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10/23/97 PATRICIA MARKS v. MARY LOU SWAYNE

October 23, 1997

PATRICIA MARKS, ADMINISTRATRIX OF THE ESTATE OF DONALD L. MARKS, DECEASED, AND PATRICIA MARKS, IN HER OWN RIGHT, APPELLEE
v.
MARY LOU SWAYNE, ADMINISTRATRIX OF THE ESTATE OF WALTER F. MERRIMAN, APPELLANT



Appeal from Order of the Superior Court entered November 6, 1995, at No. 1112 Pittsburgh 1994, affirming the judgment of the Court of Common Pleas of Butler County, Civil Division entered June 27, 1994, at No. A.D. 91-994, Book 139, Page 280.

Composition OF The Court: Mr. Chief Justice John P. Flaherty, Zappala, Cappy, Castille, Nigro, Newman, JJ.

The opinion of the court was delivered by: Zappala

JUSTICE ZAPPALA

DECIDED: OCTOBER 23, 1997

We granted allocatur in this case to reexamine the use in a negligence action of a jury instruction that a deceased or incapacitated plaintiff is presumed to have been exercising due care at the time of his injuries. Although we now hold that such an instruction should not be given, we find that in this case the instruction, read in the context of the entire charge, was not so prejudicial as to require reversal.

Donald L. Marks was killed when the tractor/backhoe he was operating overturned and crushed him. The tractor belonged to Marks's neighbor, Walter F. Merriman. Patricia Marks, the decedent's wife and administratrix of his estate, sued Merriman under the Wrongful Death and Survival Acts. She also claimed damages on her own behalf for negligent infliction of emotional distress.

The complaint alleged that the accident was caused by Merriman's negligent maintenance of the tractor and its brakes. Merriman's defense asserted that the accident was caused by Marks's own negligence in operating the tractor too close to the edge of an embankment. Merriman died prior to trial and Mary Lou Swayne, administratrix of his estate, was substituted as the defendant. A jury found for Patricia Marks on all claims and awarded $989,875 on the wrongful death and survival counts and $40,000 for negligent infliction of emotional distress. The jury attributed 8% of the causal negligence to the decedent, and the judgment was molded to reflect this reduction as well as an added amount for delay damages.

In the course of instructing the jury, the court stated:

The law presumes that at the time of the accident causing his death the decedent was using due care for his own safety. However, this presumption may be rebutted by evidence. If you find from a preponderance of the evidence that the decedent was not exercising such care, then you must determine whether the decedent's contributory negligence was a substantial factor in bringing about his own death.

R. 865a. Swayne argued that this was error, citing Bressler v. Dannon Yogurt, 392 Pa. Super. 475, 573 A.2d 562 (1990) (en banc). In Bressler, the Superior Court expressed the view, based on its study of the majority and Dissenting opinions in Rice v. Shuman, 513 Pa. 204, 519 A.2d 391 (1986), that the presumption of due care had been invalidated for all purposes. The common pleas court rejected this argument. The court understood Rice as holding only that a presumption of due care in favor of a deceased defendant is no longer necessary.

The panel of the Superior Court that decided this case agreed with the common pleas court's reading of Rice. The court characterized as dictum the statement in Bressler that the presumption had been abolished entirely. The court further noted that Rice did not overrule or mention Waddle v. Nelkin, 511 Pa. 641, 515 A.2d 909 (1986), which was decided while Rice was pending. In Waddle, a new trial was ordered because the court failed to give a jury instruction on the presumption of due care in favor of the plaintiff. *fn1 We granted allocatur to resolve the confusion over this issue evident in the Superior Court decisions in Vihlidal, Bressler, and this case.

In Waddle, the lead Opinion quoted the following as setting forth the law on the presumption of due care:

Where a plaintiff's mind is blank as to an accident and all its incidents, the presumption is that he did all that the law required him to do and was not guilty of contributory negligence. The presumption, however, is a rebuttable one and must give way when the facts as established by the plaintiff's evidence show that he was guilty of contributory negligence.

511 Pa. at 645, 515 A.2d at 911, quoting Auel v. White, 389 Pa. 208, 214, 132 A.2d 350, 353 (1957) (emphasis added). Unfortunately, the Opinion failed to recognize the intimate connection between the presumption and the doctrine of contributory negligence suggested by this language, which is confirmed by a survey ...


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