McGrorey v. Obermayer, Rebmann, Maxwell & Hippel
| Decision Date | 22 June 1978 |
| Docket Number | 987 |
| Citation | 14 Pa. D. & C.3d 335 |
| Parties | McGrorey v. Obermayer, Rebmann, Maxwell & Hippel |
| Court | Pennsylvania Commonwealth Court |
October term, 1974.
John J. O'Brien, Jr., for plaintiffs.
J Bruce McKissock, for defendants.
Motions for new trial and judgment n.o.v.
Presently before the court are plaintiffs' motions for judgment notwithstanding the verdict and for new trial. After review of the record, briefs, and oral argument held, plaintiffs' motions are denied.
I. INTRODUCTION
Plaintiff Claire McGrorey sustained a severe injury in 1970 when the Volkswagen automobile in which she was a front seat passenger was involved in a one-car accident. Defendants herein, an attorney and the law firm of which he was a partner, were retained by the McGrorey family to represent them. A lawsuit brought by defendants on plaintiffs' behalf against the driver of the vehicle was concluded by settlement in the sum of $ 200,000.
Since Claire was a minor at the time of the settlement, the proceeds were placed in a trust account for her benefit with a local bank which, in 1973, invested in common stocks. By October, 1974, when the stocks were distributed in kind to Claire, the market values had declined by over $ 40,000. It was at this time tiffs, apparently mistakenly believing that the present defendants were counsel to that bank, contacted their present counsel in an effort to possibly recover some or all of these investment losses.
On October 25, 1974, an action was commenced on behalf of Claire objecting to the account filed by the bank. Also during October, 1974, present counsel filed the instant action as well as a lawsuit in the United States District Court for the Eastern District of Pennsylvania against Volkswagen. The latter suit was dismissed with prejudice on the ground that any products liability action against Volkswagen was barred because the statute of limitations had run on September 15, 1974.
In an adjudication dated December 31, 1975, President Judge Taxis of the Montgomery County Court of Common Pleas, Orphans Court Division, confirmed the trustee's account and rejected plaintiffs' assertions of improper investment of Claire's funds. He specifically held that: " Claire and her parents expected a long term investment program and knew of the investment in common stocks" and the bank " acted properly in investing in common stocks which would satisfy (1) the income needs of Claire and (2) her and her parents' objective of growth in her account on a long term basis." McGrorey Estate, 26 Fiduc. Rep. 67, 74, 75 (1975).
The instant action is a malpractice suit against defendants for allegedly negligently failing to prosecute a claim on plaintiffs' behalf against Volkswagen of America for claimed defective design which allegedly was a substantial factor in causing Claire McGrorey's injury. In particular, it is asserted that defectively inadequate " travel" in the front end suspension system of the Volkswagen caused Clarie McGrorey to strike her head against the roof of the Volkswagen when the vehicle mounted a curb prior to its collision with a tree, and that the contact of her head against the roof was the effective cause of her present disability. Defendants respond that they did not violate the standard of care owed by them to their clients, since they thoroughly investigated the matter and reasonably concluded that a lawsuit against Volkswagen was without basis in fact. They further assert that plaintiffs cannot recover because, even if defendants were negligent in not initiating and prosecuting a claim against Volkswagen, such a suit would not have been successful since (1) the Volkswagen was not defectively designed, and (2) any defect in the Volkswagen's front suspension was not a substantial factor in causing Claire McGrorey's injury; she was injured when her head hit the windshield upon the car's striking the tree, and not earlier when the car mounted the curb.
In addition to the foregoing assertion of negligence, in their complaint plaintiffs alleged, inter alia, that defendants were negligent for recommending acceptance of the settlement against the driver of the vehicle and his mother, and for not bringing suit against Lower Merion Township, Lankenau Hospital, and the physicians at Lankenau who treated the injured minor. Plaintiffs further averred that defendants should bear the responsibility for the purported mishandling of Claire's funds, derived from the settlement, by a bank chosen to invest those funds. By the conclusion of the trial, however, all these additional claims were voluntarily withdrawn.
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[T]he jury found that the front end suspension system of the subject Volkswagen was not defectively designed. Therefore, verdict was entered for defendant. The instant motions were thereafter filed.
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III. POST-TRIAL MOTIONS
Plaintiffs aver the following in support of their motions: (1) that the court erroneously permitted defendants to exhibit to the jury motion pictures depicting an out-of-court experiment with a Volkswagen; (2) that the court erroneously failed to permit the reading to the jury of plaintiffs' pre-trial requests for admissions that were denied generally by defendants; (3) that the court erroneously instructed the jury that in order to find for plaintiffs they must find that plaintiffs " would have recovered" against Volkswagen if suit had been instituted by the present attorney defendants against that company originally; (4) that the court abused its discretion by curtailing cross-examination of defendant Alan Kauffman; and (5) that the court erroneously failed to instruct the jury that because defendants permitted the statute of limitations to expire with respect to an action against Volkswagen, they were therefore negligent and liable to plaintiffs.
A. Motion Pictures
Plaintiffs' theory of liability asserted at trial against defendants was that defendants were negligent in failing to adequately investigate and thereafter assert a products liability and/or breach of warranty claim as to the manufacturer and/or seller of the Volkswagen operated by Frank Canuso. To support the validity of such a claim, in accord with the prevailing " case within a case" requirement in the proof of a legal malpractice action, plaintiffs undertook to prove that if such a suit had been commenced by defendants, it would have been successful.
Central to this contention was the testimony of Messrs. Merz and Kornhauser, two experts called by plaintiffs to narrate their opinions regarding the purportedly defective Volkswagen. Merz testified that a 1970 Volkswagen, when loaded with occupants of the same weight as the persons in the Canuso vehicle at the time of the accident, had only nine-sixteenths of an inch of " stroke" or " travel" remaining in its front end suspension shock absorbers. Due to this limited " stroke," Merz opined that the front end suspension of the Volkswagen was defectively designed even for normal operation on the highway. Kornhauser, in response to a more specific inquiry, testified that a vertical impact to the front end caused by striking a curb three and three-quarter inches high would, in his opinion, and under other assumed conditions, cause the suspension system to " bottom-out" or become ineffective. This, he stated, would result in the transfer of all of the vertical forces applied to the front wheels directly to the vehicle frame, thence upward to its seats and the occupants thereon.
In order to rebut this evidence of a design defect and its causal relationship to Claire McGrorey's injuries, defendants consulted with the Calspan Corporation, a Buffalo, New York engineering concern. Calspan performed dynamic experiments involving a moving Volkswagen mounting curbs of varying heights at different speeds and various approach angles; these experiments were filmed by Calspan and exhibited to the jury during defendants' case. Plaintiffs assert that these filmed experiments were erroneously introduced in evidence. We disagree.
In these experiments, Norris Shoemaker, the head of the experimental test section of the Calspan transportation research department, drove a 1970 Volkswagen over curbs of three and three-quarter and two and one-half inches in height and at approximate speeds of 20, 30, 35 and 38 miles per hour. The angle of impact on the several approaches was varied between 20 and 30 degrees. The test Volkswagen was a 1970 model manufactured in July 1969, equipped with its original parts. Inside the vehicle, in addition to Shoemaker, were Elizabeth Goodier in the right front passenger seat, and Robert Scott, a photographer, in the rear seat. Two 16 mm motion picture cameras were used to record the experiments -- a Canon camera provided a frontal view of the vehicle at impact, while an Arriflex camera filmed the movement of the right front passenger during the various trial runs over the curbs. Calspan spliced the two films to provide a sequential showing of the respective exterior and interior views at each combination of curb height, speed and impact angle.
These motion picture films depicted an experiment seeking to replicate an event as represented in narrative testimony offered by plaintiff. To judge the propriety of admission of this film, evidential concepts relating both to the admissibility of motion pictures and to experiments must be considered. The former shall be discussed first.
It is clear that a motion picture, if properly authenticated, is admissible in evidence, e.g., DeBattiste v. Laudadio & Son, 167 Pa.Super 38, 74 A.2d 784 (1950); Com. v. Roller, 100 Pa.Super 125 (1930); John B. Kelly Co., Inc. v. Davis, 8 Pa.Cmwlth. 589, 303 A.2d 255 (1973). For it to be authenticated, a motion...
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