Flickinger's Estate v. Ritsky

• Court: United States State Supreme Court of Pennsylvania
• Writing for the Court: Before JONES; POMEROY
• Citation: 452 Pa. 69,305 A.2d 40
• Parties: The ESTATE of George M. FLICKINGER, II, by George M. Flickinger, Administrator et al., Appellants, v. Ronald RITSKY and Marona Construction Company.
• Decision Date: 23 May 1973

Page 40

305 A.2d 40 452 Pa. 69 The ESTATE of George M. FLICKINGER, II, by George M.
Flickinger, Administrator et al., Appellants,
v.
Ronald RITSKY and Marona Construction Company. Supreme Court of Pennsylvania. May 23, 1973.

Page 41

[452 Pa. 70] Richard L. Campbell, Miller, Kistler, Lee & Campbell, John R. Miller, Bellefonte, for appellants.

Richard H. Wix, Metzger, Wickersham, Knauss & Erb, Harrisburg, for appellee, Marona Const. Co.

Before JONES, C.J., and EAGEN, O'BRIEN, ROBERTS, POMEROY, NIX and MANDERINO, JJ.

OPINION OF THE COURT

POMEROY, Justice.

On September 28, 1968 George M. Flickinger, II, appellants' decedent, was driving his motorcycle northward[452 Pa. 71] on U.S. Route 422, a four lane highway in Patton Township, Centre County. At the same time, defendant Ritsky, driving his own automobile, pulled onto the highway from a 'Dairy Queen' parking lot on the easterly side of the highway. Ritsky's car and Flickinger's motorcycle collided, resulting in the death of the cyclist. A week prior to this occurrence, defendant-appellee Marona Construction Company (hereinafter 'Marona') had, in the course of laying a sanitary sewer line, piled dirt from the sewer excavation onto the berm of the highway. The dirt pile was located 138 feet south of the point at which Ritsky exited from the parking lot and in the direction from which Flickinger approached the point of collision.

Flickinger's father, as administrator of his son's estate, filed a survival action against Ritsky (on the theory that he was negligent in entering the highway without an adequate view of the oncoming traffic) and against Marona (on the theory that the construction company was negligent in permitting a pile of dirt to obstruct the vision of drivers such as Ritsky), and joined that action with a wrongful death action on the same theories. The cases were settled as to Ritsky, who executed a joint tortfeasor release, but the actions against Marona were tried and resulted in a jury verdict for plaintiffs in the sum of $18,500. The lower court granted Marona's motion for judgment n.o.v., and the Superior Court affirmed. ¹ We granted allocatur to consider the question of proximate causation presented in light of our decisions in White v. Rosenberry, 441 Pa. 34, 271 A.2d 341 (1970), and Clevenstein v. Rizzuto, 439 Pa. 397, 266 A.2d 623 (1970).

It is the contention of appellee Marona that its negligence in permitting a pile of dirt to remain on the [452 Pa. 72] berm of the highway merely created a 'passive condition' upon which Ritsky's negligence acted and that Ritsky's conduct was a superseding cause as a matter of law. ² Appellee cites Cotter

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v. Bell, 417 Pa. 560, 208 A.2d 216 (1965); Kite v. Jones, 389 Pa. 339, 132 A.2d 683 (1957); DeLuca v. Manchester Laundry and Dry Cleaning Co., 380 Pa. 484, 112 A.2d 37i (1959); Listino v. Union Paving Co., 386 Pa. 32, 124 A.2d 83 (1956) as decisions in which this Court has held, using language such as 'defendant's negligence was merely a passive background or circumstance of the accident', that proximate causation could not as a matter of law be established. Appellant, on the other hand, argues that Cotter v. Bell, supra, and its predecessors were in effect overruled by Clevenstein v. Rizzuto, supra.

Both Cotter and Clevenstein were cases in which the question of superseding causation was raised at a preliminary stage of the case. In Cotter we affirmed the grant of judgment on the pleadings in favor of the defendant who was 'passively' negligent, whereas in Clevenstein we reversed the grant of judgment on the pleadings granted in favor of the defendant. Mr. Justice Eagen, who authored both opinions for the Court, pointed out in Clevenstein that 'Cotter was the first instance wherein we decided the question of superseding cause in the context presented at a preliminary stage in the pleadings. In other relevant cases the question was resolved only after the facts were developed at trial.' Justice Eagen then wrote in Clevenstein--

'Cotter might possibly be distinguished from the instant case on the ground that therein a hedge was involved, i.e., a static or rather permanent condition, as opposed to a parked but movable object; or that the [452 Pa. 73] object obstructing the visibility was located off the highway. We prefer to be more intellectually honest than to rely on such tenuous distinctions. Better should we say, 'Wisdom should never be rejected merely because it comes late.''

Clevenstein, supra, 439 Pa. at 403, 266 A.2d at 626. In the present case trial was had and the jury found against the party (Maraona) whose antecedent act constituted the 'passive' negligence. Relying on Cotter v. Bell, supra, however, the trial court granted judgment n.o.v. ³ It is perhaps uncertain whether our disapproval of Cotter was based only on the fact that it had decided a difficult causation question as a matter of law before the evidence was in, or whether we also disapproved of the substantive holding which was a repetition of that in Kite v. Jones, 389 Pa. 339, 132 A.2d 683 (1957): 'An act of negligence which merely creates a passive background or circumstance of an accident is not the...