Appellate courts in Pennsylvania have distorted case law dealing with sovereign immunity and improperly created an arbitrary distinction for highway guardrails, an attorney argued before the state Supreme Court.

Pittsburgh attorney Mark Homyak, who is representing members of a family allegedly injured by a hazardous “spearing” guardrail, argued that his clients’ case clearly met the real property exception to the sovereign immunity statute; however, he said a wrongfully decided 2000 state Supreme Court ruling has been improperly relied on by the Commonwealth Court to arbitrarily distinguish highway guardrails from all other real property owned by the state.

“The highway versus all real property distinction doesn’t exist,” Homyak said.

Arguments in Homyak’s case, Cagey v. PennDOT, focused on whether the Supreme Court should overrule its 2000 decision in Dean v. Department of Transportation.

The Dean court ruled that the failure to install a guardrail did not constitute a dangerous condition that would fall under the real property exception because it did not “render the highway unsafe for the purposes for which it was intended, i.e. travel on the roadway.” In several subsequent rulings, beginning with Fagan v. Department of Transportation in 2008, the Commonwealth Court held that Dean also meant the state was immune from claims alleging guardrails were negligently designed or maintained.

Although Homyak said he thought Dean was wrongly decided, he stopped short of asking the justices to fully overrule Dean, and said the court could rule in his client’s favor without overturning the case.

Homyak said Dean‘s central holding—that the absence of a guardrail did not create a dangerous condition of the real property—was proper in the case, but said subsequent language saying the missing guardrail did not render it unsafe for its intended purpose was vague and has been misunderstood. That language, which Homyak described as ”non-decisional,” could be clarified by the court, he said.

“That’s not a holding from which we can give guidance in the future,” Homyak said. “The exceptions are not ambiguous. They are unambiguously broad, and yet this court has interested it narrowly,”

Justice David Wecht said he agreed that “sometimes the error in a precedent only manifests over time,” but asked Homyak whether finding in his favor would create a “perverse incentive” for the state not to erect any guardrails in an effort to avoid liability.

Homyak contended that the state would still have a common-law duty to ensure the safe travel.

Arguing for the Pennsylvania Department of Transportation, attorney John Knorr of the Pennsylvania Attorney General’s Office contended that the Supreme Court had already clarified the issue when it applied Dean to a case very similar to the one the Cagey‘s case made. That ruling, however, was done in a per curiam order.

Calling it a “cryptic case,” Justice Max Baer said by issuing the per curiam order, the Supreme Court may have simply chosen not to wade into that case, which, he noted, was more complicated than Dean, as alcohol was also involved.

Justice Christine Donohue also said the per curiam decision might weigh in favor of overruling Dean completely. She likened the situation to the state putting up unsafe handrails on steep steps outside a state-owned building—a situation she said clearly seemed to fall within the real property exception.

“Isn’t that a somewhat artificial distinction we’re being asked to make here?” she said.

Knorr said the distinction may be arbitrary, but it is one the legislature agreed to in the sovereign immunity statute, which he noted has not been changed despite the Dean holding. He added that a dangerous condition must be tied to the purpose of the property, and so the defect could only arise out of things like potholes and dangerous gradients of the pavement.

Max Mitchell can be contacted at 215-557-2354 or mmitchell@alm.com. Follow him on Twitter @MMitchellTLI.