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CONCETTA GALLO v. YAMAHA MOTOR CORPORATION (03/26/87)

filed: March 26, 1987.

CONCETTA GALLO
v.
YAMAHA MOTOR CORPORATION, U.S.A., BRUCE OTT, STEVEN J. POLANSKY AND POCONO WEST, INC., A PENNSYLVANIA CORPORATION AND YAMULLA TRUCKING, INC. AND YAMULLA ENTERPRISES, INC., T/A LAKE HARMONY ESTATES. APPEAL OF YAMULLA TRUCKING, INC. AND YAMULLA ENTERPRISES, INC. T/A LAKE HARMONY ESTATES



Appeal from the Order of the Court of Common Pleas of Northampton County, Civil, at Nos. 1980-C-967 and 1978-C-2626.

COUNSEL

Robert E. Simpson, Jr., Easton, for appellants.

James C. Hogan, Easton, for Gallo, appellee.

Barbara L. Hallenbach, Easton, for Yamaha Motor Corp., appellee.

Cavanaugh, McEwen and Montemuro, JJ.

Author: Montemuro

[ 363 Pa. Super. Page 311]

Appellant challenges the denial of its post-trial motions by the Northampton Court of Common Pleas. Because the trial court committed several errors of consequence, we reverse and remand for a new trial.

This case arises from a January 28, 1978 collision between an automobile and the snowmobile upon which appellee Concetta Gallo was riding as a passenger. Ms. Gallo filed an action against appellees Bruce Ott, driver of the snowmobile, Steven J. Polansky, driver of the automobile, and Yamaha Motor Corporation, U.S.A., manufacturer of the snowmobile. Yamaha joined appellants Yamulla Trucking, Inc. and Yamulla Enterprises, Inc., both trading as Lake Harmony Estates (Lake Harmony). Lake Harmony owned the road on which the collision occurred.*fn1 The road, which was covered with snow and ice at the time of the mishap, meanders through a residential resort that Lake Harmony had developed in the Pocono Region of Carbon County. Ms. Gallo alleged in her first amended complaint that Mr. Polansky and Mr. Ott had operated their respective vehicles negligently. She further alleged that Yamaha had defectively designed the fateful snowmobile. In its complaint joining Lake Harmony as an additional defendant, however, Yamaha charged that Lake Harmony, as a landowner, had caused Ms. Gallo's injuries by negligently failing to keep its road safe for automobile and snowmobile traffic.

[ 363 Pa. Super. Page 312]

The ten day trial of these claims began on February 25, 1985. At its conclusion, after the jury had received the court's instruction but before it retired to deliberate, the court ruled on the parties' suggested points for charge. Three of these rulings concern us here. First, the court denied Lake Harmony's request for an instruction on the Recreation Use of Land and Water Act, 68 P.S. § 477-1 et Page 312} seq. Lake Harmony had asserted in new matter that the Act immunized Lake Harmony from all liability for Ms. Gallo's injuries.*fn2 Second, the court refused to caution the jury expressly against awarding damages for delay. Lake Harmony had requested the court pursuant to Pa. R.C.P. 238(d) to instruct the jury not to award Ms. Gallo any damages for delay "because this is a matter for the court." Third, the court refused to instruct the jury not to compensate Ms. Gallo for those losses covered by the now-repealed Pennsylvania No-fault Motor Vehicle Insurance Act, 40 P.S. § 1009.101 et seq., which was in effect at the time of Ms. Gallo's injury. The court had ruled immediately prior to trial that it would admit evidence of any medical expenses or lost wages Ms. Gallo suffered as a result of the accident. Several of the defendants had argued that the No-fault Act precluded recovery in tort of any medical expenses or lost wages that fell within the required limits of No-fault coverage.*fn3 In deciding to admit the evidence, the court reserved for later disposition the issue of whether the No-fault Act applies to this case. The court indicated that, if required, it would mold the verdict to remove any amounts recoverable under No-fault.

[ 363 Pa. Super. Page 313]

The jury returned with a special verdict on March 8, 1985. The verdict absolved Mr. Polansky and Yamaha of all liability to Ms. Gallo and attributed negligence 70% to Mr. Ott, 25% to Lake Harmony and 5% to Ms. Gallo. The jury awarded damages of $80,000 for medical expenses, $248,000 for lost earnings and $325,000 for such non-economic injuries as pain, suffering, disfigurement and embarrassment. Following a hearing on March 29, 1985, the court added delay damages of $352,620 and then reduced the total verdict to $953,339 to reflect Ms. Gallo's contributory negligence. Lake Harmony filed a timely motion for post-trial relief in which it asked the court to grant judgment n.o.v. or a new trial or to mold the verdict downward. The court en banc denied the motion. Lake Harmony's timely appeal followed entry of judgment on April 7, 1986.

We need address only three of the six issues that Lake Harmony presents:

I. Whether the trial court should have instructed the jury on the applicability of the Recreation Use of Land and Water Act, even though Lake Harmony did not invite the public onto its land.

II. Whether the trial court, when requested to do so, should have cautioned the jury expressly against awarding damages for delay.

III. Whether the partial abolition of tort liability in the now-repealed No-fault Act bars Ms. Gallo's claims for medical expenses against Lake Harmony, a landowner.

I.

Lake Harmony argues that it is entitled to immunity from liability as a landowner in this case because of the Recreation Use of Land and Water Act., 68 P.S. § 477-1 et seq. The General Assembly passed the Act in 1965 expressly "to encourage owners of land to make land and water areas available to the public for recreational purposes." 68 P.S. § 477-1. The Act promotes this goal by limiting landowner

[ 363 Pa. Super. Page 314]

    liability for injuries that occur on the land*fn4 as a result of recreational activity. Section 3 of the Act limits traditional landowner liability as follows:

Except as specifically recognized or provided in section 6 of this act, an owner of land owes no duty of care to keep the premises safe for entry or use by others for recreational purposes, or to give any warning of a dangerous condition, use, structure, or activity on such premises to persons entering for such purposes.

Id. at § 477-3. For landowners who by some means invite or permit recreational activity on their land, Section 4 of the Act contains a slightly ...


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