DISSENTING OPINION BY
Judge FRIEDMAN.The majority holds that the Court of Common Pleas of Cambria County (trial court) properly granted summary judgment to the Department of Transportation of the Commonwealth of Pennsylvania (DOT) because: (1) Susan Fagan and Michael P. Fagan (together, Fagan) did not offer to prove how the vehicle involved in the fatal accident in this case left the road before striking a turned-down guardrail terminal located on the shoulder of the road, and, thus, Fagan could not prove under the common law that DOT’s negligence caused the fatality; and (2) the real estate exception to sovereign immunity does not apply to a defective guardrail. For the reasons that follow, I cannot agree.
On August 7, 2002, Michael J. Fagan (Decedent) was a passenger in a car driven by Justin Glenn Martin (Driver), when, for unknown reasons, the car left the road and struck a turned-down guardrail terminal on the shoulder of the road. The guardrail caused the car to become airborne. The airborne car struck a utility pole and two trees and then rolled over. Both occupants of the car were killed.
Fagan sued DOT, alleging negligence with respect to the guardrail on the shoulder of the road. Fagan was prepared to offer expert testimony to prove that turned-down guardrail terminals have long been known to vault, roll and channel vehicles striking them and that DOT should have replaced the dangerous condition of the Commonwealth agency real estate well before the accident. DOT asserted the doctrine of sovereign immunity, but Fagan asserted that the Commonwealth waived the defense of immunity in this case.
The General Assembly of the Commonwealth has waived sovereign immunity where: (1) a party seeks damages arising out of a negligent act where the damages would be recoverable under the common law, or a statute creating a cause of action, if the injury were caused by a person not having available the defense of sovereign immunity; and (2) the claim for damages was caused by a dangerous condition of Commonwealth agency real estate, including highways under the jurisdiction of a Commonwealth agency. Sections 8522(a) and 8522(b)(4) of the Judicial Code, 42 Pa.C.S. §§ 8522(a) & 8522(b)(4).
I. Common Law Negligence
A. Prima Facie Case
To establish common law negligence, a plaintiff must show that: (1) the defendant *1130had a duty to conform to a certain standard of conduct; (2) the defendant breached that duty; (3) such breach caused the injury in question; and (4) the plaintiff incurred actual loss or damage. Krentz v. Consolidated Rail Corporation, 589 Pa. 576, 910 A.2d 20 (2006).
A Commonwealth agency owes to those using its real estate a duty to keep the property safe for the activities for which it is regularly used, intended to be used or reasonably foreseen to be used. Snyder v. Harmon, 522 Pa. 424, 562 A.2d 307 (1989). DOT’s duty to maintain Commonwealth highways includes a duty to maintain the “shoulders and other safety features such as ... guardrails.” Section 9101 of the Vehicle Code, 75 Pa.C.S. § 9101. Thus, one of the intended purposes of the shoulder of a road is to provide safety in case of an emergency, e.g., to avoid a head-on collision with an oncoming vehicle or to avoid striking a deer. See 67 Pa.Code § 441.1 (stating that one purpose of the shoulder of a road is “emergency use”).
Here, Fagan has evidence to show that the guardrail in question was not safe. Such evidence would establish a prima facie case of negligence, i.e., that, when DOT provides guardrails, DOT has a duty to provide guardrails that protect motorists rather than endangering them, that DOT breached its duty by failing to provide such a guardrail and that DOT’s breach of duty caused a fatality.
B. Superseding Cause
Inasmuch as Fagan’s evidence could establish a prima facie case of negligence, the burden of proof would shift to DOT to show a superseding cause that relieves DOT from liability.1 See Hargrove v. Frommeyer & Company, 229 Pa.Super. 298, 323 A.2d 300 (1974) (holding that the defendant in a negligence action failed to meet its burden of showing that, as a matter of law, a superseding cause relieved the defendant from any liability).
In Powell v. Drumheller, 539 Pa. 484, 653 A.2d 619 (1995), Powell sued DOT for negligent design of a Commonwealth highway. Powell’s husband died when the vehicle he was driving was struck by a vehicle driven by Drumheller, who was driving with a suspended license and who pled guilty to vehicular homicide and driving under the influence of alcohol in connection with the accident. In her suit, Powell alleged that the accident occurred on a road that had no centerline, no road markings or signs restricting passing and no shoulders to provide room for emergency maneuvers.
DOT argued that the criminally negligent conduct of Drumheller was a superseding cause of the fatality that relieved DOT of liability for negligent design of the highway. Our supreme court disagreed, stating that the test to determine whether an intervening force is a superseding cause is whether the intervening conduct was so extraordinary as not to have been reasonably foreseeable. Id. The court stated that criminal conduct does not act as a per se superseding force and that the question is for the jury, unless the facts are uncontroverted and only one inference can be drawn. Id.
Here, then, to escape liability at the summary judgment stage of the proceedings, DOT needed to show based on undisputed facts that the Driver’s or Decedent’s conduct prior to the vehicle striking the guardrail was so extraordinary that it *1131could not have been reasonably foreseen. However, in this case, no one knows the prior conduct of Driver and Decedent or what caused the vehicle to leave the roadway and strike the guardrail. Because there are no undisputed facts upon which DOT could rely, it would not have been possible for DOT to meet its burden.2
II. Real Estate Exception
The defense of sovereign immunity may not be raised to claims for damages caused by a dangerous condition of Commonwealth agency real estate, including highways under the jurisdiction of a Commonwealth agency. Section 8522(b)(4) of the Judicial Code, 42 Pa.C.S. § 8522(b)(4). This exception to the defense of immunity can be applied only to those cases where it is alleged that an artificial condition or defect of the land itself causes injury, not merely when it facilitates injury by acts of others. Snyder.
In Dean v. Department of Transportation, 561 Pa. 503, 751 A.2d 1130 (2000), our supreme court held that the absence of a guardrail on a highway did not constitute either an artificial , condition or a defect of the land itself. However, in this case, a guardrail exists. Because the real estate exception to sovereign immunity includes highways, and highway maintenance includes maintenance of the shoulder and guardrail, a defect in a guardrail on the shoulder of a roadway is a defect of the real estate/highway itself. Thus, the real estate exception applies here.
Having concluded that Fagan would have an action at common law for negligence and that the real estate exception applies here, I conclude that the trial court erred in granting summary judgment to DOT.
Judge PELLEGRINI and Judge COHN JUBELIRER join in this dissent.. I note that, before the Commonwealth became a comparative negligence state, there was a presumption of due care, i.e., that a deceased plaintiff exercised due care, which was based on the natural instinct of self-preservation. Rice v. Shuman, 513 Pa. 204, 519 A.2d 391 (1986). The purpose of the presumption was simply to direct the defendant to assume the burden of proof. Id.
. I submit that the majority incorrectly places the burden on Fagan to prove that the conduct of Driver and Decedent prior to striking the guardrail was not a superseding cause relieving DOT of liability. The majority holds that the conduct of Driver and Decedent prior to striking the guardrail is part of the chain of causation, i.e., but for the fact that the vehicle left the roadway, the vehicle would not have struck the guardrail. However, DOT's duty relates to the guardrail; the breach of duty relates to the guardrail; the injury relates to the guardrail; and the question of causation relates to the guardrail. The reason why the vehicle left the road is irrelevant, except as a superseding cause, and DOT has the burden of showing a superseding cause.
The majority’s reliance on Martinowski v. Department of Transportation, 916 A.2d 717 (Pa.Cmwlth.2006), appeal denied, 594 Pa. 682, 932 A.2d 1290 (2007), is misplaced. In that case, the plaintiff was the driver of the vehicle, and DOT presented undisputed evidence showing that she was driving while intoxicated when she left the road and struck a guardrail. Thus, there was evidence of conduct by the plaintiff that constituted a superseding cause. Here, there is no such evidence, and the plaintiff in this case is the passenger, not the driver of the vehicle.