Opinion
No. 2472 C.D. 2010
08-02-2011
Richard Loftus, Appellant v. Commonwealth of Pennsylvania, Department of Transportation
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, President Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE BROBSON
Appellant Richard Loftus (Loftus) appeals from an order of the Court of Common Pleas of Bucks County (trial court). The trial court granted a motion for summary judgment filed by Appellee Department of Transportation (DOT), thereby dismissing a Complaint filed by Loftus against DOT and other governmental and private entities. We affirm.
According to DOT's brief, many of the other defendants also filed motions for summary judgment, which the trial court also granted. The sole summary judgment order at issue before this Court is the one resolving DOT's motion for summary judgment.
Loftus filed his Complaint with the trial court on February 2, 2007. Loftus averred that he was injured on or about April 26, 2006, when he was riding his bicycle. (Complaint, ¶ 12.) Loftus alleged that he was leaving Grandview Shopping Center by means of its driveway which feeds onto Bristol Pike. (Id.) Loftus averred that a large pothole existed in the shoulder of the intersection of the shopping center driveway and Bristol Pike for a long time prior to his injury. Loftus claimed that the pothole constituted a dangerous condition at the time of his injury. While riding his bicycle in that area, he "suddenly and without warning hit" the pothole, causing him to suffer serious and permanent injuries. (Complaint, ¶¶ 13-14.) Based upon these basic factual averments, Loftus filed a single negligence claim against the various defendants, including DOT.
Loftus averred that he sustained the following injuries: post-concussion syndrome with post occipital cephalgia; occipital headaches; separated left shoulder with surgical intervention; rib fractures; skull fracture; cervical, thoracic, and lumbrosacral myofascitis; and vertigo with dizziness and fainting spells. (Complaint, ¶ 19.)
DOT filed an answer and new matter in response to the Complaint. DOT admitted that it is responsible for the maintenance of the right-of-way of Bristol Pike, but denied responsibility for the driveway or parking lot of the shopping center. DOT denied Loftus' allegations of negligence, recklessness, and carelessness. In its new matter, DOT contended that (1) the General Assembly had not waived sovereign immunity for Loftus' alleged injuries, (2) DOT did not have notice of the alleged pothole, or if it did receive notice of the pothole, it had not received notice in a timely manner, (3) DOT is not responsible for injuries arising from any dangerous condition that existed in the driveway or parking lot of the shopping center, (4) Loftus failed to send written notice of his intent to sue a Commonwealth party to the Office of Attorney General within sixty days of the accrual of his cause of action as required by Section 5522(a) of the Judicial Code, 42 Pa. C.S. § 5522(a), and (5) Loftus himself caused his injuries by virtue of the manner in which he operated his bicycle.
On October 8, 2009, DOT filed its motion for summary judgment. In its motion, DOT asserted that Loftus could not produce a single witness to the accident and could not himself testify regarding the cause of the accident because he had no memory of how the accident occurred. Thus, DOT contended that Loftus would not be able to prove at trial that the pothole was the cause of the accident or his injuries. Additionally, DOT reiterated the defenses it raised in its new matter, including that the pothole is not part of the cartway or travel lanes of Bristol Pike, and the area in which the pothole is located is not intended to be used and was not regularly used for vehicular traffic. Further, DOT's Assistant Maintenance Manager in charge of this area never received notice of the pothole before the date of the accident. Pertinent to this case, DOT asserted that Loftus would not be able to prove the causation element of his claim. Loftus, therefore, could not overcome the hurdle of immunity from suit that DOT enjoys as an entity of the Commonwealth because he would not be able to prove that the facts at issue fell within an exception to immunity under Section 8522(a) of the Judicial Code.
In his response to DOT's motion for summary judgment, Loftus asserted that a friend of his who spoke to witnesses following the accident might be able to testify; however, that friend was not himself a witness to the accident.
On the day trial was to begin, the trial court considered legal arguments on various outstanding motions, including DOT's summary judgment motion. Based upon DOT's claims, the trial court required Loftus to make an offer of proof on the causation issue. Counsel for Loftus indicated in the offer of proof that Loftus would testify at trial that (1) when he awoke in the hospital he had no idea why he was in the hospital or how his injuries occurred; (2) Loftus returned to the area of the accident to "retrace his steps;" and (3) Loftus identified the pothole and saw blood near the pothole. During the colloquy, counsel for Loftus acknowledged that Loftus had no idea where the emergency medical personnel found him in the street, and that no one would be able to testify as to where Loftus was injured. The trial court and counsel for Loftus engaged in the following colloquy:
Court: So the only thing we have is this gentleman leaving the . . . restaurant after work, getting on his bike, and then waking up in the hospital, and then going back and saying, "This must have been where I fell?"(Reproduced Record (R.R.) at 64a-65a.)
Counsel: That's correct.
Court: And this must have been where I fell because it was close to work, had blood around it, and there was a defect in the road.
Counsel: Yeah, it's in the immediate path of where he would be riding. It's immediately following the period of time where he doesn't have any recollection.
Court: But there's going to be no independent witness to say he saw him on this road at this location, who saw him laying there, we went, picked him up and transported him to the hospital. There's nobody that's going to actually identify this defect.
Counsel: That's correct.
Thereafter, DOT and Loftus presented oral argument on the merits of the summary judgment motion. The focus of DOT's argument related to the questions of whether (1) Loftus would be able to satisfy his burden to prove that the pothole caused his accident and injuries, and (2) DOT had received written notice of the pothole before the accident occurred. The trial court granted summary judgment in favor of DOT based solely upon the trial court's agreement with DOT's argument that Loftus would not be able to establish causation. The trial court did not address the notice issue.
Loftus appealed and filed a statement of matters he complained of on appeal, which was limited to the following: "Whether [Loftus]'s offer of proof, specifically that he returned to the scene of the accident the following day, retraced the route of his bicycle and discovered the road defect and blood from his injury, was sufficient to permit a jury to decide if the road defect caused [Loftus]'s injury." The trial court issued an opinion in accordance with Pennsylvania Rule of Appellate Procedure 1925(a), wherein the trial court concluded that Loftus had failed to make out a prima facia case demonstrating negligence and causation. The trial court opined that Loftus had failed to demonstrate a link between the injuries and the alleged negligence. The trial court indicated that Loftus' testimony alone relating to his retracing his steps and observation of blood near the pothole would be insufficient to meet his burden of proof.
Loftus appeals the trial court's order to this Court, raising the following issue for our review: "Whether [Loftus]'s offer of proof, specifically that he returned to the scene of the accident the following day, retraced the route of his bicycle and discovered the road defect and blood from his injury, was sufficient to permit a jury to decide if the road defect caused [Loftus]'s injury."
This Court's review of a trial court order granting a motion for summary judgment is limited to considering whether the trial court erred as a matter of law or abused its discretion. Kaplan v. Se. Pennsylvania Transp. Auth., 688 A.2d 736 (Pa. Cmwlth. 1997). A court may grant a motion for summary judgment only when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Bronson v. Horn, 830 A.2d 1092 (Pa. Cmwlth. 2003), affirmed, 577 Pa. 653, 848 A.2d 917 (2004), cert. denied, 543 U.S. 944 (2004). The right to judgment must be clear and free from doubt. Id. In reviewing the granting of a motion for summary judgment, this Court must "view the record in the light most favorable to the non-moving party, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party." Pappas v. Asbel, 564 Pa. 407, 418, 768 A.2d 1089, 1095 (2001), cert. denied, 536 U.S. 938 (2002).
Commonwealth agencies are generally immune from civil suit for tort liabilities unless the General Assembly waives sovereign immunity. See 1 Pa. C.S. § 2310; and 42 Pa. C.S. § 8521. Section 8522(a) of the Judicial Code, which is often referred to as the "Sovereign Immunity Act," 42 Pa. C.S. § 8522(a), authorizes the imposition of liability against Commonwealth agencies for damages arising out of a negligent act where the damages would be recoverable under the common law or a statute creating a cause of action if the injury were caused by a person to whom the defense of sovereign immunity is not available. To meet the threshold requirement under Section 8522(a) of the Code, a plaintiff must prove the requisite elements of negligence: (1) the defendant's duty or obligation recognized by law; (2) a breach of that duty; (3) a causal connection between the defendant's conduct and the resulting injury; and (4) actual damages. Talarico v. Bonham, 650 A.2d 1192 (Pa. Cmwlth. 1994). As discussed above, the trial court concluded that Loftus would not be able to establish a causal connection between the alleged defect of the highway and Loftus' injuries.
Loftus argues that the trial court erred in concluding that the testimony he could provide at trial would be insufficient for a jury to conclude that the pothole caused his injuries. Essentially, Loftus argues that his observation sometime after his accident of blood near the pothole in an area that he may have travelled near is sufficient circumstantial evidence from which a jury could conclude that a dangerous condition caused him to fall and sustain injuries. At the outset, we must observe that an initial leap of faith that a jury would be required to make in this case, given the lack of any actual witnesses or forensic evidence, is that the substance Loftus observed near the pothole was not only blood, but also, that the blood was his own. Loftus essentially would be asking the jury to conclude that, because he fell and was injured, the substance must be blood and it must be his own.
Loftus is correct in asserting that circumstantial evidence is sometimes sufficient to enable a jury to consider whether a causal connection exists between a dangerous condition and injuries. Williams v. Koslowski, et ux, 313 Pa. 219, 169 A. 148 (1933) (Koslowski). As Loftus notes in his brief, in Koslowski, our Supreme Court opined as follows:
When a fact is "deducible as a reasonable inference from the facts and conditions directly proved . . . it cannot justly be classed as mere conjecture or surmise or guess. In both the civil and criminal law, circumstantial evidence is competent evidence . . . . 'The conclusions and tests of everyday experience must constantly control the standards of legal logic.'"Koslowski, 313 Pa. at 223, 169 A. at 150 (citations omitted).
Our Supreme Court has added that although a jury may reasonably draw inferences from circumstantial evidence, the evidentiary threads that a jury considers must be sufficient to elevate the contention beyond mere speculation. Fitzpatrick v. Natter, 599 Pa. 465, 485, 961 A.2d 1229, 1241 (2008). Further, although a jury may draw reasonable inferences, a jury must have evidence upon which a conclusion logically may be based. Id. at 486, 961 A.2d at 1242. Additionally, although a jury may reflect upon personal experience and knowledge in considering such evidence, circumstantial evidence must be of such a character that a jury, without exercising prejudice or engaging in guessing, could reach the conclusion a plaintiff would have the jury reach. Id., 961 A.2d at 1242. Moreover, the existence of other logical conclusions does not render a conclusion in favor of a plaintiff improper. Id., 961 A.2d at 1242.
In First v. Zem Zem Temple, 686 A.2d 18 (Pa. Super. 1996), appeal denied, 549 Pa. 701, 700 A.2d 441 (1997), our Superior Court addressed a trial court's grant of summary judgment in favor of a property owner who had been sued by a couple claiming that the wife-plaintiff had been injured while dancing at a function on the owner's property. In that case, the Superior Court reversed the trial court's grant of summary judgment. The Superior Court noted that there was consistent testimony from the husband-plaintiff and a disc jockey, who witnessed the wife-plaintiff's fall, suggesting that there was a section of the floor that was discolored and extremely slippery. The disc jockey testified that he observed other couples avoiding the area and that other couples had commented on the slippery state of that part of the floor. The disc jockey also testified, however, that the wife-plaintiff did not fall until she was approximately three to four feet away from the slippery area. The Superior Court disagreed with the trial court's conclusion that there was insufficient evidence from which a jury might conclude that the wife-plaintiff established factual causation.
The Superior Court reasoned that "[w]ithout resort to conjecture, the jury would have had a rational basis to choose, over any other inference suggested by the evidence, the inference that there was a defect in the dance floor, that the dance floor was unsafe and that [the wife-plaintiff] fell as a result thereof." First, 686 A.2d at 554. The Superior Court quoted its decision in Frazier v. City of Pittsburgh, 15 A.2d 499, 500 (Pa. Super. 1940), as follows:
Negligence may be established by circumstantial evidence, and where a plaintiff describes the nature and location of a fall, it is for the jury to determine whether a defect which existed in the small area described was the cause of the injury, and if the defect was of sufficient consequence to charge defendants with negligence . . . is for the jury.First, 686 A.2d at 555.
In contrast to the evidence in First that the Superior Court concluded warranted consideration by a jury, in this case, Loftus would not offer any testimony regarding the nature and location of his fall. In this case, there is no way for Loftus to establish as fact that the substance he saw was blood or that if it was blood it was his own blood. It is not reasonable to deduce from the fact of his fall and the fact that he might have fallen somewhere near the pothole that the substance he saw was blood or that the substance was his blood. Loftus himself simply would not be competent to testify regarding the actual nature of the substance he observed. In this regard, we believe that the trial court correctly concluded that the evidence Loftus offered could not provide a sufficient basis for a jury to draw reasonable inferences that Loftus' bike hit the pothole, causing him to fall and sustain injuries. Based upon the lack of any evidence that would enable a jury to engage in an intellectual exercise that would consist of more than speculation, we conclude that the Loftus would not be able to demonstrate causation.
Accordingly, we affirm the trial court's order.
/s/_________
P. KEVIN BROBSON, Judge
ORDER
AND NOW, this 2nd day of August, 2011, the order of the Court of Common Pleas of Bucks County is AFFIRMED.
/s/_________
P. KEVIN BROBSON, Judge