Austin v. Lehigh & Northampton Transp. Auth.

• Docket Number: 355 C.D. 2022
• Decision Date: 25 January 2024
• Parties: Rodney Austin and Kimberly Moser, husband and wife v. Lehigh and Northampton Transportation Authority and Chvon Fenty Appeal of: Rodney Austin
• Court: Pennsylvania Commonwealth Court

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Rodney Austin and Kimberly Moser, husband and wife v. Lehigh and Northampton Transportation Authority and Chvon Fenty

Appeal of: Rodney Austin

No. 355 C.D. 2022

Commonwealth Court of Pennsylvania

January 25, 2024

Submitted: December 4, 2023

BEFORE: HONORABLE RENÉE COHN JUBELIRER, President Judge HONORABLE CHRISTINE FIZZANO CANNON, Judge HONORABLE ELLEN CEISLER, Judge

OPINION

RENÉE COHN JUBELIRER, President Judge

Rodney Austin (Austin) appeals from the Court of Common Pleas of Lehigh County's (trial court) entry of judgment against him. Austin and his wife, Kimberly Moser, sued the Lehigh and Northampton Transportation Authority (LANTA) and Chvon Fenty (Fenty) for injuries Austin suffered after a LANTA bus operated by Fenty, struck a lift on which Austin was working. LANTA separately sued Austin, Austin's employer, Ryan Amato Painting, LLC (Amato), and another employee of Amato, Efrain Gonzalez (Gonzalez), for damages to the bus on the basis that traffic warning cones indicating the location of the lift were not properly placed. The trial court consolidated the personal injury and property cases for trial.^[1] Austin argues he is entitled to a new trial because under Pennsylvania's Comparative Negligence Law, 42 Pa.C.S. § 7102, and the Workers' Compensation Act (WC Act),^[2] the trial court should not have consolidated Austin's case with LANTA's case; the trial court should not have allowed LANTA to argue comparative negligence^[3] since Amato's negligence could not be imputed to Austin; and the trial court should have instructed the jury that Amato's negligence in LANTA's property case may not be considered or imputed against Austin in his personal injury case. Upon review, we affirm.

I. BACKGROUND

On November 5, 2015, Austin and Gonzalez, as employees of Amato, were painting the exterior of a building on Hamilton Street in Allentown. (Trial Court Opinion (Trial Ct. Op.) at 1.) Austin and Gonzalez were in a bucket approximately 50 feet in the air, which was attached to an articulating boom on a lift parked within the right of way of the eastbound lane on Hamilton Street. (Id.) Austin placed traffic cones in the roadway and around the lift. (Id.) Fenty was driving a bus owned by LANTA that was traveling east on Hamilton Street and struck the lift, causing injuries to Austin and Gonzalez. (Id. at 1-2.)

The parties agreed to consolidate their cases for purposes of discovery. (Id. at 2.) On September 10, 2019, LANTA moved to consolidate the cases for trial. (Id.) Austin did not file an opposition to this motion. (Id.) The trial court granted LANTA's motion to consolidate on October 11, 2019. (Id.) Austin subsequently did not file a motion in limine concerning severance of the cases for trial. (Id.) Austin did file a pre-trial memorandum and proposed voir dire, proposed verdict slip, and proposed jury charge, all of which were silent on severing his case for purposes of trial from LANTA's case seeking to recover for damages to its bus. (Id.) The matters were scheduled for a consolidated trial on September 7, 2021. (Id. at 2-3.) After a request to continue the trial on the bases that the lead counsel for the case was leaving the firm and the new lead counsel wanted additional time to prepare, and COVID-19 restrictions in the courtroom would not allow for a fair trial was denied, Austin filed a motion to sever his case from LANTA's case on August 31, 2021. (Id. at 3.) Therein, Austin argued that LANTA's liability expert did not attribute any acts of negligence to Austin individually and the jury would be confused because Austin would be introduced as both a plaintiff and defendant in connection with the accident. (Id.) Austin further argued that the negligence of Amato in LANTA's case was likely to be imputed to Austin in his case, since Austin was working for Amato at the time of the accident. (Id. at 3-4.) The trial court denied the motion to sever on September 2, 2021, "citing judicial economy, the need to prevent further delay, [and] the lateness of the request[,] and [because] Austin was represented by separate lawyers," one for his case and one for LANTA's, and only counsel for Austin's case filed the motion to sever one week before the trial was to begin. (Id. at 4.) The consolidated trial continued as scheduled.

At the charging conference, Austin requested that the trial court preclude LANTA from arguing comparative negligence and Amato from appearing on Austin's verdict slip. (Reproduced Record (R.R.) at 198a, 205a-07a, 215a-21a, 285a.) Austin also presented a proposed verdict slip. (Id. at 207a-08a.) The trial court partially granted Austin's request and precluded Amato from appearing on Austin's personal injury verdict slip. (Id. at 229a-31a.) However, the trial court allowed LANTA to argue comparative negligence and allowed comparative negligence to appear on Austin's verdict slip. (Id. at 228a-29a, 231a, 286a.)

The trial court instructed the jury, in relevant part, as follows. The trial court mentioned that LANTA and Austin agreed that Fenty was operating as an employee of LANTA, and Austin and Gonzalez were operating as employees of Amato, and Fenty, Austin, and Gonzalez were all acting within the scope of their employment. (Id. at 318a-19a.) The trial court explained that the jury "must . . . decide whether LANTA was negligent, whether [] Austin was negligent, and whether there was negligence from Amato[.]" (Id. at 321a.) The trial court also explained that if "Amato [] and/or its employees" violated various safety standards and regulations, it is "evidence [the jury] must consider along with all the other evidence in deciding whether [] Amato . . . and/or its employees were negligent." (Id. at 324a-26a.) The trial court distributed the two separate verdict slips to the jury, one for Austin's personal injury action and one for LANTA's property damage case,^[4] and walked the jury through each slip. (Id. at 335a-44a.) Before doing so, the trial court reminded the jury:

You've heard reference by the attorneys there are two separate cases here. We consolidated them for the trial in order to achieve judicial economy. That is, we didn't think it was necessary to have separate trials, separate juries, and repeat a[] lot of the same evidence twice. So[,] we ordered that the cases be consolidated because all of the claims that we have really arise out of the same incident.

(Id. at 335a-36a.) After walking the jury through the verdict slips, Austin re-asserted his position that the trial court should instruct the jury that any negligence found on Amato's part cannot be imputed to Austin. (Id. at 352a.) The trial court denied Austin's request and repeated to the jury: "[T]here are two separate cases. We consolidated them for trial in order to avoid two separate trials. There are separate verdict slips, one for each case. You need to follow the verdict slip literally. So just follow the verdict slip, and I think you'll be fine." (Id. at 354a-55a.)

In LANTA's property damage case, the jury found Amato negligent and LANTA not negligent. (Trial Ct. Op. at 4, 6.) In Austin's personal injury case, the jury found LANTA not negligent, barring Austin's recovery. (Id. at 6.) Austin filed the Motion for Post-Trial Relief (Motion) seeking a new trial and asserted four issues: "(1) the denial of Austin's pre-trial motion to sever; (2) the denial of Austin's trial motion to preclude defense argument on comparative negligence[;] (3) a defective verdict slip[; and] (4) the failure to give a requested cautionary jury instruction concerning comparative negligence." (Id. (footnote omitted).) The trial court denied Austin's Motion and explained:

In order to simplify matters for the jury, the parties agreed Austin and Gonzalez were employees of Amato working within the scope of their employment, and any finding of liability against them would be attributed to Amato. . . . The jury was presented with two verdict slips, one for LANTA's case against Amato, No. 2017-C-3062 . . . and the other for Austin's case against Fenty and LANTA, No. 2017-C-3335 . .

Each juror was given [] cop[ies] of the verdict slips and encouraged to follow along with the court as it explained them line-by-line. . . . In LANTA's case against Amato . . . the verdict slip contained three questions. The first question was "Was . . . Amato, or any of its employees negligent? Yes/No." The verdict slip instructed the jury to proceed to question 2 if its answer to question 1 was "Yes." The jury answered "yes" to question 1. The second question was "Was LANTA or any of its employees negligent? Yes/No." The jury answered "No" to question 2. The verdict slip instructed the jury not to proceed any further and return to the courtroom if its answer to question 2 was "No," and to proceed to question 3, which addressed comparative negligence, only if its answer to question 2 was "Yes." Since the jury answered "No" to question 2, it did not proceed to question 3.^[]

In Austin's case against Fenty and LANTA[,] . . . the verdict slip contained [eight] questions. The first question was "Did [] Fenty, while acting as an employee of LANTA, violate a statute in the Pennsylvania Vehicle Code[, 75 Pa.C.S. §§ 101-9805]? Yes/No." The verdict slip explained the consequence of a "Yes" answer to question 1 was that it had found LANTA to be negligent and the jury should proceed to question 3[,] dealing with causation; and if its answer was "No" to question 1, then it should proceed to question 2. The jury answered "No" to question 1, so it proceeded to question 2. Question 2 was "Was [] Fenty, an employee of LANTA, negligent in the operation of the bus? Yes/No." The jury answered "No." The verdict slip explained if its answers were "No" to questions 1 and 2, then Austin could not recover

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