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Tucker v. Bensalem Township School Dist.

December 17, 2009

JANET TUCKER, APPELLANT
v.
BENSALEM TOWNSHIP SCHOOL DISTRICT



The opinion of the court was delivered by: Senior Judge Flaherty

Argued: November 10, 2009

BEFORE: HONORABLE MARY HANNAH LEAVITT, Judge, HONORABLE JAMES KELLEY, Senior Judge, HONORABLE JIM FLAHERTY, Senior Judge.

OPINION

Janet Tucker (Tucker) appeals from an order of the Court of Common Pleas of Bucks County (trial court) which denied Tucker's motion for a new trial after the jury found in favor of the Bensalem Township School District (School District). We affirm.

Tucker was employed as a bus driver for the Bucks County Head Start program (Head Start). Through a license agreement, Head Start was permitted to park three buses at the School District's Berg Transportation Center (Center). The spot for Tucker's bus was located at the rear of the blacktopped parking lot in an area with an acute and prominent downward slope. On February 1, 2000, the date of the incident, there were icy conditions throughout the Bensalem, Bucks County area. Tucker testified that she arrived in her vehicle at the Center at approximately 6:15 a.m. She noticed the lot had been plowed, that there was black ice under her feet as she walked to her bus, that there was ice on her bus, and that her bus had been moved. Tucker proceeded to perform her daily inspection inside the bus and, because it was very cold, Tucker started her bus and then left her bus, intending to get back into her warm vehicle. Tucker shut the doors of the bus, so the heat would stay in the bus, and when she turned around, "the next thing I knew I was on my backside. And I tried to save my fall by putting my arm back. It was like I just- my neck went back, my shoulder, my elbow, and I heard a snap. And I was like, Oh no." Notes of Testimony (N.T.), November 12, 2008, at 115. Tucker suffered serious and disabling injuries. Tucker further testified that she had no idea if the parking lot had been salted or sanded, that when she fell, her clothes got wet and that the bad weather conditions, the melting of the snow and ice, were not limited to just the Center parking lot.

Tucker commenced an action against the School District, as the owner, possessor and custodian of the Center parking lot. A three-day jury trial was held, at which, Tucker presented the testimony of Meteorologist, Stephen Wistar (Wistar) of AccuWeather.*fn1 Wistar testified as to various storms hitting the area, the amount of snow that fell in the area, the freezing, melting and refreezing that would have been occurring, including from midnight on January 31, 2000, through the early morning hours on February 1, 2000, when Tucker's fall occurred. N.T., November 14, 2008, at 30-36. Wistar also addressed the term "black ice", describing it as "a clear ice like an ice cube in the refrigerator. You can see through it. It got the term "black ice" because if it forms on asphalt, it would look black." Id. at 37.

Terry Watkins (Watkins), an employee of Head Start from October 1999 through February of 2000, testified that during her employment with Head Start, she did not have any problems with the Center parking lot. She stated that she could not recall the parking lot not being plowed. She further stated that on February 1, 2000, the general weather conditions were icy, that it had been snowing previously, snow was still on the ground and the roads were slippery and wet. Watkins arrived at the Center parking lot late, due to the icy road conditions. She stated that the lot looked wet, slippery and icy, but was not in an abnormal condition, as the snow had been plowed up against the outside perimeter fence.

Next, Patricia O'Neill (O'Neill), an employee of the School District from 1983 through 2002, testified that when there was bad weather the School District would plow and put down salt on the parking lot. O'Neill stated that she never had any problems with the snow and ice removal from the Center lot.

The testimony of Dorothy Van Horn (Van Horn), an employee of Head Start from 1999 through 2004, was presented. Van Horn stated that on the day in question, she went to work at the Center lot and that it was cold and snowy. Van Horn further stated that the Center lot had been plowed and salted before she arrived that day.

Danielle Y. James (James), another employee, testified that when she arrived to work on the day in question, the Center lot had been plowed and the roadways in the area were slippery and icy.

Tim Hammond (Hammond), the salt operator who removed the snow and ice from the Center parking lot, testified that he worked six hours of overtime on January 31, 2000, the evening prior to this incident, removing snow and ice.

Robert Mosely (Mosely), the Director of Facility Operations for the School District, testified that Hammond was called to work at 11:55 p.m. on January 31, 2000 and worked until 6:00 a.m. on February 1, 2000, removing snow and ice, due to the bad weather.

Tucker also called R. Andrew Fletcher, III (Fletcher), as a liability expert. Fletcher is a licensed architect. He indicated his expertise in the area of architecture and in construction of parking lots and code violations. Fletcher agreed that the case involved a maintenance issue, not a design defect. Fletcher testified that he never worked as a facility coordinator, that he is not a licensed code officer in Pennsylvania and he is not a licensed engineer.*fn2 The trial court precluded his testimony, finding him not qualified to render an opinion as to the standard of care for the proper salting and removing of snow and ice from a parking lot during general icy conditions. The trial court further held this matter was within the common knowledge of a lay person.

The trial also included testimony of several School District employees, including Joseph Dyer (Dyer), the head groundskeeper for the School District. Dyer testified to the general practices for maintaining the premises in winter conditions. Carolyn Amato, Ronald Sterling, and Jack ...


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