Appeal from the Order of the Superior Court Nos. 555-557 Philadelphia, 1983, dated June 7, 1985, Affirming the Order of the Court of Common Pleas of Philadelphia County, at Nos. 4187 Feb. Term 1980, 5057 Jan. Term 1980, and 339 August Term 1981, dated January 26, 1983. 346 Pa. Super. 640, 499 A.2d 405 (1985).
Joseph T. Bodell, Jr., Bruce W. McCullough, Philadelphia, for appellant.
Jerome H. Ellis, Philadelphia, for Anna & Bertolet Rickenbach.
Eugene A. Spector, Philadelphia, for Kurt & Margaret Rice, as plaintiffs.
Cecilia F. Wambold, Philadelphia, for Kurt Rice, as additional defendant.
Nix, C.j., and Larsen, Flaherty, McDermott, Hutchinson, Zappala and Papadakos, JJ. Larsen, McDermott and Zappala, JJ., file dissenting opinions.
The instant discretionary appeal requires this Court to pass upon the claim of Dr. David Shuman, an original defendant in a personal injury action who was unable to testify at the trial due to injuries sustained in the accident in question, that the trial court was required to charge the jury of a presumption of due care that arose in his favor. We granted this appeal to pass upon the broader question of the continuing vitality of a presumption of due care arising in the favor of a deceased or incapacitated defendant in view of the enactment of a comparative negligence system. 42 Pa.C.S. § 7102.
On August 21, 1979, at the intersection of Henry Avenue and DuPont Street in the City of Philadelphia, a motor vehicle collision occurred. Just prior to impact, Dr. David Shuman, appellant, was operating a vehicle in a southerly direction on Henry Avenue with Mrs. Anna Rickenbach as his passenger. The other driver, Mr. Kurt Rice, had been proceeding in a northerly direction on Henry Avenue and was making a left-hand turn to proceed in a westerly direction on DuPont Street. Margaret Rice was a passenger in the vehicle operated by her husband, Kurt Rice.
As a result of the accident, Anna Rickenbach sustained multiple injuries to her extremities and forehead which rendered her unable to work, and which markedly diminished the quality of her life. Margaret Rice suffered fractures of the right tibia and fibula which permanently rendered her right leg 3/8" shorter than her left leg. Kurt Rice incurred injuries to the right knee and left hand. These injuries resulted in permanent disability in that he has a limited range of motion in the left hand and lacks the ability to straighten his knee all the way. Appellant Shuman sustained severe head injuries which rendered him incompetent to testify at the time of the jury trial.
As a result of this occurrence, a number of lawsuits were instituted. Kurt and Margaret ...