Appeal from the Order entered June 24, 1988 in the Court of Common Pleas of Philadelphia County, Civil at No. 2059 December Term, 1982. Appeal from the Order entered October 13, 1988 in the Court of Common Pleas of Philadelphia County, Civil at No. 2059 December Term, 1982.
William F. Sweeney, Philadelphia, for Matt Slap, appellant (at 2178) and appellee (at 3039).
Harris R. Rosen, Philadelphia, for Sophie Kukowski, appellee (at 2178) and appellant (at 3039).
James M. Marsh, Philadelphia, for Chester Kukowski, appellee (at 2178).
Janis Smarro, Philadelphia, for Chester Kukowski, appellee (at 2178) and appellant (at 3039).
Montemuro, Tamilia and Montgomery, JJ. Tamilia, J., files a concurring and dissenting opinion.
[ 385 Pa. Super. Page 174]
This is a consolidated appeal. Matt Slap Chevrolet, Inc., appeals from the June 24, 1988, Order of the Court of Common Pleas of Philadelphia County, wherein the court denied Matt Slap's motion for a new trial. Chester and Sophie Kukowski appeal from the October 13, 1988, Order wherein the trial court denied their request for the entry of delay damages against Matt Slap. Following a careful review of the record before us, in light of the applicable law, we are constrained to reverse the latter order.
The facts underlying this matter are essentially undisputed. On November 5, 1981, Chester and Sophie Kukowski had taken a car to Matt Slap Chevrolet for repair work. When the repairs were completed, the couple proceeded to leave the car dealership, with Chester Kukowski driving and Sophie Kukowski in the passenger seat. Chester Kukowski testified that as he was driving towards the exit gate, "the car went out of control. And I looked around. There was some potholes." R.R. at 13a. The Kukowski's car collided with an exit gate. As a result of the accident, Sophie Kukowski was injured and subsequently hospitalized. Chester Kukowski also sustained injuries for which he received medical treatment.
Sophie Kukowski and Chester Kukowski commenced a negligence action against Matt Slap for failure to "provide a safe means of ingress and egress to and from [their] parking lot . . . ." R.R. at 3a. The complaint also set forth a claim by Sophie against Chester for negligent operation of the motor vehicle, as well as a loss of consortium claim by Chester Kukowski against Matt Slap. At the close of trial, a jury rendered a verdict in favor of Sophie Kukowski in the amount of $80,000.00. The jury apportioned negligence as follows: sixty (60%) percent against Matt Slap and forty (40%) percent against Chester Kukowski. Chester Kukowski's
[ 385 Pa. Super. Page 175]
consortium damages were set at $20,000.00 by the jury.
We will first address Matt Slap's claim that the trial court erred in failing to grant a new trial. Matt Slap contends that the following jury instructions were erroneous and prejudicial, necessitating the grant of a new trial:
Now the other defendant is Chester Kukowski, the driver of the car in which his wife was a passenger. And there is a body of law governing the operators of automobiles. It's quite simple.
The operator of a motor vehicle must at all times exercise reasonable care under the circumstances, and must have his car under such control that it can be stopped before doing injury to any person or thing, and any situation reasonably apt to arise in the circumstances.
Now we also have what has been called the assured cleared distance principle. That is that if there is an object that is reasonably understood to be dangerous, it could be another vehicle, or it could be one that is not dangerous, it could be a pedestrian; or it could be a deep hole. That the driver of the automobile must be able to stop ...