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Catherine Wright Individually and v. Paul Eastman and Marion Eastman

January 22, 2013

CATHERINE WRIGHT INDIVIDUALLY AND AS ADMINISTRATOR OF THE ESTATE OF PATRICIA CARLIN APPELLANT
v.
PAUL EASTMAN AND MARION EASTMAN APPELLEES



Appeal from the Order Entered of December 1, 2011 In the Court of Common Pleas of Allegheny County Civil Division at No(s): GD-08-17680

The opinion of the court was delivered by: Wecht, J.

J-A24034-12

BEFORE: MUSMANNO, J., BOWES, J., and WECHT, J.

OPINION BY WECHT, J.

Catherine Wright ("Appellant"), individually and on behalf of the estate of Patricia Carlin ("Decedent"), challenges the trial court order of December 1, 2011. That order granted summary judgment to Paul and Marion Eastman ("Appellee").*fn1 We reverse and remand.

We begin by reproducing the trial court's opinion in its entirety:

[Appellant] has appealed from the Order of Court granting [Appellee's] Motion for Summary Judgment in the above matter. The evidence established that decedent was struck by a motor vehicle driven by [Appellee], who was traveling home from work in the early-morning hours. The evidence established that [Appellee] was driving on [Pittsburgh-McKeesport Boulevard] in the curb lane when decedent appeared in front of his vehicle.

Decedent was struck by [Appellee's] vehicle and ultimately died from the injuries sustained in that accident. The decedent had a blood alcohol level at .42% at the time of the accident. No evidence was presented to suggest that [Appellee] had seen decedent in front of his vehicle until he was within one-and-a- half car lengths of her. The evidence established that [Appellee] applied his brakes but, unfortunately, could not stop in time. There was no evidence that [Appellee] was speeding, and the police report prepared reflects that [Appellee] was going below the posted speed limit. There is no evidence that [Appellee] was being inattentive, nor was there any evidence that he could have done anything to prevent the accident.

[Appellant] sought to present the testimony of two experts to establish that [Appellee] could have seen the decedent from 160 feet to 170 feet away and that based on that distance, [Appellee] could have stopped his vehicle. The difficulty with [Appellant's] position, however, is that no facts support the proposition that [Decedent] was on the road at the distance at which [Appellant's] experts say she could have and should have been seen. No evidence of record exists to establish when decedent was on the street other than the testimony of [Appellee] that he saw her when he was within two car lengths of her. On the record generated, there is simply no evidence to establish [Appellee's] negligence. The expert opinions sought to be proffered by [Appellant] lacked a factual basis - namely, there is no evidence to establish that [Decedent] was on the road in the area and at the time that would support [Appellant's] claim that [Appellee] should have seen the decedent. In the absence of any facts to support the experts' conclusions, their testimony is not relevant. Expert testimony is incompetent if it lacks an adequate basis in fact. The expert is allowed only to assume the truth of testimony already in evidence. While an expert's opinion need not be based on an absolute certainty, an opinion based on mere possibilities is not competent evidence. This means that expert testimony cannot be based solely upon conjecture or surmise. Veiner v. Jacobs, 834 A.2d 546, 558 (Pa. Super. 2003); see also Cuthbert v. City of Philadelphia, 209 A.2d 261, 264 (Pa. 1965).

Given the lack of factual basis to support the proffered testimony of [Appellant's] experts, it is readily apparent that [Appellant] cannot establish [Appellee's] negligence. Accordingly, the Motion for Summary Judgment was properly granted.

Trial Court Opinion, 1/19/2012 ("T.C.O."), at 2-4 (citations modified).

Appellant raises four issues on appeal. Yet her argument presents one overarching question: Whether the trial court incorrectly assumed, disregarded, or weighed various items of evidence, including lay deposition testimony and expert reports, in granting summary judgment to Appellee? Our standard of review of a trial court order granting summary judgment is well-settled:

A reviewing court may disturb the order of the trial court only where it is established that the court committed an error of law or abused its discretion. Capek v. Devito, 767 A.2d 1047, 1048, n.1 (Pa. 2001). As with all questions of law, our review is plenary. Phillips v. A-Best Prods. Co., 665 A.2d 1167, 1170 (Pa. 1995).

In evaluating the trial court's decision to enter summary judgment, we focus on the legal standard articulated in the summary judgment rule. Pa.R.C.P. 1035.2. The rule states that where there is no genuine issue of material fact and the moving party is entitled to relief as a matter of law, summary judgment may be entered. Where the non-moving party bears the burden of proof on an issue, he may not merely rely on his pleadings or answers in order to survive summary judgment. "Failure of a non-moving party to adduce sufficient evidence on an issue essential to his case and on which it bears the burden of proof . . . establishes the entitlement of the moving party to judgment as a matter of law." Young v. PennDOT, 744 A.2d 1276, 1277 (Pa. 2000). Lastly, we will view the record in the light most favorable to the non-moving party, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party. Pennsylvania State Univ. v. County of Centre, 615 A.2d 303, 304 (Pa. 1992).

Murphy v. Duquesne Univ. of the Holy Ghost, 777 A.2d 418, 429 (Pa. 2001) (citations modified). When "it is not inconceivable that a reasonable mind could reach the conclusion that the defendant breached its [duty]," a claimant may not be denied submission of that question to a jury.

Cox v. Equitable Gas Co., 324 A.2d 516, 518 (Pa. Super. 1974).

Moreover:

[T]he issue as to whether there are no genuine issues as to any material fact presents a question of law, and therefore, on that question our standard of review is de novo. This means we need not defer to the determinations made by the lower tribunals. To the extent that this Court must resolve a question of law, we shall review the grant of summary judgment in the context of the entire record.

Summers v. Certainteed Corp., 997 A.2d 1152, 1159 (Pa. 2010)

(citations omitted).

To state a claim for negligence, a claimant must establish the presence of a legal duty or obligation; a breach of that duty; a causal link between that breach and the injury alleged; and actual damage or loss suffered by the claimant as a consequence of thereof. Lux v. Gerald E. Ort Trucking, Inc., 887 A.2d 1281, 1286 (Pa. Super. 2005). We have held that "a pedestrian has a perfect right to rely on the exercise of reasonable care by the drivers of automobiles on the highways. A pedestrian may not cross a street without exercising due care, but whether that care has been manifested or not is a question of fact for the jury." Lavely v. Wolota, 384 A.2d 1298, 1302 (Pa. Super. 1978) (citation omitted); see Mazzagatti v. Everingham by Everingham, 516 A.2d 672, 679 (Pa. 1986) ("[T]he driver of a vehicle owes a duty of care to all motorists and pedestrians in his immediate zone of danger . . . .").

At issue in this case is not the existence of a general duty of care owed by Appellee to pedestrians, which is materially undisputed. Clearly, there is no doubt that Decedent sustained fatal injury in this case. Finally, if a jury were to find that Appellee breached his duty to Decedent, causation would not be at issue, simpliciter, although contributory negligence might obviate Appellee's liability for damages. See 42 Pa.C.S. § 7102 (providing that when a claimant's contributory negligence exceeds the negligence of the tortfeasor, claimant is barred from recovering damages).*fn2 Rather, at issue in this case is the sufficiency of Appellant's evidence to establish a genuine issue of material fact regarding whether Appellee breached his duty to Decedent. The trial court found that Appellant had failed to establish such an issue, and consequently granted summary judgment to Appellee. In so ruling, the trial court erred.

Appellant contests the trial court's conclusion that no evidence outside the four corners of Appellant's expert reports, whether viewed in isolation or in tandem with those expert reports, created a question for the fact-finder. Appellant further contests the trial court's conclusion that Appellant's experts' reports were in all relevant particulars based to an impermissible degree on conjecture.

We begin by reviewing the evidence submitted by Appellant in opposition to Appellee's motion for summary judgment. Appellee testified that the fatal accident occurred around midnight on either June 15 or 16, 2008. Deposition Transcript, Paul Eastman, 12/21/2010 ("Appellee's Depo."), at 13-14. Appellee was traveling southeast on Pittsburgh- McKeesport Boulevard, on his way home from his 3:00 P.M. to 11:00 P.M. shift at the Edgar Thompson Works, U.S. Steel, located in Braddock, Allegheny County. Id. at 15, 18, 20. Appellee attested that his car, a Ford Escort wagon, was in good mechanical order with properly functioning headlights and clear windshield glass. Id. at 18-19. The roads were dry, and no inclement conditions impeded Appellee's vision of the road. Id. at 19-20. Appellee was taking only "mild" medications to treat high blood cholesterol and blood pressure. Id. at 17. He had not consumed alcohol. Id.

In the relevant stretch of highway, Pittsburgh-McKeesport Boulevard was a four-lane, undivided road, with two lanes traveling south and two lanes traveling north; there was no dedicated left-turn lane. Id. at 20-21. There was at least one streetlight in the general vicinity of where Appellee's car struck Decedent; Appellee testified that the impact occurred just past that streetlight. Id. at 23.

Appellee testified that he was traveling at approximately thirty miles per hour, and that the posted speed limit where the accident occurred was thirty-five miles per hour. Id. at 22. He testified that he drove slowly as a consequence of "[h]ow the road is constructed . . . . You're going through the bends. . . ." Id. He further attributed his speed to the fact that "a lot of deer come through there. You got the woods on that side and they come running across. And I had experience with deer shooting across and you don't want to go too fast." Id. at 23.

Appellee testified that he was proceeding southbound in the right lane of two southbound lanes. He was "hugging" the line between the two southbound lanes because trees overhang the right lane in the area in question. Id. at 42. Appellee explained:

[APPELLEE.] [Decedent] was like in front of me, like, you know, towards the center of the car. You know, I thought maybe to the right a little bit, you know, or center. . .

[APPELLANT'S COUNSEL.] When you put on your brakes, you did not swerve to the left. . . [C]orrect?

A. Right.

Q. You also did not swerve to the right, did you?

A. No, I just stopped the car and - it happened.

Id. at 41-42.

Appellee testified more than once that he did not see Decedent until he was nearly on top of her - estimating her distance from him at first sight as one and a half to two car lengths. Id. at 22. He did not have time to swerve in either direction, but agreed that he "did have enough time after seeing ...


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