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Rohe v. Vinson

Superior Court of Pennsylvania

December 28, 2016

KEVIN A. ROHE Appellant

         Appeal from the Judgment Entered December 15, 2015 In the Court of Common Pleas of Bradford County Civil Division at No(s): 12-CV-000287



          GANTMAN, P.J.

         Appellant, Kevin A. Rohe, appeals from the judgment entered in the Bradford County Court of Common Pleas, in favor of Appellees, Darris D. Vinson and Fenton Welding Transport, LLC, in this negligence action. We reverse and remand for a new trial.

         The relevant facts and procedural history of this case are as follows. On April 7, 2012, at approximately 7:15 p.m., Appellant was riding his motorcycle southbound on Route 220 in Albany Township, Bradford County. Route 220 is a two-lane highway, with one lane northbound and one lane southbound. The weather conditions were clear and dry, and it was still light outside at that time. Appellant was travelling in the southbound lane behind two trucks, a tractor-trailer and a tri-axle truck, with the tri-axle truck in the lead. Appellee Mr. Vinson was operating the tri-axle truck; and his co-worker, Dennis Perry, was operating the tractor-trailer. Appellant reached a lawful passing zone that stretches approximately 750 feet, and he attempted to pass both trucks on the left. At the site of the passing maneuver, the speed limit on Route 220 had just changed from 25 mph to 45 mph. Both trucks were travelling below the 45 mph speed limit. In an effort to pass both vehicles within the passing zone, Appellant increased his speed to approximately 50 mph. After Appellant had successfully passed the tractor-trailer, he noticed the tri-axle truck had its left turn signal activated and was slowing down to turn into a gas station parking lot. Appellant pressed on his horn to notify the driver that Appellant was attempting to pass, but Mr. Vinson had already begun to turn left. Appellant struck the bumper of Mr. Vinson's vehicle and was ejected from the motorcycle. Mr. Vinson called 911. After aid from an Emergency Medical Services ("EMS") crew at the scene of the accident, Appellant was airlifted to a local hospital for medical treatment. As a result of the motor vehicle accident, Appellant sustained serious injuries requiring an above-the-knee amputation of his right leg.

         On June 27, 2012, Appellant filed a complaint against Mr. Vinson and Fenton Welding Transport, LLC, alleging negligence and vicarious liability. Appellant alleged Mr. Vinson failed to activate his left turn signal early enough, turned directly into Appellant's path without ensuring the turn was safe to make, failed to yield the right of way to Appellant, and did not stay in his own lane before Appellant completed his pass in the lawful passing zone. Appellant claimed Appellee Fenton Welding Transport, LLC (Mr. Vinson's employer) was vicariously liable for Mr. Vinson's negligence because Mr. Vinson was acting in the course and scope of his employment at the time of the accident. Appellees filed an answer and new matter on September 7, 2012; Appellant filed a reply on September 27, 2012.

         Appellant filed a motion in limine on June 20, 2014, seeking to preclude at trial any reference to alcohol consumption by Appellant or his friend Carl Bird on the date of the accident. Appellant also sought to preclude any evidence showing that Appellant and Mr. Bird visited bars on the date of the accident. Appellant's motion contained the following eleven exhibits: (1) a map of the accident scene; (2) an excerpt of Mr. Bird's deposition testimony; (3) an excerpt of Appellant's deposition testimony; (4) the EMS report; (5) the police crash report; (6) an excerpt of the deposition testimony of Trooper Anthony Stempien, Jr.; (7) a report from Robert Packer Hospital, where Appellant was treated following the accident; (8) laboratory results from Geisinger Medical Center showing Appellant's blood alcohol level after the accident; (9) a letter from Dr. R.E. Hartman discussing the methodology used in relation to Appellant's blood alcohol level; (10) the expert report of toxicologist Dr. Gary Lage (Appellees' expert); and (11) an excerpt from Mr. Vinson's deposition testimony.

         At his deposition, Mr. Bird testified, inter alia, he has known Appellant over ten years and they typically ride motorcycles together once a week. On the date of the accident, Mr. Bird and Appellant met between 12:00 p.m. and 1:00 p.m. for a day-trip motorcycle ride. During the course of their trip, Appellant and Mr. Bird stopped at six bars. Appellant and Mr. Bird each consumed one beer at every bar they visited. At the final bar they visited, Mr. Bird and Appellant also ate dinner. Mr. Bird said Appellant might have consumed two beers at the last bar because they were eating. Appellant and Mr. Bird left the last bar at approximately 7:00 p.m. to return to their respective homes. Mr. Bird believed Appellant was capable of safe driving at all points throughout the day and had no concern about Appellant's ability to drive safely. (See Appellant's Motion in Limine, filed 6/20/14, at Exhibit 2 (Deposition of Carl Bird, 6/26/13); R.R. at 23a-47a).

         Appellant testified at his deposition, inter alia, he visited six bars with Mr. Bird over a six-to-seven-hour period on the day of the accident. At each bar, Appellant consumed one 12-ounce Michelob Ultra light beer, except at the last bar where Appellant consumed two 12-ounce Michelob Ultra light beers. Appellant confirmed he and Mr. Bird ate dinner at the last bar they visited. Appellant also indicated he ate breakfast the morning of the accident and had a snack around 10:00 a.m. before the motorcycle ride. On Appellant's way home from the last bar, he was driving behind two trucks-a tractor-trailer and a tri-axle truck in the lead. Appellant had driven on Route 220 many times and knew the upcoming passing zone was the last opportunity he would have to pass the trucks before reaching his destination. Appellant was approximately 50-75 feet behind the tractor-trailer when he decided to pass both trucks. Appellant did not see any oncoming traffic in the northbound lane, so he activated his left turn signal and began the passing maneuver. Appellant admitted he was driving about 50 mph in a 45 mph zone to pass the trucks. After Appellant completed his pass of the tractor-trailer, he stayed straight to pass the tri-axle truck. Appellant then noticed the tri-axle truck had its left turn signal activated. At that point, Appellant could not safely maneuver between the trucks due to the limited amount of space. Appellant also did not think he could safely veer left into the gas station parking lot because that parking lot has numerous large potholes. Appellant honked his horn to alert the driver of the tri-axle truck that Appellant was trying to pass, but the vehicles collided before Appellant had an opportunity to brake or slow down. (Id. at Exhibit 3 (Deposition of Appellant, 1/30/13); R.R. at 46a-67a).

         The EMS report indicated Appellant was alert upon the EMS crew's arrival. The report stated Appellant admitted to alcohol use. Aside from Appellant's admission, the report made no mention of Appellant's alcohol use or suggested Appellant was under the influence of alcohol. (Id. at Exhibit 4 (EMS report, 4/8/12); R.R. at 68a-72a). The police crash report stated police were dispatched to the accident scene at 7:26 p.m. and arrived at 7:32 p.m. The report indicated police spoke with Appellant at the accident scene and did not suspect Appellant was under the influence of drugs or alcohol. (Id. at Exhibit 5 (Police Crash Report, 4/7/12); R.R. at 73a-78a).

         Trooper Stempien testified at his deposition, inter alia, he spoke to Appellant at the accident scene; and Appellant explained how he had attempted to pass both trucks. Trooper Stempien also interviewed Mr. Vinson. Trooper Stempien confirmed he had no reason to believe, by smell or otherwise, that Appellant was under the influence of drugs or alcohol. (Id. at Exhibit 6 (Deposition of Trooper Stempien, 1/29/14); R.R. at 79a-82a).

         The report from Robert Packer Hospital indicated Appellant's toxicology screen was negative except for alcohol. (Id. at Exhibit 7 (Robert Packer Hospital report, 4/11/12); R.R. at 83a-84a). Appellant's laboratory results stated the hospital drew Appellant's blood at 9:10 p.m. (within two hours of the accident), and Appellant's blood alcohol level was 0.08%. (Id. at Exhibit 8 (Laboratory results, 4/7/12); R.R. at 85a). Dr. Hartman's letter stated the current methodology used to calculate Appellant's blood alcohol level (as reflected in the hospital and laboratory reports) uses only serum or plasma and does not convert the specimen into a whole blood sample. (Id. at Exhibit 9 (Dr. Hartman letter, 7/23/13); R.R. at 86a).

         Dr. Lage's expert report conceded Appellant's blood alcohol level must be converted to a whole blood sample to calculate Appellant's blood alcohol content ("BAC") because serum levels are higher than whole blood by about 16%. Using the proper whole blood conversion, Appellant's BAC at the time of the blood draw equaled 0.0706%. Dr. Lage's report indicated Appellant is 5'11" and approximately 200 pounds. Dr. Lage's report discussed how food delays the absorption of alcohol and how beer acts as a food and delays the absorption of alcohol. Dr. Lage's report described the typical effects of alcohol on a person where the person's BAC is between 0.05% and 0.10%. Dr. Lage said Appellant's BAC at the time of the blood draw was inconsistent with the amount of alcohol Appellant admitted consuming. Dr. Lage estimated Appellant could have drunk approximately eleven beers on the day of the accident. Dr. Lage's report also stated the EMS personnel, airlift crew, and hospital employees all detected an odor of alcohol on Appellant.[1]Using "relation back" calculations, Dr. Lage opined Appellant's BAC was on the decline at the time of the blood draw and was between 0.085% and 0.10% at the time of the accident, depending on when Appellant consumed his final beer. Based on Dr. Lage's calculation, he concluded Appellant was impaired, incapable of safe driving at the time of the accident, and his intoxication was a significant causative factor in the accident. (Id. at Exhibit 10 (Dr. Lage's Expert Report, 5/8/14); R.R. at 87a-91a).

         Mr. Vinson testified, inter alia, he checked his rearview mirror approximately twenty feet before turning left. Mr. Vinson did not see Appellant in his rearview mirror at that time. Mr. Vinson heard Appellant's horn as he began to make the left turn but, at that point, it was too late to avoid a collision. Mr. Vinson said he slammed on his brakes but could not escape the crash. Mr. Vinson testified he did not see Appellant until a fraction of a second before impact. (Id. at Exhibit 11 (Deposition of Darris Vinson, 1/30/13); R.R. at 92a-97a).

         Appellant submitted a brief in support of his motion in limine on June 23, 2014. Appellees filed their brief opposing Appellant's motion on August 11, 2014, along with the following seven exhibits: (1) Dr. Lage's expert report; (2) the full deposition testimony of Ronald Laxton, an eyewitness to the accident; (3) Appellant's full deposition testimony; (4) Carl Bird's full deposition testimony; (5) Trooper Stempien's full deposition testimony; (6) Mr. Vinson's full deposition testimony; and (7) the EMS report.[2]

         At his deposition, eyewitness Mr. Laxton testified, inter alia, he saw two large water trucks travelling on Route 220 on the day of the accident. Mr. Laxton observed a motorcyclist attempting to pass both trucks and thought to himself, "[L]ook at that fool, he's gonna get hurt." (See Brief Opposing Motion in Limine, filed 8/11/14, at Exhibit B (Deposition of Ronald Laxton, 9/5/13, at 25); R.R. at 197a). Mr. Laxton acknowledged the passing zone and said: "I don't know if it was legal or not but I think it was kind of stupid for what [Appellant] was trying to pass." (Id. 28; R.R. at 200a). Notwithstanding the lawful passing zone, Mr. Laxton stated: "I wouldn't pass there. It's not a safe place to pass." (Id. at 29; R.R. at 201a). Mr. Laxton explained there were a couple of accidents in that location in the past. Mr. Laxton observed Appellant begin to pass the trucks before he entered the lawful passing zone. Mr. Laxton said the tri-axle truck already had its turn signal activated when Appellant initiated the pass. Mr. Laxton thought: "[L]ook at this sucker, he's dead." (Id. at 37; R.R. at 209a). Mr. Laxton agreed Appellant could not have safely turned into the gas station parking lot due to the potholes. After the collision, Mr. Laxton spoke to Appellant. Appellant told Mr. Laxton "he [Appellant] fucked up." (Id. at 46; R.R. at 218a).

         In the full deposition transcript, Appellant's friend Mr. Bird further explained he had no concern about Appellant's ability to drive safely on the date of the accident because Appellant was acting "normal" and was not slurring his words or exhibiting any other outward signs of intoxication. (Id. at Exhibit D (Deposition of Carl Bird, 6/26/13, at 27); R.R. at 306a).

         In the full deposition transcript, Mr. Vinson said he spoke to Appellant after the accident and asked if Appellant saw Mr. Vinson's turn signal activated, and Appellant responded affirmatively. Appellant told Mr. Vinson: "[D]on't worry about it, it's my fault[.]" (Id. at Exhibit F (Deposition of Darris Vinson, 1/30/13, at 36); R.R. at 377a). During his discussion with Appellant at the accident scene, Mr. Vinson made no observations suggesting Appellant was under the influence of alcohol.

         Appellant filed a reply brief in support of his motion in limine on September 18, 2014. The court held oral argument on the motion the next day. On September 24, 2014, Appellant submitted a report from Henry Cifuni, an expert in motorcycle safety, indicating there was nothing Appellant could have done differently to avoid the accident. Appellees submitted a sur reply brief opposing the motion ...

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