[J-66-2017][M.O. – Donohue, J.]
IN THE SUPREME COURT OF PENNSYLVANIA
WESTERN DISTRICT
JOISSE A. CAGEY AND DALE J. CAGEY, : No. 36 WAP 2016
HER HUSBAND, :
: Appeal from the Order of the
: Commonwealth Court entered on
Appellants : 7/28/16 at No. 2650 CD 2015 affirming
: the Order of the Court of Common
: Pleas of Beaver County entered on
: 12/4/15 at No. 10716 of 2015
v. :
:
COMMONWEALTH OF PENNSYLVANIA, :
DEPARTMENT OF TRANSPORTATION, :
A COMMONWEALTH AGENCY, :
:
Appellee : ARGUED: October 17, 2017
CONCURRING OPINION
CHIEF JUSTICE SAYLOR DECIDED: FEBRUARY 21, 2018
I join the majority opinion. I acknowledge that I supported the per curiam Order
in Baer v. PennDOT, 564 Pa. 603, 770 A.2d 287 (2001), which applied the decision in
Dean v. PennDOT, 561 Pa. 503, 751 A.2d 1130 (2000), in circumstances involving
alleged negligence in the design, construction, and maintenance of guardrails. The
majority has persuaded me, nonetheless, that the outcome of Baer is undermined by a
conventional fixtures analysis.
I wish to also touch briefly on the substantive liability standard involved. In this
regard, I observe that the decision in Snyder v. Harmon, 522 Pa. 424, 562 A.2d 307
(1989), cited by the majority, omitted reference to a reasonableness factor in discussing
PennDOT’s liability relative to an allegedly defective condition associated with real
estate under the Commonwealth’s control. See id. at 435, 562 A.2d at 312 (“The
corresponding duty of care a Commonwealth agency owes to those using its real
estate, is such as to require that the condition of the property is safe for the activities for
which it is regularly used, intended to be used or reasonably foreseen to be used.”
(emphasis added)).
In Pennsylvania, however, the notion of safety in the abstract was associated
with jury instructions in the strict liability arena, whereas the litmus in the negligence
arena is reasonable care and safety. Compare Tincher v. Omega Flex Inc., 628 Pa.
296, 363, 104 A.3d 328, 368 (2014) (noting that, with respect to strict product liability
claims, the question presented to a jury was whether the product lacks any element
necessary to make it safe for its intended use) (emphasis added), with Adams v. J.C.
Penny Co., 411 Pa. 653, 656-57, 192 A.2d 218, 219 (1963) (indicating that property
owners have a duty to invitees to maintain the premises in a reasonably safe condition
for its contemplated use) (emphasis added)).1 The reasonableness dynamic accounts
for cost-benefit considerations which, here, are quite salient to the Commonwealth
given the scale of its responsibilities relative to a vast collection of public roads and
highways.
I note that Snyder, like the present case, concerned sovereign immunity and was
not closely focused on the underlying substantive liability standards. Moreover,
1 Notably, the General Assembly has not waived immunity for strict liability claims. See
Jones v. SEPTA, 565 Pa. 211, 217 n.1, 772 A.2d 435, 439 n.1 (2001) (citing 1 Pa.C.S.
§2310) (indicating that the Commonwealth shall enjoy sovereign immunity and remain
immune from suit except as the General Assembly specifically waives immunity)); 42
Pa.C.S. §8522(a) (indicating that the General Assembly waives sovereign immunity for
damages arising out of negligent acts only); accord Rooney v. City of Phila., 623 F.
Supp. 2d 644, 662 (E.D.Pa. 2009) (holding that a local government was immune from
plaintiffs’ strict liability claims because, in Pennsylvania, exceptions to governmental
immunity are limited to claims of negligence).
[J-66-2017][M.O. – Donohue, J.] - 2
Snyder’s depiction of the safety standard untethered by reasonableness is inconsistent
with a wide range of decisional law. See, e.g., McKenzie v. Cost Bros., Inc., 487 Pa.
303, 309, 409 A.2d 362, 365 (1979) (reiterating the general rule that a possessor of land
has a duty to use reasonable care to make the premises reasonably safe for invitees);
Miller v. Hickey, 368 Pa. 317, 324, 81 A.2d 910, 914 (1951) (noting that a landowner is
not charged with the absolute duty of keeping his premises in a safe condition, but
rather, is responsible for correcting known defects and ensuring that the property is
reasonably safe for invitees); accord RESTATEMENT (SECOND) OF TORTS, §343(c)(i)
(1965), Comment d.
While the distinction between “safety” and “reasonable safety” may seem to be
modest in a colloquial sense, it is quite significant as a matter of substantive law.
Indeed, the difference heralded a period of great uncertainty in Pennsylvania in the
product liability context. See Tincher, 628 Pa. at 375-84, 104 A.3d at 376-81. It is
important, as well, to recognize that guardrails themselves may pose inherent risks to
the traveling public in some circumstances. See, e.g., Estate of Gage v. State, 882
A.2d 1157, 1160 (Vt. 2005). Accordingly, other jurisdictions have held that the
government’s duty is to construct and maintain its highways and shoulders -- including
guardrails -- in a reasonably safe manner, again, balancing a range of relevant factors.
See Helton v. Knox County, 922 S.W.2d 877, 883 (Tenn. 1996) (holding that, while the
standard of care imposed on governments in building and maintaining roads and
bridges is one of reasonableness, it is not its duty to maintain guardrails of sufficient
strength to prevent all accidents); see also Louisville Gas and Elec. Co. v. Roberson,
212 S.W.3d 107, 109 (Ky. 2006).2
2 There is, of course, the nuance that governments are often not the designers of
products integrated into highway system infrastructures, such as guardrails, but rather,
acquire such products through the procurement system. Such additional complexities
(continued…)
[J-66-2017][M.O. – Donohue, J.] - 3
Finally, there remains a concern with cost-benefit decisions of government being
decided, or second guessed, in jury rooms. In this regard, I note that a number of other
jurisdictions apply a discretionary-functions overlay to highway system design and/or
maintenance, extending immunity to discretionary decision-making endeavors. See,
e.g., Kirby v. Macon County, 892 S.W.2d 403, 407-409 (Tenn. 1994); Keegan v. State,
896 P.2d 618, 623-25 (Utah 1995); Hennes v. Patterson, 443 N.W.2d 198, 202 (Minn.
1989); City of Jackson v. Brown, 729 So.2d 1231, 1235 (Miss. 1998); Patrazza v.
Commonwealth, 497 N.E.2d 271, 273 (Mass. 1986). The Pennsylvania General
Assembly, however, has not specifically insulated discretionary functions as such from
the effect of the immunity exceptions, leaving this Court to implement the series of
discretely-defined exceptions on their prescribed terms (subject to the strict construction
overlay).3 Accordingly, while I have some reservations about the policy implications of
this case, I agree with the majority that the result is appropriately tethered to the terms
of the immunity statute.
(…continued)
may also be relevant to the liability assessment in this arena, and, again, because
liability is not sharply in focus here, I would refrain from making specific
pronouncements.
3 This is not to say that the discretionary-functions dynamic might not, in some
circumstances, be relevant within the framework of a strict construction analysis. No
such arguments are presented here, however, and thus I will refrain from further
comment along these lines as well.
[J-66-2017][M.O. – Donohue, J.] - 4