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BRADSHAW v. RAWLINGS

January 9, 1979

Donald BRADSHAW, Alfred Cuneo and Carole Cuneo
v.
Bruce D. RAWLINGS, Borough of Doylestown, Delaware Valley College, Marjorie E. Moyer t/a Sunny Beverages, Maennerchor Society



The opinion of the court was delivered by: CAHN

MEMORANDUM AND ORDER

Pending before the court are post-trial motions by three of the defendants and by all of the plaintiffs. *fn1" The jury trial was bifurcated and in the first phase of the case all of the defendants were found liable except the Maennerchor Society. *fn2" In the second phase of the case the jury awarded Donald Bradshaw $ 1,108,067, and awarded the other plaintiffs (Bradshaw's mother and stepfather) the sum of $ 5,000 each. *fn3"

 I. FACTUAL BACKGROUND

 Union Street is colloquially known as "Dip Street." The dips were constructed many years ago to serve as channels to carry surface water runoff across Union Street. The plaintiffs named the Borough of Doylestown (Borough) as a defendant on the ground that the dips constituted a dangerous and defective condition in the cartway. The plaintiffs also alleged that the Borough failed to warn drivers approaching the dips about the hazard. Persons who reside near the intersection of Union Street and Harvey Avenue testified that on weekend afternoons they would sit on their porches and observe the difficulties encountered by drivers on Union Street crossing the dips. Occasionally when vehicles traversed the dips they would become disabled or parts of the vehicle would fall off.

 Marjorie E. Moyer, trading as Sunny Beverages (Sunny), had supplied six or seven half barrels of beer to the officers of the sophomore class at the College. The plaintiffs allege that Sunny was liable for damages caused by the furnishing of alcoholic beverages to persons who it knew or should have known were under twenty-one years of age. With this factual background in mind, I will now turn to the various legal issues raised by the post-trial motions.

 II. THE ALCOHOL ISSUE

 The College and Sunny seek judgment notwithstanding the verdict or a new trial on the ground that it was error to submit the alcohol issue to the jury. In accordance with Pennsylvania law a preliminary hearing was held prior to jury selection to determine whether or not evidence of the driver's alleged intoxication would be allowed. *fn5" At the conclusion of the preliminary hearing I ruled that there was sufficient evidence for a jury to make a reasonable inference that Rawlings' use of alcohol rendered him unfit to drive and that it would not be unfairly prejudicial to permit the presentation of that evidence. Morreale v. Prince, 436 Pa. 51, 53, 258 A.2d 508 (1969).

 At trial the evidence on this issue included testimony from members and officers of the class who arranged for the picnic and were in attendance on the date of the accident. Members of the class were invited to the picnic without paying a fee and draught beer was served in unlimited amounts. The driver Rawlings was at the picnic for a number of hours and was observed drinking beer from a mug which held twelve to sixteen ounces of liquid. At the end of the picnic Rawlings appeared to be "high" and "loose". There were approximately seventy-five students at the picnic, and six or seven half kegs of beer were consumed. The class president testified that Rawlings, after driving away from the picnic ground, returned at a high rate of speed and then operated his vehicle in a circular manner on a grassy field so as to dislodge the turf. The students who testified on this subject referred to his vehicular maneuver as a "donut." The class president testified that as a result of Rawlings' driving behavior he yelled at him to leave the picnic grounds immediately. Bradshaw stated that Rawlings had five or six mugs of beer in his presence and Rawlings admitted to drinking three or four mugs of beer. One witness opined that Rawlings was under the influence of alcohol. Also, Rawlings claims to have no recollection of what occurred from the end of the picnic until after the time of the accident. It is true there was some evidence that Rawlings was not intoxicated. However, on a motion for judgment notwithstanding the verdict, the verdict should not be disturbed if there is competent evidence to support it. Fireman's Fund Ins. Co. v. Videfreeze Corp., 540 F.2d 1171, 1178 (3d Cir. 1976), Cert. denied, 429 U.S. 1053, 97 S. Ct. 767, 50 L. Ed. 2d 770 (1977). Here the evidence clearly created a jury issue on the question of intoxication.

 In my view Greiner v. Volkswagenwerk Aktiengeselleschaft, 540 F.2d 85 (3d Cir. 1976), is controlling. In Greiner the driver had a modest amount to drink but other factors were sufficient to permit the trial judge to submit the alcohol issue to the jury. In the case at bar the amount of alcohol admittedly consumed is greater than that of the driver in Greiner, and there is, as well, evidence of Rawlings' erratic driving at the picnic grounds. Although there was no direct testimony of excessive speed on the part of Rawlings between the picnic ground and the scene of the accident, the jury could infer excessive speed from the evidence that both the Saab and the parked vehicle were total losses, from the position of the vehicles after the impact, and from the testimony of other passengers who shortly before the accident became concerned about the manner in which Rawlings was driving. Nor is the fact that some witnesses refused to describe Rawlings as dead drunk, inebriated, or unable to walk in a balanced manner, grounds for taking the alcohol issue from the jury. Here the amount of beer consumed by Rawlings, the close proximity of time between the end of the picnic and the time of the accident, evidence of wild driving at the picnic ground, the inexperience of Rawlings with alcoholic beverages and the force of the impact lead to an inescapable conclusion that alcohol was a substantial factor in causing this accident. This conclusion is further buttressed by Rawlings' inability to account for what occurred during the time period from the end of the picnic to the point of the accident. See Risbon v. Cottom, 387 Pa. 155, 159, 127 A.2d 101 (1956).

 The College contends that the plaintiff presented no evidence that Rawlings' use of alcohol was a cause of the accident. Pennsylvania law, however, does not require specific evidence of causation in a case of alleged intoxication. Where the issue is negligent driving, the fact of an accident coupled with evidence of impaired driving ability due to the consumption of alcohol, is sufficient to provide the basis for a jury inference of causation. Majors v. Brodhead Hotel, 416 Pa. 265, 272, 205 A.2d 873 (1965).

 The College further contends that even if the consumption of alcohol was a substantial factor in causing the accident, it is not liable on a negligence basis because it had no duty to supervise the sophomore class picnic unless it had reason to believe that an inherently dangerous activity would be conducted at that affair. The College relies on Rubtchinsky v. State University of N. Y. at Albany, 46 Misc.2d 679, 260 N.Y.S.2d 256 (1965). In this case the trial judge decided questions of fact and law. There the plaintiff was injured in a pushball game between freshmen and sophomores. The basis of the decision was that the defendant owed no duty to the plaintiff in that factual context and that the plaintiff assumed the risks of the game. Here the facts are much different. The sophomore class advisor, a faculty member, participated with the class officers in planning the picnic, assisted in the disbursement of funds to purchase alcoholic beverages, and yet failed to attend the picnic. Nor did he obtain another faculty member to attend the picnic as his substitute. The College administration printed flyers notifying the sophomore class of the date and place of the picnic, and these flyers, containing drawings of beer mugs, were prominently displayed across the campus. Also, the internal regulations of the College prohibited the use of intoxicants by students under the age of twenty-one years. Thus the College, by its own regulations, recognized the inherent danger in the use of alcohol by immature students.

 In essence, the College urges that it cannot be negligent in this fact situation because it had no duty to the plaintiff to supervise the sophomore class picnic at an off-campus location. However, an educational institution may be held liable for negligence in its supervision of extracurricular activities. In Chappel v. Franklin Pierce School District, No. 402, 71 Wash.2d 17, 426 P.2d 471 (1967), the duty of due care in supervising extracurricular activities was applied to a Key Club initiation. In Chappel, the court reversed a dismissal of plaintiff's case, holding that evidence of negligence in supervising off-campus activities warranted a submission of the negligence issue to a jury. There is a close similarity between the evidence in Chappel and the facts of the case at bar. In both cases the faculty advisor helped plan the event but failed to attend or arrange for a properly advised substitute. Also, in both cases the activity was contrary to the ...


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