Harvey, S. v. Palumbo, G.

J-A29007-14

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

SANDRA D. HARVEY, PLENARY GUARDIAN : IN THE SUPERIOR COURT OF

OF THE PERSON AND OF THE ESTATE OF : PENNSYLVANIA

DENNIS J. HARVEY AND MARGARET :

HORNER, THE ADMINISTRATRIX OF THE :

ESTATE OF SHANNON M. HANRIGHT, :

DECEASED AND MICHELE HAZEL, :

INDIVIDUALLY, AND AS CUSTODIAN OF :

HER MINOR CHILDREN, BRETT :

STEBBING, AND GEORGE STEBBING, :

:

:

v. :

:

GREGORY M. PALUMBO, ADMINISTRATOR :

OF THE ESTATE OF MICHAEL HANRIGHT, :

DECEASED AND CON-WAY FREIGHT, INC. :

AND CON-WAY TRANSPORTATION :

SERVICES, INC., :

:

:

APPEAL OF: SANDRA D. HARVEY, :

MARGARET HORNER, AND MICHELE :

HAZEL : No. 278 WDA 2014

Appeal from the Order January 28, 2014,

Court of Common Pleas, Clearfield County,

Civil Division at No. 2009-948-CD

BEFORE: DONOHUE, ALLEN and STRASSBURGER*, JJ.

MEMORANDUM BY DONOHUE, J.: FILED FEBRUARY 20, 2015

Appellants, Sandra D. Harvey, plenary guardian of the person and of

the estate of Dennis J. Harvey, Margaret Horner, the administratrix of the

estate of Shannon M. Hanright, deceased, and Michele Hazel, individually,

and as custodian of her minor children, Brett Stebbing and George Stebbing,

(hereinafter, Sandra Harvey, Margaret Horner, and Michele Hazel will be

*Retired Senior Judge assigned to the Superior Court.

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referred to collectively as “Appellants”), appeal from the trial court’s order

granting summary judgment in favor of Con-Way Freight, Inc. and Con-Way

Transportation Services, Inc. (together, “Con-Way”). For the reasons that

follow, we conclude that issues of material fact remain for resolution by a

jury, and thus we reverse the trial court’s order and remand the case for

trial.

The parties here do not dispute the factual background giving rise to

this action, which the trial court summarized as follows:

This negligence action arises out of a tragic

automobile accident that occurred on June 9, 2008

on Pennsylvania U.S. Route 322 in Bradford

Township, Clearfield County, Pennsylvania.

[Appellants] allege that [Michael Hanright

(“Hanright”)] was driving a 1991 Oldsmobile Cutlass

Supreme in which Michele Hazel, Shannon Hanright,

Dennis Harvey, Brett Stebbing, and George Stebbing

were passengers. [Hanright] was driving behind a

truck-tractor combination, being owned by Con-Way

and driven by Stanley Hale [(“Hale”)], in the

eastbound lanes of U.S. 322. The portion of the road

on which the vehicles were travelling is a two-lane

highway with a double yellow line designating that

segment as a no-passing zone. There is no question

that [Hanright[1]] was not driving in a legal manner.

As [Hanright] approached a right-hand turning lane,

at the intersection of Tipple Lane, he attempted to

pass the truck driven by [Hale] by using the turning

1

In its opinion, the trial court here stated that “There is no question that

Mr. Hale was not driving in a legal manner.” Trial Court Opinion,

12/17/2013, at 2 (emphasis added). We have substituted Hanright’s name

here to correct what we consider to be a simple mistake by the trial court.

There is no question that Hanright was driving illegally at the time of the

accident, and Appellants have not, conversely, alleged that Hale violated any

traffic laws.

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lane. [Hanright] ignored two ‘Right Lane Must Turn

Right’ signs at the beginning and end of the lane and

a purported warning from one of the passengers that

the turn-off was not a passing lane. [Appellants]

assert that said signage could not be seen due to

vegetation covering the warning. With the turning

lane being short in duration, and [Hanright] running

short of time and distance to pass the truck,

[Hanright] drove with his driver side tires on the

berm of the road in an effort to pass the truck driver.

[Hanright’s] car continued traveling along the gravel

berm and grassy embankment beside the Hale truck.

As the Hanright car attempted to reenter the

eastbound lane it was struck by the truck driven by

[Hale]. Hanright’s car was propelled into oncoming

traffic and collided with a Mack dump truck traveling

in the opposite direction. As a result of the collision,

Shannon Hanright and Dennis Harvey were ejected

from the automobile. [Shannon Hanright]

subsequently passed away due to her infirmities.[2]

[The other passengers] also sustained permanent

and grave injuries in the accident.

This litigation commenced on May 13, 2009, with

[Appellants] filing a Writ of Summons. The action

was brought on behalf of all persons who were

passengers in the automobile driven by Hanright. A

Complaint was subsequently filed on August 9, 2009.

[Appellants] have alleged in their Complaint that the

injuries suffered by Dennis Harvey, Michele Hazel,

Brett Stebbing, and George Stebbing, as well as the

death of Shannon Hanright, were the direct and

proximate result of the combined negligence of

Hanright and Con-Way. Con-Way later filed an

Answer, New Matter, and Cross-claim on October 30,

2009. An Amended Answer, New Matter, and Cross-

Claim were later filed by Con-Way on December 2,

2009.

Con-Way filed a Motion for Summary Judgment on

October 30, 2013, seeking to dismiss [Appellants’]

claims in their entirety against Con-Way. The [trial

2

Hanright died of a self-inflicted gunshot wound later in the day.

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court] entertained oral arguments on the [m]otion

on December 11, 2013. Con-Way contends that

summary judgment is proper, because [Appellants]

have failed to offer any evidence on which a jury

could conclude that the driver of the Con-Way truck

was negligent or that any of his actions proximately

caused the accident at issue. [Appellants] aver that

Hale was negligent for failing to see Hanright passing

him on the right, and, if, in fact, he really did fail to

see Hanright when was beside the Con-Way truck,

once he did see him, he neglected, failed or refused

to allow Hanright re-entry to the traveled portion of

the roadway, causing Hanright to lose control, and

enter the westbound lane of travel.

Trial Court Opinion, 12/17/2013, at 1-3 (footnotes omitted).

In an opinion and order dated December 17, 2013, the trial court

granted Con-Way’s motion for summary judgment. In addressing whether

Appellants had presented any evidence to create a material issue of fact

regarding Hale’s negligence as a proximate cause of the accident, the trial

court focused on a series of older cases, including Mulheim v. Brown, 185

A. 304 (Pa. 1934) and Smith v. Port Authority Transit, 390 A.2d 249 (Pa.

Super. 1978), for the proposition that “one is not bound to anticipate

another’s negligence.” Mulheim, 185 A. at 305; Smith, 390 A.2d at 252.

Based upon this principle, the trial court ruled as follows:

In applying the principles enunciated in Mulheim and

Smith to the case at bar, it is obvious that Con-

Way’s driver had no duty under the circumstances.

There is no contention that he was not acting in a

lawful manner when driving his truck. The [trial

court] would be imposing an onerous duty upon the

truck driver to look in his mirrors at every few

seconds no matter what the surrounding

5

circumstances. Even if the driver had gazed into his

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mirrors, he would not be required to come to the

conclusion that [Hanright] was trying to pass him. It

would be reasonable to deduce that if Hale saw

Hanright in his mirrors that Hanright was probably

turning right since he was in a turning lane that was

clearly marked as such. It would also be a logical

conclusion to believe that [Hanright] would have

reduced his speed when he realized that he could not

pass Hale’s truck or stopped when he saw there was

not enough space to successfully do so.

5

[Appellants] proffered expert testimony on this

issue. According to said expert, Mr. Guntharp, a

driver in [Hale’s] position should have been looking

in his mirrors every five (5) to eight (8) seconds.

Trial Court Opinion, 12/17/2013, at 7-8. On January 28, 2014, the trial

court granted Appellants’ motion pursuant to Rule 341(c) of the

Pennsylvania Rules of Appellate Procedure, ruling that an immediate appeal

of its grant of summary judgment in favor of Con-Way would facilitate

resolution of the entire case.

On appeal, Appellants present two issues for our review and

determination:

1. Whether the [trial court] erred in granting

[s]ummary [j]udgment in favor of [Con-Way],

finding that no negligence could be found on the part

of the Con-Way driver and that the jury could not be

permitted to find a verdict for [Appellants].

2. Whether the [trial court] erred in disregarding the

expert report of Walther Guntharp, which concluded

that [Hale] was negligent.

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Appellants’ Brief at 4. As these issues are interrelated, we will review them

together.

Our standard of review with respect to a trial court’s decision to grant

or deny a motion for summary judgment is as follows:

A reviewing court may disturb the order of the trial

court only where it is established that the court

committed an error of law or abused its discretion.

As with all questions of law, our review is plenary.

In evaluating the trial court’s decision to enter

summary judgment, we focus on the legal standard

articulated in the summary judgment rule. Pa.R.C.P.

1035.2. The rule states that where there is no

genuine issue of material fact and the moving party

is entitled to relief as a matter of law, summary

judgment may be entered. Where the non-moving

party bears the burden of proof on an issue, he may

not merely rely on his pleadings or answers in order

to survive summary judgment. Failure of a non[-

]moving party to adduce sufficient evidence on an

issue essential to his case and on which it bears the

burden of proof establishes the entitlement of the

moving party to judgment as a matter of law.

Lastly, we will 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.

JP Morgan Chase Bank, N.A. v. Murray, 63 A.3d 1258, 1261–62 (Pa.

Super. 2013) (quoting Murphy v. Duquesne Univ. of the Holy Ghost,

777 A.2d 418, 429 (Pa. 2001)).

The requisite elements of a negligence action include a duty or

obligation recognized by the law, requiring the actor to conform to a certain

standard of conduct; a failure to conform to the standard required; a causal

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connection between the conduct and the resulting injury; and the actual loss

or damage resulting to the interest of another. Matthews v. Konieczny,

527 A.2d 508, 511-12 (Pa. 1987) (quoting Morena v. South Hills Health

System, 462 A.2d 680, 684 n.5 (Pa. 1983)). The issue in this case centers

on the first two elements, whether the law imposed a duty under the

circumstances presented and, if so, whether Con-Way’s driver breached that

duty.

In concluding that Con-Way had no duty in this case, the trial court

relied on a series of older cases, including Mulheim v. Brown, 185 A. 304

(Pa. 1943) and Smith v. Port Authority Transit, 390 A.2d 249 (Pa. Super.

1978). In these cases, Pennsylvania appellate courts held that a motorist

cannot be negligent (or contributorily negligent) for a failure to anticipate

the negligence of another motorist. Mulheim, 185 A. at 305; Smith, 390

A.2d at 251. In Mulheim, our Supreme Court concluded that a driver was

not negligent for failing to anticipate that a vehicle approaching from the

opposite direction would suddenly make a U-turn into his path. Mulheim,

185 A. at 305. In Smith, this Court found no evidence of contributory

negligence when a driver failed to anticipate that a bus would suddenly

move into his lane of traffic without giving him any warning via turn signal

or horn. Smith, 390 A.2d at 250. Based upon Mulheim and Smith, the

trial court ruled that Con-Way’s driver had no duty to look in his passenger-

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side mirrors to detect the presence of Hanright attempting to pass him on

the right. Trial Court Opinion, 12/17/2013, at 7-8.

On appeal, however, Appellants contend that Mulheim and Smith

have no application, as the issue is instead whether Con-Way’s driver,

irrespective of any obligation to anticipate the negligence of

another, violated the standard of care he owed to other motorists. In this

regard, we note that in another 1943 case our Supreme Court distinguished

Mulheim by holding that the negligence of another driver “does not, of

course, excuse this defendant’s negligence.” Sudol v. Gorga, 31 A.2d 119,

120 (Pa. 1943). And in Smith, after finding no evidence to support a finding

that the plaintiff could be contributorily negligence, we reminded that “if

there [were] any evidence upon the consideration of which reasonable

minded individuals might disagree as to whether or not the plaintiff was

guilty of negligence which contributed to the accident, then the question of

such contributory negligence [would be] for the jury, not the court, to

determine.” Smith, 390 A.2d at 251.

To establish a breach of the standard of care by Con-Way’s driver, in

response to the motion for summary judgment Appellants submitted an

expert report from Walter A. Guntharp (“Guntharp”) of Guntharp &

Associates. In his expert report, Guntharp contends that operators of large

trucks like the one being driven by Hale have limitations on their

maneuverability, and that as a result truck drivers, unlike car drivers, must

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constantly scan all of the mirrors on their truck to be “constantly aware of

their surroundings.” Reply to Motion for Summary Judgment, 11/27/2013,

Exhibit C at 5. According to Guntharp, truck drivers are trained to “keep

your eyes moving,” “get the big picture,” and always be alert to avoid

potential collisions. Id. To this end, truck drivers are trained to check their

mirrors in a continuous manner every 3-53 or 5-84 seconds. Guntharp also

cites to a report from the Spectrum Consultant Group, which estimated that

Hanright’s vehicle would have been in the process of passing Hale for a total

of 14.7 seconds, including 7.1 seconds before the intersection with Tipple

Lane and 7.6 seconds after the intersection to the time of impact. Motion for

Summary Judgment, 10/30/2013, Exhibit I at 9. From these calculations,

Guntharp opined as follows:

A proper mirror scan would have allowed Mr. Hale to

observe the passing car before it reached the end of

the turning lane. Given the speed of the car, Mr.

Hale would have been able to determine that it did

not intend to turn and recognize that the car would

run out of room before it could pass his truck. At

that point, a reasonable [] prudent driver would have

applied his brakes and assisted Mr. Hanright in safely

completing the pass. If Mr. Hale had checked his

mirrors after the turn into Tipple Lane, he could have

clearly recognized that Mr. Hanright was in trouble

and applied his brakes at that time. Had he seen

[Hanright’s vehicle] at either point and applied the

3

Guntharp’s report cites two sources for this requirement, the National

Safety Council’s Defensive Driving Court – Professional Truck Driver, and the

Commercial Driver’s License Manual. Id.

4

The Smith System, through which (according to Guntharp) Hale

acknowledged he received training. Id.

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braking necessary to assist Mr. Hanright, there

would have been time and space for the car to

recover its proper lane of travel.

Id. at 6-7.

The trial court acknowledged that its decision conflicted with

Guntharp’s opinions. Trial Court Opinion, 12/17/2013, at 6 n.4. In

particular, the trial court’s determination that Hale had no obligation to

check his passenger-side mirrors in the circumstances presented is directly

at odds with Guntharp’s opinion that truck drivers must do so at all times

(given their relative inability to brake, swerve, or accelerate in the same

manner as an automobile). Significantly, the trial court’s conclusion here

arguably even conflicts with the opinion of Con-Way’s own expert witness,

Brooks Rugemer (“Rugemer”). According to Rugemer, “Hale didn’t have to

focus as much on his right hand mirrors because there was not a lane to his

right for traffic to approach.” Motion for Summary Judgment, 10/31/2013,

Exhibit G at 4 (emphasis added). In addition, the trial court’s finding that

even if Hale had checked his mirrors and had seen Hanright’s car he could

have reasonably assumed that Hanright was turning right onto Tipple Lane is

also directly contrary to Guntharp’s opinion that given the speed of

Hanright’s car he was not turning right but rather was attempting to pass on

the right. Reply to Motion for Summary Judgment, 11/27/2013, Exhibit C at

6-7.

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In our view, the trial court’s disregard of Guntharp’s expert opinions in

deciding Con-Way’s motion for summary judgment was error. While the

standard of care for motorists is to exercise the ordinary care required in the

circumstances presented, see, e.g., Fredericks v. Castora, 360 A.2d 696,

698 (Pa. Super. 1976), “[e]xpert testimony becomes necessary when the

subject matter of the inquiry is one involving special skills and training not

common to the ordinary lay person.”5 See, e.g., Storm v. Golden, 538

A.2d 61, 64 (Pa. Super. 1988). This Court has held that this principle

applies to truck drivers, since the skills and training required to operate a

5

The learned Dissent’s overreliance on the Fredericks case is misplaced

for at least two reasons. First, the issue in Fredericks was whether the two

defendant truck drivers should have been held to a higher standard of care

because they had more than twenty years of experience driving large trucks.

Fredericks, 360 A.2d at 698 (“[R]eference is made to the evidence that

both defendants were professionals who drove trucks for a living and had

done so for over 20 years.”). This Court concluded that that the truck

drivers’ level of experience was not a relevant consideration, concluding that

a “requirement that experienced truck drivers be subject to a higher

standard of care does not impress us as being a useful concept to infuse into

the law of vehicle negligence.” Id. In the present case, Hale’s level of

experience (or lack thereof) is entirely irrelevant to the determination of the

appropriate standard of care to be applied in this instance.

Second, to the extent that Fredericks can be read to stand for the

proposition that the standard of care for truck drivers is identical in every

respect to that of all other drivers of motor vehicles, it has been implicitly

overruled by subsequent decisions of this Court. As set forth in the text,

expert testimony regarding the standard of care is important when the

profession at issue involves special skills and training, and this Court has

identified the driving of large trucks as one such profession since the skills

and training required to operate a large truck are beyond the common

knowledge of lay persons. See Storm, 538 A.2d at 64; Christiansen, 667

A.2d at 404.

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large truck6 are beyond the common knowledge of lay persons.

Christiansen v. Silfies, 667 A.2d 396, 404 (Pa. Super. 1995) (“[I]t would

have been proper to have a qualified expert describe what the applicable

standard of care was [for truck drivers].”); see generally Brandon v.

Ryder Truck Rental, Inc., 34 A.3d 104, 108-09 (Pa. Super. 2011); Powell

v. Risser, 99 A.2d 454, 456 (Pa. 1953) (“[E]xpert testimony is necessary to

establish negligent practice in any profession.”).

Recently, in Thompson v. Ginkel, 95 A.3d 900 (Pa. Super. 2014),

this Court reiterated the following standard of review regarding consideration

of expert testimony when deciding a motion for summary judgment:

It has long been Pennsylvania law that, while

conclusions recorded by experts may be disputed,

the credibility and weight attributed to those

conclusions are not proper considerations at

summary judgment; rather, such determinations

reside in the sole province of the trier of fact, here, a

jury. Miller v. Brass Rail Tavern, Inc., 664 A.2d

525, 528 (Pa. 1995); In re Estate of Hunter, 205

A.2d 97, 102 (Pa. 1964) (“The credibility of

witnesses, professional or lay, and the weight to be

given to their testimony is strictly within the proper

province of the trier of fact.’”. Accordingly, trial

judges are required “to pay deference to the

conclusions of those who are in the best position to

evaluate the merits of scientific theory and technique

when ruling on the admissibility of scientific proof.”

Grady v. Frito–Lay, Inc., 839 A.2d 1038, 1045

(Pa. 2003) (citing Frye v. United States, 293 F.

1013 (D.C. Cir. 1923)).

6

The truck being operated by Hale in this case was approximately 67 feet in

length.

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At the summary judgment stage, a trial court is

required to take all facts of record, and all

reasonable inferences therefrom, in a light most

favorable to the non-moving party. Toy v. Metro.

Life Ins. Co., 928 A.2d 186, 195 (Pa. 2007). This

clearly includes expert testimony and reports

submitted by the nonmoving party or provided

during discovery; and, so long as the conclusions

contained within those reports are sufficiently

supported, the trial judge cannot sua sponte assail

them in an order and opinion granting summary

judgment. Contrarily, the trial judge must defer to

those conclusions, see Grady, Frye; and should

those conclusions be disputed, resolution of that

dispute must be left to the trier of fact. Miller, 664

A.2d at 528.

Id. at 905-06 (quoting Summers v. Certainteed Corp., 997 A.2d 1152,

1161 (Pa. 2010)).

It has been said that bad facts make bad law, and given the extremely

reckless nature of Hanright’s driving, this case may appear to be an example

of that principle. Guntharp’s expert report, however, when viewed in the

light most favorable to the Appellants as the non-moving parties, creates

issues of material fact for the jury to decide, including Hale’s standard of

care under the unique circumstances presented here and whether he

breached this standard of care. Because genuine issues of material fact

remain for a jury’s determination, we must reverse the trial court's grant of

summary judgment and remand the case for trial.

Order reversed. Case remanded for trial. Jurisdiction relinquished.

Allen, J. joins the Memorandum.

Strassburger, J. files a Dissenting Memorandum.

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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 2/20/2015

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