Opinion
No. 984 C.D. 2011 No. 1177 C.D. 2011
01-27-2012
Jacob D. Cooke, a Minor, by Stacy Bell, Parent and Natural Guardian v. Emily Butler, Jeffrey Butler and Commonwealth of Pennsylvania, Department of Transportation Appeal of: Commonwealth of Pennsylvania, Department of Transportation Jacob D. Cooke, a Minor, by Stacey Bell, Parent and Natural Guardian v. Emily Butler and Jeffrey Butler and Commonwealth of Pennsylvania, Department of Transportation Appeal of: Emily Butler
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, President Judge HONORABLE BERNARD L. McGINLEY, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
This case was assigned to the opinion writer on or before January 6, 2012, when President Judge Leadbetter completed her term as President Judge.
OPINION NOT REPORTED
MEMORANDUM OPINION BY SENIOR JUDGE FRIEDMAN
Emily Butler (Butler) and the Commonwealth of Pennsylvania, Department of Transportation (DOT), appeal from the April 8, 2011, order of the Court of Common Pleas of Northampton County (trial court), which denied their motions for post-trial relief following the entry of a jury verdict in favor of Jacob D. Cooke (Plaintiff). We affirm.
The appeals were consolidated by an order of this court dated August 4, 2011.
In the early morning hours of September 21, 2006, thirteen-year-old Butler took the keys to her father's Jeep Cherokee while he was sleeping, picked up thirteen-year-old Plaintiff, and drove to East Mountain Road, which was known as "roller coaster road" due to its many curves and bumps. Around 5:30 a.m., Butler lost control of the vehicle while driving westbound on East Mountain Road and crashed into a tree. Butler testified that she lost control of the vehicle after being distracted by the headlights of an oncoming vehicle proceeding in the opposite direction.
On February 8, 2008, Plaintiff filed suit against Butler, her father, Jeffrey Butler, and DOT. The trial court held a bifurcated trial on liability and damages in September 2010. At the conclusion of the liability phase, the jury found Plaintiff 35% negligent, Butler 60% negligent, and DOT 5% negligent. Jeffrey Butler was found not negligent. Following the damages phase, the jury awarded Plaintiff damages in the amount of $800,000.00. The trial court later molded the verdict in accordance with the liability findings and the statutory cap on damages against DOT to $266,707.50.
Before the liability case went to the jury, Butler moved for a nonsuit, which was denied.
Thereafter, both Butler and DOT filed timely motions for post-trial relief seeking judgment n.o.v. or a new trial. By order dated April 8, 2011, the trial court denied both motions. Butler and DOT now appeal from that decision.
Butler's Appeal
Butler first argues that Plaintiff failed to rebut the presumption that she was incapable of negligence due to her age at the time of the accident. In Pennsylvania, minors between the ages of seven and fourteen are presumed to be incapable of negligent conduct; however, the presumption is rebuttable and grows weaker with each year until the child's fourteenth year. Kuhns v. Brugger, 390 Pa. 331, 340, 135 A.2d 395, 401 (1957). The standard by which a child's actions are measured is the child's capacity to appreciate the danger involved. Id. at 341, 135 A.2d at 401. The jury must evaluate the child's individual capacity to perceive danger based on her age, intelligence, and experience. Id. Here, Butler claims that Plaintiff did not proffer any evidence to rebut the presumption that she was incapable of negligence or that she had the capacity to appreciate the danger involved in operating her father's vehicle. We disagree.
Butler testified that she was thirteen years, two months old at the time of the crash and in the eighth grade. (N.T. Trial, 9/22/10, at 87.) She was doing fairly well in school and was in the main track of academic classes. (Id. at 109.) Butler testified that she did not have a driver's license and knew that it was illegal for her to drive. (Id. at 70.) She testified that she drove her father's vehicle ten to fifteen times before the date of the accident, often without her father's permission or knowledge. (Id. at 70, 79-82, 95-96.) Butler also admitted that car crashes can be very serious. (Id. at 83.) Therefore, Butler's own testimony was sufficient to establish that she was capable of perceiving the danger of her actions.
Next, Butler argues that the trial court improperly precluded evidence that her biological mother died of a drug overdose after abandoning her at an early age, that her stepmother died of cancer, and that she had disciplinary troubles at school. Butler claims that this evidence was relevant to the issue of her capacity for negligence. We disagree. The trial court properly excluded this evidence as both irrelevant and unduly prejudicial. See Pa. R.E. 403. Evidence of unfortunate circumstances in Butler's personal life would not have aided the jury in determining whether Butler was capable of perceiving the dangers of operating a motor vehicle.
Finally, Butler argues that the trial court improperly instructed the jury on the standard of care applicable to minors between the ages of seven and fourteen. The trial court instructed the jury as follows:
In this case you are concerned with the care taken or not taken by Emily Butler and by Jacob Cooke, each of whom was thirteen years old at the time of the accident.(N.T. Trial, 9/23/10, at 163-64.) Butler claims the trial court abused its discretion in failing to instruct the jury that she was presumed incapable of negligence as a thirteen-year-old minor.
The law does not hold children to the same standard of care as adults. As you remember, the [instruction] I just gave you for persons over fourteen, was a reasonably prudent person. So an adult is compared against a reasonably prudent person.
I instruct you that a person is required to exercise the appropriate care for a child. So you see, it is not described as a person, it is described as a child[] is required to exercise the ordinary care appropriate for a child. Specifically, he or she is held to that measure of care. Not that other person is [sic], but that other children of the same age, experience, capacity, and development would ordinarily exercise under similar circumstances.
We conclude that the trial court's instruction was a proper statement of the law. Our courts have not mandated that an explanation of the presumption for minors be a part of the charge; rather, it may be given in the trial court's discretion. See City of Philadelphia v. Duda, 595 A.2d 206, 211-12 (Pa. Cmwlth. 1991) (noting that a trial judge has wide latitude in charging the jury as long as the charge, as a whole, provides a sufficient and correct legal basis to guide the jury in its deliberations). In fact, Butler concedes in her brief that the standard jury charge upon which the trial court's instruction was based states that, if the trial judge determines that the presumption language would confuse the jury and the minor is close to age fourteen, the judge may exclude that portion of the charge. (Butler's Br. at 8-9, 18.) Given that Butler was thirteen years, two months old at the time of the accident, and the law states that the presumption diminishes as a child approaches age fourteen, the trial court did not abuse its discretion in excluding that language. Rather, the trial court properly instructed the jury that Butler, as a minor, should not be held to the same standard of care as an adult and that the jury must evaluate her capacity for negligence based on its understanding of minors of a similar age. We find no abuse of discretion.
DOT's Appeal
DOT argues that it owed no duty of care to Plaintiff or Butler because they were not using the highway in an ordinary manner at the time of the accident. We disagree.
DOT owes a duty to motorists to keep its highways in a reasonably safe condition for travel by persons using the highways in an ordinary manner. Felli v. Department of Transportation, 666 A.2d 775, 777 (Pa. Cmwlth. 1995). Likewise, motorists have a corresponding duty to use the highways in an ordinary and usual manner and with reasonable care. Id.
Here, Butler testified that she was driving between thirty-five and forty-five miles per hour at the time of the accident, (N.T. Trial, 9/22/10, at 121); the speed limit on the road where the crash occurred was forty miles per hour. As Butler approached the curve, she lost control of the vehicle, heard "metal crunching," and felt "something hit [her] face." (Id. at 104.) Butler testified that she did not attempt to "catch air" as she drove on East Mountain Road, nor did she corroborate Plaintiff's testimony that the vehicle left the ground shortly before the accident. (Id. at 102, 122-23.) While DOT's expert opined that Butler's vehicle was "traveling too fast" and "was catching hill air or hill hopping" at the time of the crash, (id., 9/23/10, at 55), the jury chose to believe Butler's testimony and not DOT's. There was sufficient evidence for the jury to conclude that Butler drove at or near the speed limit and in her own lane of traffic, and, thus, was using the highway in an ordinary manner.
The police officer who investigated the accident was unable to determine the speed of the vehicle at the time of the crash. (N.T. Trial, 9/22/10, at 33.)
Next, DOT argues that Plaintiff failed to establish DOT's liability under the real estate exception to sovereign immunity because there was no evidence that any defect in the roadway caused the accident. Section 8522(b)(4) of the Sovereign Immunity Act (Act), 42 Pa. C.S. §8522(b)(4), allows a plaintiff to recover damages for DOT's alleged negligence if DOT allowed a dangerous condition to persist on its highway. The plaintiff must establish, by a preponderance of the evidence, that a dangerous condition of the highway caused the accident. Pritts v. Department of Transportation, 969 A.2d 1, 3 (Pa. Cmwlth. 2009).
Plaintiff's engineer, Russell J. Kolmus, III, P.E., determined that the roadway should have been at least twenty-two-feet wide at the site of the accident; the roadway, however, was one foot, eight inches too narrow in total width. (N.T. Trial, 9/21/10, at 102.) Kolmus ultimately concluded, within a reasonable degree of engineering certainty, that the lack of pavement width in that location was a cause of the accident. (Id. at 108; see id. at 109-10.)
In his written report, Kolmus noted that the police measured a roadway width of 19.5 feet, which Kolmus stated was substandard by two feet, six inches. (R.J. Kolmus Report, 11/24/09, at 3.)
DOT relies on Lambert v. Katz, 8 A.3d 409 (Pa. Cmwlth. 2010), in which the plaintiff claimed that DOT's failure to retrofit a highway's shoulder, which was required by design criteria that post-dated its construction by thirty years, created a per se dangerous condition of the highway. This court disagreed, stating: "[W]e reject the Estates' argument that the failure of DOT to reconstruct a highway that pre-dates new design criteria constitutes a per se dangerous condition of the highway." Id. at 419. Here, DOT acquired East Mountain Road in 1931, many years before the design criteria that Plaintiff's expert used to evaluate the road's safety. Thus, DOT claims that, under Lambert, it had no duty to widen the road to conform with subsequent design standards.
We agree with Plaintiff that Lambert is distinguishable from this case. Plaintiff's theory was not that DOT's failure to meet certain design criteria was a per se dangerous condition, as was the case in Lambert. Rather, Plaintiff claimed that a dangerous condition of the roadway developed over time and that DOT became aware of this condition as a result of prior accidents at that same location, one of which resulted in a fatality. In fact, the trial court gave the jury DOT's proposed charge on the issue of subsequent design standards, as follows:
The mere change of design standards is not sufficient to create liability on the part of [DOT]. A plaintiff must show that there has been a change in circumstances from [the] time of the adoption of the original design, and this change in circumstances has caused a dangerous condition of the highway to develop.(N.T. Trial, 9/23/10, at 171-72.) Again, this is a correct statement of the law. Absent any evidence to the contrary, we must presume that the jury followed the trial court's instruction. See Commonwealth v. Speight, 578 Pa. 520, 535, 854 A.2d 450, 458 (2004) ("It is presumed [that] the jury follows the court's instructions.").
It is worth noting that the jury found that DOT's failure to supply a safe roadway was a cause of the accident, not the sole cause of the accident, as evidenced by its decision to assign only 5% liability to DOT.
Finally, DOT argues that it is entitled to a new trial because the evidence of previous accidents on East Mountain Road was prejudicial. According to DOT, none of the prior accidents was substantially similar to the accident in question and there was no evidence that DOT had notice of them. We disagree.
Where the cause of an accident or a defective or dangerous condition is unknown or disputed, "evidence of similar accidents occurring at substantially the same place and under the same or similar circumstances may, in the sound discretion of the trial [j]udge, be admissible to prove constructive notice of a defective or dangerous condition and the likelihood of injury." Stormer v. Alberts Construction Company, 401 Pa. 461, 466, 165 A.2d 87, 89 (1960) (emphasis in original). Here, the evidence established that all four previous accidents involved vehicles traveling in the same direction under similar conditions that lost control and went off the roadway at the same location as the vehicle in this case. Each of the vehicles left the roadway at the exact same curve, the narrowness of which Plaintiff's expert opined was a cause of the accident. We conclude that the trial court properly admitted this evidence.
The prior accidents occurred in September 2001, March 2002, August 2003, and October 2003. The October 2003 accident resulted in a fatality.
With regard to DOT's notice of the prior accidents, Captain Michael McLouth of the Bushkill Township Police Department testified that the Township investigates all motor vehicle collisions involving injury, towing, or death and is required to provide a report detailing such collisions to DOT. (N.T. Trial, 9/22/10, at 21.) He further testified that each of the prior accidents at issue would have been reported to DOT. (Id. at 21-24.) Although DOT complains that it did not receive these reports in discovery, DOT was able to prepare a motion in limine to preclude the evidence, cross-examine McLouth about the content of the reports, and argue that they were inadmissible. Thus, DOT clearly was not prejudiced, and the trial court did not abuse its discretion in admitting this evidence.
According to Plaintiff, he was unable to obtain the reports from DOT during discovery, so he obtained the best evidence available of previous crashes on East Mountain Road from the police department. See Commonwealth of Pennsylvania, Department of Transportation v. Taylor, 576 Pa. 622, 637, 841 A.2d 108, 117 (2004) (noting that, while appellee was precluded from obtaining internal accident reports from DOT, he "was free to conduct his own investigation of other accidents at or near the site of this collision by contacting the relevant police department(s) or other sources, requesting copies of accident reports, seeking out and interviewing those involved in those accidents, etc."). --------
Accordingly, because we conclude that the trial court properly denied Butler's and DOT's motions for post-trial relief, we affirm.
/s/_________
ROCHELLE S. FRIEDMAN, Senior Judge President Judge Leadbetter dissents.
ORDER
AND NOW, this 27th day of January, 2012, we hereby affirm the April 8, 2011, order of the Court of Common Pleas of Northampton County.
/s/_________
ROCHELLE S. FRIEDMAN, Senior Judge