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KIMBERLY GARRETT v. SHEILA MOYSTON (06/27/89)

decided: June 27, 1989.

KIMBERLY GARRETT, A MINOR, BY HER PARENTS, CURTIS AND JOAN GARRETT, AND CURTIS AND JOAN GARRETT, IN THEIR OWN RIGHT, APPELLANTS,
v.
SHEILA MOYSTON, A/K/A SHEILA HENDERSON AND VISCOUNT MOYSTON, AND CITY OF PHILADELPHIA, AND SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY AND COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, APPELLEES



Appeal from Common Pleas Court, Philadelphia County; Honorable Samuel M. Lehrer, Judge.

COUNSEL

Joan Saltzman, with her, Philip M. Farber, Jerold Allen, Master, Donsky, Soffian & Allen, Philadelphia, for appellants.

Barbara R. Axelrod, Division Deputy in Charge of Appeals, with her, Norma S. Weaver, Deputy in Charge of Claims, David A. Soltz and Seymour Kurland, City Solicitors, for City of Philadelphia.

John M. Pehlan, George A. Edel, Philadelphia, for appellees.

Crumlish, Jr., President Judge, McGinley, J. (p.), and Narick, Senior Judge.

Author: Mcginley

[ 127 Pa. Commw. Page 489]

Kimberly Garrett, a minor, and Curtis and Joan Garrett, her parents (collectively, Appellants) appeal from a decision of the Court of Common Pleas of Philadelphia County (trial

[ 127 Pa. Commw. Page 490]

    court) granting the motion of the City of Philadelphia (City) and entering judgment for the City.

Kimberly Garrett suffered catastrophic injuries as a result of an accident which occurred in the City. Kimberly was waiting for a bus in the rain and took shelter in the only shelter available, that being a telephone booth located across Easton Road from the bus stop. The bus stop was located on the north side of Easton Road. As she crossed Easton Road at or near its intersection with Lowber Street to board a bus she was struck by a vehicle operated by Sheila Moyston and owned by Viscount Moyston (collectively, Moystons).

Appellants brought an action against the City, the Moystons, and the Southeastern Pennsylvania Transportation Authority (SEPTA). Two counts were brought against the City, one by Kimberly Garrett by her parents, and the second by her parents in their own right.*fn1 The complaint contained the following relevant averments:

19. On the 16th day of December, 1982 and for a long time prior thereto, Easton Road and Lowber Street were two of the roads, streets, and highways of the City of Philadelphia open for public use.

20. At all times material hereto, it was the duty of the Defendant, CITY OF PHILADELPHIA, to keep and maintain the intersection of Easton Road and Lowber Street in a reasonably safe condition for public travel thereon.

21. At all times material hereto, it was the duty of the Defendant, CITY OF PHILADELPHIA, to designate and/or approve of the placement of bus stops, erection of traffic controls, provide crosswalks, and to post highways within its borders. For the safety and protection of pedestrians, one of whom was the minor plaintiff.

22. On or about December 16, 1982, at approximately 6:45 a.m., the Plaintiff, KIMBERLY GARRETT, a minor, was crossing Easton Road at or near its intersection with

[ 127 Pa. Commw. Page 491]

Lowber Street from south to north, in order to get to a bus stop located on the north side of Easton Road, when she was struck by the motor vehicle aforesaid and as a result, the Plaintiff, KIMBERLY GARRETT, suffered damages hereinbefore set forth.

23. At all times relevant hereto, there were no cross-walks, traffic controls or traffic signs at or near the intersection of Easton Road and Lowber Streets [sic] and the omission of same had existed for a long time prior to December 16, 1982 and said lack of crosswalks, traffic controls and/or traffic signs ...


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