Is the Department of Transportation Liable for a Alleged Defective Roadway Which Resulted In a Lethal Car Accidents ?

In Baer v. DOT, 713 A.2d 189 (Pa. Cmwlth. 1998), Suzette Jackson (Jackson), Marissa Jackson, and Jennet Hersh had been passengers in a vehicle driven by Albert Hersh (Hersh). Hersh was heading west on State Route 1008 in Somerset County when the brakes of his vehicle failed and the car lost power while going down a hill. Hersh could not handle a right hand curve at the bottom of the hill. The vehicle crossed over the eastbound lane and broke through a wooden guardrail on the south side of the road. The car then struck a tree. Marissa Jackson and Jennet Hersh were killed. Suzette Jackson was seriously injured. Suzette Jackson commenced an action in the Court of Common Pleas of Somerset County, individually, and as the adminstratrix of the Estate of Marissa Jackson and as Trustee Ad Litem for the heirs of Jennet Hersh. She alleged that the Department of Transportation (DOT) negligently designed, constructed, and maintained a defective roadway and guard rail system which constituted a dangerous condition of Commonwealth real estate and directly and proximately caused and/or were substantial contributing causes to the damages and injuries. DOT was granted summary judgment. Baer, 713 A.2d at 190-191. Jackson appealed to this Court which affirmed: Our supreme court has recognized that DOT owes a legal duty to those using its real estate to ensure 'that the condition of the property is safe for the activities for which it is regularly used, intended to be used or reasonably foreseen to be used.' . . . Because of this general duty, in certain instances, the common law imposes an additional duty on a government party to reduce risks posed by steep cliffs and embankments in close proximity to the highway by erecting guiderails or other barriers. . . . However, there is a corresponding duty on all motorists to use the highways in the ordinary and usual manner and with reasonable care, . . ., and where an accident is the result of a motorist's failure to use the highway in such a manner, there can be no liability against DOT. . . . Here, there is no dispute that the vehicle crossed the highway and left the road because of a loss of brakes, intoxication of the driver, or a combination of these factors. Under such circumstances, and even in circumstances which are less extreme, we have held that the resulting accident was too remote for DOT to have anticipated; thus, DOT had no duty to institute preventive measures. . . . Based on this analysis and these cases, we affirm the trial court's grant of summary judgment in favor of DOT. . . . Baer, 713 A.2d at 191-192.