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RICHARD C. ASKEW v. DARREL J. ZELLER AND ULLA OLSSON (02/19/87)

filed: February 19, 1987.

RICHARD C. ASKEW, AN INCOMPETENT, BY CAROL ASKEW, HIS GUARDIAN, AND CAROL ASKEW, INDIVIDUALLY, APPELLANT,
v.
DARREL J. ZELLER AND ULLA OLSSON, COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION AND CAMP HILL BOROUGH, APPELLEES



Appeal from the Order entered on January 2, 1986, in the Court of Common Pleas of Cumberland County, Civil Division, at No. 3236 Civil 1983.

COUNSEL

Lewis S. Kunkel, Jr., Harrisburg, for appellant.

P. Daniel Altland, Harrisburg, for Olsson, appellee.

Sarah S. Smith, Harrisburg, for Dept. of Transp., appellee.

Virginia W. Hersperger, Carlisle, for Camp Hill, appellee.

Wieand, Beck, and Watkins, JJ. Wieand, J., files a concurring opinion.

Author: Beck

[ 361 Pa. Super. Page 37]

Richard Askew was driving his motorcycle when he was severely injured. His wife, appellant Carol Askew,*fn1 as guardian for Richard, now an incompetent, and on her own behalf brought a trespass action against the two drivers involved in the accident, appellees, Darrell J. Zeller and Ulla Olsson. The Askews allege that both drivers were negligent and their negligence was the legal cause of Richard's injuries. Olsson moved for summary judgment alleging no genuine issue as to any material fact existed and that she was entitled to summary judgment as a matter of law. The court granted Olsson's motion and the Askews appeal. We affirm.

In reviewing summary judgment, the Court must accept as true all well-pleaded facts in the non-moving party's pleadings, giving the non-moving party the benefit of all reasonable inferences to be drawn therefrom. To uphold summary judgment, there must be not only an

[ 361 Pa. Super. Page 38]

    absence of genuine factual issues, but also an entitlement to judgment as a matter of law.

Rybas v. Wapner, 311 Pa. Super. 50, 54, 457 A.2d 108, 109 (1983).

The accident occurred at a T-shaped intersection. Olsson was stopped in a long line of traffic traveling west on State Street in the Borough of Camp Hill. Zeller had been traveling east on State Street and was waiting at the intersection to turn left onto Sixteenth Street. The intersection was clear. When Zeller indicated his intention to turn left onto Sixteenth Street, by flashing his directional signal, Olsson signaled him by waving her hand from left to right. She did not look to her right or her rear before making the hand signal. From his car Zeller had a clear view of approaching traffic on Olsson's right. Askew, like Olsson, was travelling west on State Street and was in the lane to the right of Olsson. He intended to proceed straight through the intersection. Zeller made a smooth, continuous turn in front of Olsson onto Sixteenth Street. Askew proceeded straight through the intersection and struck the side of Zeller's vehicle. Olsson's vehicle was not physically involved in the accident.

I.

The Askews contend that Olsson acted negligently by signaling Zeller to turn left without first determining whether another vehicle was about to occupy the lane to her right. They argue that Olsson assumed a duty of care to Askew when she voluntarily and gratuitously signaled to Zeller.

Their argument is premised on Section 324A, subsections (a) and (c) of the Restatement (Second) of Torts (1965), which imposes a duty to act with due care upon an ...


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