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PATRICK B. KOZAK AND MARY ANN KOZAK v. WAYNE STRUTH AND MCKEESPORT AREA SCHOOL DISTRICT (09/21/87)

decided: September 21, 1987.

PATRICK B. KOZAK AND MARY ANN KOZAK, APPELLANTS,
v.
WAYNE STRUTH AND MCKEESPORT AREA SCHOOL DISTRICT, APPELLEES



Appeal from Order of the Superior Court of Pennsylvania Entered July 5, 1985 at No. 1431 Pittsburgh, 1983 Affirming the Order of the Court of Common Pleas of Allegheny County, Civil Division, Entered November 7, 1983, at No. G.D. 76-19992, 348 Pa. Superior Ct. 637, 501 A.2d 295 (1985).

COUNSEL

Michael Hahalyak, Pittsburgh, for appellants.

Richard Mills, Louis C. Long, Meyer, Darragh, Buckler, Bebenek & Eck, Pittsburgh, for appellees.

Larsen, Flaherty, McDermott, Hutchinson, Zappala and Papadakos, JJ. Nix, C.j., did not participate in the consideration or decision of this case.

Author: Hutchinson

[ 515 Pa. Page 556]

OPINION OF THE COURT

Appellants, Patrick B. Kozak and Mary Ann Kozak, appeal by allowance a Superior Court order which affirmed Allegheny County Common Pleas' judgment on a jury verdict for appellee Wayne Struth. They argue that the trial court abused its discretion in permitting appellee's expert witness to comment on the totality of the evidence. Because an expert may not usurp the jury function by weighing and testing the credibility of other witnesses, we hold, under all the circumstances presented by this record, that admission of the particular expert testimony given was an abuse of the trial court's discretion. We therefore reverse the order of Superior Court and remand to Common Pleas for a new trial.

On February 3, 1975, appellant Patrick B. Kozak, while enrolled in a swimming class at McKeesport Area High School, attempted to dive into the shallow end of the school's swimming pool. Patrick, then 16 years of age, struck his head on the bottom of the pool, severing his spinal cord and leaving him paralyzed. He and his mother filed an action in trespass against the instructor in charge of the swimming class, appellee Wayne Struth. Struth then joined the McKeesport Area School District as an additional defendant. At the close of the evidence, the school district's motion for a compulsory non-suit was granted. The jury then returned a verdict for appellee Struth and against the appellants. Superior Court affirmed. 348 Pa. Super. 637, 501 A.2d 295.

At the trial, appellee offered the expert testimony of Carl Peterson to rebut appellants' assertion that appellee was negligent in his supervision and instruction of the swim class. Following direct and cross-examination on Dr. Peterson's qualifications as an expert, appellee's counsel engaged his expert in the following colloquy:

[ 515 Pa. Page 557]

BY MR. MILLS:

Q. Doctor Peterson, based upon the evidence that you have heard here in the courtroom, including the testimony of all the witnesses and the testimony that has been read to the jury, previously taken, and based upon your knowledge and understanding of the occurrence in question, do you have an opinion as to the capability of Wayne Struth as a water safety instructor.

MR. HAHALYAK: I continue the objection, your Honor.

THE COURT: Objection ...


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