Zanine v. Gallagher

• Decision Date: 07 October 1985
• Citation: 345 Pa.Super. 119,497 A.2d 1332
• Parties: Paul J. ZANINE and Nancy Zanine, his wife, Appellants, v. Robert A. GALLAGHER, Jr., Alexander J. Stockard, Scott A. Herrick, Hamilton Stockard, Candy Walters, Joseph Glennon and Henry Walters. 01377
• Court: Pennsylvania Superior Court

Page 1332

497 A.2d 1332

345 Pa.Super. 119

Paul J. ZANINE and Nancy Zanine, his wife, Appellants, v. Robert A. GALLAGHER, Jr., Alexander J. Stockard, Scott A Herrick, Hamilton Stockard, Candy Walters, Joseph Glennon and Henry Walters.

01377

Superior Court of Pennsylvania.

Argued March 11, 1985.

Filed July 26, 1985.

Reargument Denied Oct. 7, 1985.

Alexander A. DiSanti, Media, for appellants.

James P. Gannon, Media, for appellees.

Before MONTEMURO, ROBERTS and BLOOM, JJ. ^*

ROBERTS, Judge:

Appellant Paul Zanine and his wife, Nancy, ¹ sued appellee Robert Gallagher ² for injuries allegedly caused by appellee's negligence in inducing appellant, a police officer, to engage in a high speed automobile chase. A jury found appellant to have been 51% negligent and appellee to have been 49% negligent, and judgment was consequently entered in favor of appellee. See 42 Pa.C.S. § 7102(a). Appellants now challenge the trial court's denial of their motions for judgment notwithstanding the verdict and for a new trial. Because we believe appellants have neither alleged nor proven sufficient facts to establish a cause of action against appellee for negligence, we affirm.

On December 18, 1977, appellant was assigned to patrol the Brookline-Oakmont section of Haverford from midnight until 8 a.m. Before beginning his shift, he was advised of a recent increase in car thefts and thefts of parts from parked cars in this section of Haverford.

Around 2 a.m., while driving east on Eagle Road in the business district of Oakmont, appellant saw a number of youths, including appellee, standing behind a parked car. On seeing appellant's squad car, the youths jumped into the parked car and sped away through a red light, with appellee at the wheel. Believing that the youths had committed a crime, appellant radioed the police station of this series of events, turned on his emergency lights and siren, and pursued appellee onto Darby Road.

The chase proceeded on Darby Road, a two-lane highway with many sharp curves and blind turns, at speeds of about 80 miles per hour, until appellee lost control of his car and crashed into an embankment. Appellant managed to stop his vehicle about 6 feet from appellee's car. No one was seriously injured.

Shortly after the crash, other police cars arrived on the scene in response to appellant's radio message and helped appellant take appellee and his passengers to the nearby Haverford police station. About 10 minutes after arriving at the station, appellant began experiencing severe chest pains and nausea, which were later diagnosed as symptoms of an acute heart attack. Appellants brought the present action to recover damages resulting from the heart attack, which they allege was caused by appellee's negligence in fleeing appellant.

Two grounds for relief are asserted on this appeal. First, appellants contend that they were entitled to judgment notwithstanding the verdict because the evidence presented at trial failed to establish that Paul Zanine was contributorily negligent. Alternatively, appellants argue that they are entitled to a new trial because the court erred in refusing to instruct the jury that a party may be found contributorily negligent only as to risks he could reasonably foresee incurring as a consequence of his actions. Since appellant did not suspect that he might have heart trouble, appellants insist that he could not have reasonably foreseen the kind of injury he suffered, and therefore cannot be considered contributorily negligent. We believe the trial court correctly refused to grant relief, not because appellant was contributorily negligent, but because the evidence presented by appellants does not establish actionable negligence on the part of appellee as a matter of Pennsylvania law.

Appellee's conduct may have been "negligent", in the sense that it displayed carelessness, recklessness, or inadvertence, but proof of such conduct does not suffice to establish a cause of action in negligence. Three elements must be proven to establish such a cause of action: a duty of care on the part of the alleged tortfeasor in regard to the plaintiff; a breach of that duty; and a showing that the plaintiff's injuries were proximately caused by the breach. See Leoni v. Reinhard, 327 Pa. 391, 393, 194 A. 490, 491 (1937). Since our courts have emphasized that there can be no negligence where there is no duty of care, see, e.g., Boyce v. United States Steel Corp., 446 Pa. 226, 230, 285 A.2d 459, 461 (1971), it behooves us to consider how the existence of such a duty may be established.

"Duty, in any given situation, is predicated on the relationship existing between the parties at the relevant time ...." Morena v. South Hills Health System, 501 Pa. 634, 642, 462 A.2d 680, 684 (1983). Where, as here, the parties are strangers to each other, such a relationship may be inferred from the general duty imposed on all persons not to place others at risk of harm through their actions. See Gerdes v. Booth & Flinn, Ltd., 300 Pa. 586, 591, 150 A. 483, 485 (1930). The scope of this duty,...