KEVIN A. ROHE Appellant
DARRIS D. VINSON AND FENTON WELDING TRANSPORT, LLC Appellees
from the Judgment Entered December 15, 2015 In the Court of
Common Pleas of Bradford County Civil Division at No(s):
BEFORE: GANTMAN, P.J., PANELLA, J., and JENKINS, J.
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.
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.
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.
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.
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).
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
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).
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).
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).
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.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).
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).
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.
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).
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).
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.
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