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ROBERT J. HANNON v. CITY PHILADELPHIA AND THOMAS LITTEL. CITY PHILADELPHIA (10/13/88)

decided: October 13, 1988.

ROBERT J. HANNON
v.
CITY OF PHILADELPHIA AND THOMAS LITTEL. CITY OF PHILADELPHIA, APPELLANT. ROBERT J. HANNON, APPELLANT V. CITY OF PHILADELPHIA AND THOMAS J. LITTEL, APPELLEES



Appeals from the Order of the Court of Common Pleas of Philadelphia County in the case of Robert Hannon v. City of Philadelphia and Thomas Littel, No. 4538, July Term, 1982.

COUNSEL

Miriam B. Brenaman, Assistant City Solicitor, with her, Norma S. Weaver, Chief Deputy in Charge of Claims, Barbara R. Axelrod, Divisional Deputy in Charge of Appeals, and Seymour Kurland, City Solicitor, for appellant, City of Philadelphia.

Sol H. Weiss, with him, Alan Starker, Anapol, Schwartz, Weiss & Schwartz, for appellee, Robert Hannon.

Judge MacPhail, and Senior Judges Barbieri and Kalish, sitting as a panel of three. Opinion by Senior Judge Barbieri. This decision was reached prior to the resignation of Judge MacPhail.

Author: Barbieri

[ 120 Pa. Commw. Page 384]

Robert J. Hannon appeals an order of the Philadelphia County Court of Common Pleas denying in part and granting in part post-trial motions filed by the City of Philadelphia (City). The City has cross-appealed from that same order.

This matter arose out of a single vehicle accident which occurred on November 25, 1981, on Bells Mill Road, a curving two-lane road, located in the northwest part of the City. Hannon worked with Thomas Littel and the two carpooled to and from their place of employment. The men traveled Bells Mill Road on a daily basis and Littel was driving on the day of the accident. At approximately 4:30 p.m. on November 25, 1981, Littel and Hannon left work to go home. On their way they stopped and had dinner at the Fiesta Motor Lodge where Littel testified he had one beer. They then proceeded to a bar where Littel testified he consumed approximately

[ 120 Pa. Commw. Page 385]

    two more beers. After that, Littel stated he and Hannon drove back to the Fiesta Motor Lodge where he had two or three more beers. Littel estimated that he and Hannon left the Fiesta Motor Lodge around 10:00 p.m.

On the way home, Littel testified he was attempting to light a cigarette when the car he was driving struck a concrete headwall. The headwall was located approximately 3 1/2 feet off the side of the road and had been built in 1914 as part of a culvert system to control water run-off.

Hannon sustained serious injuries in the accident. He subsequently brought a negligence action against Littel and an action against the City for negligent maintenance of streets and real property pursuant to Sections 8542(b)(3) and (6) of the Judicial Code (Code), 42 Pa. C.S. § 8542(b)(3), (6). After the trial, the jury returned a $1,000,000.00 verdict in favor of Hannon, finding Littel 72% negligent and the City 28% negligent. The City filed several post-trial motions which, were denied in part and granted in part. The trial court granted the City's post-trial motion to mold the verdict to conform with the $500,000.00 cap under the Code*fn1 as well as its motion to deny delay damages on the basis that they were waived.

On appeal to this Court, Hannon argues that the Code violates both the federal and state Constitutions and that the trial court erred in denying his request for delay damages. The City, by way of a cross-appeal, requests a new trial on the basis that the trial court erred in permitting testimony of a previous automobile accident involving the same headwall to serve as notice to the City of a dangerous condition; in refusing to permit testimony as to Hannon's consumption of alcohol on the

[ 120 Pa. Commw. Page 386]

    night of the accident; and in its charge to the jury. The City also contends that the trial court made several erroneous rulings during testimony by Hannon's expert witness. We agree with the City's contentions that the trial court erred in several respects.

First, the trial judge erred in permitting Hannon to introduce evidence of a single prior accident involving the headwall in question to fulfill the notice provisions of Section 8542(b)(6)(i) of the Code, 42 Pa. C.S. § 8542(b)(6)(i).*fn2

Hannon's expert's theory of the accident was that the proximity of the headwall to the roadway and the fact that the motorist comes upon it after completing a ...


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