Appeals from the Order of the Superior Court of Pennsylvania, At Nos. 2296, 2297, 2298, 2299, 2300, 2301, 2651, 2652, 2653, 2654, 2655, 2656, 2657, 2658, and 2659, Philadelphia, 1981, reversing the Order of the Court of Common Pleas of Philadelphia, at C.P. Phila., March Term, 1977, No. 4180.
Nix, C.j., and Larsen, Flaherty, McDermott, Hutchinson, Zappala and Papadakos, JJ. Hutchinson, J., joins this opinion and files a separate concurring opinion. Larsen, J., files a dissenting opinion in which Papadakos, J., joins.
The issue before us is one of first impression. The question is whether and under what circumstances a trial court may order a new trial for the apportionment of damages under the doctrine of comparative negligence.*fn1
On September 28, 1976, William Smith drove a tractor trailer through a guardrail at the end of the Spring Garden
Street exit ramp of the Schuylkill Expressway in Philadelphia, and plunged onto the Expressway's westbound lanes, crushing the vehicle of plaintiff's decedent. Plaintiff instituted negligence actions in the Court of Common Pleas of Philadelphia against Smith and his employer, Srein Furniture Carriers, Inc., the Commonwealth of Pennsylvania, and the City of Philadelphia, to recover under the wrongful death and survival statutes*fn2 for the death of her husband. These actions were consolidated and tried before a jury.
Plaintiff proceeded against Smith and Srein on the basis of Smith's negligent operation of the tractor trailer, and Srein's vicarious liability for Smith's negligence under the doctrine of respondeat superior. Plaintiff's theory of recovery against the Commonwealth was its failure to use reasonable care in the posting of signs on the Expressway, thereby causing Smith to be confused. As to the City, plaintiff's allegations of negligence focused on the inadequacy of visible signs on the ramp, and the City's failure to provide adequate guardrails and barriers at the end of the ramp.
During the trial, Smith and Srein settled with plaintiff for $400,000, but retained a right of contribution from the other defendants according to the jury's apportionment of liability. The jury awarded damages totaling $500,000,*fn3 assessing the negligence of the City as 35%, the Commonwealth as 35%, and Srein and Smith, employer and employee, as 30%.
After the verdict, and before argument on post-trial motions, the City and the Commonwealth settled with plaintiff for $32,500 each and were given a joint tort-feasor release from plaintiff. The release was expressly made
subject to provisions of the Uniform Contribution Among Tort-feasors Act, 42 Pa.C.S. § 8321 et seq.*fn4
The trial court denied the City's and the Commonwealth's motions for Judgment N.O.V. as well as the City's motions for a remittitur, reduction of the verdict, and motion to mold the verdict. However, the trial court did grant the City and the Commonwealth a new trial as to the comparative negligence of the defendants, stating that "the jury's apportionment of fault among the defendants is manifestly and palpably against the weight of the evidence." Slip op., 4180 C.P. Phila., March Term, 1977, at 7.
On appeal the Superior Court reversed and entered judgment upon the jury's verdict. Writing for the majority, Judge Hoffman determined that the trial court's order "exceeds the limited standards for the grant of a new trial because of the weight of the evidence." Thompson v. ...