P. Angell, individually and as Administratrix v. J.F. Dereno, Ross Twp.. and West View Borough , 134 A.3d 1173 ( 2016 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Pamela Angell, individually and as :
the Administratrix of the Estate of :
Thomas W. Bauer, Jr., deceased, :
Appellant :
:
v. : No. 458 C.D. 2015
: Argued: November 17, 2015
James F. Dereno, Ross Township, :
and West View Borough :
BEFORE: HONORABLE MARY HANNAH LEAVITT, Judge1
HONORABLE P. KEVIN BROBSON, Judge
HONORABLE ANNE E. COVEY, Judge
OPINION
BY JUDGE LEAVITT FILED: March 10, 2016
Pamela Angell, individually and as administratrix of the estate of
Thomas W. Bauer, Jr. (Decedent), appeals two orders of the Court of Common
Pleas of Allegheny County (trial court) granting summary judgment to Ross
Township and West View Borough (collectively, Municipalities), defendants in
Angell’s tort action. Angell seeks to recover damages for her son’s death, which
she attributes to the dangerous condition of a road where her son’s motorcycle was
clipped by an oncoming truck, within feet of the boundary between Ross Township
and West View Borough. Angell’s expert opined that had the Municipalities
installed traffic control devices, the fatal accident would not have occurred. Angell
contends that the trial court erred in dismissing the Municipalities from her action
1
This case was assigned to the opinion writer before January 4, 2016, when Judge Leavitt
became President Judge.
by finding facts that were for a jury to decide and by not giving her expert’s report
and deposition evidence any probative value. For the reasons that follow, we
reverse both orders.
Background
The accident occurred on Bellevue Avenue, a narrow two-lane, two-
way road without shoulders or a center line marking. Bellevue Avenue runs
through a residential neighborhood, and the Municipalities permit parking on one
side of the road, which further narrows the room for passing vehicles.2 Bellevue
Avenue, which runs north and south, meets Schwitter Avenue in a T-shaped
intersection. The boundary line between the Municipalities bisects Bellevue
Avenue in the middle of the crossing with Schwitter Avenue. Bellevue north of
the intersection lies in Ross Township, and Bellevue south of the intersection lies
in West View Borough.
The intersection of Schwitter Avenue and Bellevue Avenue is located
at the top of a hill. After crossing the boundary from West View Borough to Ross
Township, Bellevue immediately descends a steep hill. Vehicles traveling in either
direction on Bellevue cannot see oncoming vehicles until they reach the crest of
the hill at the intersection with Schwitter, where both roads are level.
On May 9, 2011, in mid-day, Decedent was heading down the hill on
Bellevue on his motorcycle. At the same time, James F. Dereno was heading up
the hill in his pickup truck. Just below the intersection of Bellevue and Schwitter,
in Ross Township, Decedent collided with Dereno. Dereno’s left front bumper hit
Decedent’s motorcycle, doing minor damage to Dereno’s truck. However, the
2
The speed limit is 25 mph.
2
force of the impact was enough to cause Decedent’s motorcycle to fly over the
guardrail on the east side of Bellevue and land at the bottom of the steep
embankment protected by the guardrail. Decedent was 19 years old.
Angell filed a wrongful death and survival action against Dereno,
Ross Township and West View Borough. Her complaint alleged that Dereno
“negligently travel[ed] in the Decedent’s lane or the middle of the road so as to
cause the collision with the Decedent.” First Amended Complaint, ¶18(a);
Reproduced Record at 29a (R.R. ___). Her complaint also alleged that the fatal
accident was the direct, legal and proximate result of the Municipalities’
negligence:
a. In failing to properly design, maintain, supervise and
control Bellevue Avenue;
b. In allowing parking on the side(s) of Bellevue Avenue
(particularly the south bound side), thus turning the two-
way Avenue into a single lane; and
c. In failing to place signs or otherwise warn the public, such
as the Plaintiff Decedent, of the dangerous Avenue
condition; and
d. In failing to correct the dangerous condition in a
reasonable time when it could be charged with actual
notice or could reasonably be charge[d] with notice of the
dangerous condition.
First Amended Complaint, ¶¶25, 32; R.R. 32a, 34a. The alleged dangerous
condition consisted of the narrowness of Bellevue Avenue and the limited sight
distance caused by the hill. First Amended Complaint, ¶¶13-14; R.R. 28a.
The complaint asserted that Angell’s claim against the Municipalities
fell within the “streets” exception to governmental immunity found in a chapter of
the Judicial Code that is commonly referred to as the Political Subdivision Tort
3
Claims Act (Tort Claims Act), 42 Pa. C.S. §8542(b)(6). Section 8542(b)(6)(i)
provides that a local agency may be liable for a “dangerous condition of streets
owned by the local agency ....” 42 Pa. C.S. §8542(b)(6)(i).
All the defendants filed answers denying liability, and the parties
engaged in discovery. At his deposition, Dereno testified that he lives on Bellevue
Avenue in West View Borough and has driven on that road “at least two, three
times a day seven days a week … since July of ’07.” R.R. 262a. Dereno testified
that Bellevue is dangerous because of the limited sight distance caused by the hill
and the narrowness of the roadway. He testified that he slows down when heading
up Bellevue towards the intersection because people turning from Schwitter cannot
see oncoming vehicles on Bellevue. He acknowledged telling police on the day of
the accident that he had been moving towards the center of the road. He did so to
avoid vehicles that are often parked on the west side of Bellevue, in both
Municipalities, and cannot be seen because of the limited sight distance. As it
happened, there were no cars parked on his side of Bellevue that day. Dereno
could not be sure he was in his own lane at the moment of collision because there
are no lane markings. Dereno believed that a stop sign on Bellevue at the top of
the hill on the West View side of the boundary would have made a difference
because it “would make people stop and actually look and [give] the other person
time to get to the crest” on the Ross Township side. R.R. 256a.
Angell also lives on Bellevue Avenue, as did her son before his
death.3 She testified that Bellevue is dangerous at its intersection with Schwitter.
Angell described the road as a “perfect storm” for an accident because of “the
3
At the time of the accident, Decedent resided with his mother at 111 Bellevue Avenue and
Dereno resided at 113 Bellevue Avenue.
4
slope, the blindness, the narrowness.” R.R. 265a. She had warned Decedent, who
lived with her, about the danger. Angell did not know whether cars had been
parked on Bellevue Avenue at the time of the accident.
Angell secured affidavits from neighbors Antonia Mahon, Tod
Morrow, Wayne Kennelly and Barbara Kennelly. All described seeing officers
from both Municipalities patrolling the intersection of Bellevue and Schwitter
before the fatal accident. Mahon attested that prior to the accident, she personally
tried to get West View to install a stop sign on Bellevue at the top of the hill before
it crossed Schwitter. Barbara Kennelly attested that she has witnessed several
vehicle accidents at the Schwitter and Bellevue intersection. Prior to the fatal
accident, she complained to West View about the dangers posed by the hill on
Bellevue and its intersection with Schwitter. After the fatal accident, both
Municipalities installed warning signs on opposite sides of Bellevue stating
“Danger Blind Hill Slow.”
The Municipalities filed separate motions for summary judgment.
Both argued that Angell’s evidence did not show that they had been negligent with
respect to a dangerous condition of the street or that their alleged negligence
caused the accident. On April 8, 2014, the trial court denied both motions.
On November 24, 2014, Angell secured an expert report from Ronald
W. Eck, P.E., Ph.D. Angell’s Brief, Appendix F. Dr. Eck studied the
circumstances of the accident and the conditions on Bellevue Avenue. Dr. Eck
reviewed the pleadings in this case; traffic speed and volume data collected in
October 2014 by David E. Wooster and Associates, Inc.; and relevant street
engineering literature. Relying upon several treatises, Dr. Eck determined that
Bellevue Avenue needed a minimum width of 22 to 28 feet. Dr. Eck measured
5
Bellevue at approximately 16 feet wide at the point of the accident, 19 feet wide at
the intersection with Schwitter Avenue and 18 feet wide south of the intersection,
at the top of the hill where Bellevue is level. Dr. Eck also opined that the guardrail
on the east side of Bellevue, as it descended into Ross Township, further reduced
Bellevue’s functional width. This is because motorists tend to “shy away” from a
fixed obstruction, such as a guardrail, particularly where there is no shoulder. Eck
Report at 5. Dr. Eck concluded that the “width of Bellevue Avenue is too narrow
to fulfill its intended functions and does not comply with accepted design
practices.” Id. He stated that the “short crest vertical curve” at the crest of the hill
prevents motorists from seeing oncoming traffic. Id.
Dr. Eck opined that the narrow roadway, on-street parking and limited
sight distance over the hill created a dangerous roadway condition that was a
substantial contributing factor to the crash. Dr. Eck believed that the danger
should have been apparent to both Municipalities, and they should have responded
with “limited sight distance” warning signs on both sides of the intersection. He
opined that a head-on collision, of the sort that caused Decedent’s death, was
foreseeable.
Dr. Eck addressed the use of multi-way stop controls at the
intersection to mitigate the dangerous conditions on Bellevue Avenue. The
Federal Highway Administration provides that multi-way stop controls should be
based on an engineering study, including minimum traffic values.4 PennDOT
4
The Federal Highway Administration guidelines provide that a four-way traffic stop requires
that 300 vehicles per hour enter the intersection from a major street and 200 vehicles per hour
from a minor street. Dr. Eck used traffic data on the intersection collected by David E. Wooster
and Associates, which showed that 70 vehicles per hour entered the intersection. This number
was too low to require the installation of a multi-way stop control under Federal standards.
6
Publication 212 states that multi-way stops are not necessary for limited sight
distance “unless there is no practical method of improving the sight distance or
reducing the speed limit to satisfy the minimum corner sight distance values.” Eck
Report at 6. Accordingly, under PennDOT’s criteria, multi-way stop controls were
warranted on Bellevue because there was no practical way to improve the sight
distance or to lower the existing speed limit of 25 mph.
Dr. Eck did not believe there should be a stop sign on Bellevue
Avenue (in Ross Township) as it climbs the hill toward the intersection with
Schwitter. A stop sign on the uphill grade would make it difficult for motorists to
pull away from the intersection in inclement weather. However, a stop sign on the
other side of Bellevue at the top of the hill (in West View Borough) with a sign
stating “opposing traffic does not stop” would make Bellevue safer. It would
mitigate the defective roadway design. Dr. Eck opined that West View should
have installed this stop sign as part of its routine roadway management. Dr. Eck
opined that the lack of traffic control devices on Bellevue caused the crash and
Decedent’s fatal injuries.
The Municipalities again moved for summary judgment. They argued
that the evidence, even with Dr. Eck’s opinion, did not create triable issues of fact
on causation, duty and prior notice of a dangerous condition. On March 4, 2015,
the trial court issued two orders: one granting summary judgment in favor of Ross
Township and the other granting summary judgment in favor of West View
Borough. Each order dismissed Angell’s claim against the Municipalities with
prejudice.
The trial court concluded that because Angell’s complaint alleged that
Dereno caused the accident by deviating from his lane of travel, the dangerous
7
condition of the road was irrelevant. The trial court found other deficiencies in
Angell’s evidence. The trial court found that the neighbors’ affidavits did not
establish that the Municipalities had actual notice of the dangerous condition on
Bellevue. The trial court did not discuss constructive notice or Dr. Eck’s opinion
that the danger should have been apparent to both Municipalities. The trial court
found that Dr. Eck did not identify the type of appropriate traffic control device
that would remediate the danger or establish that the Municipalities had authority
to install a device without PennDOT’s approval. For these reasons, the trial court
refused to consider Dr. Eck’s report.
Dereno remains a defendant in the case. By agreement of the parties,
the trial court certified both orders as final for purposes of an interlocutory appeal
to facilitate resolution of the entire case. The present appeal followed.5
Applicable Standards for Summary Judgment
Summary judgment may be granted where there is no genuine issue of
material fact and where the moving party is entitled to judgment as a matter of law.
Summers v. Certainteed Corporation, 997 A.2d 1152, 1159 (Pa. 2010). In
considering a motion for summary judgment, we examine the evidence of record in
a light most favorable to the non-moving party, accepting as true all well-pled facts
and reasonable inferences to be drawn from those facts. Sellers v. Township of
Abington, 67 A.3d 863, 867 (Pa. Cmwlth. 2013). All doubts as to the existence of
a genuine issue of material fact must be resolved against the moving party.
Chanceford Aviation Properties, L.L.P. v. Chanceford Township Board of
Supervisors, 923 A.2d 1099, 1103 (Pa. 2007). If the non-moving party fails to
5
Dereno is not participating in the appeal.
8
adduce sufficient evidence on an essential issue for which it bears the burden of
proof, the moving party is entitled to judgment as a matter of law. Sellers, 67 A.3d
at 867. Summary judgment raises a question of law over which our scope of
review is plenary and our standard of review is de novo. Id. at 868; Chanceford
Aviation, 923 A.2d at 1103. We resolve questions of law based on the entire
record. Summers, 997 A.2d at 1159.
Issues
Angell argues that the trial court erred. She contends that her
evidence established the existence of a dangerous condition on Bellevue Avenue
that contributed to the fatal accident. Angell argues that it is for a jury to decide
whether the Municipalities had actual or constructive notice of a dangerous
condition. The trial court erred in finding facts on this issue. Angell also argues
that the trial court erred in concluding that Dr. Eck’s report did not establish that
the Municipalities had authority to install traffic control devices to mitigate the
dangerous street conditions.
Tort Claims Act
Under the Tort Claims Act, local agencies are generally immune from
tort liability unless immunity is expressly waived. See 42 Pa. C.S. §8541.6
Pursuant to Section 8542(a) of the Tort Claims Act, the General Assembly has
waived immunity where the following conditions are satisfied: (1) damages would
6
Section 8541 states:
Except as otherwise provided in this subchapter, no local agency shall be liable
for any damages on account of any injury to a person or property caused by any
act of the local agency or an employee thereof or any other person.
42 Pa. C.S. §8541.
9
be recoverable under statutory or common law if the injury were caused by a
person not protected by governmental immunity; (2) the local agency’s negligent
act caused the injury; and (3) the local agency’s alleged negligence falls within one
of the eight enumerated exceptions to governmental immunity listed in 42 Pa. C.S.
§8542(b).7
As noted above, this case involves the streets exception to
governmental immunity. Section 8542(b)(6)(i) of the Tort Claims Act provides
that a local agency may be liable for:
A dangerous condition of streets owned by the local agency,
except that the claimant to recover must establish that the
dangerous condition created a reasonably foreseeable risk of the
kind of injury which was incurred and that the local agency had
actual notice or could reasonably be charged with notice under
the circumstances of the dangerous condition at a sufficient
time prior to the event to have taken measures to protect against
the dangerous condition.
7
Section 8542(a) states as follows:
(a) Liability imposed.--A local agency shall be liable for damages on account of
an injury to a person or property within the limits set forth in this subchapter if
both of the following conditions are satisfied and the injury occurs as a result of
one of the acts set forth in subsection (b):
(1) The damages would be recoverable under common law or a
statute creating a cause of action if the injury were caused by a
person not having available a defense under section 8541 (relating
to governmental immunity generally) or section 8546 (relating to
defense of official immunity); and
(2) The injury was caused by the negligent acts of the local agency
or an employee thereof acting within the scope of his office or
duties with respect to one of the categories listed in subsection (b).
As used in this paragraph, “negligent acts” shall not include acts or
conduct which constitutes a crime, actual fraud, actual malice or
willful misconduct.
42 Pa. C.S. §8542(a).
10
42 Pa. C.S. §8542(b)(6)(i). In short, Angell had to show that the dangerous
condition on Bellevue Avenue presented a foreseeable risk of a side-swipe
collision and that the Municipalities had actual or constructive notice of the danger.
Causation
Dr. Eck opined that Bellevue Avenue was dangerous because it was
narrow and offered limited sight distance on both sides of the boundary line. The
Municipalities do not challenge the existence of this dangerous condition, nor did
the trial court. Rather, the trial court concluded that Angell did not establish that
the dangerous condition of the road caused the accident because Angell alleged in
her complaint that Dereno caused the collision by deviating from his lane of travel.
Angell argues that her evidence established that the dangerous
condition on Bellevue Avenue was a substantial factor in the fatal accident. Dr.
Eck opined that Bellevue Avenue was far too narrow to accommodate safely two-
way traffic, especially where motorists also had to deal with the blind hill, parked
cars on the street and a guardrail. Dr. Eck opined that these dangerous conditions
were a substantial contributing factor to the crash and explained how they
contributed to the accident. This evidence was sufficient to defeat the
Municipalities’ motions for summary judgment.
Both Municipalities contend that the dangerous condition was
irrelevant because Dereno disobeyed the law by entering the oncoming lane of
traffic. The Municipalities argue that they cannot be held liable for the
extraordinary occurrence where a driver disobeys traffic laws.
In support, the Municipalities rely upon Burton v. Terry, 592 A.2d
1380 (Pa. Cmwlth. 1991), as did the trial court. In Burton, a motorist was injured
when his car was struck by a vehicle that had entered the intersection after
11
traveling the wrong way on a one-way street in Philadelphia. The intersection was
such that vehicles travelling the correct way could not see traffic entering the
intersection from the wrong direction. This Court affirmed the grant of judgment
n.o.v. in favor of the City because the “alleged dangerous condition was created by
the driver who ignored the one-way traffic signs appropriately posted by the City
and travelled the wrong way on a one-way street.” Id. at 1384. In so holding, we
also observed that a municipality has a duty to construct and maintain its streets so
that they will “be in a condition ‘reasonably’ safe for the use of the public ....” Id.
at 1383. However, a municipality cannot be held liable for an “extraordinary”
accident that results from a driver’s disobeying posted traffic signs. Id. at 1385.
Burton is distinguishable. In Burton, the street was reasonably safe
for its intended use. The City did not have the responsibility to address the danger
created by a driver who drove illegally in disregard of the City’s posted one-way
signs. Here, by contrast, there is no evidence that Dereno disobeyed a posted
traffic sign. Further, Angell’s expert evidence established that Bellevue is not
reasonably safe for its intended use of two-way vehicle traffic.
Dereno told police he began moving to the center of the road out of
concern that there might be parked cars on his side of Bellevue that he could not
see. Dereno also testified he believed he was driving within his own lane of travel
when the accident occurred. However, he also stated that the lanes on Bellevue are
difficult to discern:
Well the road is so narrow to me that when you’re in your lane
you’re very close to the so-called center of that road that they
call the center of the road. But there is no indication of the
center of the road.
12
R.R. 255a. Dereno also confirmed that motorists at the top of the hill cannot see
oncoming vehicles until those vehicles crest the hill.
There is a dispute on the factual question of whether the dangerous
condition or Dereno’s driving or both caused the crash. This defeats the
Municipalities’ motions for summary judgment on the issue of causation. See
Drew v. Laber, 383 A.2d 941 (Pa. 1978) (where a motorist who moved to the edge
of the road to avoid an oncoming vehicle struck a pedestrian walking along a
narrow road, the question of whether the dangerous narrowness of the road was a
substantial contributing factor was for the jury to decide).8 The trial court erred in
granting summary judgment on the issue of causation.
Notice
Angell next argues that the trial court erred in holding that her
evidence was not sufficient to show that the Municipalities had actual or
constructive notice of the dangerous condition. She contends that the trial court
made findings of fact about notice, which are for the jury to decide. We agree.
In order for a municipality to be held liable for injury caused by a
dangerous condition of a street, the municipality must have notice of the condition
and a reasonable time to respond. 42 Pa. C.S. §8542(b)(6)(i). The plaintiff must
show “that the local agency had actual notice or could reasonably be charged with
notice under the circumstances of the dangerous condition,” i.e., constructive
notice. Id. (emphasis added). “Constructive notice requires that the dangerous
8
The Municipalities argue that Angell has not established causation against them because there
were no cars parked on Bellevue at the time of the accident. Further, there is no evidence that
there was insufficient space for motorists travelling in opposite directions to pass each other
safely if they stayed in their respective lanes of travel. Dr. Eck’s report and Dereno’s testimony
create issues of fact on these points.
13
condition be apparent upon reasonable inspection.” Department of Transportation
v. Patton, 686 A.2d 1302, 1304 (Pa. 1997). Whether a local agency had either
actual or constructive notice of a dangerous condition is a question of fact for the
jury. Id. at 1305; Medicus v. Upper Merion Township, 475 A.2d 918, 921-22 (Pa.
Cmwlth. 1984). A court may decide the issue “only when reasonable minds could
not differ as to the conclusion.” Patton, 686 A.2d at 1305. However, “[i]f there is
any dispute created by the evidence, the court is not permitted to decide the issue.”
Id.9
Angell argues that the affidavits show that West View Borough had
actual notice that the intersection of Bellevue and Schwitter Avenues was unsafe
based on the complaints made by Barbara Kennelly and Antonia Mahon. This
evidence was specific on the location and type of dangerous condition. Relying on
Patton, Angell further argues that the dangerous condition was apparent upon
reasonable inspection, noting that police officers from both Municipalities had
been present on patrol at or near the intersection. This constitutes constructive
notice of the dangerous condition.
The Municipalities disagree. Ross Township points out that Angell’s
affidavits described complaints made only to West View Borough. West View
9
In Patton, PennDOT was sued after a large tree branch overhanging a Commonwealth roadway
fell on a car, killing a motorist. The plaintiff presented expert evidence that the tree had been
“topped” decades earlier, a condition which should raise a “red flag” to a well-trained tree
inspector because topping can lead to tree decay and falling limbs. PennDOT responded that the
tree was sound and that there was no evidence the topped condition was visible from the ground.
The case fell under the real estate exception to sovereign immunity, which has a notice
requirement identical to the streets exception. The Supreme Court held that the evidence created
a question of fact for the jury as to whether PennDOT had either actual notice or constructive
notice of a dangerous condition of the tree because such would have been apparent upon
reasonable inspection.
14
argues that the neighbors’ affidavits are not specific enough on the danger to
constitute actual notice. Both Municipalities argue that absent evidence of a
previous sideswipe between two oncoming vehicles, one cannot infer that the
patrolling police officers had constructive notice.10
Antonia Mahon, Tod Morrow, Wayne Kennelly and Barbara
Kennelly, all of whom reside in the neighborhood, submitted affidavits. They
recalled seeing officers from Ross Township and West View Borough patrolling
Bellevue Avenue near the crash site prior to the fatal accident. Mahon attested that
prior to the accident, she personally tried to persuade West View to put in a stop
sign to address the “dangers posed by the intersection of Schwitter Avenue and
Bellevue Avenue.” Angell’s Brief, Appendix H. Barbara Kennelly attested that
she has witnessed several vehicle accidents on Schwitter and Bellevue. Kennelly
twice complained to West View about the “dangers posed by the intersection” and
told the Borough “that it needed to make the intersection safer for vehicles
traveling on Schwitter Avenue and Bellevue Avenue.” Angell’s Brief, Appendix
K.
10
In support, the municipalities cite Kennedy v. City of Philadelphia, 635 A.2d 1105 (Pa.
Cmwlth. 1993), affirmed by evenly divided court, 658 A.2d 788 (Pa. 1995), and Fenton v.
Philadelphia, 561 A.2d 1334 (Pa. Cmwlth. 1989), affirmed without opinion, 585 A.2d 1003 (Pa.
1991). In both Kennedy and Fenton, this Court held that the City of Philadelphia could not be
charged with actual or constructive notice of a dangerous condition that caused an injury because
the plaintiffs did not present evidence that the City was informed or knew of a specific dangerous
condition (lack of dotted lines on the street separating a pedestrian area from the vehicle lanes in
Kennedy and lack of lane markings and a designated left-turn lane in Fenton) or that similar prior
accidents had occurred. The plaintiffs spoke of only general dangerous conditions. Notably,
although this Court in both cases referenced constructive notice, we did not define constructive
notice or discuss it apart from actual notice. In any case, the Supreme Court’s decision in
Patton, 686 A.2d 1302, which was decided after Kennedy and Fenton, is dispositive on whether
actual or constructive notice is a question for a jury.
15
The trial court acknowledged that Patton, 686 A.2d 1302, established
that whether a municipality has had actual or constructive notice is a question for
the jury to decide. Nevertheless, the trial court concluded that notice was not an
issue for the jury in this case, explaining:
As none of the affidavits specify the dangers referred to, they
cannot support the contention that the municipal defendants
were on notice of a specific dangerous condition. Further,
Ma[h]on and Kennelly only reported dangers to West View
Borough, not Ross Township.
Trial court op. at 5. We disagree.
Mahon and Kennelly reported the “dangers posed by the intersection
of Schwitter Avenue and Bellevue Avenue” without specifying the narrowness and
limited sight distance on Bellevue. However, Mahon specifically told West View
that a stop sign was needed on Bellevue at the intersection, the identical conclusion
reached by Dr. Eck. Notably, both Municipalities argue that the dangers presented
by the narrow street and limited sight distance were so obvious that signs were not
necessary. This argument is at odds with their contention that they did not have
constructive notice of the danger.
In any case, there is a factual dispute on the question of constructive
notice. Police officers from the Municipalities patrolled near the crash site prior to
the fatal accident, and Dr. Eck opined that the danger should have been identified
on a routine inspection by the Municipalities. Constructive notice is a question of
fact to be decided by the jury, not the court. If the dangerous conditions, i.e., a too-
narrow street with limited sight distance, are deemed by the jury to be “apparent
upon reasonable inspection,” the jury could find that the Municipalities had notice.
16
Patton, 686 A.2d at 1304. The trial court erred in granting summary judgment on
the issue of actual and constructive notice.
Expert Report on Traffic Control Devices
The trial court rejected Dr. Eck’s report for the stated reason that Dr.
Eck did not establish that the Municipalities had authority to install traffic control
devices or that PennDOT would have approved them. Angell contends that the
trial court erred because, in fact, the report did establish that the Municipalities
could have, and should have, installed traffic control devices and did not need
PennDOT’s approval to do so.
Municipalities have a duty to make their streets reasonably safe for
their intended purpose. Starr v. Veneziano, 747 A.2d 867, 872 (Pa. 2000). Our
Supreme Court has held that
a municipality’s responsibility to maintain its roadways free of
dangerous conditions could include a duty to install an
appropriate traffic control device where to do so would alleviate
a known dangerous condition.
Id. To establish a duty of care on the part of a municipality to install a traffic
control device, the plaintiff must demonstrate that:
1) the municipality had actual or constructive notice of the
dangerous condition that caused the plaintiff’s injuries; 2) the
pertinent device would have constituted an appropriate remedial
measure; and 3) the municipality’s authority was such that it
can fairly be charged with the failure to install the device.
Id. at 873.
In Starr, the Supreme Court held that an “expert opinion expressed
within a reasonable degree of engineering certainty is generally required” for the
identification of the remedial device. Id. (emphasis added). It also explained that
17
the plaintiff must show that “more likely than not, PennDOT’s approval would
have been forthcoming.” Id. at 874.11
In Starr, the accident occurred as the plaintiff made a left-hand turn
from a township road onto a state highway in an area with limited sight distance.
Starr sued PennDOT, which joined the municipality. PennDOT asserted that the
municipality should have installed a stop sign at the intersection to restrict access
onto the state highway. Starr received a jury verdict in her favor, and this Court
affirmed. The Supreme Court reversed, holding that Starr’s evidence did not make
her case because her expert’s opinion was not supported by a traffic or engineering
study. Further, Starr did not prove that PennDOT’s approval of the traffic control
device, which was required, would have been forthcoming.
Thereafter, in Wenger v. West Pennsboro Township, 868 A.2d 638(Pa. Cmwlth.), petition for allowance of appeal denied, 890 A.2d 1062 (Pa. 2005),
this Court clarified the scope of Starr. In Wenger, an accident occurred when the
plaintiff’s vehicle was hit at the intersection of two township roads at the crest of a
hill, at a point of limited sight distance. At the time of the accident, there were no
stop signs at the intersection, but thereafter the township installed them.
Wenger sought damages from the township alleging that her injuries
were caused in part by the absence of stop signs, warning signs or a reduced speed
limit. The trial court granted the township’s motion for summary judgment
because Wenger’s expert did not meet the standards established in Starr. This
Court reversed.
11
The first requirement was undisputed in Starr, i.e., that the municipality had actual or
constructive notice.
18
In doing so, we explained that PennDOT’s approval of a traffic
control device was not required because, unlike the situation in Starr, the
intersection did not involve a state highway. A traffic expert may express an
opinion on the appropriate remedial measure on a township road using “any
combination of sources.” Wenger, 868 A.2d at 643-44. Further, “an inquiry that
conforms to generally accepted engineering standards and practices will produce
the factual predicate identified in Starr as [a] requisite for an expert opinion.” Id.
at 644. We also held that evidence of post-accident remedial measures are
admissible but only for the limited purpose of showing that the proposed traffic
control device was appropriate; it does not bear on the ultimate issue of negligence.
Id. at 645. Finally, we held that technical studies relied upon by the traffic expert
need not be admitted into evidence in discovery or at trial so long as they are
identified by the expert. Id.
Wenger is dispositive. Here, the trial court’s reliance on Starr was
misplaced because Starr involved an intersection between a state highway and a
township road, where PennDOT’s approval of a traffic control device was
required. PennDOT’s approval is not needed for traffic control signs where the
intersection lies between two township roads. Wenger, 868 A.2d at 643-44. Dr.
Eck’s report identified appropriate remedial traffic control measures, namely,
warnings of limited sight distance signs in both directions, and a stop sign in West
View just before Bellevue crosses Schwitter.12 He also identified the sources he
12
Dereno also testified he believes the limited sight distance near the crest of the hill is
dangerous and warrants a stop sign on the West View Borough side of the intersection, stating:
You have to…have a stop sign so everybody [has] more time to evaluate people
getting there, you know.
R.R. 258a.
19
relied upon in reaching his conclusions. Dr. Eck did not have to append the
Wooster study and other treatise authority to his report, as the trial court believed.
In short, the trial court erred in rejecting Dr. Eck’s report, which is admissible. Its
weight must be determined by the jury.
Summary Judgment Analysis
The Municipalities contend that even if Dr. Eck’s report is admissible,
this Court should affirm the trial court’s grant of summary judgment on other
grounds. They argue that the absence of “limited sight distance” warning signs
was irrelevant because they state the obvious, i.e., that the motorist’s view of the
road ahead is limited. More importantly, both Dereno and Decedent knew about
the danger because they lived on Bellevue.13 Therefore, traffic control devices
would not have relayed information those two drivers did not already know and,
thus, would not have prevented the fatal collision. Dr. Eck recommended warning
signs reading “Limited Sight Distance” in both Municipalities. Eck Report at 6.
After the accident, both Municipalities installed warning signs stating “Danger
Blind Hill Slow” on Bellevue, which show the feasibility of such devices.
It is undisputed that Dereno and Decedent often traveled Bellevue
Avenue. Dereno testified he slowed down approaching the intersection because
motorists turning left from Schwitter could not see oncoming traffic. Angell
testified that she had warned Decedent of the danger. However, Dereno did not
testify in his deposition that signs would have been meaningless on the day in
13
The drivers’ knowledge of the dangerous condition was not a factor in the trial court’s
decision.
20
question. Of course, there can be no statement from Decedent about how a
warning sign may have affected his conduct.
The evidence established that Bellevue Avenue is dangerous. It is too
narrow to fulfill its intended function, and it affords only limited sight distance.
The lack of lane markings was noted by Dereno, who could not be sure he was
entirely within his own lane of travel at the point of impact. Whether the drivers’
knowledge made the lack of warning signs irrelevant cannot be presumed.
Warning signs function not just to inform motorists but to remind them of a
danger, particularly drivers who may be operating in a familiar location on
“automatic pilot.” In short, whether the knowledge and experience of Dereno and
Decedent rendered warning signs irrelevant presents a question of fact that must be
decided by a jury.
We turn then to the remaining issue of a stop sign. Dr. Eck opined
that West View Borough should have placed a sign on Bellevue at the top of the
hill.14 Dr. Eck opined that this stop sign would have mitigated the danger and
prevented the accident because it would have required Decedent to stop before
descending the hill. Dr. Eck asserted that requiring a motorist to stop would give
time for a vehicle ascending the hill to come into view before the stopped motorist
resumed his trip through the intersection. Whether the recommended stop sign
would have prevented the accident is a question for the jury. As our Supreme
Court has explained, “the question of whether a municipality has taken the
14
Stated otherwise, stop signs were needed on two of the three points of the T-shaped
intersection, and both in West View Borough. One already exists on Schwitter Avenue. Dr. Eck
opined that another should be installed on Bellevue where it joins Schwitter.
Dr. Eck did not recommend a stop sign in Ross Township or opine that it would have
prevented the accident. There is nothing for a jury to decide in this regard.
21
requisite precautions which it owes to travelers is one for the jury.” Drew, 383
A.2d at 943.
West View argues that even if these factual questions are resolved
against it, it cannot be held liable because a local agency can be held liable only for
a “dangerous condition of streets owned by the local agency.” 42 Pa. C.S.
§8542(b)(6)(i) (emphasis added). The accident occurred in Ross Township. The
portion of the street “owned by” West View Borough, which is straight and level,
had nothing to do with the accident that happened in Ross Township. We reject
this logic.
Although the crash occurred in Ross Township, the stop sign
recommended by Dr. Eck would stop motorists before they continued on to the
descent, giving time for ascending vehicles to appear. The purpose of any traffic
control device is to prevent an accident somewhere beyond the device, which may
or may not be located in the same municipality given the fact that streets traverse
municipal boundaries and intersect state highways. Notably, in Starr, the accident
occurred on a state road where it intersected a township road. The dangerous
condition, which contributed to the accident on the state highway, was located in
the township. The Supreme Court did not hold in Starr that the township was free
of liability because the accident occurred on a state highway, i.e., land not owed by
the township. The Tort Claims Act holds municipalities liable for their dangerous
street conditions and does not limit that liability to accidents that occur within their
boundaries.
Dr. Eck opined that Bellevue Avenue was dangerous on both sides of
the intersection. In spite of its narrowness, both Municipalities allow parking on
the west side of Bellevue, which further narrows the road. Indeed, Dereno told
22
police he was moving toward the center of the road in anticipation of encountering
parked cars on his side of the street. It is for the jury to decide whether the
Municipalities should have taken steps to mitigate the danger and what steps
should have been taken and whether they could have prevented the fatal accident.
Conclusion
Material questions of fact preclude the grant of summary judgment to
Ross Township and West View Borough. It is for the jury to decide whether the
Municipalities had actual or constructive notice of the dangerous condition and
whether the danger could have been addressed with appropriate remedial devices
that would have prevented the fatal accident. Likewise, whether Dereno was
negligent and the supervening cause of the fatal accident is a question for the jury.
Accordingly, we reverse the grant of summary judgment to Ross Township and
West View Borough and remand the matter to the trial court for further
proceedings consistent with this opinion.
______________________________
MARY HANNAH LEAVITT, Judge
23
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Pamela Angell, individually and as :
the Administratrix of the Estate of :
Thomas W. Bauer, Jr., deceased, :
Appellant :
:
v. : No. 458 C.D. 2015
:
James F. Dereno, Ross Township, :
and West View Borough :
ORDER
AND NOW, this 10th day of March, 2016, the orders of the Court of
Common Pleas of Allegheny County dated March 4, 2015, in the above-captioned
matter granting the motion for summary judgment filed by Ross Township and the
motion for summary judgment filed by West View Borough, dismissing all claims
against them and entering judgment in their favor are hereby REVERSED and the
matter is REMANDED for further proceedings.
Jurisdiction relinquished.
______________________________
MARY HANNAH LEAVITT, Judge