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COLE v. KELLY

July 28, 1988

ROBERT W. COLE, et al.
v.
JOSEPH W. KELLY, et al.


James T. Giles, United States District Judge.


The opinion of the court was delivered by: GILES

JAMES T. GILES, UNITED STATES DISTRICT JUDGE

 The third-party defendant, United States Postal Service (federal defendant), seeks to dismiss the complaint of the third-party plaintiff, Joseph W. Kelly (Kelly), or alternatively moves for summary judgment. Plaintiffs Robert W. and Georgina Cole (Cole) filed a complaint alleging negligence on the part of Kelly in the Court of Common Pleas of Philadelphia County on August 13, 1987. On September 10, 1987, defendant Kelly filed a third-party complaint in the Court of Common Pleas joining the federal defendant as an additional defendant. On October 15, 1987, the federal defendant removed the action to this court.

 This action arises from an accident that occurred on June 26, 1985. Kelly was travelling south on 15th Street in Philadelphia in his 1982 Oldsmobile four door sedan. At the place where the accident occurred, Fifteenth Street is a one-way street with two traffic lanes travelling south and a parking lane on the right. Shortly after Kelly passed the intersection of Chestnut and Fifteenth Streets, a one-ton Dodge Postal Service truck driven by Brenda Thomas (Thomas) stopped in the right traffic lane immediately in front of Kelly's car and adjacent to two mail collection boxes. Thomas turned on her vehicle blinker lights, exited the vehicle, removed the mail from the mail collection boxes, and returned to her vehicle. That process took between two and three minutes. After Thomas returned to her vehicle, Philadelphia Police Officer Cole walked over to the truck and, while standing within the right traffic lane beside the truck, reprimanded Thomas for double parking. (Thomas Deposition Transcript pp. 7, 9, and 12-18).

 Cole spoke to Thomas for approximately two minutes but did not issue a traffic citation. During that time Kelly backed his car up approximately six feet and maneuvered slowly around the postal service vehicle. The left lane of traffic was clear. After finishing his discussion with Thomas, Cole took a half step to his left and, while still within the right traffic lane, was struck on the left side of his body by the right fender of Kelly's car. After he was struck by the Kelly vehicle, Cole grabbed the driver's side door of the postal vehicle to prevent himself from falling. The Kelly vehicle continued moving until Cole struck it with his police radio. (Cole Dep. Tr. pp. 12-19 and 37-45).

 Kelly testified that after stopping behind the postal vehicle, he saw Thomas exit the vehicle and saw Officer Cole subsequently approach the vehicle. Kelly observed Thomas reenter the vehicle and witnessed the discussion between Officer Cole and Thomas. Kelly saw Cole standing next to the truck during the discussion and had a clear view of Cole while he maneuvered around the postal vehicle. (Kelly Dep. Tr. pp. 11-20).

 The court will consider the federal defendant's motion as one for summary judgment. A trial court may enter summary judgment only "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). "Summary judgment will not lie if the dispute about a material fact is 'genuine,' that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). The burden to demonstrate the absence of material fact issues is initially on the moving party regardless of which party would have the burden of persuasion at trial. First National Bank of Pennsylvania v. Lincoln Nat'l Life Ins., 824 F.2d 277, 280 (3d Cir. 1987). The moving party may meet its burden by showing that "there is an absence of evidence to support the nonmoving party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 325, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). The essential facts of this case are not in dispute.

 The federal defendant contends that the intervening negligent act of Kelly discharges liability for any antecedent negligence by the postal service. Pennsylvania has adopted the Restatement (Second) of Torts § 447 (1965), which states:

 
§ 447. Negligence of Intervening Acts.
 
The fact that an intervening act of a third person is negligent in itself or is done in a negligent manner does not make it a superseding cause of harm to another which the actor's negligent conduct is a substantial factor in bringing about, if
 
(a) the actor at the time of his negligent conduct should have realized that a third person might so act, or
 
(b) a reasonable man knowing the situation existing when the act of the third person was done would not regard it as highly extraordinary that the third person had so acted, or
 
(c) the intervening act is a normal consequence of a situation created by the actor's conduct and the manner in which it is done ...

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