Gilpin v. Langan

• Citation: 789 F.2d 1034
• Decision Date: 08 May 1986
• Docket Number: No. 85-5513,85-5513
• Parties: Richard T. GILPIN and Ruth Gilpin, his wife, Appellees, v. Alyssa E. LANGAN, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (3rd Circuit)

Page 1034

789 F.2d 1034

Richard T. GILPIN and Ruth Gilpin, his wife, Appellees, v. Alyssa E. LANGAN, Appellant.

No. 85-5513.

United States Court of Appeals, Third Circuit.

Argued Feb. 18, 1986.

Decided May 8, 1986.

James M. Scanlon, (Argued), Scanlon, Howley, Scanlon & Doherty, Scranton, Pa., for appellant.

David A. Howell, (Argued), Clarks Summit, Pa., for appellees.

Before: WEIS and SLOVITER, Circuit Judges, and POLLAK, ^* District Judge.

OPINION OF THE COURT

WEIS, Circuit Judge.

In this diversity personal injury case, the district court granted a directed verdict for plaintiff on the question of liability. As the driver of one of two automobiles involved in a head to head collision, the plaintiff's conduct would be a matter for consideration under the state's comparative negligence statute. We conclude that the issue of the plaintiff's possible negligence should have been submitted to the jury. Accordingly, we will vacate a judgment for plaintiff and remand for a new trial.

After entry of the directed verdict, the jury returned a damage award of $225,000. Motions for a new trial or remittitur were denied, and defendant appealed.

The factual scenario is an uncomplicated one involving a center of the road automobile collision on Route 307, a two-lane macadam road in rural Wyoming County, Pennsylvania. The accident occurred on April 9, 1982 at approximately 12:10 A.M. The road surface was dry, but there was some snow on the berm.

Plaintiff Richard Gilpin testified that he was alone in his automobile driving south. ¹ As he approached a narrow bridge about fifteen feet in length, Gilpin first saw the defendant's auto northbound on the same road. At that sighting, the defendant's vehicle was about 300 feet away and travelling in its proper lane. When the two cars were approximately 200 feet apart, Gilpin noticed that the other car was crossing into his lane. He braked, but the left fronts of the two vehicles collided on the bridge. Gilpin recounted that he must have lost consciousness at that point because he did not immediately realize that the defendant's car had passed him.

After impact, the defendant's car continued past the plaintiff's and stopped on the berm completely off the west side of the road. Gilpin's car remained on the bridge, and he testified that "The front end of it was knocked to the left maybe about a foot or so."

On cross-examination, Gilpin said he was about 100 feet from the bridge when he noticed that defendant was coming into his lane. He also stated that on his right was a shoulder and a driveway about fifteen to twenty feet north of the concrete bridge abutment.

The state policeman who investigated the accident testified that Gilpin's car had left skid marks of forty-one feet. Most of the debris from the accident was toward the northern end of the bridge in the center of the roadway. At the scene, defendant said she had no memory of what had happened. She seemed confused and dazed when talking to the officer and stated that she must have "either fell asleep or passed out." The policeman did not recall whether defendant had struck her head on the windshield.

No other witnesses testified about the accident, and defendant did not take the stand.

At the conclusion of the testimony, the trial judge stated that he found "no testimony in the record which would constitute negligence on the part of this plaintiff," and he directed a verdict for plaintiff on liability. Counsel for defendant objected, stating that in the area before plaintiff reached the bridge there was "a private driveway and a wide berm" and plaintiff might have taken evasive action to avoid the collision. Therefore, he could have been "negligent to some percentage or degree."

On appeal, defendant contends that the trial court erred in sua sponte directing a verdict for plaintiff and that the award was excessive.

The parties do not dispute that the substantive law of Pennsylvania controls. The question whether state or federal standards apply in determining when an issue should be submitted to the jury has caused some difficulty. See 9 Wright & Miller, Federal Practice and Procedure Sec. 2525 (1972). However, we need not pause to discuss this interesting issue because in previous cases we have concluded that state and federal standards are the same in negligence cases arising under Pennsylvania law. Vizzini v. Ford Motor Co., 569 F.2d 754, 758 (3d Cir.1977); Denneny v. Siegel, 407 F.2d 433 (3d Cir.1969).

We begin with the general proposition that a directed verdict in favor of the party having the burden of proof in a negligence case is unusual. Polhemus v. Water Island, Inc., 252 F.2d 924 (3d Cir.1958). Even in a Jones Act case, where workmen's compensation overtones create a highly favorable climate for the plaintiff, we have held that a directed verdict in his favor is not appropriate, particularly when he is the chief witness. See Mihalchak v. American Dredging Co., 266 F.2d 875 (3d Cir.1959).

Pennsylvania courts have also demonstrated an aversion to directing a verdict for the plaintiff in personal injury cases. In Gatenby v. Altoona Aviation Corp., 268 F.Supp. 599 (W.D.Pa.1967), aff'd, 407 F.2d 443 (3d Cir.1968), the district court summarized Pennsylvania law as holding that when the liability evidence rests on the plaintiff's own testimony, his interest in the outcome requires that the issue be submitted to the jury. At least the jury's consideration is necessary where the plaintiff's conduct allegedly played a part in the incident. In Gatenby and Cowger v. Arnold, 460 F.2d 219 (3d Cir.1972), this court upheld judgments n.o.v. for the plaintiffs because they were passengers whose conduct was in no way connected with the mishaps. To the same effect, see Krupa by Krupa v. Williams, 316 Pa.Super. 408, 463 A.2d 429 (1983).

In an earlier case, the Pennsylvania Supreme Court had disapproved a directed verdict in favor of plaintiff passengers against a taxi company. The court emphasized the prerogative of the jury to pass on oral evidence in negligence cases. Kopar v. Mamone, 419 Pa. 601, 215 A.2d 641 (1966). The trial court had also directed a verdict in favor of another defendant, however, and the result in Kopar may be better explained as resting on the ground that some evidence supported a finding of liability against that defendant as well as the cab company.

In 1976, Pennsylvania adopted a comparative negligence statute, 42 Pa.Cons.Stat.Ann. Sec. 7102, providing that the plaintiff's negligence would not bar recovery unless it exceeded that of the defendant. That law abolished the contributory negligence doctrine.

Under the contributory negligence rule, even a slight amount of negligence would theoretically bar a plaintiff from any recovery. In practice, however, courts were very circumspect in directing a verdict for the defendant, doing so only in cases where the evidence of contributory negligence was strong. Dougherty v. Philadelphia Nat'l. Bank, 408 Pa. 342, 184 A.2d 238 (1962); Kurtz v. Philadelphia Transp. Co., 394 Pa. 324, 147 A.2d 347 (1959). Because the contributory negligence rule was recognized as having a draconian effect, opportunities were provided for jury amelioration in fact, if not in law.

With the advent of comparative negligence, the role of the jury did not diminish but perhaps grew larger. The determination that a plaintiff's negligence amounted to fifty-one percent of the causal conduct and thereby barred recovery, rather than to forty-nine percent, leading only to a reduction of the award, is peculiarly a matter on which reasonable minds may differ. By its nature, the issue is one better resolved by the jury than by the court.

On reviewing cases from other comparative law jurisdictions, the Pennsylvania Superior Court recognized the importance of the jury's role. The court quoted from a Florida case,

"Because of the very nature of the comparative negligence doctrine, situations in which directed verdicts will be appropriate will occur with even less frequency, particularly in cases where the plaintiff's own negligence is in issue. We do not here express an opinion as to whether a directed verdict should ever be granted, where the negligence of both parties is at issue. We do, however, believe that such cases will be extremely rare."

Petroleum Carrier Corp. v. Gates, 330 So.2d 751, 752 (Fla.App.1976). The Superior Court conceded that "a case may arise in which it may be proper to hold as a matter of law the plaintiff's negligence was equal to or greater than the defendant's, although it does seem likely that such a case will be rare." Peair v. Home Ass'n. of Enola Legion No. 751, 287 Pa.Super. 400, 408, 430 A.2d 665, 669 (1981).

The Superior Court reaffirmed its position in Beary v. Pennsylvania Elec. Co., 322 Pa.Super. 52, 469 A.2d 176 (1983), stating that the totality of causal negligence is a matter properly determined by the jury and that only in rare cases could a court hold as a matter of law that the negligence of one party is equal to or greater than that of the other.

Similarly, it follows from these cases that only in exceptional instances should a court preempt the determination of whether the plaintiff's conduct contributed to some degree, even if only slightly, to his injury.

A directed verdict deprives a party of jury fact-finding determination, and therefore such rulings should be reserved for clear cases. Patzig v. O'Neil, 577 F.2d 841 (3d Cir.1978). In deciding whether an issue of fact should be submitted to a jury, the trial court applies the same test used in determining a motion for judgment n.o.v.--a standard that also guides us on appeal. Maggipinto v. Reichman, 607 F.2d 621, 624 n. 7 (3d Cir.1979); 9 Wright & Miller, Federal Practice and Procedure Sec. 2524.

Because the district court directed a verdict for plaintiff, we must examine the record in the light most favorable to defendant, giving her the benefit of all reasonable inferences from...