dissenting.
I respectfully dissent from the majority’s decision to reverse the trial court’s granting of summary judgment in favor of PennDot because the expert report relied upon does not state that State Route 350 was defectively designed.
On January 23, 1992, Deena Smith (Smith) was injured while riding as a passenger in a vehicle driven by a colleague. The driver of the ear lost control when she hit a patch of ice while travelling on State Route 350, causing the car to leave the road and hit a tree. The road was covered with ice and slush. Smith and her husband filed a complaint against PennDot alleging numerous defects of the roadway, including improper design and construction, lack of proper signage, lack of guardrails and accumulations of icy patches. Smith provided an expert report to support her contention that the road was defectively designed and constructed. Penn-Dot filed a motion for summary judgment contending that it was not liable for the *592accident because it had no duty to Smith to remove the ice from the road, the lack of warning signs and guardrails did not cause the accident, and'the expert’s report did not contain any findings that the road was defectively designed or constructed. The trial court granted PennDot’s motion for summary judgment, finding that the expert report offered by Smith in support of her contentions did not state that the road was improperly designed or constructed. It also stated that under our recent decision in Rothermel v. Department of Transportation, 672 A.2d 837 (Pa.Cmwlth.1996), because the ice caused the car to slide off the road, that secondary negligence on the part of a government agency was not actionable.1
On appeal, Smith contends that summary judgment should not have been granted because, even absent the ice and slush, she alleged and proved through her expert’s report that the accident would have occurred as a result of PennDot breaching its duty to properly design and construct State Route 350 and because of lack of signage on that roadway. Not addressing the signage issue, the majority only reverses the trial court’s grant of summary judgment because the expert report, if believed by a jury, would establish that PennDot was negligent in its defective design and construction of State Route 350.
The following are the relevant portions of the expert report on which the majority relies:
[tjhis comparison shows that SR 350 is substandard in pavement and shoulder width, horizontal curvature, vertical grade and clear zone width. Having a steeper grade and sharper curve with limited sight distance should have alerted PaDOT to the need to erect warning signing to alert drivers, particularly those unfamiliar with the area, to the presence of the horizontal curve.
(Smiths’ expert report at 3.)
The report additionally states:
[a]s one approaches the accident site from the north, southbound SR 350 is on a combined horizontal curve and a crest vertical curve. This geometry creates a substantially worse problem for drivers in poor weather conditions than if it were a straight, level section of roadway. If one does not have to accelerate on an upgrade and then brake because [sic] of the subsequent downgrade, or if there was no demand for side friction generated by going around a curve, an accident associated with loss of vehicle control would be far less likely to occur even if the roadway surface was slippery. The basic rules in driving on slippery pavements are to not apply your brakes unnecessarily and not change direction suddenly. The combination of a horizontal curve and a crest vertical curve made both actions almost certain to occur.
(Smiths’ expert report at 4.)
Agreeing with Smith, the majority holds that the expert report concludes that the roadway was defective in both design and construction and, even without the natural accumulation of ice, could have been the cause of the vehicle in which Smith was riding to slide off the roadway backwards into a tree.2
While Pennsylvania has not yet addressed what factors should be considered in determining whether a Commonwealth agency is negligent in designing or constructing a roadway, other jurisdictions have delineated some of the factors that should be considered in making such a determination. Those include whether the design of the highway failed to measure up to accepted engineering *593standards at the time the road was built;3 whether any other accidents occurred at the same location;4 and whether the design of the road was obviously dangerous.5 Nothing in the expert’s report mentions those factors or any factor that would establish that State Route 350 was defectively designed or constructed and was the cause of the accident without ice on the roadway. All the expert’s report states is that the roadway would have been safer if it had been straight rather than curved and did not go up and down. Just because a roadway has a steep grade and/or a sharp curve does not make the roadway inherently defective or dangerous, especially in Pennsylvania, whose terrain, say, unlike Kansas, often requires roads to do just that. The report in no way establishes defective design and the trial court properly granted summary judgment on that basis.
It is not surprising that the expert does not mention any of the factors needed to establish that the road was defectively designed, because the defect he found existed that caused the accident was the lack of signage, not the design of the road. His report stated that a warning sign may have been appropriate based on the grade and curve of the road as alleged by Smith in her complaint. The question then is whether that “conclusion” by the expert that lack of signage caused the accident supports a cognizable cause of action not subject to summary judgment.
To be able to maintain an action in negligence, the plaintiff must first show that the defendant breached a duty owed to him or her. Felli v. Department of Transportation, 666 A.2d 775 (Pa.Cmwlth.1995). It was well-settled that at common law a governmental agency has no duty to erect traffic signs and is not liable for any damages or injuries because of lack of signs.6 See Carter v. City of Philadelphia, 137 Pa.Cmwlth. 152, 585 A.2d 578 (1991); Rinaldi v. Giblin, 70 Pa.Cmwlth. 253, 452 A.2d 1126 (1982). See Sparks v. Kansas City, 236 Mo.App. 710,160 S.W.2d 819 (1942) (city had no duty to warn motorists about curves in city streets); Dohrman v. Lawrence County, 82 S.D. 207, 143 N.W.2d 865 (1966) (failure to install adequate signs warning of danger incident to a sharp curve or steep hill not a violation of duty under state statute).
This settled law became somewhat unsettled as a result of Bendas v. Township of White Deer, 531 Pa. 180, 611 A.2d 1184 (1992), one of a number of cases that struggled with what the phrase in 42 Pa.C.S. § 8522(b)(4) “dangerous condition of ... highway” meant and whether to place the focus on “dangerous condition” or the word “of’. In the seminal Mascaro v. Youth Study Center, 514 Pa. 351, 523 A.2d 1118 (1987), our Supreme Court placed emphasis on the word “of’ in the phrase, and held that the real estate exception could be applied only to those cases where it was alleged that the artificial condition or defect of the land itself caused the injury, not merely when it facilitated the injury. Only if the defect was “of’ the Commonwealth real estate, e.g., a hole in the cement, could liability be imposed; if the emphasis was on the word “on” the Commonwealth real estate, e.g., grease on a sidewalk, then the defect did not fall within the exception to immunity. This “on-of ’ distinction was consistently followed until Ben-das.
In Bendas, an accident occurred on a Commonwealth highway where no traffic control devices or signs existed as to speed limit or regulating entry on to the highway. Acting on the assumption that PennDot had a duty to erect signs, the Supreme Court, departing *594from Mascaro, placed the focus on the words “dangerous condition.” It went on to hold that whether the lack of signage was a dangerous condition of the Commonwealth’s highway was a question of fact for a jury to determine as was the question of what constituted a dangerous condition. After Bendas, though, in Finn v. City of Philadelphia, 541 Pa. 596, 664 A.2d 1342 (1995), the Supreme Court reverted to utilizing the “on-of” distinction, stating that “liability depends, first, on the legal determination that an injury was caused by a condition of government realty itself, deriving, originating from, or having the realty as its source, and, only then, the factual determination that the condition was dangerous.” Id., 664 A.2d at 1346.
While our Supreme Court in Bendas sent to the jury the issue whether a lack of signage was a “dangerous condition”, apparently because it was not raised, the opinion did not address the lack of a common law duty to erect traffic control signs on a Commonwealth highway to make it safe. Also, not discussed was 42 Pa.C.S. § 8522(a) which precludes imposition of liability when it cannot be imposed at common law.7 Due to the uncertain validity of Bendas, because Bendas never addresses the issue of the need to establish a common law duty and because 42 Pa.C.S. § 8522(a) precludes imposition of liability when a duty did not exist at common law, the doctrine that there is no liability imposed for the failure to erect traffic signs is still valid.
Because the expert’s report did not establish that State Route 350 was negligently designed and because PennDot owed no duty to Smith to place signage on the roadway, I dissent and would affirm the trial court.
DOYLE, J., joins in this dissenting opinion.
. I agree with the majority that the holding in Rothermel does not apply to this case because Smith now contends that the accident occurred only because of the defective design of the roadway and not because of accumulated ice on the roadway.
. There is no dispute that PennDot, as a Commonwealth agency, is immune from suit regarding any accumulation of ice on the roadway, and the Smiths concede on appeal that PennDot owes them no duly to remove natural accumulations of ice. See Huber v. Department of Transportation, 122 Pa.Cmwlth. 82, 551 A.2d 1130 (1988), peti*593tion for allowance of appeal denied, 525 Pa. 637, 578 A.2d 931 (1990).
. See McKee v. Michigan Department of Transportation, 132 Mich.App. 714, 349 N.W.2d 798 (1984).
. See Warda v. State, 45 Misc.2d 385, 256 N.Y.S.2d 1007 (1964); Stapleton v. State, 285 A.D. 984, 138 N.Y.S.2d 241 (1955).
. See Anderson v. Minneapolis, 296 N.W.2d 383 (Minnesota 1980).
. 42 Pa.C.S. § 8542(b)(4) provides an exception from immunity for local agencies for a dangerous condition of traffic signs, lights or other traffic controls already under the care, custody or control of the local agency, and no liability is imposed to erect signage.
. 42 Pa.C.S. § 8522(a) provides that sovereign immunity is waived as a bar to an action against Commonwealth parties for damages arising out of a negligent act where the damages would be recoverable under the common law.