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Road Injury Prevention & Litigation Journal
Copyright © 1997 by TranSafety, Inc.
February 1, 1997
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Wandering Cow on Turnpike Is Dangerous Condition:
Turnpike Commission Not Responsible for Cow

An accident on the Pennsylvania Turnpike resulted in extensive damage to two tractor trailers and their cargo. The accident happened when a truck hit a cow that had wandered onto the turnpike. The truck then jumped the highway median and collided with another truck in the opposite lane. As a result of the accident, the involved parties sued the trucking companies, one another, the owners of the cow, the Pennsylvania Department of Transportation, and the Pennsylvania Turnpike Commission. The decision described in this discussion is the result of a consolidation of cases and addresses only Penn Eastern Corporation and Larry W. Mognet, Jr.'s appeal of summary judgment granted to the Turnpike Commission by the Court of Common Pleas, Cumberland County. Mognet was the driver of the truck that hit the cow, and he was driving for Penn Eastern. The plaintiffs appealed their case to the Commonwealth Court of Pennsylvania.

The Accident
On June 23, 1988 a cow walked through a hole in the fence onto the Pennsylvania Turnpike. The cow allegedly belonged to Anthony and Nelson P. Shugart and came from a field located several farms from the turnpike. Mognet, traveling westbound, was unable to avoid hitting the cow as it walked directly into his path. When Mognet lost control of his truck, it broke through the median guardrail and hit a truck driven by Fred Miller. Miller was carrying cargo for Mason Dixon Lines. The accident totaled both trailers and Mognet's tractor, damaged Miller's tractor, and destroyed Miller's cargo.

The Appeal
The Court of Common Pleas granted the Turnpike Commission's Motion for Summary Judgment based on the Commission's sovereign immunity from any duty to keep a domestic animal that was not under its care or protection off the turnpike. On appeal, the plaintiffs argued the Court of Common Pleas erred because: "(1) the Commission owed the plaintiffs, Penn Eastern and Mognet, a common law duty of care, i.e., to provide a highway safe for travel; (2) the Commission is liable under the real estate exception to sovereign immunity found at Section 8522(b)4 of the Judicial Code, 42 Pa.C.S. 8522(b)(4); and (3) Penn Eastern and Mognet alleged sufficient facts to preclude summary judgment."

To maintain sovereign immunity under appeal, theTurnpike Commission needed to show there was no material issue of fact here that would preclude summary judgment, even when the appellate court examined the evidence giving all possible favor to the plaintiffs. To successfully argue their case, the plaintiffs needed to show first that damage resulting from the accident was recoverable under common law or statute from an entity not having a sovereign immunity defense and then that the cause of injury was something for which an exception to sovereign immunity existed.

Opinions
Referring to Bradley v. Pennsylvania Turnpike Commission (121 Pa.Commonwealth Ct. 51, 550 A.2d 261 (1988), petition for allowance of appeal denied, 527 Pa. 588, 588 A.2d 511 (1990)), the appellate court noted that the Commission had been found to have no duty to warn or protect a motorist from a deer that wandered onto the turnpike. The court concluded that if the Commission was not responsible for the control of wild animals, it did not have a duty to control domestic animals. To the contrary, Pennsylvania holds the owners of livestock and other domestic animals responsible for damage those animals cause. An exception to sovereign immunity exists for domestic animals in "[t]he care, custody or control" (42 Pa.C.S. 8522(b)(6)) of a government entity. The cow on the turnpike was not under such "care, custody, or control."

Continuing their argument that the Commission should have prevented this cow, even if it were not under their "care, custody, or control," from wandering on the turnpike, the plaintiffs cited Norbert v. State Police (148 Pa.Commonwealth Ct. 505, 611 A.2d 1353 (1992)). In Norbert, the issue was injury caused when a motorist hit a wheel and tire that police officers did not remove from the turnpike after an accident. The appellate court pointed out that in Norbert it "purposely assumed that the plaintiff's complaint adequately alleged a duty on the part of the Commission, to test whether or not the failure to remove a tire and wheel from the roadway fell within any of the exceptions to sovereign immunity." The court's decision was that the Commission had sovereign immunity from this claim, because the wheel and tire were "on" the roadway, not "of" the roadway. The real estate exception to sovereign immunity is for negligence in failure to prevent dangerous conditions "of" Pennsylvania agency real estate; it does not address duty to prevent dangerous conditions "on" that real estate. Therefore, in Norbert and in the present case, the appellate court found that immunity was available to the Turnpike Commission.

The plaintiffs also argued that the Commission's duty to maintain a safe highway included the duty to maintain the fence at the side of its turnpike. They contended that the Commission's failure to maintain the fence constituted negligence, because that failure allowed the cow to wander onto the highway. However, the court concluded that the hole in the fence could have, at most, facilitated the accident. The hole in the fence was not the cause of the accident; the cow was the cause of the accident. Therefore, since the hole in the fence was not a proximate cause of the accident, the court did not consider the issue of negligence on the part of the Commission in not maintaining the fence.

In conclusion, the appellate court affirmed the judgment of the trial court because "the Commission owed no duty to protect Penn Eastern and Mognet from a domestic animal which wandered onto the highway, and further, the accident is not one which fits within the real estate exception to sovereign immunity."

[Mason & Dixon Lines, Inc. v. Mognet (Pa.Cmwlth. 1994) can be found inWest Publishing Vol. 645 Atlantic Reporter, 2d Series, 1370]

Copyright © 1997 by TranSafety, Inc.


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