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FLICKINGER ESTATE ET AL. v. RITSKY (05/23/73)

decided: May 23, 1973.

FLICKINGER ESTATE ET AL., APPELLANTS,
v.
RITSKY



Appeal from order of Superior Court, Oct. T., 1970, No. 1675, affirming decree of Court of Common Pleas of Centre County, Oct. T., 1969, No. 104, in re estate of George M. Flickinger, II, by George M. Flickinger, administrator, and George M. Flickinger and Veney R. Flickinger, in their own right v. Ronald A. Ritsky and Marona Construction Company.

COUNSEL

Richard L. Campbell, with him John R. Miller, and Miller, Kistler, Lee and Campbell, for appellants.

Richard H. Wix, with him Metzger, Wickersham, Knauss & Erb, for appellee.

Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Justice Pomeroy.

Author: Pomeroy

[ 452 Pa. Page 70]

On September 28, 1968 George Flickinger, II, appellants' decedent, was driving his motorcycle northward

[ 452 Pa. Page 71]

    on U. S. Route 422, a four-lane highway in Patton Township, Centre County. At the same time, defendant Ritsky, driving his own automobile, pulled onto the highway from a "Dairy Queen" parking lot on the easterly side of the highway. Ritsky's car and Flickinger's motorcycle collided, resulting in the death of the cyclist. A week prior to this occurrence, defendant-appellee Marona Construction Company [hereinafter "Marona"] had, in the course of laying a sanitary sewer line, piled dirt from the sewer excavation onto the berm of the highway. The dirt pile was located 138 feet south of the point at which Ritsky exited from the parking lot and in the direction from which Flickinger approached the point of collision.

Flickinger's father, as administrator of his son's estate, filed a survival action against Ritsky (on the theory that he was negligent in entering the highway without an adequate view of the oncoming traffic) and against Marona (on the theory that the construction company was negligent in permitting a pile of dirt to obstruct the vision of drivers such as Ritsky), and joined that action with a wrongful death action on the same theories. The cases were settled as to Ritsky, who executed a joint tortfeasor release, but the actions against Marona were tried and resulted in a jury verdict for plaintiffs in the sum of $18,500. The lower court granted Marona's motion for judgment n.o.v., and the Superior Court affirmed.*fn1 We granted allocatur to consider the question of proximate causation presented in light of our decision in White v. Rosenberry, 441 Pa. 34, 271 A.2d 341 (1970), and Clevenstein v. Rizzuto, 439 Pa. 397, 266 A.2d 623 (1970).

It is the contention of appellee Marona that its negligence in permitting a pile of dirt to remain on the

[ 452 Pa. Page 72]

    berm of the highway merely created a "passive condition" upon which Ritsky's negligence acted and that Ritsky's conduct was a superseding cause as a matter of law.*fn2 Appellee cites Cotter v. Bell, 417 Pa. 560, 208 A.2d 216 (1965); Kite v. Jones, 389 Pa. 339, 132 A.2d 683 (1957); Listino v. Union Paving Co., 386 Pa. 32, 124 A.2d 83 (1956); DeLuca v. Manchester Laundry and Dry Cleaning Co., 380 Pa. 484, 112 A.2d 372 (1955) as decisions in which this Court has held, using language such as "defendant's negligence was merely a passive background or circumstance of the accident", that proximate causation could not as a matter of law be established. Appellant, on the other hand, argues that Cotter v. Bell, supra, and its predecessors were in effect overruled by Clevenstein v. Rizzuto, supra.

Both Cotter and Clevenstein were cases in which the question of superseding causation was raised at a preliminary stage of the case. In Cotter we affirmed the grant of judgment on the pleadings in favor of the defendant who was "passively" negligent, whereas in Clevenstein we reversed the grant of judgment on the pleadings granted in favor of the defendant. Mr. Justice Eagen, who authored both opinions for the Court, pointed out in Clevenstein that "Cotter was the first instance wherein we decided the question of superseding cause in the context presented at a preliminary stage in the pleadings, whereas in other relevant cases the question was resolved only after the facts were developed at trial." Justice Eagen then wrote in Clevenstein : "Cotter might ...


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