Radio Law Talk Segment
Pothole Law Bottoms-Out Bus Rider’s Tort Case
On November 14, a woman who fell into a pothole after stepping off a bus in Philadelphia, lost her suit, where she argued that the Pennsylvania Department of Transportation was negligent, however, the Defendant’s motion for summary judgment was successful.
On May 6, 2016, Tyshun Warrington filed a one-count negligence complaint against Pennsylvania Department of Transportation (“PennDOT”) alleging that “on or about September 28, 2015 at approximately 9:30 PM, [Plaintiff], while exiting a SEPTA bus . . . fell into a deep hole located in the roadway, severely and permanently injuring herself.” Pursuant to 42 Pa.C.S. § 8522(b)(5), PennDOT moved for summary judgment contending that Warrington had not provided written notice of the pothole (prior to falling into it). Warrington argued that the “pothole exception” should not apply because it was a brick at the bottom of the pothole that was the immediate cause of her injury. However, the court found that even what is at the bottom of the pothole is still part of the pothole and ultimately held in favor of PennDOT.
P – PennDOT waived its right to sovereign immunity given the real estate exception (defined below)
D – PennDOT had not waived its right to sovereign immunity because P failed to properly put PennDOT on notice in order to receive the benefit of the pothole exception (defined below)
“Sovereign immunity is only waived for damages arising out of a negligent act where the common law or a statute would permit recovery if the injury were caused by a person not protected by sovereign immunity and the cause of action falls under one of the specifically enumerated exceptions to immunity.” Page v. City of Philadelphia
42 pa.c.s. § 8522(b)
- 8522. Exceptions to sovereign immunity.
(a) Liability imposed.–The General Assembly, pursuant to section 11 of Article I of the Constitution of Pennsylvania, does hereby waive, in the instances set forth in subsection (b) only and only to the extent set forth in this subchapter and within the limits set forth in section 8528 (relating to limitations on damages), sovereign immunity as a bar to an action against Commonwealth parties, for 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.
(b)(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 reasonably 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.
Real Estate Exception
(b)(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).
**NOTE: had the P properly or successfully pleaded one of the exceptions THEN she would have had to make the case that PennDOT was negligent, however, given that she failed to plead the exceptions successfully a discussion on negligence (tort) law is not necessary.
On May 6, 2016, Tyshun Warrington filed a one-count negligence complaint against Pennsylvania Department of Transportation (“PennDOT”) alleging that “on or about September 28, 2015 at approximately 9:30 PM, [Plaintiff], while exiting a SEPTA bus . . . fell into a deep hole located in the roadway, severely and permanently injuring herself.” Pursuant to 42 Pa.C.S. § 8522(b)(5), PennDOT moved for summary judgment contending that Warrington had not provided written notice of the pothole (prior to falling into it). Warrington contended that the pothole exception should not apply because “what occurred was that [Plaintiff] stepped down off the bus with her left foot and then stepped onto the brick with her right foot twisted which caused her to fall. Thus, the pothole exposed the brick but the brick was the immediate cause of the injury.” Essentially, Warrington argued that PennDOT had constructive notice of the brick, and thus that PennDOT’s manmade hazard fell within the “real estate exception” to sovereign immunity. Ultimately the court granted PennDOT’s MSJ and Warrington appealed.
On appeal, the court held the following: By asserting that the “real estate exception” should apply, what Plaintiff is actually contending is that a naturally occurring pothole must be treated as distinct from the brick it happens to expose because, unlike that pothole, the brick is man-made. However, what that ignores is that the brick only became capable of causing Plaintiff’s injury after the naturally occurring pothole exposed it. In other words, the exposed brick is “[a] dangerous condition of highways . . . created by [a] pothole . . . created by natural elements . . . .” 42 Pa.C.S. § 8522(b)(5) . Because the purported hazard derived from a naturally occurring pothole, it falls within the ambit of 42 Pa.C.S. § 8522(b)(5) .
OTHER FACTS (interesting facts, related facts, trivia, etc.):
- Potholes are formed by water, freezing and freeze-thaw cycles, excessive heat, wear and tear – and time —
- The areas most prone to pothole development are where drainage is poor, where vehicular traffic is greatest and where poor maintenance allows small fissures to deteriorate —
- Los Angeles (Long Beach and Santa Ana), has the highest percent of roads ranked as poor and pothole prone, at 64% —