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decided: February 19, 1988.


Appeal from the Order of the Court of Common Pleas of Montgomery County in the case of Setsuko Mendenhall, Administratrix of the Estate of James L. Mendenhall, Deceased, and Setsuko Mendenhall, in her own right, and Bruce Mendenhall v. Commonwealth of Pennsylvania, Department of Transportation and Robert E. Price, No. 81-18924.


Edward Rubin, Hamburg, Rubin, Mullin & Maxwell, for appellants.

Alton G. Grube, Deputy Attorney General, with him, LeRoy S. Zimmerman, Attorney General, for appellees.

Judges Craig, Barry, and Senior Judge Narick, sitting as a panel of three. Opinion by Judge Craig.

Author: Craig

[ 113 Pa. Commw. Page 552]

Setsuko Mendenhall, both as administratrix of the Estate of James L. Mendenhall, deceased, and in her own right, and Bruce Mendenhall (plaintiffs) appeal from an order of Judge Richard S. Lowe of the Court of Common Pleas of Montgomery County dismissing their post-verdict motion for a new trial after a jury decided that the Pennsylvania Department of Transportation (DOT) was not liable to them in regard to the traffic accident that resulted in the death of James L. Mendenhall and the injury of Setsuko and Bruce Mendenhall.

According to the opinion of Judge Lowe, the trial established that during the early morning hours of July 15, 1980, vehicles operated by Bruce Mendenhall and Robert Price, an additional defendant joined by DOT, were involved in a head-on collision on Black Rock Road in Upper Providence Township, Montgomery County, Pennsylvania. The testimony of defendant Price established that, on the day before the accident, he arose at approximately 5:30 a.m. and arrived at work at 7:00 a.m. Price was employed as a subcontractor who installed kitchen cabinets and appliances. After working a full day, Price returned home for dinner; then at 8:00 p.m. he met a friend at the Gilbertsville Fire House to play pool. Price shot pool with his friend until 2:45 a.m., and then he left the fire house and proceeded home in a fatigued state. Price was traveling east on Black Rock Road, when, as he maneuvered his vehicle into the beginning of an "S" curve, he crossed the center line, entered into the opposite lane of traffic, and struck the Mendenhalls' automobile. Price testified

[ 113 Pa. Commw. Page 553]

    that, to the best of his knowledge, he had fallen asleep before the accident occurred. James Mendenhall suffered severe head and chest injuries, which caused his death, and his wife, Setsuko, and son, Bruce, were seriously injured.

The plaintiffs filed suit against DOT alone, alleging that DOT was negligent in failing to post adequate signs along the road, in failing to maintain the yellow median line in the road, and in failing to keep the foliage cut back so that the existing curve sign could be seen clearly by passing motor vehicle operators. The jury returned a verdict of 100% causal negligence against the driver of the other vehicle involved in the collision, Robert Price. Although the jury did find that DOT was negligent, it found that DOT's negligence was not a substantial factor in causing the accident.

On this appeal, the plaintiffs raise four issues in support of their claim that this court should grant a new trial: (1) whether the trial court erred by excluding the testimony of the investigating police officer and of the plaintiffs' accident reconstruction expert that there had been twenty-nine accidents at the curve in question in the five years before this accident, when the plaintiffs assertedly offered that evidence not to prove antecedent negligence with regard to a particular hazardous road condition, but rather as a foundation for their expert's opinion that the number of reported accidents should have triggered a review of the curve by DOT under its standard procedures; (2) whether the trial court erred by ruling that only nine of the previous accidents were sufficiently similar to the accident at issue to be admissible as evidence of antecedent negligence by DOT; (3) whether the court erred by excluding evidence of subsequent remedial measures undertaken by DOT at the curve, when that evidence assertedly was offered not to prove antecedent negligence but to prove the feasibility

[ 113 Pa. Commw. Page 554]

    and affordability of the remedy suggested by the plaintiffs' expert; and (4) whether the court erred in responding to a question by the jury during its deliberations concerning the meaning of the word substantial, as it related to substantial factor and causation, by re-reading only the plaintiffs' requested point for charge relating to the definition of substantial factor and not re-reading the point for charge indicating that there may be more than one substantial factor causing an accident.

1. Exclusion of Evidence of Other Accidents Offered as a Foundation for Expert Opinion

In Whitman v. Riddell, 324 Pa. Superior Ct. 177, 471 A.2d 521 (1984), a case arising from a collision that occurred when a traffic signal at an intersection turned green in two directions at once, the Superior Court summarized Pennsylvania law regarding the admission of evidence of other accidents:

In certain circumstances 'evidence of similar accidents occurring at substantially the same place and under the same or similar circumstances may, in the sound discretion of the trial Judge, be admissible to prove constructive notice of a defective or dangerous condition and the likelihood of injury.' Stormer v. Alberts Construction Co., 401 Pa. 461, 466, 165 A.2d 87, 89 (1960) (emphasis in original). Such evidence will be permitted 'for the purpose of establishing the character of the place where [the accidents] occurred, their cause, and the imputation of notice, constructive at least, to the proprietors of the establishment, of the defect and the likelihood of injury.' ...

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