Stong v. Commonwealth, Department of Transportation

DISSENTING OPINION BY

Judge FRIEDMAN.

I must respectfully, but strongly, dissent to the majority’s determination in this case with respect to both the appeal of the Commonwealth of Pennsylvania, Department of Transportation (DOT) and the appeal of Marsha Stong (Stong). I would deny DOT’S appeal and affirm the October 5, 2001, order of the Lycoming County Court of Common Pleas, 19th Judicial District (trial court) granting Stong a new trial as to defendant DOT; further, I would grant Stong’s appeal and reverse the trial court’s denial of Stong’s request for a new trial as to defendant Sabrina C. Day (Day).

As the majority recounts, this case arises from a tragic car-pedestrian collision between eleven-year-old Robert Stong (Robert) and an automobile driven by Day on a bridge owned by DOT. Stong filed a wrongful death and survival action against both DOT and Day seeking to recover damages. In Count I of Stong’s Complaint, Stong alleged that DOT’s negligent failure to correct the dangerous and defective conditions of the bridge, i.e., its narrow lanes and absence of adequate shoulders, was a direct, substantial and proximate cause of Robert’s death. In Count II of the Complaint, Stong alleged that Day’s negligent operation of her vehicle, including her failure to properly slow, swerve or take evasive actions to avoid striking Robert, also was a direct, substantial and proximate cause of his injuries and death. (O.R., Stong’s Complaint.)

A jury trial began on May 25, 2001, during which various witnesses presented testimony as to the condition of the bridge and the way in which the accident happened. Following trial, the jury issued a verdict in favor of defendants DOT and Day. The jury, in answer to special verdict questions, found that DOT was negligent but that the negligence was not a substantial factor in causing Robert’s death. The jury found that Day was not negligent. Importantly, because of these responses, the jury did not reach the question of whether Robert was contributorily negli*587gent or whether his negligence, if any, was a substantial factor in causing the fatal accident. (S.R. at 37B-38B.) Subsequently, Stong filed post-trial motions seeking judgment notwithstanding the verdict (JNOV) or a new trial, (R.R. at 157a-69a), asserting that the verdict was against the weight of the evidence and contrary to law with respect to both defendants.

In an order dated October 5, 2001, the trial court granted Stong’s request for a new trial as to DOT but otherwise denied Stong’s motion for post-trial relief. In an opinion issued in support of its order, the trial court explained its refusal to accept the jury verdict with regard to DOT, stating, “once [DOT’s] negligence was established[,] this [c]ourt cannot understand under the facts and the law as to how such negligence could not be a substantial factor in causing the accident and resulting death of Robert Stong.” (Trial ct. op. at 21-22.) However, upholding the jury’s verdict that Day was not negligent, the trial court concluded that “the evidence and the testimony was sufficient to support the finding Ms. Day operated prudently.” (Trial ct. op. at 31.) Both DOT and Stong appealed from the trial court’s order.

Initially, I note that this court's scope of review of a trial court’s ruling on a motion for a new trial is limited to determining whether the trial court committed an error of law controlling the outcome of the case or abused its discretion. Williams v. Southeastern Pennsylvania Transportation Authority, 741 A.2d 848 (Pa.Cmwlth.1999), appeal denied, 563 Pa. 680, 759 A.2d 925 (2000). A new trial should be awarded when the jury’s verdict is so contrary to the weight of the evidence as to shock one’s sense of justice, and the award of a new trial is imperative so that right may be given another opportunity to prevail. Thompson v. City of Philadelphia, 507 Pa. 592, 493 A.2d 669 (1985). If support for the trial court’s decision to grant a motion for a new trial is found in the record, the trial court has acted within the limits of its judicial discretion and the order must be affirmed. Randt v. Abex Corporation, 448 Pa.Super. 224, 671 A.2d 228 (1996). A new trial should not be granted because of a mere conflict in testimony or because the trial judge on the same facts would have arrived at a different conclusion. Thompson. It is with these standards in mind that I now consider the appeals before us.

I. DOT’s Appeal

The jury here found that DOT negligently faded to remedy the dangerous condition of the bridge. However, for a negligent actor to be hable for another’s harm, the actor’s negligence must be a legal cause of the harm.1 Restatement (Second) of Torts § 430 (1965). In an analysis of “legal cause,” the question becomes whether the defendant’s negligent conduct was a “substantial factor” in bringing about the harm,2 Ford v. Jeffries, 474 Pa. 588, 379 A.2d 111 (1977); Restatement (Second) of *588Torts § 431(a) (1965), and, in this case, the jury concluded that DOT’s negligence did not fit within this definition. Whether a defendant’s negligent conduct is a substantial factor in causing an injury to another is a question for the jury where reasonable minds may differ in that regard. See Vattimo v. Lower Bucks Hospital, Inc., 502 Pa. 241, 465 A.2d 1231 (1983); Ford; Restatement (Second) of Torts § 434 (1965).

On appeal, DOT maintains that evidence was introduced on which reasonable minds could differ and that the record contained substantial evidence from which the jury could determine that DOT’s negligence was not a substantial factor in bringing about Robert’s harm. Specifically, DOT points to testimony that Robert would not have been struck if he had stayed to the right of the fog line and not entered the road, that Robert never looked before entering the roadway, and that Day never left her lane. DOT contends that it was perfectly reasonable for the jury to conclude from this evidence that, notwithstanding the narrow bridge, Robert’s negligent failure to look for oncoming traffic before stepping into the roadway was the sole cause of the accident. Thus, DOT argues that the trial court improperly invaded the province of the jury when it substituted its judgment on issues of credibility and causation and abrogated the jury’s verdict. Unlike the majority, I would disagree.

I recognize that credibility determinations are for a jury and that, where there is conflicting evidence regarding causation, a jury is entitled to believe, or disregard, any portion of a witness’s testimony. Randt. However, contrary to DOT’s claim, accepted by the majority, I disagree that the record here contains causation evidence which could lead a jury to believe that the dangerous condition of the bridge was not a legal cause, i.e., a substantial factor, in bringing about Robert’s death. All the witnesses noted the narrowness of the bridge and its lack of shoulders or pedestrian walkways, and all remarked on the way this factor contributed to the accident. The testimony was clear that Robert was at the bridge curb, looking over the railing, when cars approached from either end of the bridge and that, in leaving this position, Robert merely stood and turned; the boy had not completed even one step when he collided with Day’s vehicle, even though that car remained in its travel lane.

A defendant’s negligent conduct is not a substantial factor in bringing about harm to another if the harm would have been sustained even if the defendant had not been negligent. See Restatement (Second) of Torts § 432(1) (1965).3 With its argument, DOT suggests that this is the case here. However, the evidence in the record establishes that, absent the dangerous condition of the bridge, the fatal collision between Robert and Day’s vehicle never would have occurred. Indeed, in considering the undisputed evidence, the trial court was prompted to remark, “[c]ertainly, had there been anything near a sufficiently wide walkway for Robert Stong to be on, his turning and lifting a leg without even taking one step would not have resulted in his being struck by Ms. Day’s automobile.” (Trial ct. op. at 24.)

*589Moreover, if a negligent act creates or increases the risk of a particular harm, and that harm comes about, the negligent act should be regarded as a substantial factor. See Restatement (Second) of Torts § 4B5 (1965). In fact, “if the actor should have realized that his conduct might cause harm to another in substantially the manner in which it is brought about, the harm is universally regarded as the legal consequence of the actor’s negligence.” Restatement (Second) of Torts § 435 cmt. b (1965) (emphasis added). Here, the undisputed testimony indicates that this bridge has heavy vehicular traffic and is used regularly by pedestrians, yet the shoulder is so narrow that a person crossing the bridge is unable to make even a normal movement without intruding on the roadway. Clearly, DOT should have realized that its failure to widen the bridge, or take other pedestrian safeguards, might cause injury to a pedestrian when, because two vehicles are crossing the bridge at the same time, the customary and necessary buffer zone cannot be provided.4

In this case, the trial judge determined that, to avoid an injustice to Stong, it was necessary to grant a new trial relating to DOT’s liability. The trial judge reasoned that, once the jury found DOT negligent with regard to the narrowness of the bridge, it was not possible under the facts and the law for that narrowness to be insignificant in bringing about the occurrence of the accident, particularly where the jury found that Day was not negligent at all. Given the factual context, I would conclude that the trial court did not abuse its discretion when it found that the jury’s contrary result shocked its sense of justice. In a cogent and persuasive analysis, the trial court stated:

The testimony and site view led the jury to find that [DOT] was negligent. Such a determination was clearly and firmly supported by the evidence. There is no denying the fact that [DOT] was very much aware of the heavy traffic use of this bridge, its use by pedestrians and bicycles and its extreme narrowness as evident by the fact that [DOT] continuously widened the traffic lanes since the bridge had been constructed in 1938 to accommodate the increased traffic and the increased width of automobiles. As a result!,] the width between the edge of the rebuilt sides of the bridge to the fog line that marked the edge of the traveled lanes for vehicles had been reduced to 15% inches. There are many bases upon which [DOT] could have been negligent. One of the most obvious is that [DOT] did not provide for adequate width for pedestrian and non-motor travel across this well-used bridge. Given the high volume of traffic, over 4,700 vehicles per day, it was certainly obvious to [DOT] that vehicles would pass by each other as they crossed the bridge. [DOT] was also likely aware of the ... custom vehicles had of driving into the opposite lane when passing by a pedestrian or bicyclist as testified by Mr. Robson.... If the jury found, as it must have, that [Day] did all she could to avoid the accident, including driving as far to the left as the bridge and traffic permitted, then the bridge’s narrow width had to be a legal cause of the accident.

(Trial ct. op at 22-23.) Because I agree with this reasoning, I would deny DOT’s appeal and affirm the trial court to the extent that it grants a new trial with re*590gard to DOT’s liability.5

II. Stong’s Appeal

As stated previously, a new trial will not be granted on the basis of a weight of the evidence claim unless the evidence supporting the verdict is so inherently improbable or at a variance with admitted or proven facts or with ordinary experience as to render the verdict shocking to the court’s sense of justice. Rittenhouse v. Hanks, 777 A.2d 1113 (Pa.Super.2001), appeal denied, 568 Pa. 686, 796 A.2d 318 (2002). In such a case, the award of a new trial is imperative so that right may be given another opportunity to prevail. Randt. Stong asserts that this is such a case and that the trial court erred in determining that the evidence adduced at trial failed to establish negligence on the part of Day. Unlike the majority, I would agree.

In taking this position, I recognize that an appellate court may not substitute its opinion concerning the weight of the evidence for that of a trial judge. Summers v. Giant Food Stores, Inc., 743 A.2d 498 (Pa.Super.1999), appeal denied, 564 Pa. 713, 764 A.2d 1071 (2001). Therefore,. in reviewing the record to determine the propriety of a new trial here, this court must consider whether the trial judge’s reasons and factual basis for denying a new trial with respect to Day can be supported; unless- facts and inferences of record disclose a palpable abuse of discretion, the judge’s reasons should prevail. Thompson; Summers. However, after careful review of the record here, viewed in the light most favorable to Day, the verdict winner, I must conclude that it neither supports the jury’s verdict nor the reasoning employed by the trial court to uphold that verdict.

In sustaining the jury’s determination that Day was not negligent, the trial court provided the following analysis:

The jury resolved the factual issues relating to Sabrina Day, driver of the automobile, to indicate that she did not act in a negligent way in operating her vehicle. This determination was based on substantial evidence to that effect. Under the evidence as presented to the jury, the jury could have concluded one of several possible factual scenarios, including: (a) that Sabrina Day never saw the child until she struck him;[6] (b) that she saw the child as she testified, but took little or no evasive or precautionary action to avoid striking the child;[7] [or (c)] she saw the child. She braked lightly and moved as far to the left as she could have without striking the other car and[,] in doing so[,] drove prudently as a reasonable driver would do under the circumstances ([DOT’s] negligence was obviously one of those circumstances, i.e., they may have considered [that the] bridge width severely limited Ms. Day’s ability to avoid the *591accident).[8] Obviously, the jury chose the latterf,] or a variant thereof, which they were entitled to do.

(Trial ct. op. at 29.) Thus, the trial court concluded that the jury accepted Day’s testimony as credible and that this testimony was sufficient to support the jury’s finding that Day operated her vehicle prudently.9

Challenging this reasoning, Stong asserts that, even if the jury believed that Day moved over some amount and slowed her car “a little,” this still was insufficient to constitute prudent, non-negligent action. According to Stong, Robert was in a position of danger while on the narrow bridge, as evidenced by the jury verdict finding DOT negligent for maintaining the bridge in that condition. Thus, Stong asserts that the only safe, reasonable and non-negligent course for Day to have taken was to have slowed her vehicle to the point where the other vehicle crossed the bridge first, even if this meant stopping her vehicle, and then to have moved as far over as possible while crossing the bridge. Stong contends that anything less represents Day’s failure to have her vehicle under sufficient control to prevent injuring Robert, and, therefore, when the jury did not recognize this clear negligence on the part of Day, the trial court should have granted JNOV or ordered a new trial.

Even without accepting the extreme precautions suggested by Stong as the only non-negligent behavior,10 I must reject the trial court’s reasons for denying a new trial here because those reasons are belied by the irrefutable physical facts of the case.

Day claims that she slowed slightly and moved as far to the left as safely possible in order to avoid hitting Robert, and the trial court bases its decision on the obvious fact that the jury believed this version of events. However, I note that Day’s traffic lane was 104 inches wide and Day’s car was sixty-eight inches wide; thus, if Day had gone as far to the left as possible, there would have been thirty-six inches of roadway before the fog line and up to another fifteen inches of shoulder past the fog line. There is no evidence that Robert took more than a half step toward the roadway, and, clearly, a half step would not have carried Robert over a distance exceeding four feet. Yet, the undisputed testimony was that this half step took Robert just over the fog line and into the side of Day’s car. Therefore, the inevitable conclusion must be drawn that Day’s car was not positioned in the lane as far to the left as safely possible. In fact, Day’s car had to have been positioned as far to the right as possible in the lane. To conclude *592otherwise is to accept a mathematical impossibility.

Of course, the jury might have believed that Robert was not in any peril until he placed himself in that position when he turned and stepped into the roadway without looking for oncoming traffic.11 In that case, the jury may have believed that Day acted prudently merely by staying in her own lane and adhering to the forty mile-per-hour speed limit. Although such a conclusion might be proper under ordinary circumstances, it ignores the facts and law presented here. In this regard, I note the trial judge’s charge to the jury that “if you find that ... Day violated ... section [3361] of the Vehicle Code, then you must find that she was negligent.” (R.R. at 150a.) That section provides, in pertinent part:

No person shall drive a vehicle at a speed greater than is reasonable and prudent under the conditions and having regard to the actual and potential hazards then existing, nor at a speed greater than will permit the driver to bring his vehicle to a stop within the assured clear distance ahead. Consistent with the foregoing, every person shall drive at a safe and appropriate speed when ... traveling upon any narrow or winding roadway and when special hazards exist with respect to pedestrians or other traffic or by reason of ... highway conditions.

75 Pa.C.S. § "3361. The trial court also instructed the jury in accordance with Fama v. Smith, 303 Pa.Super. 414, 449 A.2d 755 (1982). In pertinent part, that charge states as follows:

The driver of an automobile on a public highway is guilty of negligence is [sic] the driver in the exercise of due care fails to control his or her vehicle in such a way as to avoid striking and injuring a child who is in a place of danger[,] or where there is a reasonable apprehension that a child might run into a place of danger for a sufficient amount of time for the driver to observe the child and bring his or her vehicle under control. Where there is a reasonable apprehension that a child might run into or move into a place of danger or injury by an automobile, there is a duty imposed on the operator thereof to exercise a higher degree of care than under ordinary circumstances; and to have the car under such control that it can be stopped on the shortest possible notice that harm may be inflicted.... In other words, it is necessary for the evidence in the [Stongs’] case to establish that the child was visible to the driver for a sufficient length of time so as to give the driver a reasonable opportunity to avoid the accident.

(R.R. at 151a-52a.)

In this case, Day admits that she knew the bridge was narrow, that she saw Robert as soon as she entered the bridge but did not believe Robert saw her, that a car coming in the opposite direction restricted her movement away from Robert’s position and that she probably could have avoided the accident by braking when she saw Robert. Despite these extraordinary circumstances, Day concedes that she slowed very little and, although she claims to have moved as far as possible to the left, the irrefutable facts say otherwise. Therefore, even if the jury were to believe Day’s account of the events, they could not say that she took the precautions necessitated *593by the circumstances and proceeded with the care those circumstances required.

Accordingly, I would hold that a new trial is warranted as to the liability of Day, and I would reverse the trial court’s denial of Stong’s post-trial motion requesting such trial.12

Judge SMITH-RIBNER joins in this dissent.

. To set forth a prima facie case in a negligence action, a plaintiff must establish that: (1) he was owed a duty of care; (2) the duty was breached; (3) he was injured; and (4) the breach of duty was the proximate, or legal, cause of his injuries. Summers v. Giant Food Stores, Inc., 743 A.2d 498 (Pa.Super.1999), appeal denied, 564 Pa. 713, 764 A.2d 1071 (2001).

. The word "substantial” is used to denote the fact that the defendant’s conduct has such an effect in producing the harm as to lead reasonable persons to regard it as a cause, using that word in the popular sense, which connotes the idea of responsibility, rather than in the so-called “philosophical sense,” which includes all those events without which the harm would not have occurred but yet had so insignificant an effect that no ordinary mind would think of them as causes. Restatement (Second) of Torts § 431 cmt. a (1965).

. This subsection is most often applied where the actor’s negligent conduct consists of a failure to take required precautions to protect another's person or property. In such a case, if the same harm, both in character and extent, would have been sustained even if the actor had taken the proper precautions, his failure to do so cannot be a substantial factor in producing the harm. Restatement (Second) of Torts § 432(1) cmt. b (1965).

. During his testimony, Lance Robson noted that, while he was on the bridge doing his investigation, the traffic coming toward him would go two to three feet into the opposing lane to leave a proper buffer for him. (R.R. at 71a.)

.I also agree with the trial court that the only possible explanation for the jury’s determination that DOT’s negligence was not a substantial factor in bringing about the harm was because the jury looked ahead to the issue of whether the child himself was negligent. However, "such speculation does not alleviate the erroneous nature of the jury's conclusion that [DOT's] negligence was not a substantial factor in bringing about [Robert’s] harm, especially since the jury did not answer the interrogatories related to contributory negligence.’’ Craft v. Hetherly, 700 A.2d 520, 523 (Pa.Super.1997).

6. See Tammy Hamilton's testimony, R.R. at 86a.

7. See Tammy Hamilton’s testimony, R.R. at 83a, 85a; John Counts’ testimony, R.R. at 10a, 15a, 18a; Lance Robson’s testimony, R.R. at 61a, 75a-76a.

8. See Officer Arthur Paul Wilson’s testimony, R.R. at 27a; Day’s testimony, R.R. at 109a-12a.

. As described by the trial court, Day "saw the child and took note of his position, which at that point was not necessarily one of peril. [A]s she proceeded across the bridge, she did so in an appropriate manner moving as far as she reasonably could to the left and away from the position of the child on the bridge, •with her moving to the left limited due to an approaching automobile and the narrowness of the bridge." (Trial ct. op. at 30-31.)

. Nevertheless, based on the description of the bridge, I must acknowledge Stong’s point. It seems that the only way a pedestrian or bicyclist can cross this bridge in absolute safety at the same time that two cars attempt to cross in opposite directions is if: (1) the pedestrian stops and waits at the bridge curb until the cars pass; or (2) the car closest to the pedestrian stops to let the other car proceed, so that the closer car can move safely away from the pedestrian. I do not believe that Day was entitled to assume that Robert would do the former, particularly when she admitted that she did not believe Robert was aware of her vehicle on the road, and it is clear that Day did not do the latter.

. The jury seems to hold Robert ■virtually 100% responsible for the accident. However, as noted previously, the jury never reached the question of Robert’s contributory negligence.

. In her appeal, Stong also asserted that the trial court improperly charged the jury with respect to Robert's negligence, and, in its opinion, the trial court explained why it found no merit in Stong’s assertion that the trial court’s charge to the jury on the duty of a pedestrian crossing between intersections was erroneous and unfairly prejudicial to Stong. (Trial ct. op. at 31-33.) However, because of my disposition on Stong’s first challenge to the denial of a new trial with regard to Day, I would not need to address this additional charge of error.