Ling v. Commonwealth, Department of Transportation

CONCURRING OPINION BY

Senior Judge FRIEDMAN.

I concur in the result. The plain language of the Driveway Immunity Provision shields DOT from liability for any injuries arising out of DOT’s “issuance or denial of a driveway permit” or its “failure to regulate any driveway.” 35 P.S. § 7210.502(b)(4)(i). Unfortunately, our court has no guidance from either prior judicial precedent or the General Assembly as to how the legislature intended that this provision be applied. Thus, the majority uses general statutory construction principles to conclude that the Driveway Immunity Provision cloaks DOT with immunity in all cases involving injuries sustained as a result of DOT’s failure to regulate a private driveway. Under this broad interpretation of the Driveway Immunity Provision, DOT can never be liable for injuries resulting from an improperly located or constructed driveway, regardless of whether the property owner received a permit or DOT had prior notice of a dangerous condition relating to the driveway’s location or design. I am not convinced that the legislature intended this result.

While the following facts are not present here, one can imagine a ease in which a plaintiff files suit alleging that his or her injuries were caused by an improperly located or constructed driveway for which DOT issued a permit. In fact, the majority recognizes this possibility, stating, “This, of course, is not to say that a landowner does not have a valid defense in a negligence action if DOT issued a permit and the landowner constructed a driveway in accordance with the specifications in the permit.” (Majority’s Op. at 5 n. 7.) If the landowner can validly defend against a negligence action by asserting that it complied with DOT’s driveway regulations, and DOT is immune from liability, then from whom can a plaintiff recover for injuries sustained as a result of an improperly located or constructed driveway?1 In my view, by failing to enumerate exceptions to *8DOT’S immunity in this realm, the General Assembly has overlooked the real consequences of the Driveway Immunity Provision’s strict immunity language.

Nonetheless, given the facts of this case and the plain language of the Driveway Immunity Provision, I am constrained to agree with the majority’s decision.

. I note that the Driveway Immunity Provision also shields local municipalities from liability for failure to regulate private driveways. See 35 P.S. § 7210.502(b)(4)(i).