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WILLIAM MATSKO v. HARLEY DAVIDSON MOTOR COMPANY (02/24/84)

filed: February 24, 1984.

WILLIAM MATSKO
v.
HARLEY DAVIDSON MOTOR COMPANY, INC., APPELLANT, V. T.J. COSTELLA, JR., AND UNIONTOWN HARLEY DAVIDSON COMPANY. WILLIAM MATSKO V. HARLEY DAVIDSON MOTOR COMPANY, INC. V. T.J. COSTELLA, JR., AND UNIONTOWN HARLEY DAVIDSON COMPANY. APPEAL OF UNIONTOWN HARLEY DAVIDSON COMPANY



No. 18 Pittsburgh, 1982, No. 67 Pittsburgh, 1982, Appeal from the Order and Judgment of the Court of Common Pleas, Washington County, Civil Division, at No. 261 May Term, 1977 AD.

COUNSEL

Herbert N. Rosenberg, Pittsburgh, for Harley Davidson, appellant (at No. 18) and appellee (at No. 67).

John Edward Wall, Pittsburgh, for Uniontown Harley, appellant (at No. 67) and appellee (at No. 18).

Sanford S. Finder, Washington, for Matsko, appellee.

Robert N. Clarke, Washington, for Costella, appellee.

Cavanaugh, Brosky and Montgomery, JJ. Cavanaugh, J., notes his dissent.

Author: Brosky

[ 325 Pa. Super. Page 454]

This appeal is from judgment on the verdict in a civil case concerning a motorcycle accident. Plaintiff/appellee was the owner/rider of the vehicle and appellants are its manufacturer and seller. Appellants raise, collectively, 14 different

[ 325 Pa. Super. Page 455]

    issues for our review. Seven of these are addressed substantively in the following opinion and in seven we rely upon the opinion of the court below. On all issues we hold in appellee's favor. Judgment is, accordingly, affirmed.

Recall Notice

Appellants contend that the trial court erred in admitting into evidence a post-accident recall notice of the motorcycle involved in the accident. It is argued that the "subsequent repair" rule forbids the admission of this evidence.*fn1 Looking to the rationale for that rule, we find it inapplicable to a products liability case.*fn2

The principal reasons for excluding evidence of subsequent repair in a negligence case is that it is both irrelevant and prejudicial.

The negligence of the employer, which renders him responsible for the accident, depends upon what he did and knew before the accident, and must be established by facts and circumstances which preceded it, and not by acts done by him after the occurrence.

Sappenfield v. Main St., etc. R.R. Co., 91 Cal. 48, 27 P. 590 at 593 (1891).

A more recent case restates the same rationale.

The reason for applying this rule of evidence to that kind of case is clear. Since at the heart of such an action is either affirmative conduct in creating a dangerous condition or a failure to perceive a foreseeable risk and take reasonable steps to avert its consequences, proof that goes to hindsight rather than foresight most often is entirely irrelevant and, at best, of low probative value.

[ 325 Pa. Super. Page 456]

    context. The federal and state courts of several jurisdictions have considered this question and, rather than reinvent the wheel, we will draw upon their analyses.

One of the earliest in this line of cases was out of the California Supreme Court -- Ault v. International Harvester Co., 13 Cal.3d 113, 117 Cal.Rptr. 812, 528 P.2d 1148 (1974). Though Ault dealt with subsequent remedial measures in general, and not with the particular subdivision of that category which ...


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