Laconis v. Burlington County Bridge Com'n

• Court: Pennsylvania Superior Court
• Writing for the Court: HESTER
• Citation: Laconis v. Burlington County Bridge Com'n, 583 A.2d 1218, 400 Pa.Super. 483 (Pa. Super. Ct. 1990)
• Decision Date: 18 December 1990
• Parties: Gregory LACONIS, Appellant, v. BURLINGTON COUNTY BRIDGE COMMISSION and John Doe, Contractor and Richard Roe, Architect. Gregory LACONIS v. BURLINGTON COUNTY BRIDGE COMMISSION and John Doe, Contractor and Richard Roe, Architect. (Two Cases) Appeal of BURLINGTON COUNTY BRIDGE COMMISSION (Two Cases).

Page 1218

583 A.2d 1218

400 Pa.Super. 483

Gregory LACONIS, Appellant, v. BURLINGTON COUNTY BRIDGE COMMISSION and John Doe, Contractor and Richard Roe, Architect.

Gregory LACONIS v. BURLINGTON COUNTY BRIDGE COMMISSION and John Doe, Contractor and Richard Roe, Architect. (Two Cases)

Appeal of BURLINGTON COUNTY BRIDGE COMMISSION (Two Cases).

Superior Court of Pennsylvania.

Argued June 11, 1990.

Filed Dec. 18, 1990.

John F.X. Fenerty, Philadelphia, for appellant (at 7) and for appellee (at 128 and 1045).

Thomas A. Wallitsch, Allentown, for appellants (at 128 and 1045) and appellees (at 7).

Before POPOVICH, HOFFMAN and HESTER, JJ.

HESTER, Judge:

This is an appeal and cross-appeal from judgment entered following the trial court's denial of post-trial motions in this trespass action where the liability portion of the trial was heard before the trial court and the damages award was made by a jury. The plaintiff, Gregory Laconis, challenges the trial court's assessment of comparative negligence in the amount of forty-nine percent against him. The main contention of the Burlington County Bridge Commission ("the Commission") is that it is immune from suit. We reject all allegations of error and affirm the judgment.

The material facts are not disputed. Mr. Laconis instituted this action against the Commission to recover for severe personal injuries that rendered him paralyzed below his mid-body. The injuries were sustained in a single car accident which occurred on September 6, 1979, following a heavy rainfall. Mr. Laconis, who was alone, lost control of his automobile when it hydroplaned in water retained in a depression located along a portion of highway located immediately after the Burlington Bristol Bridge, which links New Jersey and Pennsylvania. The stretch of highway where the accident occurred is a toll road. The Commission operates the bridge, but the portion of the highway where the depression existed is owned by the Commonwealth of Pennsylvania.

After Mr. Laconis filed his complaint, the Commission raised as new matter the affirmative defense of governmental immunity under both New Jersey and Pennsylvania law. It also repeatedly attempted to join the Pennsylvania Department of Transportation as an additional defendant. The trial court denied the Commission's petitions to join the Commonwealth.

The issue of the Commission's liability for the accident was submitted to the bench during a four-day period. The Honorable Oscar S. Bortner rendered a verdict in favor of Mr. Laconis and determined that the Commission was fifty-one percent liable for the injuries and that Mr. Laconis was comparatively negligent in causing his injuries in the amount of forty-nine percent. The trial court explained that its assessment of liability on the Commission for the accident was based partially on the following evidence presented to it:

We concluded that the Commission had special knowledge that the PennDot Road was in a state of disrepair resulting in the road becoming flooded (and thereby dangerous) during rainfall. Since the Commission had on its own taken steps to correct the flooding hazard on the PennDot Road, we found it had a common law duty to warn bridge commuters of the danger they would encounter exiting the bridge, during days of extraordinary rainfall.

Trial court opinion, 12/1/89, at 3 (footnote omitted). In assessing liability on the Commission, the trial court also specifically determined that the Commission had actual knowledge of this very dangerous condition along the toll road, that the Commission previously had undertaken to warn motorists when it rained heavily by sending its police to the area to slow down motorists, that it had rained heavily in the area for hours prior to the accident, and that "the condition was in the process of being corrected at the sole initiative and expense of the Commission when the accident occurred." Id. at 6. Further, the trial court noted that the "Commission had conducted a series of negotiations with PennDot for taking over responsibility of that road." Id. Thus, the trial court determined that the Commission actually knew about the flooding hazard on the road which resulted in Mr. Laconis's hydroplaning. The evidence also establishes that on prior occasions during heavy rainfall, the Commission sent its police to the site to warn motorists to slow down. Despite this knowledge, the Commission failed to place any warning signs on the bridge, one-half of which is located in Pennsylvania, in order to warn motorists about the water accumulation in the depression. Moreover, the flooding condition had existed for at least two years, and the Commission unsuccessfully had attempted to repair the problem in June, 1979.

The damages portion of the case subsequently was tried before a jury, which awarded Mr. Laconis $2,125,000. The verdict was molded by the liability determination and delay damages were added. Judgment was entered in favor of Mr. Laconis in the amount of $1,755,985.40. This appeal and cross-appeal followed denial of cross-motions for post-trial relief.

We first address the contention of Mr. Laconis. He alleges that there are no facts in the record to support the trial court's assessment of comparative negligence against him and that he must be considered fault-free as a matter of law. We strongly disagree. We note initially that there were no eyewitnesses to this accident. Stripped of all rhetoric, his argument is that since he was the only witness, the trial court was required to believe his testimony that he was not speeding prior to the accident and that it could not rely upon expert testimony that indicated that he had been speeding. Mr. Laconis's argument ignores the fact that expert testimony is an established part of our tort law. The testimony of the Commission's experts was premised upon observed facts, such as the trajectory of the car when it landed and skid marks on the highway. These experts premised their opinions that Mr. Laconis was speeding on these observations.

As we stated in Lopa v. McGee, 373 Pa.Super. 85, 88, 540 A.2d 311, 312 (1988), quoting Burns v. City of Philadelphia, 350 Pa.Super. 615, 626, 504 A.2d 1321, 1326-27 (1986), when we review a trial court's assessment of parties' respective negligence in causing an accident, the issue is not whether we "would have come to a different conclusion, but whether there are 'evidentiary circumstances or incontrovertible facts of such weight as to convince the court that an injustice has been done.' " In this case, the trial court premised its determination of Mr. Laconis's negligence on the testimony of two expert witnesses who had conducted tests on the road and viewed either the accident scene or photographs of the scene. The investigating police officer offered his opinion that Mr. Laconis lost control of his car because he was driving too fast for conditions. An accident reconstructionist expert, who based his opinion on the car's trajectory when it exited the road and the tire tracks left by the vehicle on the road, testified that he believed that the accident occurred because Mr. Laconis was traveling in excess of the legal speed. Although Mr. Laconis testified that he was traveling at forty to forty-five miles per hour and that his car left the road solely due to hydroplaning, the trial court was free to believe all, part, or none of the evidence presented to it. Id. We cannot say that its determination that both Mr. Laconis's speed and the dangerous condition of the road contributed to the accident is a manifest injustice. Accordingly, we affirm its apportionment of negligence to Mr. Laconis.

Similarly, we reject the Commission's argument that the evidence was insufficient to support a finding of liability against it. The Commission not only knew about the dangerous drainage problem, but it had assumed responsibility to correct it. In June, 1979, it unsuccessfully attempted to repair the highway. In addition, it sent bridge police to the area when heavy rain fell in order to warn motorists to slow down prior to reaching the accumulation of water. Despite the fact that it both had failed to repair the problem and that it also monitored the situation by warning motorists to slow down after a heavy rainfall, the Commission did not warn motorists the night the accident occurred. The trial court determined that heavy rain...