[J-66-2017][M.O. – Donohue, J.]

IN THE SUPREME COURT OF PENNSYLVANIA

WESTERN DISTRICT

JOISSE A. CAGEY AND DALE J. CAGEY, 

HER HUSBAND,

Appellants

v.

COMMONWEALTH OF PENNSYLVANIA, 

DEPARTMENT OF TRANSPORTATION, 

A COMMONWEALTH AGENCY,

Appellee

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No. 36 WAP 2016

Appeal from the Order of the

Commonwealth Court entered on 

7/28/16 at No. 2650 CD 2015 affirming 

the Order of the Court of Common 

Pleas of Beaver County entered on 

12/4/15 at No. 10716 of 2015

ARGUED: October 17, 2017

CONCURRING OPINION

CHIEF JUSTICE SAYLOR DECIDED: FEBRUARY 21, 2018

I join the majority opinion. I acknowledge that I supported the per curiam Order 

in Baer v. PennDOT, 564 Pa. 603, 770 A.2d 287 (2001), which applied the decision in 

Dean v. PennDOT, 561 Pa. 503, 751 A.2d 1130 (2000), in circumstances involving 

alleged negligence in the design, construction, and maintenance of guardrails. The 

majority has persuaded me, nonetheless, that the outcome of Baer is undermined by a 

conventional fixtures analysis. 

I wish to also touch briefly on the substantive liability standard involved. In this 

regard, I observe that the decision in Snyder v. Harmon, 522 Pa. 424, 562 A.2d 307 

(1989), cited by the majority, omitted reference to a reasonableness factor in discussing 

PennDOT’s liability relative to an allegedly defective condition associated with real 
[J-66-2017][M.O. – Donohue, J.] - 2

estate under the Commonwealth’s control. See id. at 435, 562 A.2d at 312 (“The 

corresponding duty of care a Commonwealth agency owes to those using its real 

estate, is such as to require 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.” 

(emphasis added)).

In Pennsylvania, however, the notion of safety in the abstract was associated 

with jury instructions in the strict liability arena, whereas the litmus in the negligence 

arena is reasonable care and safety. Compare Tincher v. Omega Flex Inc., 628 Pa. 

296, 363, 104 A.3d 328, 368 (2014) (noting that, with respect to strict product liability 

claims, the question presented to a jury was whether the product lacks any element 

necessary to make it safe for its intended use) (emphasis added), with Adams v. J.C. 

Penny Co., 411 Pa. 653, 656-57, 192 A.2d 218, 219 (1963) (indicating that property 

owners have a duty to invitees to maintain the premises in a reasonably safe condition 

for its contemplated use) (emphasis added)).1 The reasonableness dynamic accounts 

for cost-benefit considerations which, here, are quite salient to the Commonwealth 

given the scale of its responsibilities relative to a vast collection of public roads and 

highways.

I note that Snyder, like the present case, concerned sovereign immunity and was 

not closely focused on the underlying substantive liability standards. Moreover, 

 

1 Notably, the General Assembly has not waived immunity for strict liability claims. See 

Jones v. SEPTA, 565 Pa. 211, 217 n.1, 772 A.2d 435, 439 n.1 (2001) (citing 1 Pa.C.S. 

§2310) (indicating that the Commonwealth shall enjoy sovereign immunity and remain

immune from suit except as the General Assembly specifically waives immunity)); 42 

Pa.C.S. §8522(a) (indicating that the General Assembly waives sovereign immunity for 

damages arising out of negligent acts only); accord Rooney v. City of Phila., 623 F. 

Supp. 2d 644, 662 (E.D.Pa. 2009) (holding that a local government was immune from 

plaintiffs’ strict liability claims because, in Pennsylvania, exceptions to governmental 

immunity are limited to claims of negligence).
[J-66-2017][M.O. – Donohue, J.] - 3

Snyder’s depiction of the safety standard untethered by reasonableness is inconsistent 

with a wide range of decisional law. See, e.g., McKenzie v. Cost Bros., Inc., 487 Pa. 

303, 309, 409 A.2d 362, 365 (1979) (reiterating the general rule that a possessor of land 

has a duty to use reasonable care to make the premises reasonably safe for invitees); 

Miller v. Hickey, 368 Pa. 317, 324, 81 A.2d 910, 914 (1951) (noting that a landowner is

not charged with the absolute duty of keeping his premises in a safe condition, but 

rather, is responsible for correcting known defects and ensuring that the property is 

reasonably safe for invitees); accord RESTATEMENT (SECOND) OF TORTS, §343(c)(i)

(1965), Comment d. 

While the distinction between “safety” and “reasonable safety” may seem to be 

modest in a colloquial sense, it is quite significant as a matter of substantive law. 

Indeed, the difference heralded a period of great uncertainty in Pennsylvania in the 

product liability context. See Tincher, 628 Pa. at 375-84, 104 A.3d at 376-81. It is 

important, as well, to recognize that guardrails themselves may pose inherent risks to 

the traveling public in some circumstances. See, e.g., Estate of Gage v. State, 882 

A.2d 1157, 1160 (Vt. 2005). Accordingly, other jurisdictions have held that the 

government’s duty is to construct and maintain its highways and shoulders -- including 

guardrails -- in a reasonably safe manner, again, balancing a range of relevant factors. 

See Helton v. Knox County, 922 S.W.2d 877, 883 (Tenn. 1996) (holding that, while the 

standard of care imposed on governments in building and maintaining roads and 

bridges is one of reasonableness, it is not its duty to maintain guardrails of sufficient 

strength to prevent all accidents); see also Louisville Gas and Elec. Co. v. Roberson, 

212 S.W.3d 107, 109 (Ky. 2006).2

 

2 There is, of course, the nuance that governments are often not the designers of 

products integrated into highway system infrastructures, such as guardrails, but rather, 

acquire such products through the procurement system. Such additional complexities 

(continued...)
[J-66-2017][M.O. – Donohue, J.] - 4

Finally, there remains a concern with cost-benefit decisions of government being

decided, or second guessed, in jury rooms. In this regard, I note that a number of other 

jurisdictions apply a discretionary-functions overlay to highway system design and/or 

maintenance, extending immunity to discretionary decision-making endeavors. See, 

e.g., Kirby v. Macon County, 892 S.W.2d 403, 407-409 (Tenn. 1994); Keegan v. State, 

896 P.2d 618, 623-25 (Utah 1995); Hennes v. Patterson, 443 N.W.2d 198, 202 (Minn. 

1989); City of Jackson v. Brown, 729 So.2d 1231, 1235 (Miss. 1998); Patrazza v. 

Commonwealth, 497 N.E.2d 271, 273 (Mass. 1986). The Pennsylvania General 

Assembly, however, has not specifically insulated discretionary functions as such from 

the effect of the immunity exceptions, leaving this Court to implement the series of 

discretely-defined exceptions on their prescribed terms (subject to the strict construction 

overlay).3 Accordingly, while I have some reservations about the policy implications of 

this case, I agree with the majority that the result is appropriately tethered to the terms 

of the immunity statute. 

 

(...continued)

may also be relevant to the liability assessment in this arena, and, again, because 

liability is not sharply in focus here, I would refrain from making specific 

pronouncements.

3 This is not to say that the discretionary-functions dynamic might not, in some 

circumstances, be relevant within the framework of a strict construction analysis. No 

such arguments are presented here, however, and thus I will refrain from further 

comment along these lines as well.