Mitchell v. Milburn

• Decision Date: 06 December 2018
• Docket Number: No. 344 C.D. 2017,344 C.D. 2017
• Citation: 199 A.3d 995
• Parties: Blair S. MITCHELL, Appellant v. Michelle M. MILBURN and James V. Lewis and Commonwealth of Pennsylvania, Department of Transportation
• Court: Pennsylvania Commonwealth Court

199 A.3d 995

Blair S. MITCHELL, Appellant

v.Michelle M. MILBURN and James V. Lewis and Commonwealth of Pennsylvania, Department of Transportation

No. 344 C.D. 2017

Commonwealth Court of Pennsylvania.

Argued November 13, 2018

Decided December 6, 2018

Richard B. Bateman, Jr., Media, for appellant.

Lynn M. Martosella, Philadelphia, for appellee, James V. Lewis.

Claudia M. Tesoro, Senior Deputy Attorney General, Philadelphia, for appellee Department of Transportation.

BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge, HONORABLE PATRICIA A. McCULLOUGH, Judge, HONORABLE CHRISTINE FIZZANO CANNON, Judge

OPINION BY JUDGE McCULLOUGH

In this motor vehicle accident case, Blair S. Mitchell (Plaintiff) appeals from the judgment entered on May 1, 2017, in favor of Plaintiff on her negligence claim against Michelle M. Milburn (Defendant Milburn).

The three-car accident occurred at an inverted "T" intersection on June 30, 2002, at approximately 8:15 p.m., on State Road 73 (Skippack Pike) at the road's juncture point with Weber Road, in Worcester Township, Montgomery County. The evening was clear and dry and it was still daylight, with sunset occurring around 8:34 p.m. Skippack Pike is a two-lane highway with one lane of travel east and one lane of travel west, i.e. , the horizontal part of the "T." Weber Road is a two-lane roadway with one lane of travel north and one lane of travel south, i.e. , the vertical part of the "T." (Trial court op. at 1, 7.)

Plaintiff was proceeding eastbound on Skippack Pike preparing to turn left onto Weber Road. No traffic control device governed the intersection of Skippack Pike and Weber Road, and there was no special left-turn lane for eastbound vehicles turning north from Skippack Pike onto Weber Road. Plaintiff came to a stop in the eastbound lane of Skippack Pike and waited with her turn signal on for the westbound traffic to clear. While she was stopped and waiting to turn left, Plaintiff was struck from behind, apparently at a peculiar angle, by a vehicle operated by Defendant Milburn, which was traveling between 50 and 55 miles per hour. The dramatic force of the collision caused Plaintiff's vehicle to flip and roll over and slide on its roof into the westbound lane of Skippack Pike. At the same time, Defendant James V. Lewis was driving his vehicle in the westbound lane of Skippack Pike, approximately 40 to 50 miles per hour and within the posted speed limit, in close proximity to the intersection. Upon seeing Plaintiff's vehicle hurtling toward him in the westbound lane, Defendant Lewis immediately applied his brakes, but was unable to avoid colliding with Plaintiff's vehicle. As a result of the accident, Plaintiff sustained serious personal injuries. Id. at 1-2, 7.

Thereafter, Plaintiff initiated a negligence action against Defendants Milburn, Lewis, and the Department of Transportation (DOT). A trial commenced on October 5, 2016. The next day, Plaintiff and Defendant Milburn settled on the record and agreed to enter into a pro-rata joint tortfeasor settlement agreement, whereby Milburn would remain on the verdict sheet for the jury to assess the proportionate share of liability among the Defendants.¹ The trial then proceeded to determine whether Plaintiff could establish liability against the remaining non-settling parties, Defendant Lewis and Defendant DOT. Id. at 2.

During the course of trial, and as part of her negligence claim against Defendant DOT, Plaintiff sought to introduce evidence that discussed and depicted design changes that Defendant DOT made at the intersection after the accident occurred. More specifically, Plaintiff proffered testimony and photographic evidence that showed road markings on Skippack Pike, eight years after the subject accident, that contained a lane specifically dedicated for a left-turn. The Court of Common Pleas of Montgomery County (trial court) ruled that the evidence was inadmissible as a subsequent remedial measure under Pa.R.E. 407. (Trial court op. at 2.)

At the close of Plaintiff's case-in-chief, Defendant Lewis and Defendant DOT made oral motions for a compulsory non-suit pursuant to Pa.R.C.P. No. 230.1. The trial court granted Defendant Lewis' motion, based on the sudden emergency doctrine, determining that no reasonable jury could find that Defendant Lewis acted in a negligent manner. The trial court denied Defendant DOT's motion. (Trial court op. at 2.)

On October 7, 2016, the jury returned a verdict. On the verdict sheet, the jury found that Defendant Milburn (the defendant who settled) was negligent and that Defendant DOT was not negligent. The jury attributed 100% of the negligence to Defendant Milburn and awarded Plaintiff damages in the amount of $2,315,693.00. (Trial court op. at 2; Reproduced Record (R.R.) at 340a-41a.)

On October 17, 2016, Plaintiff filed motions for post-trial relief, contending that the trial court erred in granting Defendant Lewis' motion for a non-suit and sustaining Defendant DOT's objection at trial to Plaintiff's attempt to introduce into evidence the post-accident testimony and photograph mentioned above. On February 21, 2017, the trial court issued an order denying Plaintiff's motions, and Plaintiff filed a notice of appeal on March 16, 2017. (Trial court op. at 2-3.)

By order dated April 27, 2017, this Court directed Plaintiff to reduce the verdict to a judgment within 14 days, and Plaintiff filed a praecipe to enter judgment on May 1, 2017, pursuant to Pa.R.C.P. No. 227.4. (R.R. at 293a.)^{2 ,3}

Discussion

On appeal to this Court, Plaintiff raises two issues for review: (1) whether the trial court erred in granting Defendant Lewis a non-suit, and (2) whether the trial court abused its discretion in ruling that evidence of post-accident changes made to the intersection by Defendant DOT was inadmissible.

"When reviewing a trial court's denial of a motion for post-trial relief, our scope of review is limited to a determination of whether the trial court abused its discretion or committed an error of law." Logans' Reserve Homeowners' Association v. McCabe , 152 A.3d 1094, 1103 (Pa. Cmwlth. 2017).

In her first issue, Plaintiff argues that the trial court erred in granting Defendant Lewis a non-suit because Defendant Lewis had seen Plaintiff's vehicle with an activated turn signal and waiting to turn left, yet he continued to maintain or increase his speed while arriving at the intersection. According to Plaintiff, the issue of whether or not Defendant Lewis acted reasonably under the circumstances is one that should have been left to the jury to decide.

A motion for compulsory non-suit allows a defendant to test the sufficiency of a plaintiff's evidence and may be entered only in cases where it is clear that the plaintiff has not established a cause of action. Kramer v. Port Authority of Allegheny County , 876 A.2d 487, 493 (Pa. Cmwlth. 2005). In making this determination, the plaintiff must be given the benefit of all evidence favorable to her, together with all reasonable inferences of fact arising therefrom, and any conflict in the evidence must be resolved in her favor. Id. A judgment of non-suit is properly entered if a plaintiff has not introduced sufficient evidence to establish the elements necessary to maintain an action, and it is the duty of the trial court, prior to sending the case to a jury, to determine whether or not the plaintiff has met this burden. Id. at 493-94.

As observed by the Superior Court, our Supreme Court first recognized the sudden emergency doctrine in 1854. Drew v. Work , 95 A.3d 324, 333 (Pa. Super. 2014) ; Papandrea v. Hartman , 352 Pa.Super. 163, 507 A.2d 822, 825 n.2 (1986) (citing Railroad Company v. Aspell , 23 Pa. 147 (1854) ). The sudden emergency doctrine is an absolute defense to an allegation of negligence and is available to any defendant who suddenly and unexpectedly finds himself confronted with a perilous situation that permits no opportunity to assess the danger and respond appropriately. Cannon v. Tabor , 434 Pa.Super. 232, 642 A.2d 1108, 1112 (1994) ; McKee v. Evans , 380 Pa.Super. 120, 551 A.2d 260, 272 (1988) (en banc). The doctrine is applicable where a defendant establishes that he did not create the emergency and reacted in a reasonable fashion, for the law recognizes that an individual encountering peril simply is not expected to exercise the same degree of care that is mandated by normal and foreseeable circumstances. Cannon , 642 A.2d at 1112. As our Supreme Court explained:

The sudden emergency doctrine is frequently employed in motor vehicle accident cases wherein a driver was confronted with a perilous situation requiring a quick response in order to avoid a collision. The rule provides generally, that an individual will not be held to the ‘usual degree of care’ or be required to exercise his or her ‘best judgment’ when confronted with a sudden and unexpected position of peril created in whole or in part by someone other than the person claiming protection under the doctrine. The rule recognizes that a driver who, although driving in a prudent manner, is confronted with a sudden or unexpected event which leaves little or no time to apprehend a situation and act accordingly should not be subject to liability simply because another perhaps more prudent course of action was available.

Levey v. DeNardo , 555 Pa. 514, 725 A.2d 733, 735 (1999) (internal citation omitted).

Under this well-developed and longstanding legal precept, a sudden and clear emergency may be caused by "the sudden swerving of other vehicles," Drew , 95 A.3d at 335, or "moving instrumentalities thrust into a driver's path of travel." Papandrea , 507 A.2d at 826. Significantly, for the doctrine to apply, "the approaching driver need not anticipate the negligence of the other driver." Fleischman v. Reading , 388 Pa. 183, 130 A.2d 429, 431 (1957) ; Unangst v. Whitehouse , 235 Pa.Super. 458, 344 A.2d 695, 699 (1975). "It is important to recognize, however, that a person cannot avail himself of the...