoulder like the one near the scene of the accident are obvious defects, not a latent ones and were clearly “apparent upon reasonable inspection.” Patton, 686 A.2d at 1305. Even if it is determined that the defect is a latent one, it would have been readily apparent upon reasonable inspection. The government defendant failed to engage in a reasonable inspection, but this failure does not relieve it of liability. This failure to engage is a reasonable inspection is borne out by deposition testimony from an employee of the state agency. The employee could not even recall checking to see if a drop-off was present near the site of the accident when he inspected this area upon the completion of the contractor’s work.
Since the key is whether a defect would have been apparent upon reasonable inspection, regardless of whether such an inspection did occur, the state agency’s reliance on cases like Colston and Mascaro is misplaced. In Colston there was no evidence of notice and plaintiff sought to imply notice through ownership. Colston v. SEPTA, 679 A.2d 299, 301 (Pa. Commw. 1996). Plaintiff is not arguing that notice is implied by ownership because the defects were obvious upon a reasonable inspection and existed for ten months prior to the decedent’s accident.
Miranda is also inapposite. The defects here existed for ten months, whereas the defect in Miranda existed for thirteen days. Miranda v. City of Philadelphia, 646 A.2d 71, 73-74 (Pa. Commw. 1994). the state’s assertion that it is not exposed to the same level of liability as private landowners is correct. Mascaro v. Youth Study Center, 523 A.2d 1118 (Pa. 1987). Mascaro does not, however, alter the test established by Patton. The defect was apparent upon reasonable inspection so Mascaro’s general statement regarding governmental immunity is meaningless on the facts of this case.
A drop-off condition and a shoulder that is too narrow are obvious defects of the highway. They existed for ten months prior to the decedent’s accident and death. This is more than sufficient time for a reasonable inspection by the government agency to discover and remedy these conditions. The government defendant’s failure to discover and remedy these defects are a breach of its duty to safely maintain its property. See Snyder v. Harmon, 562 A.2d 307, 312 (Pa. 1989). Sufficient evidence exists in the record for a jury finding that the state agency had constructive notice of the defect.
Plaintiff Has a Survival Action Claim for Pain and Suffering
The government agency asserts that plaintiff does not have evidence competent to establish pain and suffering. Motion for Summary Judgment at ¶ 55. In Mecca v. Lukasik the Superior Court allowed an award of pain and suffering based on the 2.1 seconds the vehicle in question was airborne prior to impact:
While there can be no recovery for pain and suffering in a survival action where the decedent is killed instantaneously, in this case death was something less than instantaneous. And absent support in the record for appellants’ claim that the occupants of the car were unconscious as it left the roadway, the court correctly charged on pain and suffering. In re Consolidation Coal Co., 296 F. Supp. 837 (W.D.Pa. 1969). Mecca v. Lukasik, 530 A.2d. 1334, 1344-45 (Pa. Super. 1987).
In this case, plaintiff’s expert has established that approximately 2 seconds elapsed between when the decedent lost control of his vehicle and the vehicle impacted the tree. An award for pain and suffering is thus justified by evidence in the record.
Conclusion
For the reasons stated above, plaintiff has established a prima facie case of negligence against the government defendant with sufficient evidence to send it to a jury. The state has waived its immunity pursuant to 42 Pa.C.S. § 8522(b)(4). Therefore the government defendant’s Motion for Summary Judgment should be denied.
Legal Argument Against the Contractor Defendant
Negligence has four essential elements: (1) a duty recognized by law establishing a standard of conduct, (2) a breach of that duty, and a (3) causal connection between the actor’s conduct and (4) the plaintiff’s damages. Felli v. PennDoT, 666 A.2d 775, 777 (Pa. Commw. 1995). A paving contractor owes a duty to users of the highway to perform in a workmanlike manner. See St. Clair v. B & L Paving Co., 411 A.2d 525, 526-27 (Pa. Super. 1979), Coolbaugh v. Slusser Brothers Trucking & Excavating Co., Inc., 816 A.2d 307, 312 (Pa. Super. 2003). The contractor defendant breached that duty by failing to properly place shoulder backup material while repaving the roadway at the site of the plaintiff’s accident. This failure resulted in the creation of a drop-off at the edge of the pavement. Id. This drop-off caused the plaintiff to lose control of his vehicle. Id. As a result of this, the plaintiff’s vehicle struck a tree and he lost his life.
The contractor confines its criticisms of the plaintiff’s prima facie case to two points. First, the contractor asserts that plaintiff’s expert’s opinions are not specific enough to be admissible. Second, the defendant asserts that plaintiff cannot establish causation because the defendant did not cause the plaintiff to leave the travel lane of the highway. Neither of these arguments have merit. The plaintiff’s expert has exhaustively studied this case and arrived at specific and well-reasoned conclusions that are admissible at trial. The contractor’s argument on causation is premised on an overly broad reading of sovereign immunity. Even if this reading were accurate, and it is not, it would still not apply to the contractor because it does not share in the government defendant’s sovereign immunity. See Coolbaugh, 816 A.2d at 310.
Plaintiff’s Expert’s Report Contains the Required Specificity to be Admissible at Trial to Establish the Contractor Breached its Duty to Plaintiff’s Decedent and this Caused Plaintiff’s Damages.
The opinion of an expert witness “need not be based on absolute certainty,” however, “an opinion based on mere possibilities is not competent evidence.” Viener v. Jacobs, 834 A.2d 546, 558 (Pa. Super. 2003). The assumptions of an expert witness “must be based on such facts as the jury would be warranted in finding from the evidence.” Id. Since plaintiff’s expert’s conclusions are all based on facts that the jury could find from the evidence, his opinions are competent to defeat a motion for summary judgment.
Plaintiff has retained an expert witness in this matter who has reviewed voluminous documents, 31 deposition transcripts, and made two visits to the scene of the accident. Plaintiff’s expert compiled a report which listed eight separate conclusions, all “[t]o a reasonable degree of scientific and engineering certainty.” The two conclusions most relevant to this motion state:
The formation of the drop-off extant on the date of the crash manifests clearly that the shoulder-backup material failed to perform its intended function. Given the brief duration of 10 months from the time of completion to the crash, the failure of the shoulder back-up renders Hawbaker accountable for the formation of the drop-off because they did not put down adequate material or did not put it down at all. The manner in which the Wood pick-up truck went out of control and its ensuing collision with the tree are consistent with a drop-off induced crash.
Both these conclusions are adequately sounded in facts the jury could find from the evidence.
The key fact is the existence of a drop-off where the plaintiff lost control of his vehicle. The existence of a drop-off is confirmed from a variety of sources. The photographs of the accident scene clearly show that a drop-off exists. Deposition testimony from numerous witnesses all also establish the existence of a drop-off. Plaintiff’s expert’s own measurements from his site visitation establish that a drop off was present along the roadway for 157 feet northwards, beginning where the plaintiff’s vehicle struck a tree. The contractor’s own expert also measured a drop-off in this area, which he estimates as 1 inch at the point 135 feet north of the tree. This is clearly evidence a jury could use to find that a drop-off existed on the roadway at the time of plaintiff’s accident. Therefore, plaintiff’s expert is also justified in basing his conclusions on this evidence.
The second fact to be established is that the decedent lost control of his vehicle at a point along the highway where the drop-off existed. Plaintiff’s expert uses the report of plaintiff’s accident reconstruction expert to establish that this happened approximately 135 feet north of the tree. The contractor defendant has not attacked the competency of the accident reconstructionist’s calculation. This location is “well within the zone of danger where the drop-off was present.” The contractor attempts to create ambiguity where there is none because plaintiff’s expert did not take an exact measurement at this exact location. Plaintiff’s expert’s measurements established a zone of danger where the drop-off could cause an accident like the decedent’s because any drop-off is a dangerous condition. An exact measurement at the exact location is not required because:
[T]he friction differential between the left tires on the wet asphalt and the right
tires making contact with the shoulder back-up material could cause a vehicle to
fishtail thereby exacerbating a drop-off encounter irrespective of its height.
The standard rule in preventing and/or eliminating drop-off is to keep the edge of
the pavement flush with the adjacent topography. This has been policy for over
six decades as indicated by “A Policy on Highway Types: (AASHO, 1940) on p.
4:
The shoulders should be constructed and maintained flush with the
edge of pavement so that at all reasonable speed cars leaving the
pavement either to stop or to avoid collisions may do so without
serious jarring or danger of the drivers losing control.
A representative of the contractor also stated in his deposition that even small drop-offs are unacceptable, stating “[i]t has to be flush.” The accident reconstructionist’s report establishes that the decedent lost control of his vehicle within this zone of danger because any drop-off is a dangerous condition. The contractor defendant’s expert agrees that a drop-off existed at that location, which he estimates at one inch. Plaintiff’s expert is therefore justified in concluding that a drop-off existed which caused the decedent to lose control of his vehicle, resulting in his death. The disagreement between the experts is regarding the severity of the drop-off as it relates to driver loss of control. This is clearly a question for the jury.
Plaintiff Has Sufficient Evidence of Causation to Defeat a Motion for Summary Judgment
Causation is an essential element of any negligence action. See Felli, 666 A.2d at 777. To establish causation, a defendant’s action must be a “substantial factor” in bringing about the plaintiff’s harm. Jeter v. Owens-Corning Fiberglas Corp., 716 A.2d 633, 636 (Pa. Super. 1998).
An actor’s conduct is not a substantial factor in bringing about the harm if that harm would have been sustained even without the actor’s negligence. Id. at 637. A plaintiff “need not exclude every possible explanation” to prove that a defendant’s actions were a substantial factor in her harm. Id. In a case involving an automobile accident, eyewitness testimony is not required to meet this threshold if sufficient circumstantial evidence exists. See Eldridge v. Melcher, 313 A.2d 750, 757-58 (Pa. Super. 1973).
Plaintiff’s expert’s report establishes that the negligence of the contractor in not properly backing up the shoulder was a substantial factor in Mr. Wood’s death. Since the contractor did not properly reinforce the shoulder of the roadway, a drop-off condition existed. The existence of the drop-off and the way in which the accident occurred yield the conclusion that if the drop-off had not existed, the decedent would not have struck the tree. That is, if the decedent had lost control of the vehicle without encountering the drop-off his vehicle would exited the roadway to the right. His encounter with the drop-off caused his vehicle to ultimately exit the roadway to the left. These conclusions are adequately based in facts the jury could find from the evidence. See Section IV.A, supra. The contractor’s actions therefore are a substantial factor in causing the decedent’s death and plaintiff has met her burden on causation for purposes of summary judgment.
Instead of directly addressing the appropriate standard of causation in this matter, the contractor defendant attempts to seek shelter in an overly broad reading of sovereign immunity. Even assuming that that reading of sovereign immunity were correct, and it is not correct, the contractor defendant would not benefit from it because sovereign immunity does not extend to government contractors.
The state owes a duty to a plaintiff only where the state’s sovereign immunity has been waived by statute. Dean v. PennDoT, 751 A.2d 1130, 1132 (Pa. 2000). Exceptions to sovereign immunity are to be narrowly construed. Fagan v. PennDoT, 946 A.2d 1123 (Pa. Commw. 2008). For the state to be liable due to a dangerous condition on its highways, a plaintiff must prove that “a dangerous condition of the highway caused the accident.” Pritts v. PennDoT, 969 A.2d 1, 3 (Pa. Commw. 2009). Thus, in Saylor the plaintiff could not recover because no defect of the highway caused the accident. Saylor v. Green, 645 A.2d 318, 320 (Pa. Commw. 1994). The same holds true in Fritz, no dangerous condition of the highway itself caused the plaintiff’s vehicle to leave the highway. Fritz v. Glen Mills School, 894 A.2d 172, 174-75 (Pa. Commw. 2006). Martinowski and Fagan both involved guardrails, which are not dangerous conditions on the highway. Martinowski v. PennDoT, 916 A.2d 717, 724-25 (Pa. Commw. 2006), Fagan v. PennDoT, 946 A.2d 1123, 1128 (Pa. Commw. 2008).
The case at bar is distinguishable from all these because a shoulder drop-off is a condition of the highway itself. This state’s courts define a highway as “a generic term for both the cartway, the paved or travelled portion of the highway, and the shoulder.” Felli, 666 A.2d at 777 n. 6. For the state to be liable, a defective condition of the highway must have caused the accident. Martinowski, 916 A.2d at 722. In Fagan, upon which the contractor defendant places much weight, the shoulder was gravel, not paved as it is in this case. Fagan, 946 A.2d at 1124. “[T]he loss tends to fall on the party with some responsibility for the vehicle leaving the pavement.” Id. at 1129. The defect on the shoulder is a condition of the paved portion of the highway itself and this caused the decedent’s accident. The state has thus waived its sovereign immunity and causation can be established under the traditional substantial factor test.
Even if the Court were to hold otherwise, however, this would still not insulate the contractor from liability. All of the cases relied upon by the contractor defendant involve sovereign immunity. A waiver of sovereign immunity is a matter of statutory interpretation to be decided by a court. Snyder v. Harmon, 562 A.2d 307, 311-12 (Pa. 1989). Sovereign immunity does not extend to contractors. Coolbaugh, 816 A.2d at 310. Claims against the contractor are thus subject to the standard “substantial factor” test outlined in Jeter. Jeter, 716 A.2d at 635-37. In the case at bar the Court is not tasked with making a legal determination on sovereign immunity. Instead the Court must decide whether the plaintiff has sufficient evidence such that a jury could reasonably find the contractor’s actions caused the decedent’s death. plaintiff’s expert’s report is well-grounded in facts that could be found by the jury. See supra Section IV.A. This is a question of fact, not of law. “All doubts as to the existence of a genuine issue of a material fact are to be resolved against the granting of summary judgment.” Stimmler, 2009 Pa. LEXIS at *22. Plaintiff has clearly established enough facts to send this matter to a jury.
Plaintiff Has a Survival Action Claim for Pain and Suffering
The contractor defendant asserts that plaintiff does not have evidence competent to establish pain and suffering. In Mecca v. Lukasik the Superior Court allowed an award of pain and suffering based on the 2.1 seconds the vehicle in question was airborne prior to impact:
While there can be no recovery for pain and suffering in a survival action where the decedent is killed instantaneously, in this case death was something less than instantaneous. And absent support in the record for appellants’ claim that the occupants of the car were unconscious as it left the roadway, the court correctly charged on pain and suffering. In re Consolidation Coal Co., 296 F. Supp. 837 (W.D.Pa. 1969).
Mecca v. Lukasik, 530 A.2d. 1334, 1344-45 (Pa. Super. 1987).
In this case, plaintiff’s expert has established that approximately 2 seconds elapsed between when the decedent lost control of his vehicle and the vehicle impacted the tree. An award for pain and suffering is thus justified by evidence in the record.
Because Plaintiff’s Other Claims Survive, Her Loss of Consortium Claim Survives
The contractor defendant’s argument against plaintiff’s loss of consortium claim was premised on the wrongful death and survival actions failing. Since those actions can survive a motion for summary judgment, the loss of consortium claim survives as well.
Conclusion
For the reasons stated above, plaintiff has established a prima facie case of negligence against the contractor with sufficient evidence to send it to a jury. Therefore the contractor defendant’s Motion for Summary Judgment should be denied.