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Harris v. Philadelphia Facilities Management Corporation

Commonwealth Court of Pennsylvania

December 2, 2014

William Harris, Jr., Appellant
Philadelphia Facilities Management Corporation and Danella Companies, Inc

Argued, October 7, 2014,

Appealed from No. February Term, 2011, No. 3752. Common Pleas Court of the County of Philadelphia. Younge, J.

Joseph C. Murray, Philadelphia, for appellant.

Brian A. Kint, Philadelphia, and Stephen J. Magley, Pittsburgh, for appellees.



Page 184


William Harris, Jr. (Appellant) appeals from the August 7, 2013 order of the Philadelphia County Court of Common Pleas (trial court) denying Appellant's post-trial motions for a new trial. For the following reasons, we affirm.

Philadelphia Facilities Management Corporation and Danella Companies, Inc. (Appellees) entered into a contract with Philadelphia Gas Works to work on a gas main located within the North Philadelphia campus of Temple University. Appellees excavated the intersection of Broad and Diamond Streets for the gas main work and created irregularities in the roadway when the excavation at the intersection was temporarily patched. On August 14, 2010,

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 Appellant was involved in a single-vehicle motorcycle accident at the intersection. He suffered injuries, the most severe of which were displaced and impacted fractures of his left tibia and fibula. Officer Julio Caserio (Officer Caserio) and Officer Matthew Hassel (Officer Hassel) of the Temple University police department responded to the accident.[1] Officer Hassel prepared a police accident report[2] but did not testify at trial.[3] A jury trial was held from February 4, 2013, to February 12, 2013.

Appellant filed a motion in limine seeking to preclude portions of the police accident report prepared by Officer Hassel. In particular, Appellant sought the exclusion of Officer Hassel's opinions regarding speeding, improper careless turning, driver inexperience, Appellant being distracted while driving, and other improper driving actions. (Reproduced Record (R.R.) at 340a, 342a, 352a.) During the trial, the trial court addressed Appellant's motion, stating:

[Trial court]: [C]ounsel makes reference to things in the police report that are observations by the officer such as the location of the accident, the time of the accident, things of that nature.
Generally speaking, police reports are inadmissible hearsay. You may make reference to some of those things.
In this case the issue of the pothole is the ultimate issue for the jury to decide. It would be unfair to allow any reference to the police report at all and [there] will be no reference to the police report at all.

(R.R. at 361a-62a) (emphasis added). Rather than excluding only the portions of the police accident report requested by Appellant, the trial court excluded all of Officer Hassel's opinions as to the cause of the accident.

Appellant testified that he was riding his motorcycle at ten to fifteen miles per hour as he approached Broad Street to make a left turn when he ran over some bumps and lost control of the motorcycle, causing it to wobble and eventually fall in the middle of Broad Street. The motorcycle landed on Appellant's leg, breaking it. Appellant stated that he did not slide under the motorcycle. He acknowledged that he did not see a trench in the road until after he was helped out of the middle of the street, but he was positive that the trench caused the accident. Appellant described the trench as one in a zigzag pattern that spanned the length of the crosswalk on Diamond Street. Appellant testified that it was obvious that he ran over something on his motorcycle, because both of his wheels went into the trench and he hit a number of potholes when inside of the trench. He noted that he had a 1- or 2-inch scratch on his left forearm as a result of the accident and stated that he went over the motorcycle instead of sliding. (R.R. at 384a-88a, 390a-91a, 393a-94a, 407a-08a, 426a, 454a-55a.)

John Posusney (Posusney), a civil structural engineer, testified as an expert witness for Appellant, stating that he could see the depression, i.e., the trench, in a photograph of the accident site admitted

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into evidence. Posusney opined that the trench was the cause of the accident, but he acknowledged that the conclusions in his report were based solely on Appellant's and Appellant's sister's descriptions of the potholes that were in the admitted photographs. (R.R. at 521a-22a, 534a, 545a.)

Officer Caserio testified that he and Officer Hassel responded to the accident. Officer Caserio said that, by the time they reached the accident scene, Appellant's motorcycle was in the center of the intersection and Appellant was half sitting/half lying down off to the side. Officer Caserio stated that he investigated the intersection after Appellant told him that he hit a pothole. However, Officer Caserio did not see any severe potholes. He added that there was a minimal construction trench, if there was one at all, on Diamond Street. Officer Caserio testified that Officer Hassel wrote the police accident report; Officer Caserio stated that he remembered the accident and that he reviewed the police accident report prior to testifying to check for any specific details that he might not have recalled. (R.R. at 778a-80a, 783a, 785a, 789a.)

William J. Martin (Martin), Appellees' accident reconstruction expert, testified that he reviewed the accident report; three photographs taken by Appellant's sister the night of the accident; transcripts of the depositions of Appellant, Appellant's sister, and Officer Caserio; Posusney's report; vehicle data regarding Appellant's motorcycle type; aerial photographs from Google Earth; and United States Naval Observatory data concerning sunrise and sunset in Philadelphia. Martin concluded that the accident occurred slightly before 8:00 p.m., when there still would have been sunlight. Martin was familiar with the route and speed that Appellant alleged he was travelling at the time of the accident and the damage to Appellant's motorcycle. Martin visited the intersection, took photographs, made measurements, and created a scaled aerial photograph of the accident scene. Martin opined that no potholes or breakouts in the road on Diamond Street would have affected the operation of the motorcycle. Martin testified that the trench was only slightly depressed and that the accident did not occur at the trench but beyond it. (R.R. at 810a-11a, 820a, 841a.)

Martin believed that Appellant was involved in a " low-side" accident, explaining that low-side accidents occur when the bottom of the motorcycle slides away from the operator. (R.R. at 832a.) He further described low-side accidents as follows:

[Appellees' counsel]: What causes a low-side accident?
[Martin]: A low-side accident is caused by -- can be caused by several factors; one being attempting to brake too hard with the rear wheel while leaning into a curb.
And what that can do is that can lock the wheel up and where it will, then, slide out from under you and cause you to go down.
It can be from hitting a slippery type surface, say an oil slick, with your rear wheel as you're, again, leaning into a turn, where anything that's going to break the friction between the rear wheel and the road and cause it to slide out from beneath you, that is a low-side. And that's the only time that you will stay beneath the motorcycle.

(R.R. at 832a.) Martin's ultimate opinion was that Appellant was involved in a low-side accident that could only have been caused by driver error. (R.R. at 842a, 875a, 888a-89a.)

In rebuttal, Appellant presented the testimony of Donald Thomas, Ph.D. (Dr. Thomas), an expert in biomechanics. Dr. Thomas testified that Appellant's version

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of the accident was probable because the motorcycle's final location in the middle of Broad Street was consistent with Appellant's version of the facts. He opined that Appellant was attempting to regain balance and the bike had almost stopped at the time that it fell on Appellant in the middle of Broad Street. Dr. Thomas added that there was no injury on the ...

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