Road Injury Prevention Litigation Journal
Road Injury Prevention & Litigation Journal
Copyright © 1998 by TranSafety, Inc.
August 1, 1998
TranSafety, Inc.
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Pennsylvania Court Affirms Real Estate Exception to Commonwealth's Sovereign Immunity

The husband of a motorist who was killed when an overhanging tree branch fell on her car sued the Pennsylvania Department of Transportation. The trial court jury decided in favor of the motorist's estate. Affirming the trial court's decision, the appeals court determined it was the DOT's responsibility to know about the hazard created by topping the tree and leaving a disproportionately large limb over the roadway. The appeals court agreed this dangerous condition came within the real estate exception to the Commonwealth's sovereign immunity.


On April 10, 1985, Brenda L. Patton drove along King Road, a residential state highway in West Whiteland Township, Chester County, Pennsylvania. A large, overhanging limb on a tree within the Commonwealth right-of-way had grown at a 45-degree angle across the road. The tree had been topped more than twenty years before; the agency that topped the tree was unknown. The tree limb fell on Mrs. Patton's car and killed her.


Mrs. Patton's husband, Donald (Patton), filed a wrongful death and survival action in the Court of Common Pleas, Chester County, against the Commonwealth of Pennsylvania Department of Transportation (DOT). Patton alleged negligence in the DOT's maintenance of the road and tree. Patton's expert testified that, because of the artificial topping, the tree decayed--causing the limb to fail. The expert said a topped tree "should raise a 'red flag' to a well trained tree inspector."

Patton introduced the DOT's maintenance manual and a U.S. Forest Service training video to show the DOT's guidelines for reasonable care. To show ownership, Patton included evidence that the DOT removed the tree after the crash.

The jury decided for Patton on November 15, 1993, awarding him $767,000. On November 23, the DOT filed post-trial motions. On April 10, 1995, the court denied the motions; however, the court molded the jury's damage award according to the statutory cap of $250,000 under 42 PaC.S. 15 8528 and ordered the DOT to pay delay damages. The DOT appealed.


The Commonwealth Court of Pennsylvania considered two principal issues:

(1) that DOT owed a common law duty to correct the recognizable hazard created by the tree, and
(2) that the cause of action fell under the real estate exception to sovereign immunity contained in the Judicial Code, 42 Pa.C.S. 15 8522(b)(4).

Two pertinent paragraphs of the Judicial Code define the real estate and pothole exceptions to sovereign immunity:

(4) Commonwealth real estate, highways and sidewalks.--A dangerous condition of Commonwealth agency real estate and sidewalks, including Commonwealth-owned real property, leaseholds in the possession of a Commonwealth agency and Commonwealth-owned real property leased by a Commonwealth agency to private persons, and highways under the jurisdiction of a Commonwealth agency, except conditions described in paragraph (5).
(5) Potholes and other dangerous conditions.--A dangerous condition of highways under the jurisdiction of a Commonwealth agency created by potholes or sinkholes or other similar conditions created by natural elements, except that the claimant to recover must establish that the dangerous condition created a reasonable foreseeable risk of the kind of injury which was incurred and that the Commonwealth agency had actual written notice of the dangerous condition of the highway a sufficient time prior to the event to have taken measures to protect against the dangerous condition. Property damages shall not be recoverable under this paragraph.

42 Pa.C.S. 15 8522(b)(4) and (5).

In its denial of the DOT's motions, the trial court ruled that Patton's expert testimony sufficiently showed the tree's dangerous condition to be "discoverable by reasonable means." The court maintained from Patton's evidence that the tree was within the DOT's care, custody, and control, thus falling within the real estate exception to sovereign immunity.

The DOT argued the 8522(b)(5) pothole exception applied here, rather than the (b)(4) real estate exception. The trial court disagreed, determining the pothole exception did not cover the decayed tree. The court also concluded from the evidence that the tree's decay was caused by the artificial topping, not by nature. Since no notice (actual or constructive) is required under the real estate exception, the trial court rejected the DOT's request for a jury charge on notice.

In its appeal, the DOT argued Patton's evidence failed to show the defect was discoverable by reasonable inspection, thus failing to establish a duty on the DOT's part. The DOT also argued the court had recognized rural property owners, such as the DOT, do not have the same duty to inspect natural conditions as do urban property owners. The DOT maintained the trial court sanctioned liability theories barred by sovereign immunity, including a "failure to inspect" theory.

The DOT further argued that natural conditions caused the tree to fail and, therefore, the applicable exception to immunity would be the pothole exception--which requires written notice. The DOT contended that, in the alternative, the trial court erred in refusing the DOT's "requested point for charge which stated that if the jury found that the allegedly dangerous condition was artificially created, they must determine whether DOT had actual or constructive notice."

Finally, the DOT alleged Patton had failed to establish that the tree was within the Commonwealth right-of-way.

Quoting Fidanza v. Department of Transportation (655 A.2d 1076 (Pa.Cmwlth.), petition for allowance of appeal denied,---Pa.---, 668 A.2d 1138 (1995)), the appeals court determined Patton had to establish:

  1. a duty recognized by the law, requiring the actor to conform to a standard of conduct for the protection of others against foreseeable risks;
  2. a failure of the actor to conform to the required standard;
  3. a causal relationship between the conduct and the resulting injury; and
  4. actual loss or damage to the interests of another.

The Pennsylvania Supreme Court had concluded that "the DOT, although not an insurer against all defects in highways, is required to maintain highways in a reasonably safe condition for travel." (Bendas v. Township of White Deer, 531 Pa. 180, 611 A.2d 1184 (1992)). In Miranda v. City of Philadelphia (166 Pa. Cmwlth. 181, 646 A.2d 71 (1994)), the appeals court applied the following standard, as provided in the Restatement (Second) of Torts 15 342 (1965):

A possessor of land is subject to liability for physical harm caused to licensees by a condition of the land, if, but only if,

(a) the possessor knows or has reason to know of the condition and should realize that it involves an unreasonable risk of harm to such licensees, and should expect that they will not discover or realize the danger, and

(b) he fails to exercise reasonable care to make the condition safe, or to warn the licensees of the condition and the risk involved, and

(c) the licensees do not know of or have reason to know of the condition and the risk involved.

Patton's arboriculture expert testified that topping a tree opens the tree's defense system to decay which progressively invades it from top to bottom. Another expert, a certified arborist, testified the fallen limb measured 40 to 45 feet and weighed approximately five tons. He asserted that, because of decay, the tree could no longer hold the limb's weight; the expert considered such a tree "a hazard requiring removal."

A roadside development specialist who worked with the DOT at the time of the crash stated his job had included driving state roads and looking for "hazardous" trees. He agreed that topping a tree may allow bacteria to enter the tree and cause it to decay, and he confirmed that such decay can weaken the area holding a limb and cause it to drop.

Patton submitted as evidence the DOT maintenance manual that provides, "Any roadside tree which constitutes a potential hazard to the motoring public shall promptly be scheduled for removal, either by department forces or by a specialized tree expert contractor." (Chapter 13, Section 5, Page 5, No. 5)

The DOT cited Huber v. Department of Transportation (122 Pa.Cmwlth. 82, 551 A.2d 1130 (1988) petition for allowance of appeal denied, 525 Pa. 637, 578 A.2d 931 (1989)) to support its contention that the maintenance manual could not be used to establish legal duty. Huber involved injuries suffered from a natural buildup of ice and snow that had existed for at least seven hours before the crash.

The appeals court responded that in the present case the trial court "specifically prohibited argument to the jury that the manual itself created a duty. The court admitted the manual as evidence of DOT's own standard of care in maintaining roadways safe from hazardous trees."

Based on its review of the evidence, the appeals court confirmed the trial court's determination that, as part of the duty to maintain "reasonably safe roadways," the DOT should have foreseen the risk created by topping the tree and leaving the large overhanging limb.

Having confirmed Patton had established that the DOT owed a duty to correct the dangerous condition, the appeals court then considered whether an exception to sovereign immunity existed. The court noted, "[S]overeign immunity is waived where it is alleged that an artificial condition or defect of land itself causes the injury. . . . The dangerous condition must derive from or have as its source the Commonwealth realty." (Snyder v. Harmon, 522 Pa. 424, 562 A.2d 307 (1989), and others).

The appeals court determined the tree limb qualified as a Section (b)(4) real estate exception and, therefore, the plaintiff was not required to prove notice. The court found no evidence disputing that the tree was growing "within feet" of the road. The adjacent property owners testified the tree was growing within the Commonwealth right-of-way; the DOT did not object. The DOT did not dispute that it marked the tree with an orange "X" and had it removed after the crash.

The appeals court acknowledged that the Section 8522 (b)(4) real estate exception requires "some" notice; the court felt Patton had provided acceptable evidence of notice. Therefore, the court found no error in the trial court's rejection of the DOT's point for charge on notice.

Since Patton established the tree was within the Commonwealth right-of-way and posed a hazard about which the DOT should have known, the trial court "merely followed precedent holding the Commonwealth party liable, under the real estate exception, for negligent failure to correct a dangerous condition of Commonwealth real estate." The appeals court agreed Patton had established a waiver of immunity under the real estate exception.

On January 5, 1996, the Commonwealth Court of Pennsylvania affirmed the trial court's decision.

[For further reference, see Patton v. Com., Dept. of Transp., (Pa.Cmwlth. 1996) in West Publishing Vol. 669 Atlantic Reporter, 2nd Series, 1090]

Copyright © 1998 by TranSafety, Inc.

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