Quinn v. COM., DEPT. OF TRANS.

• Decision Date: 14 September 1998
• Citation: 719 A.2d 1105
• Parties: Lisa Bishop QUINN, Administratrix of the Estate of Larry T. Quinn, Deceased, Appellant, v. COMMONWEALTH of Pennsylvania, DEPARTMENT OF TRANSPORTATION. Lisa Bishop QUINN, Administratrix of the Estate of Larry T. Quinn, Deceased v. COMMONWEALTH of Pennsylvania, DEPARTMENT OF TRANSPORTATION, Appellant.
• Court: Pennsylvania Commonwealth Court

719 A.2d 1105

Lisa Bishop QUINN, Administratrix of the Estate of Larry T. Quinn, Deceased, Appellant, v. COMMONWEALTH of Pennsylvania, DEPARTMENT OF TRANSPORTATION.

Lisa Bishop QUINN, Administratrix of the Estate of Larry T. Quinn, Deceased v. COMMONWEALTH of Pennsylvania, DEPARTMENT OF TRANSPORTATION, Appellant.

Commonwealth Court of Pennsylvania.

Argued June 8, 1998.

Decided September 14, 1998.

Philip A. Ignelzi, Pittsburgh, for appellant.

Brian H. Baxter, Pittsburgh, for appellee.

Before McGINLEY and SMITH, JJ., and NARICK, Senior Judge. SMITH, Judge.

This matter involves cross-appeals from an order of the Court of Common Pleas of Allegheny County denying both parties' post-trial motions following a jury trial on the wrongful death and survival actions of Lisa Bishop Quinn (Quinn), administratrix of the estate of Larry T. Quinn, deceased, against the Department of Transportation (DOT). Quinn questions whether the trial court abused its discretion by failing to grant her motion for a new trial on damages. DOT questions whether judgment notwithstanding the verdict should be entered or a new trial awarded so that the jury could hear evidence that the deceased was an unlicensed driver operating an unregistered automobile with an expired inspection sticker. It questions also whether the $100,000 portion of the verdict representing loss of services of the deceased father to his unborn child should be overturned.

The claims arose out of a fatal automobile accident on May 26, 1991 in which decedent lost control of the car he was driving while on an exit ramp from the Fort Pitt Bridge to Interstate 376 in Pittsburgh. When his vehicle struck the barrier it was launched over the guardrail and fell some 50 feet to the Monangahela Wharf parking area and then slid into the river. As the trial court noted, the evidence at trial showed that the guardrail was positioned incorrectly and that DOT had been aware of this for approximately 20 years. The evidence also showed, however, that decedent had consumed about 14 beers that day and had an elevated blood alcohol level, that he entered the ramp at roughly 50 miles per hour although the advisory speed limit was 25 miles per hour and that he had navigated the ramp before on a daily basis. The trial court excluded DOT's proffered evidence that decedent was unlicensed and that the car he was driving was not registered or inspected. Quinn offered expert testimony of decedent's projected earnings and economic benefits to the household, which resulted in a net economic loss of $728,256.

After deliberating over a period of three days, the jury ultimately found in favor of Quinn but apportioned responsibility for the accident 50 percent to DOT and 50 percent to decedent. It awarded damages of $250,000: $100,000 on behalf of decedent's minor child Larry Shane Quinn, who was born after decedent's death; $100,000 for all other damages recoverable under the Act commonly known as the Wrongful Death Act, Section 8301 of the Judicial Code, as amended, 42 Pa.C.S. § 8301; and $50,000 for the action pursuant to the Act commonly known as the Survival Act, Section 8302, 42 Pa.C.S. § 8302. The trial court reduced the award by half to reflect the 50 percent responsibility of decedent and then assessed delay damages of $18,287.67.

I

Quinn argues at No. 2528 C.D.1997 that a new trial is warranted on the issue of damages under the Supreme Court's decision in Kiser v. Schulte, 538 Pa. 219, 648 A.2d 1 (1994). In that case a young woman passenger was fatally injured in an alcohol-related automobile accident. At trial only the plaintiffs presented evidence on the issue of damages. The lowest figure supported by the evidence was $232,000, but the jury awarded only $25,000. The Supreme Court recited the principles that apply when a low verdict is not viewed as a compromise. A jury verdict will be set aside as inadequate when it appears to have been the product of passion, prejudice, partiality or corruption or where it clearly appears from uncontradicted evidence that the amount of the verdict bears no reasonable resemblance to the loss suffered. Kiser (citing Elza v. Chovan, 396 Pa. 112, 152 A.2d 238 (1959)).

The Supreme Court, however, also discussed the concept of a permissible "compromise verdict," explaining that it is one "where the jury, in doubt as to the defendant's negligence or the plaintiff's contributory negligence, returns a verdict for the plaintiff but in a lesser amount than it would have if these questions had been free from doubt." Kiser, 538 Pa. at 233,648 A.2d at 8. The Supreme Court concluded in Kiser that the verdict clearly was not a compromise, where the jury found that the negligence of the victim was not a substantial factor in causing the loss and apportioned liability 60 percent/20 percent/20 percent among three defendants and completely exonerated others. Moreover, a compromise verdict is not intended to be "adequate" in the sense of being reasonably related to the damages that were proven. Hill v. Commonwealth, Bureau of Corrections, 124 Pa.Cmwlth. 172, 555 A.2d 1362 (1989).

In the present case, the trial court concluded that the jury reached a compromise verdict because the conflicting character of the evidence suggested different and potentially incompatible factors as the legal cause of harm so that the questions of negligence and contributory negligence were not free from doubt. Quinn asserts that the verdict of 50 percent responsibility for both parties is just what the evidence of the conflicting factors warranted; therefore it did not reflect doubt. The apportionment addressed any doubts the jury might have entertained concerning liability. She alleges that the verdict reflects DOT's counsel's inflammatory comments concerning drinking and driving rather than compromise.

Quinn also cites Deitrick v. Karnes, 329 Pa.Super. 372, 478 A.2d 835 (1984), where a finding of 50 percent negligence on the part of a plaintiff did not insulate an award from review. There a passenger suffered a serious back injury in a boating mishap. After apportioning 50 percent responsibility to the plaintiff, the jury awarded him only $500, and it awarded nothing on his spouse's claim for loss of consortium, as to which no contrary evidence had been introduced. The court's conscience was shocked and it ordered a new trial. Dietrick, however, does not bar application of the principle of compromise verdicts where appropriate. In view of the strong evidence of contributory negligence, the close margin by which recovery was awarded and the length of the jury's deliberations, this Court cannot conclude that the trial court abused its discretion by deciding that a permissible compromise explained the jury's verdict. The grant of a new trial is a matter within the discretion of the trial court, and the court's decision will be reversed only if it abused its discretion. Kiser.

II

The Court turns next to DOT's arguments at No. 1970 C.D.1997. DOT's first contention is that the trial court erred by granting Quinn's motion in limine to exclude evidence that decedent's driver's license was suspended due to a previous speeding conviction, that the license plates on the car he was driving had been switched from another car and that the inspection sticker on the vehicle had expired.¹ On this point the trial court noted in its opinion that evidence must be relevant. However, even relevant evidence may be excluded upon the trial court's determination that its probative value is substantially outweighed by the danger of unfair prejudice, meaning an undue tendency to suggest a decision on an improper basis, or that it will confuse or mislead the jury. Sprague v. Walter, 441 Pa.Super. 1, 656 A.2d 890 (1995), appeals denied, 543 Pa. 695, 670 A.2d 142, and 543 Pa. 730, 673 A.2d 336 (1996). The trial court concluded that the facts sought to be excluded did not logically or reasonably tend to prove or disprove that decedent's conduct at the time and place of the mishap was contributorily negligent and that any slight probative value would most assuredly be outweighed by prejudice to Quinn's case.

DOT notes that permission to operate motor vehicles on Commonwealth highways is a privilege subject to such conditions as the legislature may see fit to impose, Department of Transportation v. Wysocki, 517 Pa. 175, 535 A.2d 77 (1987), including the general requirement that no person shall operate a vehicle upon a highway or public property unless he or she has a valid driver's license. Section 1501(a) of the Vehicle Code, as amended, 75 Pa.C.S. § 1501(a). DOT asserts that the Supreme Court stated in Bendas v. Township of White Deer, 531 Pa. 180, 611 A.2d 1184 (1992), that DOT has a duty to make its highways reasonably safe for their intended purpose, which DOT maintains does not include use by unlicensed drivers. From this DOT concludes that it owed no duty to decedent. DOT further asserts that approving liability here would place an intolerable burden on the State to serve as an insurer for those who knowingly break the law and are injured as a result.

DOT contends that because of the illegal nature of decedent's driving any duty owed to him was only that owed by an owner of land to a trespasser. That standard of care is the avoidance of willful or wanton misconduct. Dudley v. USX Corp., 414 Pa.Super. 160, 606 A.2d 916 (citing Evans v. Philadelphia Transp. Co., 418 Pa. 567, 212 A.2d 440 (1965)), appeal denied, 532 Pa. 663, 616 A.2d 985 (1992). DOT notes that Section 8522(a) of the Judicial Code, 42 Pa.C.S. § 8522(a), imposes liability for damages arising out of a negligent act, not a willful or wanton act. The statute is to be construed strictly, Davidow v. Anderson, 83 Pa. Cmwlth. 86, 476 A.2d 998 (1984). Because willful or wanton misconduct is recognized to be different in character from negligent conduct, DOT contends that it may not be held liable under any of the exceptions to immunity found in ...