Schroeder v. Com., Dept. of Transp.

FLAHERTY, Chief Justice,

dissenting.

Although the majority opinion expresses a logical and persuasive approach, I believe, respectfully, that the majority approach is based on an incorrect, unnecessarily rigid application of Nanty-Glo Borough v. American Surety Co., 309 Pa. 236, 163 A. 523 (1932) and Pa.R.C.P. Rules 1035.1, 1035.2, and 1035.3. By refusing to acknowledge facts established in testimonial affidavits, the majority provides a skewed and misleading background for its legal rationale. Though the statement *254of facts is correct as far as it goes, it is more notable for what it omits.

Navistar International Transportation Corporation manufactured a truck cab and chassis and sold it to Sheets Truck Center, Inc. Sheets added a truck body to the chassis and sold the vehicle to Gary and Kelly Schroeder in September, 1988. The Schroeders removed the truck body and shortened the chassis, converting their large van into the front end of an “eighteen-wheeler.”

It was this radically altered tractor that Gary Schroeder was driving, hauling a flatbed trailer loaded with corrugated pipe, when he lost control of his tractor-trailer, resulting in the fatal accident of May 5, 1991.

Instead of pretending that Mr. Schroeder was driving a truck produced by appellees, the lower courts recognized the substantial alterations effected by the Schroeders prior to the accident. This factual conclusion led to a different result in the case, a result I believe is correct.

The reason for the majority’s denial of the obvious is that proof of the alterations is contained in testimonial affidavits, a questionable source of facts in the context of summary judgment proceedings. I think the holding in Nanty-Glo Borough v. American Surety Co., supra, and Pa.R.C.P. Rules 1035.1, 1035.2, and 1035.3 permit some flexibility in acknowledgement of facts set forth in testimonial affidavits,1 and this is the perfect case to admit such facts. With the affidavits, and the dozens of accompanying photographs, it is ludicrous to deny that the truck involved in the accident was a tractor-trailer fundamentally different from the van manufactured and sold by appellees. Appellant, relying on the Nanty-Glo rule, did not contradict the allegation that the truck had been substantially altered, nor could she, in conscience or reality. Like the *255emperor who wasn’t wearing any clothes, we would do well not to deny the obvious.

Both the trial court and the Commonwealth Court apparently relied on the testimonial affidavit of Thomas Nelson stating that, prior to the accident, the frame of the truck had been shortened by cutting it and welding it back together. Schroeder v. PennDOT, No. 92-6661 (C.C.P. of Washington County, 1995) (Slip op. at 4); Schroeder v. PennDOT, 676 A.2d 727, 730 (Pa.Cmwlth.1996). Appellant claims that reliance on a testimonial affidavit is a violation of the rule of Nanty-Glo Borough v. American Surety Co., 309 Pa. 236, 163 A. 523 (1932). Appellant, however, failed to preserve the issue of a Nanty-Glo violation. It was not set forth in the petition for allowance of appeal as a question for review and therefore will not ordinarily be considered by the court. Pa.R.A.P. 1115(a)(3). Furthermore, it was not included in the statement of questions involved in appellant’s brief but was only mentioned in a footnote to the brief, in clear violation of Pa.R.A.P. 2116(a), which constituted a failure to preserve the issue and resulted in waiver. But even without reliance on the controversial testimonial affidavit of Thomas Nelson setting forth “uncontested substantial alterations,” the Commonwealth Court was correct in holding that spoliation deprived appellants of the opportunity to determine if the vehicle had been abused or misused in such a way that the condition of the truck following its years of service caused the fatality rather than a design defect causing the fatality.

Recognizing the fundamental alteration of the truck after it left the hands of appellees, it is clear that spoliation of the evidence had a disastrous effect on appellees’ ability to defend the lawsuit. This is not a typical design defect case, in which every product is identical to every other so that if the vehicle involved in the accident is lost, any other vehicle could equally well be tested. Rather, the vehicle involved in the accident was distinctly different from the other vehicles manufactured and sold by appellees, and testing one of the other vehicles would fail entirely to duplicate the conditions of the Schroeder truck.

*256Therefore, in applying the test of Schmid v. Milwaukee Electric Tool Corp., 13 F.3d 76 (3d Cir.1994), I reach the opposite conclusion from the majority. Schmid suggested consideration of three factors:

(1) the degree of fault of the party who altered or destroyed the evidence; (2) the degree of prejudice suffered by the opposing party; and (3) whether there is a lesser sanction that will avoid substantial unfairness to the opposing party and, where the offending party is seriously at fault, will serve to deter such conduct by others in the future.

Schmid, 13 F.3d at 79. First, as between the parties, the fault is entirely on the side of appellant. Second, the prejudice to appellees is overwhelming. Third, no lesser sanction than summary judgment can overcome the prejudice suffered by appellees.

There was therefore no error, in my view, in granting summary judgment in favor of International, the manufacturer, and Sheets, the seller. The remaining issue is whether it was error to grant summary judgment in favor of PennDOT, whose liability is predicated not on the condition of the truck but on the condition of the roadway.

Appellant argues that her cause of action against PennDOT is for negligent maintenance, design, and care of the roadway. She argues that she must demonstrate only the existence of a dangerous condition and that the dangerous condition caused the accident. The existence of a dangerous condition is a question of fact, precluding summary judgment. Bendas v. Township of White Deer, 531 Pa. 180, 611 A.2d 1184 (1992); Underwriters at Lloyds London v. PennDOT, 145 Pa.Cmwlth. 268, 603 A.2d 241 (1992).

PennDOT’s response is that, although contributory negligence is not a defense in a products liability case, it is a defense in a negligence case; the condition of the Schroeder vehicle was therefore a critical element in defending the case against PennDOT. It claims that appellant’s failure to preserve unique evidence prevented PennDOT from rebutting appellant’s theory of liability with traditional tort defenses of *257plaintiffs contributory negligence as well as the comparative percentages of causal negligence of co-defendants. PennDOT claims that examination of a generic truck is useless to determine the extent to which Schroeder’s used and altered vehicle contributed to causing the accident. The question of causation is also critical in determining the applicability of the defense of sovereign immunity.

The cause of action against PennDOT relies entirely on the allegation that the road condition (and not the operation or condition of the truck) caused the decedent to lose control. This allegation requires a plaintiff to prove that his case falls within the Sovereign Immunity Act, 42 Pa.C.S. § 8522 et seq. He must prove that (1) the cause of action is one for which recovery may be had at common law or by statute; (2) the cause of action is one of nine enumerated exceptions to sovereign immunity; and (3) the plaintiffs injuries were caused by the negligence of the commonwealth defendant. The real property exception to the Sovereign Immunity Act is to be narrowly construed so as to waive immunity only when the commonwealth realty itself causes injury and not when injury is caused by a dangerous motor vehicle or human condition on the land. Snyder v. Harmon, 522 Pa. 424, 562 A.2d 307 (1989).

Appellant’s argument presumes causation by preventing PennDOT from rebutting the issue with the decedent’s contributory negligence or an apportionment of negligence among the co-defendants. It also ignores the fact that sovereign immunity is not waived if a mechanical defect of the Schroeder vehicle caused it to leave the road or fail to return safely to the road. In this case, when the operator is unavailable to testify and there are no eyewitnesses to the accident, Penn-DOT’s sole means of challenging appellant’s theory of causation is to have an expert reconstruct the accident. Appellant’s failure to preserve the wreckage of the truck does not permit this, leaving PennDOT in a position tantamount to strict liability for the accident. To permit the action to proceed against PennDOT would impermissibly remove contributory negligence as an available defense. I conclude that spoliation *258of the wreckage was at least as harmful to PennDOT’s defense as it was to the defenses of International and Sheets, so there was no error in granting summary judgment to PennDOT.

Accordingly, I would affirm the order of the Commonwealth Court.

CASTILLE, J., joins this dissenting opinion.

. The note following Pa.R.C.P. 1035.2 states: "Oral testimony alone, either through testimonial affidavits or depositions, of the moving party or the moving party’s witnesses, even if uncontradicted, is generally insufficient to establish the absence of a genuine issue of material fact.” (Emphasis added; citing Nanty-Glo v. American Surety Co., supra, and Penn Center House, Inc. v. Hoffman, 520 Pa. 171, 553 A.2d 900 (1989).)