Young v. Com., Dept. of Transp.

• Decision Date: 11 June 1998
• Parties: Doris YOUNG and Diane Lynch, Administratrix of the Estate of Charles Young, Appellants, v. COMMONWEALTH of Pennsylvania, DEPARTMENT OF TRANSPORTATION v. DRISCOLL CONSTRUCTION CO., INC.
• Court: Pennsylvania Commonwealth Court

Page 475

714 A.2d 475

Doris YOUNG and Diane Lynch, Administratrix of the Estate of Charles Young, Appellants, v. COMMONWEALTH of Pennsylvania, DEPARTMENT OF TRANSPORTATION v. DRISCOLL CONSTRUCTION CO., INC.

Commonwealth Court of Pennsylvania.

Argued Feb. 10, 1998.

Decided June 11, 1998.

Joseph J. Schafle, Jr., Philadelphia, for appellants.

James L. McKenna, Cherry Hill, NJ, for appellee, Driscoll Const.

Before SMITH and FLAHERTY, JJ., and MIRARCHI, Jr., Senior Judge.

FLAHERTY, Judge.

Doris Young and Diane Lynch, Administratrix for the estate of Charles Young, deceased, (Appellants) appeal from an order of the Philadelphia County Court of Common Pleas (trial court) granting the Department of Transportation's (DOT) motion for summary judgment because Appellants failed to produce an expert witness. We reverse the trial court and remand for further proceedings.

The undisputed facts of record are as follows. On September 28, 1989, Charles Young and his wife Doris Young were traveling on Interstate 95 when they were involved in a one vehicle accident. The Youngs had entered I-95 from the Walt Whitman Bridge and had just passed the Tasker Avenue off ramp when they were confronted by stopped traffic in all four lanes of I-95. Charles Young, in an attempt to avoid colliding with the stopped traffic, slammed on the brakes, lost control of his vehicle and struck the center median of I-95. As a result of this accident, Charles Young ultimately died and Doris Young was seriously injured.

I-95 is a state designated highway in the City of Philadelphia. About three miles north of the accident site, construction was taking place on I-95. There were no warning signs at the site of the traffic backup accident indicating any upcoming construction.

This action was commenced on September 26, 1991, in the Court of Common Pleas of Philadelphia County. Appellant Doris Young filed a complaint and Appellant Diane Lynch, Administratrix of the estate of Charles Young filed a separate action. The two actions were consolidated under one caption.

In a settlement conference on November 26, 1996, DOT filed a motion to dismiss because Appellants had not provided expert testimony regarding the failure to post warning signs. ¹ After two days of argument, the trial court indicated that it intended to grant DOT's motion and on March 13, 1997, the trial judge issued an opinion and order granting DOT's motion for summary judgment. Appellants' appeal followed.

Appellants raise two issues, whether the trial court properly concluded that expert testimony concerning placement of warning signs was necessary and properly granted DOT's motion for summary judgment because Appellants had not provided expert testimony, and whether DOT should be granted summary judgment on the basis of sovereign immunity.

Our review in a case where we are examining a trial court's order granting a motion for summary judgment, is limited to determining whether there has been an error of law or manifest abuse of discretion. Gilson v. Doe, 143 Pa.Cmwlth. 591, 600 A.2d 267 (Pa.Cmwlth.1991). Granting of summary judgment is proper where the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Albright v. Abington Memorial Hospital, 548 Pa. 268, 279, 696 A.2d 1159, 1165 (1997). The record is to be viewed in the light most favorable to the non-moving party, and all doubts as to the presence of a genuine issue This appeal requires us to determine whether expert testimony concerning the lack of placement of warning signs within three miles of a construction zone, where traffic is backed up due to the construction, is or is not necessary. The Appellants argue that expert testimony is not necessary, that the knowledge concerning such lack of sign placement at the accident site is within a lay person's everyday experience and need not be explained by expert testimony. DOT argues that expert testimony is necessary because the subject matter involves special skills and training not common to the lay person.

of material fact must be resolved against the moving party. Id.

Appellants argue that the trial court erroneously relied upon Tennis v. Fedorwicz, 140 Pa.Cmwlth. 7, 592 A.2d 116 (1991), for the proposition that an expert is required to sustain their cause of action. Appellants' cause of action alleges that DOT was negligent in failing to place warning signs at the site of the traffic backup. In Tennis we recognized that generally, expert testimony is necessary to establish negligent practice in any profession, and that expert testimony is necessary whenever the subject matter of the inquiry involves special skills and training not common to the lay person. Id. 592 A.2d at 117. Tennis held that, where a plaintiff alleges negligent highway design, there are too many variables for lay persons to make a reasoned decision regarding the safety of that intersection and an expert is required. Among the variables enumerated were such engineering components as "the curves and grade of the road, the angle at which the roads intersected, safe stopping distance, material composition of the roadway and the effect of the hillside upon the line of sight for both vehicles." Id. Appellants contend that the expert testimony necessary in Tennis is not necessary in this case and distinguish Tennis from this case by asserting that their claim does not involve highway design, but involves DOT's admitted failure to post any warning signs at the site of the traffic backup.

We agree with Appellants that the claim in Tennis is not analogous to the instant case. Although both involved accidents, the Tennis case involved engineering aspects of an entire highway design and this case involves a simple decision about the necessity of posting signs warning of a construction area ahead which caused traffic to back up. This decision does not require special knowledge or skills, but only common sense and is within the knowledge and experience of most lay persons.

This case is analogous to Merling v. Department of Transportation, 79 Pa.Cmwlth. 121, 468 A.2d 894 (1983). We held in Merling that "matters within a lay person's everyday experience are not required to be explained by expert testimony" and stated that "[if] all the primary facts can be accurately described to a jury and if the jury is as capable of comprehending and understanding such facts and drawing correct conclusions from them as are witnesses possessed of special training, experience and observation, then there is no need for the testimony of an expert", citing Reardon v. Meehan, 424 Pa. 460, 465, 227 A.2d 667, 670 (1967).

Merling was injured when, in attempting to avoid a collision with a disabled truck stopped in his lane of traffic, he drove his vehicle onto the berm of the road and the berm gave way and his vehicle fell into a ditch. DOT argued that lay evidence as to the condition of the berm and guardrails should be excluded because the matter of the proper maintenance of the berm and guardrails was one beyond the knowledge and competence for the jurors as lay persons to determine and that expert engineering evidence was required. We concluded that lay evidence concerning the condition of the berm and the guardrail along with photographs of the accident site was sufficient, stating that "[w]orn shoulders and collapsed guardrails are not strangers to users of the public roads and jurors are perfectly capable of drawing conclusions from such conditions." Merling, 468 A.2d at 896.

Where in Merling we concluded that worn shoulders and collapsed guardrails are not strangers to users of public the roads, traffic backups due to construction are also not strangers to users of the public roads. Jurors should be capable of drawing...