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ROSEANN MERRITT v. CITY CHESTER AND ESTATE ROSCOE MERRITT (08/09/85)

filed: August 9, 1985.

ROSEANN MERRITT, A MINOR, BY HER GUARDIAN, THE SOUTHEAST NATIONAL BANK, AND ROSCOE MERRITT, DECEASED, BY HIS ADMINISTRATORS, JOHN D. DELCOLLO AND SHEILA W. MERRITT, DECEASED, BY HER ADMINISTRATOR, JOHN H. CLARK, JR., APPELLANTS,
v.
CITY OF CHESTER AND ESTATE OF ROSCOE MERRITT, APPELLEES



Appeal from Order of the Court of Common Pleas, Civil Division, of Delaware County, No. 80-074.

COUNSEL

Avram Adler, Philadelphia, for appellants.

John J. Fonash, III, Philadelphia, for appellees.

Wieand, Watkins and Geisz,*fn* JJ.

Author: Wieand

[ 344 Pa. Super. Page 507]

On the evening of January 1, 1979, Roscoe Merritt drove his automobile from a parking lot on Seventh Street in the City of Chester. He did not turn right or left but continued directly across Seventh Street. When he had reached the opposite side of the street, he mounted a two to four inch curb, crossed the sidewalk, mounted a six to eight inch high retaining wall, knocked down a cyclone fence, and plunged into the Chester Creek. Merritt and his wife, who had been a passenger, were drowned. His infant daughter, also a passenger, allegedly sustained injuries to her nervous system in the nature of emotional distress but otherwise survived without physical injury. An action to recover damages as a result of Merritt's death was commenced against the City of Chester by the administrator of his estate. Actions on behalf of the estate of the deceased wife and on behalf of the surviving daughter were commenced against the City of Chester and also against the Estate of Roscoe Merritt, deceased. The trial court granted summary judgment in favor of the City of Chester. All claimants appealed. We affirm.

Summary judgment may be entered when the pleadings, depositions, answers to interrogatories, admissions on file and supporting affidavits considered together reveal no genuine issue as to any material fact, and the moving party is entitled to judgment as a matter of law. Day v. Volkswagenwerk Aktiengesellschaft, 318 Pa. Super. 225, 231, 464 A.2d 1313, 1316 (1983), quoting Acker v. Palena, 260 Pa. Super. 214, 218-219,

[ 344 Pa. Super. Page 508393]

A.2d 1230, 1232 (1978), quoting Husak v. Berkel, Inc., 234 Pa. Super. 452, 458, 341 A.2d 174, 177 (1975).

In order to hold a defendant liable for injuries sustained by a plaintiff, it must be shown that the defendant breached a duty of obligation recognized by the law, which required him to conform to a certain standard of conduct for the protection of persons such as the plaintiff. Macina v. McAdams, 280 Pa. Super. 115, 120, 421 A.2d 432, 434 (1980). Accord: Leoni v. Reinhard, 327 Pa. 391, 393, 194 A. 490, 491 (1937). "Each person has a primary duty to exercise care lest his action result in injuries to others." 27 P.L.E. Negligence § 2. However, the law does not impose upon persons generally a duty to act to save others from harm; only in certain specific situations is there an affirmative duty to act. Zayc v. John Hancock Mutual Life Ins. Co., 338 Pa. 426, 432-433, 13 A.2d 34, 37-38 (1940). "When injury is suffered by one not within the scope of a duty . . . such person has no right to recover, because there has been no breach of duty with regard to him . . . . Liability . . . depends on antecedent probability, not the mere possibility, of harmful results therefrom. The general test of liability is whether the injury could be foreseen by an ordinarily intelligent person as the natural and probable outcome of the act complained of; the law does not require the parties to go beyond this in their relations with each other." Venzel v. Valley Camp Coal Co., 304 Pa. 583, 589-590, 156 A. 240, 242 (1931).

The trial court determined that as a matter of law the City of Chester did not have a duty to construct and maintain a cyclone fence of sufficient strength and durability to withstand impact by a vehicle moving directly at and into the fence at a rate of speed in excess of 25 mph. Its holding is supported by the decided cases. The City of Chester was obligated to maintain its streets so that they

[ 344 Pa. Super. Page 509]

    were reasonably safe. They will be deemed safe if they may be negotiated safely by all but the very reckless. However, there was no obligation on the City to construct and maintain its streets in a manner that would insure the safety of all drivers. It was not required to erect and maintain a cyclone fence on Seventh Street that was able to withstand impact with a rapidly moving vehicle that was out of control or which was recklessly or intentionally driven directly into it. Ault v. Pennsylvania Railroad Co., 381 Pa. 496, 113 A.2d 150 (1955); Yocum v. Town of Bloomsburg, 289 Pa. 512. 137 A. 668 (1927); Wasser v. Northampton County, 249 Pa. 25, 94 A. 444 (1915). "Public roads are intended for ordinary travel; if they meet the requirements which their ordinary uses demand, the authorities in charge of them have performed their duty under the law and cannot be made answerable in damages for extraordinary accidents occurring on them." Wasser v. Northampton County, supra, 249 Pa. at 27, 94 A. at 445. See also: Martin v. State Department of Highways, 175 So.2d 441 (La.Ct.App. 1965), cert. denied, 248 La. 359, 178 So.2d 653 (1965); Smith v. Sharp, 82 ...


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