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Richard Sodders v. Christopher T. Fry and Ohioville

December 9, 2011

RICHARD SODDERS
v.
CHRISTOPHER T. FRY AND OHIOVILLE BOROUGH AND/OR OHIOVILLE BOROUGH POLICE DEPARTMENT, APPELLANTS



The opinion of the court was delivered by: Dan Pellegrini, Judge

Argued: November 15, 2011

BEFORE: HONORABLE DAN PELLEGRINI, Judge

HONORABLE P. KEVIN BROBSON, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge

OPINION BY JUDGE PELLEGRINI

Police Officer Christopher T. Fry (Officer Fry), Ohioville Borough, and the Ohioville Borough Police Department (collectively, Borough) appeal an order of the Court of Common Pleas of Beaver County (trial court) granting Richard Sodders (Sodders) a new trial because the trial court did not specifically instruct the jury on negligence per se as to both Officer Fry and Sodders even though both parties admittedly violated separate provisions of the Motor Vehicle Code (Code).*fn1 Discerning no error in the trial court‟s opinion, we affirm.

This lawsuit centers around a motor vehicle accident which occurred in the Borough of Midland, Beaver County, on December 2, 2005. At approximately 2:00 a.m. that morning, Sodders was travelling eastbound on Midland Avenue approaching the intersection with 9th Street where he wished to make a left turn. Three police vehicles were approaching him heading westbound on Midland Avenue. The officers were admittedly travelling approximately 35 m.p.h. in a 25 m.p.h. zone and while they were responding to a disturbance call, none of them were utilizing their lights or sirens.*fn2 After the first two vehicles passed, Sodders made a left turn onto 9th Street and, in doing so, was struck by the third vehicle driven by Officer Fry. Sodders suffered various injuries as a result of the accident and had to undergo spinal surgery. In October 2006, he filed a complaint with the trial court alleging negligence on the part of the Borough.

During trial, Sodders testified that on the night in question, he was travelling on Midland Avenue and brought his car to a complete stop at the intersection with 9th Street because he saw two cars approaching from the opposite direction. At this point, he could not see the third vehicle approaching. Sodders testified that he did not realize the two cars were police vehicles until they passed or were just about to pass him because it was very dark and neither car had on its lights or siren. Sodders proceeded to make a left turn onto 9th Street immediately after the second police vehicle passed. Sodders testified that he believed he had ample time to make the turn given the posted 25 m.p.h. speed limit and his claim that the third vehicle was approximately half a block away when he began to make. his turn. Sodders testified he was all the way or almost all the way through the intersection when the collision occurred. The third vehicle did not have on its lights or siren at any time, and Sodders did not know it was a police vehicle until after the accident.*fn3

Officer Fry testified that prior to the accident he was at a convenience store on Midland Avenue with Midland Police Officer Bruce Clark (Officer Clark) and Industry Police Officer Tom Czerpak (Officer Czerpak) when Officer Clark received a radio dispatch for a disturbance at a local bar. Officer Fry believed this to be a fairly routine call, most likely a fight. According to Officer Fry, it was standard procedure for officers to respond to disturbance calls in excess of the speed limit without lights or sirens. All three officers headed out onto Midland Avenue in separate vehicles to respond to the call, with Officer Clark in front, Officer Czerpak second and Officer Fry third. According to Officer Fry, he was only two car lengths behind Officer Czerpak‟s vehicle, or approximately 30 to 40 feet. Officer Fry claimed his vehicle was either in or just about to enter the crosswalk on the opposite side of the intersection when Sodders began to turn in front of him. He testified that he immediately slammed on his brakes and attempted to turn to the right, but was not able to avoid the collision. The front passenger-side corner of Officer Fry‟s vehicle impacted Sodders‟ vehicle, which then spun around and struck a utility pole. Both Officer Clark and Officer Czerpak continued driving on Midland Avenue and neither witnessed the accident.

On cross-examination, Officer Fry admitted, and his report of the incident reflected that he was travelling approximately 35 m.p.h. on Midland Avenue, in excess of the posted 25 m.p.h. speed limit. Officer Fry also admitted that he was not utilizing his lights or siren, that he was required to use his emergency lights and siren when responding to an emergency, and if he failed to do so he was not entitled to the privileges afforded emergency responders under Section 3105 of the Vehicle Code, including the privilege to exceed the posted speed limit. He also admitted there was no "sub-emergency or quasi emergency exception" to Section 3105 and, therefore, at the time of the accident he was operating his vehicle in violation of Section 3105 and 3362*fn4 of the Vehicle Code. (Reproduced Record (R.R.) at 129a).*fn5

At the conclusion of the trial, both Sodders and the Borough requested that the trial court instruct the jury on the issue of negligence per se. Sodders pointed out that Officer Fry admittedly did not have on his lights or siren at the time of the accident. Therefore, Officer Fry was not entitled to the emergency responder privileges of Section 3105 of the Vehicle Code and was required to abide by the posted speed limit. Sodders argued the jury should be instructed that it must find Officer Fry negligent as a matter of law because he admitted that he violated Section 3362 of the Vehicle Code regarding maximum posted speed limits. The Borough, on the other hand, argued that Sodders had violated Section 3322 of the Vehicle Code*fn6 because he turned left at an intersection and failed to yield the right-of-way to Officer Fry‟s oncoming vehicle. The Borough requested a jury charge regarding negligence per se, specifically that if the jury found that Sodders violated Section 3322 of the Vehicle Code, then it had to find him negligent as a matter of law.

The trial court denied both requests and charged the jury on negligence, contributory negligence, factual cause, and the applicable sections of the Vehicle Code. The trial court instructed the jury, in pertinent part, as follows:

A Pennsylvania Motor Vehicle law dictates the duty of care requires someone in the same situation as the plaintiff and the defendant driving the vehicles. In this situation, if you find that there was a violation of this state law, it may be used as a factor in finding negligence in this case. But you must determine not only whether there was a violation of the Pennsylvania Motor Vehicle Code, but you must also determine whether that violation was a factual cause in causing the accident.

Of course, these are the sections that they claim are applicable in this case and are to be considered by you in determining whether the plaintiff violated this state law, and as a result was negligent, or that the ...


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