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Irey v. Commonwealth, Department of Transportation

Commonwealth Court of Pennsylvania

June 28, 2013

Michael Irey and Tara Irey, h/w, Appellants
v.
Commonwealth of Pennsylvania, Department of Transportation

Argued: May 15, 2013.

BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE BERNARD L. McGINLEY, Judge HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge.

OPINION

BROBSON, JUDGE.

Appellants Michael and Tara Irey (Plaintiffs) appeal from an order of the Court of Common Pleas of Delaware County (trial court), which, following a jury verdict in favor of the Commonwealth of Pennsylvania, Department of Transportation (DOT), denied Plaintiffs' post-trial motion for a new trial or judgment non obstante veredicto (n.o.v.). We now reverse.

Plaintiffs filed a complaint against DOT in the trial court on December 30, 2008, raising causes of action for negligence and loss of consortium. Specifically, Plaintiffs alleged that DOT's negligence in allowing water to accumulate on a state highway, approaching the Governor Prince Bridge (Bridge), [1]caused Plaintiff Michael Irey (Mr. Irey) to lose control of his vehicle.[2]Consequently, Mr. Irey's vehicle collided with another vehicle. Plaintiffs further alleged that "as a direct and proximate result of the accident, Mr. Irey suffered severe and serious injuries that are permanent in nature." (Certified Record (C.R.), Complaint at ¶ 16.) Plaintiffs alleged that DOT had notice of flooding at the Subject Location prior to the accident. (C.R., Complaint ¶¶ 7, 13.) Also, Plaintiff Tara Irey (Mrs. Irey) alleged in the complaint that her husband's injuries arising out of the accident deprived her of his "assistance, society, comfort and companionship." (C.R., Complaint ¶ 35.) DOT filed an answer denying Plaintiffs' allegations and raising new matter.

The trial court conducted a three-day jury trial, during which Plaintiffs called several witnesses relevant to the issues now on appeal. First, Mr. Irey testified on his own behalf. Mr. Irey testified that on November 12, 2006, at around 7:30 p.m., he was driving on S.R. 320, also known as South Providence Road, approaching the Bridge in the direction of Chester, when his car hit standing water at the Subject Location. (Notes of Testimony (N.T.), March 21, 2011, at 67, 69-70, 73-75.) Specifically, Mr. Irey testified:

As I approached the area I again – I felt my car, basically lose control of my car. The rear-end started to slide out to the left a bit. I tried to correct that with my steering. And as a result, I guess I over-corrected or what have you. But the car[']s rear came back to the right. At which time I just remember the collision with Miss Carr's vehicle.

(Id. at 74.) At the time of the accident, Mr. Irey's car crossed into the oncoming travel lane—the wrong side of the road. (Id. at 85-86.)

Also, at the time of the accident, Mr. Irey was working as a detective, with the rank of sergeant, for the Nether Providence Township Police Department (Township Police Department) and was operating his undercover police vehicle, a 2000 Mercury Sable. (Id. at 55-56, 72.) According to Mr. Irey's testimony, the car was in good condition. (Id. at 149.) Particularly, Mr. Irey testified that he thought that the tires were in an appropriate condition for driving. (Id.)

Mr. Irey further testified that on the night of the accident, it was dark and raining heavily. (Id. at 72, 75, 149-150.) His windshield wipers were on high speed. (Id.) The headlights were on. (Id. at 73.) He was paying attention to the roadway. (Id. at 75.) Indeed, Mr. Irey testified that he was driving over twenty-five and under thirty-five miles per hour—i.e., not speeding—on S.R. 320.[3](Id. at 81, 102, 150.)

Recalling the accident, Mr. Irey testified that, in his opinion, the depth of the water caused the collision. (Id.) He also testified that he could not see the water before hitting it. (Id.) Mr. Irey further testified that "I [do not] believe I [have] ever seen a pool of water like I saw that night." (Id. at 84.) Despite occasionally having driven on S.R. 320, he testified that he had been unaware of any kind of flooding problems in the area prior to the accident. (Id. at 84-85.)

Two days after the accident, doctors diagnosed Mr. Irey with a broken neck. (Id. at 107.) As a result of the broken neck, Mr. Irey had to wear a metal halo brace, the application of which required four screws in his head, until January 10, 2007. (Id. at 109-14.) Mr. Irey testified that having a halo brace was extremely painful and that he "would [not] wish it on [his] worst enemy." (Id. at 113.)

On cross-examination, Mr. Irey reaffirmed his denial of ever having seen water accumulation on S.R. 320. (Id. at 140.) Mr. Irey acknowledged having received formal training to drive under various weather conditions. (Id. at 141.) Additionally, he testified that, as a licensed Pennsylvania driver, he was familiar with the legal requirements for operating a motor vehicle. (Id. at 142.) Indeed, Mr. Irey agreed "that motor vehicle operators are supposed to drive [their] car[s] with due regard to the weather and be able to bring their car[s] into a stop within the short, clear distance ahead of them." (Id.) Mr. Irey also testified that he did not remember whether he had taken his "foot off the gas" or whether he had applied the brakes when the car hit the standing water. (Id. at 142-43.) Mr. Irey also agreed that, undoubtedly, the light standards above the Bridge were working on the evening of the accident. (Id. at 143.) Finally, Mr. Irey agreed that, since becoming a detective in 2003, he had, on average, travelled three times per month over the Bridge. (Id. at 151.)

Next, Sergeant Paul Battinieri of the City of Chester Police Department, the investigating officer at the time of the accident, testified. (Id. 156-57.) Sergeant Battinieri testified that he had filled out an accident report, in which he depicted Mr. Irey's car hitting a "large pool of standing water on the Nether Providence Township side of the [Bridge]." (Id. at 157, 163.) Sergeant Battinieri specifically testified that, after hitting the "large puddle of standing water, " Mr. Irey's car "hydroplane[d], lost control." (Id.) He also testified that Mr. Irey's car came to rest in the middle of the S.R. 320 Bridge, approximately 100 feet from the standing water, after it collided with another vehicle in the opposite lane. (Id. at 166, 172-73.) Sergeant Battinieri testified that he considered the Subject Location a problem area, because he had seen standing water there on other occasions prior to the accident. (Id. at 167-68.) Specifically, he testified that "the water ends up like that or worse. You know, rain, storm, whatever. There's a large hill on the north side of this bridge where all the running water comes and it sits there." (Id. at 168-69.) Sergeant Battinieri testified that in his estimation, the standing water was eight to ten feet wide. (Id. at 173.) Finally, Sergeant Battinieri testified that he personally had not investigated any other accidents at the Subject Location. (Id. at 174.)

Tamika Carr, the driver of the other car involved in the collision, testified. Ms. Carr testified that it was raining at the time of the accident. (Id. at 177.) She also testified that she "could see lights approaching [her] as [she] was going down towards Swarthmore. And a car swerved once, then [it] swerved again. And then [it] started hydroplaning. And that [is] when [it] hit [my car] head on." (Id.) Specifically, she testified that "[she] had lights coming towards [her]. And [the car] hit [her] hard enough that [she] went backwards." (Id. at 178.) Ms. Carr testified that, at times when it rained prior to the accident, she had seen flooding or standing water at the Subject Location. (Id. at 180.) Indeed, she testified that she could see standing water from her vantage point on the night of the accident. (Id. at 181.) Finally, she testified that whenever there was substantial rainfall, water would accumulate at the Subject Location. (Id.)

Sergeant Richard E. Slifer of the Township Police Department testified on Plaintiffs' behalf. (N.T., March 22, 2011, at 5.) He testified that, throughout the twenty-seven years that he has been on the police force, the Subject Location has had a flooding problem. (Id. at 7.) Particularly, Sergeant Slifer testified that when leaves and debris would clog the drainage system, flooding would occur at the Subject Location. (Id. at 7, 36.) Indeed, the flooding, according to Sergeant Slifer's testimony, was an annual event that generally occurred from October through December. (Id. at 8.) Sergeant Slifer identified three occasions—since the computerization of Township Police Department's records—where the department had filled out an incident report relating to flooding at the Subject Location and had notified DOT about the flooding. (Id. at 21-25, 32.) He finally testified that, while he could not speak for other officers in his department, he regularly and customarily travelled on S.R. 320 and on the Bridge when on patrol duty. (Id. at 34-35.) In fact, Sergeant Slifer testified that whenever he travels on the Subject Location, he anticipates flooding when it is raining. (Id. at 42.) To avoid standing water, Sergeant Slifer testified that he moves the car toward "the center of the road like everybody else." (Id. at 43.) Also, during his testimony, DOT's attorney challenged Plaintiffs' attorney's introduction of photographs illustrating the spraying of water from a truck at the Subject Location. (Id. at 9.) The trial court sustained the challenge, concluding that the photographs were irrelevant because they were not taken in conditions substantially similar to the conditions in which the accident occurred. (Id. at 11-12.)

Officer Michael Markunas of the Township Police Department testified next. Officer Markunas testified that, prior to the accident, he was aware of flooding problems at the Subject Location. (Id. at 49.) He testified that he had filled out an incident report on November 16, 2005, documenting flooding at the Subject Location.[4] (Id. at 49-51.) Subsequently, he had county dispatch contact DOT regarding conditions at the Subject Location. (Id. at 51.) Finally, in describing his experience with flooding at the Subject Location, Officer Markunas testified:

There's been times where I've had to take evasive action to avoid, where the roadway hasn't completely been flooded over, on the middle of the roadway where it crests at the median. And I can make it through where I've had to take evasive action to keep from going through the puddle. Because it will flood up to the curb line. And the curb line's pretty high. So it's – there's been times where I've had to take evasive action to avoid losing control within this area.

(Id. at 52-53.)

Christopher Fox testified next. He testified that, for twelve years, he has been living near the site of the accident and, in fact, can see the Subject Location from his house. (Id. at 61-62.) Mr. Fox testified that it usually floods near the Bridge on both sides of S.R. 320, because the Bridge is located at the bottom of two hillsides. (Id.at 63.) Indeed, S.R. 320 flooded three to five times per year prior to the accident. (Id. at 65.) In describing motorists' visibility of standing water at night when approaching the Bridge, Mr. Fox testified:

Yeah. I mean, as you can see, it's fairly flat and open. And I think, you know, the majority of the people that live around that know that that's an area that floods consistently. But, like I said, it's flat and open. So you have a pretty good view of it from – especially if you're coming from Chester heading north. Whereas if you're coming from the opposite way, you're coming down the hillside that curves, maybe [seventy-five] yards before the [Bridge]. So you might not get as much of a warning coming – heading south.

(Id. at 66.) He also testified that he has never seen S.R. 320 flooded to the point where traffic could not cross it. (Id. at 68.) Finally, Mr. Fox testified that he has witnessed DOT's crews clearing the drains on S.R. 320 to clear the roadway of standing water. (Id. at 69-70.)

Officer Kevin Smith testified after Mr. Fox. Officer Smith testified that he has been working as a patrolman for the Township Police Department for twelve years and that he has encountered standing water at the Subject Location. (Id. at 73-74.) Specifically, Officer Smith testified that he filled out an incident report on November 28, 2003, documenting flooding at the Subject Location about which he had notified DOT. (Id. at 74.) Officer Smith also testified that he had witnessed flooding on several occasions prior to the accident at the Subject Location. (Id. at 75.) Given his experience and knowledge of ...


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