Powell v. Drumheller

• Decision Date: 23 January 1995
• Parties: Mary POWELL, as Administratrix of the Estate of Vincent A. Powell, deceased, Appellant, v. David DRUMHELLER and Commonwealth of Pennsylvania Department of Transportation and Winner Ford of Newark and Caldron Bros., Inc., Appellees.
• Court: Pennsylvania Supreme Court

Page 619

653 A.2d 619

539 Pa. 484

Mary POWELL, as Administratrix of the Estate of Vincent A.

Powell, deceased, Appellant, v. David DRUMHELLER and Commonwealth of Pennsylvania Department

of Transportation and Winner Ford of Newark and

Caldron Bros., Inc., Appellees.

Supreme Court of Pennsylvania.

Argued Oct. 18, 1994.

Decided Jan. 23, 1995.

[539 Pa. 487] Germaine Ingram, Philadelphia, for M.E. Powell.

Laurence Kelly, Montrose, for amicus--Pa. Trial Lawyers Assoc.

John P. Capuzzi, Norristown, for PENNDOT.

Philip B. Silverman, Philadelphia, for Winner Ford.

Joseph J. Dougherty, West Chester, for Caldron Bros. Inc.

Before NIX, C.J., and FLAHERTY, ZAPPALA, PAPADAKOS, CAPPY, CASTILLE and MONTEMURO, JJ.

OPINION

MONTEMURO, Justice.

Appellant, Mary Powell as Administratrix of the Estate of Vincent A. Powell, appeals from an order of the Commonwealth Court sustaining the preliminary objections of Appellee, Pennsylvania Department of Transportation (PENNDOT) and dismissing Powell's amended complaint with regard to PENNDOT.

The sole issue presented for our review is whether the criminally negligent conduct of co-defendant David Drumheller in driving under the influence of alcohol is a superseding cause relieving PENNDOT of liability for negligently designing a Commonwealth highway. We reverse.

This civil action arises from a two vehicle accident which occurred in London Britain Township on the evening of April 27, 1988. The facts as averred in Powell's amended complaint are as follows. At approximately 7:00 p.m., Appellant's decedent, Vincent Powell, was driving westward on London Tract Road. Reproduced Record at 26. Co-defendant David Drumheller was driving his 1986 Nissan truck in an easterly direction on London Tract Road. Id. Suddenly, Drumheller steered his vehicle into the oncoming lane in an attempt to pass another automobile and struck Vincent Powell's vehicle. Id. Mr. Powell suffered extensive fractures and internal injuries and died one hour after the accident. Id. at 27. At the time of the accident, Drumheller was driving with a suspended license. Id. at 25. On February 2, 1989, Drumheller plead guilty to vehicular homicide and driving under the influence of alcohol in connection with the accident. Id. at 27.

On March 1, 1990, Powell brought this wrongful death and survival action for the vehicular death of her husband, Vincent E. Powell. The action was initiated by complaint filed in the Court of Common Pleas of Chester County and named Drumheller, PENNDOT and several other parties as defendants. PENNDOT filed preliminary objections to Powell's complaint. On April 26, 1990, Powell filed an amended complaint alleging that Drumheller, PENNDOT and the other defendants were jointly and severally liable for her husband's death. Specifically, Powell alleged that PENNDOT had caused the death of her husband by negligently designing London Tract Road. Powell alleged in her amended complaint that the road where the crash occurred had no centerline designating the lanes of travel, no road markings or signs restricting passing, and no shoulders or lateral clearance areas to provide room for emergency maneuvers.

PENNDOT filed preliminary objections to Powell's amended complaint in the nature of a demurrer. PENNDOT asserted that the criminal and negligent acts of a third party, David Drumheller, prohibited the imposition of liability upon it because the acts alleged did not come within the exceptions to sovereign immunity. The common pleas court sustained PENNDOT's preliminary objections and dismissed it as a party. Powell appealed to the Commonwealth Court which affirmed the court of common pleas.

Our standard of review for preliminary objections is well settled. We must accept all material facts set forth in the complaint as well as all the inferences reasonably deducible therefrom as true. Muhammad v. Strassburger, 526 Pa. 541, 547, 587 A.2d 1346, 1349, cert. denied, 502 U.S. 867, 112 S.Ct. 196, 116 L.Ed.2d 156 (1991) (quoting Vattimo v. Lower Bucks Hosp., Inc., 502 Pa. 241, 244, 465 A.2d 1231, 1232-33 (1983)). The question presented by a demurrer is whether, on the facts averred, the law says with certainty that no recovery is possible. Id. Where a doubt exists as to whether a demurrer should be sustained, this doubt should be resolved in favor of overruling it. Id. With these principles in mind, we cannot find that the law says with certainty that Drumheller's actions were a superseding cause relieving PENNDOT of all liability in the instant case. We thus hold that the trial court erred in sustaining PENNDOT's preliminary objections and dismissing it from the action.

In this Commonwealth, a party may bring an action against a Commonwealth agency such as PENNDOT only where the Commonwealth has specifically waived sovereign immunity. See 42 Pa.C.S. § 8521 ¹. For the purposes of the instant case, the Commonwealth, by statute, has waived sovereign immunity only "for damages arising out of a negligent act where the damages would be recoverable under the common law" and where that negligence fits within one of nine enumerated exceptions. See 42 Pa.C.S. § 8522 ². Neither party disputes that this action properly fits within the enumerated exception found at subsection (b)(4) relating to Commonwealth real estate and highways. ³ Thus, if this negligence action is one sustainable under the common law for damages, sovereign immunity is properly waived under 42 Pa.C.S. § 8522.

Petitioner avers in her complaint that co-defendants Drumheller and PENNDOT are jointly liable for the death of her husband as a result of their negligent acts. We have long held that a defendant is not relieved from liability because another concurring cause is also responsible for producing injury. See, e.g., Jones v. Montefiore Hospital, 494 Pa. 410, 416, 431 A.2d 920, 923 (1981); Hamil v. Bashline, 481 Pa. 256, 266, 392 A.2d 1280, 1284 (1978). Where a jury could reasonably believe that a defendant's actions were a substantial factor in bringing about the harm, the fact that there is a concurring cause does not relieve the defendant of liability. Jones, 494 Pa. at 416, 431 A.2d at 923. Hamil, 481 Pa. at 266, 392 A.2d at 1284. In Jones, we held:

Proximate cause is a term of art, and may be established by evidence that a defendant's negligent act or failure to act was a substantial factor in bringing about the harm inflicted upon a plaintiff. Pennsylvania law has long recognized that this substantial factor need not be ... the only factor....

Jones, 494 Pa. at 416, 431 A.2d at 923 (emphasis in the original).

We affirmed these principles of concurrent or joint causation in Crowell v. City of Philadelphia, 531 Pa. 400, 613 A.2d 1178 (1992). In Crowell, the plaintiffs brought a wrongful death action against a driver and the City of Philadelphia alleging that these parties were jointly liable for the death of their son in an automobile accident. The defendant driver followed a misplaced directional arrow thereby crossing into the plaintiffs' lane of traffic and colliding with their vehicle. At the time of the accident, the defendant driver was intoxicated and subsequently plead guilty to driving while intoxicated. After trial, the jury found that the City's negligence in incorrectly placing the directional signal was a substantial factor in causing the accident and apportioned the damages 80% to be paid by the driver and 20% to be paid by the City. The Commonwealth Court reversed the jury's award and held that under our governmental immunity statute, 42 Pa.C.S. § 8542, a municipality could never be liable for any injury caused jointly with another tortfeasor. We reversed, affirming the concept of joint liability as applicable to municipalities for actions taken in concert with another tortfeasor. We ultimately held:

"[T]he jury found that the actions of the City's employee were a substantial contributing cause of the action. Thus since the basis of the jury's verdict was the active negligence of the City's employee misplacing the directional sign, and not merely the City's status along the chain of causation, the verdict against the City was proper...."

Crowell, 531 Pa. at 413, 613 A.2d at 1184.

We recognize that our decision in Crowell reaffirmed the principle of joint liability by concurrent causes in the context of our governmental immunity statute, but we find these principles equally, if not more so, applicable in this case involving sovereign immunity. ⁴ Here, Powell alleges that her husband's death was a result of the joint negligence of Drumheller and PENNDOT. Much like the situation in Crowell, Ms. Powell avers that the accident was caused by two concurring causes: (1) the negligent driving of Mr. Drumheller under the influence of alcohol and (2) the negligent design and maintenance of the Commonwealth highway which prevented Mr. Powell from taking action to avoid the accident.

The question of concurrent causation is normally one for a jury. See Vattimo v. Lower Bucks Hosp., Inc., 502 Pa. 241, 254, 465 A.2d 1231, 1238 (1983) ("the jury might differ as to whether the hospital's conduct was a substantial cause of the remaining injuries, and thus [ ] the case must go to the jury...."). See also 57 Am.Jur.2d Negligence § 556 (1989) ("The question of concurrent negligence presents an issue of fact for jury determination when the evidence pertaining to such issue is conflicting or where facts, even though disputed, are such that reasonable men may draw different conclusions from them") Thus, as in Crowell, we believe that this case should proceed to a jury to determine whether the alleged negligence of PENNDOT was a substantial factor in causing the accident.

PENNDOT makes much of the fact that Powell averred in her complaint that Drumheller caused the accident. PENNDOT strenuously argues that this averment is a judicial admission that Drumheller caused the accident. See Dale Manufacturing Co. v. Bressi, 491 Pa. 493, 498 ...