Fernandez v. City of Pittsburgh

• Decision Date: 09 June 1994
• Citation: 164 Pa.Cmwlth. 662,643 A.2d 1176
• Parties: Carmenza FERNANDEZ, v. CITY OF PITTSBURGH, Appellant. William ADKINS v. The CITY OF PITTSBURGH and Carmenza Fernandez. Appeal of the CITY OF PITTSBURGH, Appellant.
• Court: Pennsylvania Commonwealth Court

Page 1176

643 A.2d 1176

164 Pa.Cmwlth. 662

Carmenza FERNANDEZ, v. CITY OF PITTSBURGH, Appellant.

William ADKINS v. The CITY OF PITTSBURGH and Carmenza Fernandez.

Appeal of the CITY OF PITTSBURGH, Appellant.

Commonwealth Court of Pennsylvania.

Submitted on Briefs May 2, 1994.

Decided June 9, 1994.

Howard J. Schulberg, Asst. City Sol., and Mary K. Conturo, City Sol., for appellant.

Edward J. Balzarini for appellee, William Adkins.

Kevin R. Lomupo and Marcia L. Cooper for appellee, Carmenza Fernandez.

Before DOYLE, COLINS, McGINLEY, SMITH, FRIEDMAN, KELLEY and NEWMAN, JJ.

SMITH, Judge.

The City of Pittsburgh appeals from the orders of the Court of Common Pleas of Allegheny County which denied the City's post-trial motion seeking judgment notwithstanding the verdict or a new trial, and ordered it to pay delay damages to William Adkins and Carmenza Fernandez (collectively Plaintiffs) in their civil lawsuit against the City arising out of an automobile accident caused by a defective condition in a road.

I.

The issues presented on appeal are whether the trial court erred by allowing Plaintiffs to present evidence regarding subsequent repairs to the street where the accident occurred; a subsequent accident; out-of-court statements by a member of the city council; statements contained in Adkins' medical records; and expert testimony regarding the cause of the accident. Other issues raised are whether Adkins' attorney made improper remarks in his closing argument; whether the jury was given an adequate basis to determine the cost of future physical therapy; whether the trial court incorrectly calculated Plaintiffs' awards; and whether the trial court had jurisdiction to increase its award for delay damages upon the Plaintiffs' amended motions.

On June 20, 1989, Fernandez was driving a car west on Second Avenue in the City of Pittsburgh when she and Adkins, the passenger, were injured in an automobile collision. Plaintiffs sued the City and alleged, in pertinent part, that a defective condition in the road caused Fernandez' car to strike another vehicle. As a result of the accident, Adkins alleged that he suffered a skull fracture, cerebral trauma with damage to his brain, multiple trauma, ruptured spleen, assorted abrasions, lacerations and contusions, and shock with injury and damage to his nerves and nervous system; and Fernandez alleged she suffered injury to her pelvis, legs, arms, and head. ¹ The jury returned a verdict in favor of Plaintiffs and against the City and awarded damages in the amount of $4.5 million to Adkins and $580,000 to Fernandez.

The trial court molded the verdicts to $442,913.35 for Adkins and $57,086.65 for Fernandez, and by separate orders awarded delay damages in the amount of $66,303.73 to Adkins and $3,048.34 to Fernandez. Plaintiffs filed amended motions for delay damages and the City filed a motion for post-trial relief seeking judgment notwithstanding the verdict or a new trial. The trial court granted Plaintiffs' motions and amended Adkins' award of delay damages to $673,642.50 and Fernandez' award to $30,319.14. The court denied the City's motion for post-trial relief.

On appeal to this Court, the City argues that it is entitled to a new trial as a result of numerous evidentiary rulings. Specifically, the City argues that repeated references to repairs made to Second Avenue following the accident and testimony regarding a subsequent accident were extremely prejudicial to the City; the remarks made by a city council member about the dangerous condition of the embedded railroad tracks on Second Avenue should not have been permitted because it was hearsay and pertained to settlement discussions of a separate lawsuit against the City; Plaintiffs should not have been permitted to attempt to prove positions of the occupants of the vehicle through the introduction of medical records which contained hearsay; and Adkins' expert should have been precluded from testifying because he had no basis for concluding that the trolley tracks caused the vehicle to lose control as no witness testified that the vehicle came in contact with the trolley tracks. Further, in his closing arguments, Adkins' counsel impermissibly suggested a minimum damage award by referring to the maximum amount of damages to which the City would be exposed, and referred to the cost of future physical therapy when no evidence was offered from which the jury could calculate the cost of the therapy. ²

II.

Local agencies are not exposed to liability for tortious conduct, 42 Pa.C.S. § 8541, unless the conduct falls within one of the exceptions provided in 42 Pa.C.S. § 8542. Liability may be imposed upon a local agency for a dangerous condition of a street it owns when a plaintiff establishes that:

[T]he dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred and that the local agency had actual notice or could reasonably be charged with notice under the circumstances of the dangerous condition at a sufficient time prior to the event to have taken measures to protect against the dangerous condition.

Section 8542(b)(6)(i). Further, the amount of time required to take protective measures "shall be determined with reference to the actual equipment, personnel and facilities available to the local agency and the competing demands therefor." 42 Pa.C.S. § 8542(c). Thus Plaintiffs had the burden to prove that the alleged condition was dangerous, the City had notice of the dangerousness of the condition, and sufficient time elapsed between the City's receipt of notice of the condition and the accident for the City to have taken corrective measures considering the actual equipment, personnel and facilities available to the City.

Evidence is admissible when it is relevant to a fact sought to be proved. Martin v. Soblotney, 502 Pa. 418, 466 A.2d 1022 (1983). Relevant evidence tends to make a fact more or less probable and need not prove conclusively the proposition for which it is offered. Morrison v. Department of Public Welfare, Office of Mental Health (Woodville State Hosp.), 148 Pa.Commonwealth Ct. 245, 610 A.2d 1082 (1992), appeal granted, 535 Pa. 626, 629 A.2d 1385 (1993). Relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice or confusion; prejudice does not refer to being detrimental to one party's case but refers to an undue tendency to suggest a decision on an improper basis. Id.

a.

Evidence of subsequent accidents is admissible to demonstrate the existence of a hazardous condition. See Yoffee v. Pennsylvania Power & Light Co., 385 Pa. 520, 123 A.2d 636 (1956); and the decision of whether to admit such evidence rests in the sound discretion of the trial judge. Mendenhall v. Department of Transportation, 113 Pa.Commonwealth Ct. 550, 537 A.2d 951, appeal denied, 520 Pa. 610, 553 A.2d 971 (1988). Evidence of remedial repairs is not admissible as proof of negligence, Haas v. Department of Transportation, 113 Pa.Commonwealth Ct. 218, 536 A.2d 865, appeal denied, 519 Pa. 669, 548 A.2d 258 (1988), although it is admissible if competent for another purpose and the trial court issues a limiting instruction to the jury. Henry v. McCrudden, 133 Pa.Commonwealth Ct. 231, 575 A.2d 666,appeal denied, 526 Pa. 651, 585 A.2d 470 (1990).

In the matter sub judice, the trial court permitted Carmen McDonald to testify that on the same day as Plaintiffs' accident, she slid on the tracks, lost control of her car and collided with another vehicle while she was driving west along Second Avenue in the rain. The City maintains that permitting this testimony constituted an abuse of discretion since McDonald's accident was not sufficiently similar to Plaintiffs. However, the testimony is relevant to the dangerous character of the tracks on the day of the accident and thus the trial court did not abuse its discretion by determining that McDonald's accident was sufficiently similar in time, location, and manner of occurrence and was therefore admissible as evidence.

The trial court also allowed Plaintiffs to present evidence that two weeks after the accident the City works department paved over the tracks on Second Avenue because this evidence was probative of whether the City had sufficient time prior to the accident to protect against the dangerous condition. Further, the trial court instructed the jury that:

During the course of this trial there was evidence showing that the road was paved shortly after the accident on June 20th, 1989. The paving of the road is admissible not to show negligence but to show that it was feasible for the City of Pittsburgh to pave Second Avenue. That is, that it was not costly or burdensome to change the condition of the road....

N.T., p. 565. In its appeal, the City does not contend that it did not have actual notice of the dangerous condition, but argues that this evidence was not relevant for the purpose of asserting negligence because the feasibility of repairing Second Avenue was never disputed; and that it is entitled to a new trial because the trial court failed to give a "limiting instruction" at the time the evidence was introduced.

The evidence sufficiently established that the City possessed the resources, material and equipment necessary to eliminate the condition. As the trial court noted, "the procedure to be used to correct the problem of embedded tracks in the pavement is not knowledge which would be held by the average person" (Opinion, p. 6); and a jury could have assumed that because removal of the rail line and complete reconstruction of the highway was necessary to eliminate the hazard, the period between the time the City had notice of the condition and the accident was insufficient to plan and correct the hazard. Moreover, the trial court properly instructed the jury, at the close of the evidence, that the evidence regarding paving Second Avenue is not admissible to prove...