Sovereign Immunity – Real Estate Exception – Negligent Installation of Guardrails

Cagey v. PennDOT, 2016 WL 4068321 (Pa.Cmwlth. 2016) (unreported),  allocatur granted, 36 WAP 2016


In Cagey, the Pennsylvania Supreme Court will consider whether the Commonwealth Court improperly expanded the Pennsylvania’s Supreme Court’s holding in Dean v. Department of Transportation, 751 A.2d 1130 (Pa. 2000), that the Department has no duty to erect guardrails on Commonwealth real property along Commonwealth agency roadways, by repeatedly holding that when the Department does erect guardrails, it cannot be liable for injuries caused by negligently dangerously designed guardrails.


Trial court granted PennDOT’s motion for judgment on the pleadings on sovereign immunity grounds, applying settled case law from Commonwealth Court that since Commonwealth is immune from suit for injuries attributable to failure to install guardrails at all, it is also immune from liability for installing guardrails but doing so negligently. Commonwealth Court affirmed, explaining:

In Dean, our Supreme Court held that a failure to erect a guardrail does not constitute a dangerous condition of Commonwealth realty and, thus, does not fall under the real estate exception to the Sovereign Immunity Act. Dean, 751 A.2d at 1131. The Supreme Court in Dean reasoned that the absence of a guardrail was not a dangerous condition of Commonwealth realty because it did not “render the highway unsafe for the purposes for which it was intended, i.e., travel on the roadway.” Id. at 1134. In Fagan v. Department of Transportation, 946 A.2d 1123 (Pa. Cmwlth. 2008), the appellants urged this Court to construe the Supreme Court’s holding in Dean narrowly and to hold that, where a guardrail exists, the1057 (Pa. 1995). Where a Commonwealth agency enjoys immunity from tort liability, it is irrelevant that a private person would be liable for a similar act. Page v. City of Philadelphia, 25 A.3d 471, 476 (Pa. Cmwlth. 2011). The very purpose of sovereign immunity is that it precludes a litigant from asserting a claim against a Commonwealth agency that might otherwise be meritorious if asserted against a private party. State Workmen’s Ins. Fund, Cmwlth. Dep’t of Labor and Indus. v. Caparo Real Estate, Inc., 635 A.2d 705, 707 (Pa. Cmwlth. 1993). Further, the Supreme Court has instructed “[b]ecause of the clear intent to insulate government from exposure to tort liability, the exceptions to immunity are to be strictly construed.” Dean, 751 A.2d at 1132. Accordingly, we must interpret any exceptions to sovereign immunity narrowly, to the exclusion of new causes of action, rather than broadly as Appellants suggest.

For more information, contact Kevin McKeon and Dennis Whitaker.