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Straw v. Fair

Superior Court of Pennsylvania

May 11, 2018

JENNIFER M. STRAW AND THOMAS P. STRAW, INDIVIDUALLY AND AS CO-ADMINISTRATORS OF THE ESTATE OF ELIJAH C. STRAW, DECEASED; AND ROWAN J. STRAW, A MINOR, BY AND THROUGH HIS PARENTS AND NATURAL GUARDIANS, JENNIFER M. STRAW AND THOMAS P. STRAW
v.
KIRK A. FAIR AND GOLON MASONRY RESTORATION, INC.
v.
PITTSBURGH LUBES, INC. D/B/A JIFFY LUBE, TOWER AUTO SALES & SERVICE, NATIONAL AUTOMOTIVE PARTS ASSOCIATION-NAPA AUTO PARTS T/D/B/A/ NAPA
v.
THOMAS P. STRAW APPEAL OF: GOLON MASONRY RESTORATION, INC. JENNIFER M. STRAW AND THOMAS P. STRAW, INDIVIDUALLY AND AS CO-ADMINISTRATORS OF THE ESTATE OF ELIJAH C. STRAW, DECEASED; AND ROWAN J. STRAW, A MINOR, BY AND THROUGH HIS PARENTS AND NATURALGUARDIANS, JENNIFER M. STRAW AND THOMAS P. STRAW
v.
KIRK A. FAIR AND GOLON MASONRY RESTORATION, INC.
v.
PITTSBURGH LUBES, INC. D/B/A JIFFY LUBE, TOWER AUTO SALES & SERVICE, NATIONAL AUTOMOTIVE PARTS ASSOCIATION-NAPA AUTO PARTS T/D/B/A/ NAPA
v.
THOMAS P. STRAW APPEAL OF: KIRK A. FAIR

          Appeal from the Judgment Entered April 28, 2016 In the Court of Common Pleas of Allegheny County Civil Division at No(s): G.D. NO. 2013-003294

          BEFORE: OLSON, STABILE and STRASSBURGER, [*] JJ.

          OPINION

          OLSON, J.

         Appellants, Kirk A. Fair and Golon Masonry Restoration, Inc. (hereinafter "Golon Masonry"), appeal from the judgment entered on April 28, 2016, in favor of Jennifer M. Straw and Thomas P. Straw, individually and as co-administrators of the Estate of Elijah C. Straw, a deceased minor, and Rowan J. Straw, a minor, by and through his parents and natural guardians, Jennifer M. Straw and Thomas P. Straw (hereinafter, collectively, "Plaintiffs"), and against Appellants, in the amount of $35, 114, 122.78. After careful review of this tragic case, we are constrained to vacate the judgment and remand.

         I. Facts and Procedural History

         On February 21, 2013, Plaintiffs filed a complaint against Appellants. The complaint sounded in negligence and, within the complaint, Plaintiffs averred the following.

         At approximately 7:30 p.m. on May 1, 2012, Thomas Straw was driving his Pontiac Vibe automobile north on State Route 28 (hereinafter "Route 28"), in Allegheny County, Pennsylvania, near the RIDC Drive exit. Plaintiffs' Complaint, 2/21/13, at ¶ 9. Jennifer Straw (Mr. Straw's wife) and the Straws' two young sons, Elijah and Rowan, were passengers in the car. Id. at ¶ 16. As the Straws were driving down the highway, their "vehicle experienced a mechanical malfunction that caused Thomas Straw to reduce his speed and . . . bring the vehicle to a controlled stop" in the middle lane of the highway; Mr. Straw then turned on his hazard flashers. Id. at ¶¶ 11 and 14.

         At around the same time, Kirk Fair was driving behind the Straws, in a 2010 Ford F-250 truck that his employer, Golon Masonry, provided him to use in his job. Id. at ¶¶ 6-7 and 10. Plaintiffs averred:

At the time Thomas Straw was bringing his vehicle to a controlled stop, [Mr.] Fair . . . observed folders and binders that had been sitting on the front seat of the Ford truck slide onto the floor of the truck. Upon observing the aforementioned items slide to the floor, [Mr.] Fair reached for the items and "straightened" them up. As [Mr.] Fair was "straightening" the items, he was looking down at the floor of the vehicle, not at the highway in front of him. After "straightening" the items, [Mr.] Fair looked up and observed the Straw vehicle stopped in front of him with its hazard flashers blinking.

Id. at ¶¶ 12-13.

         Mr. Fair did not stop his truck in time and he crashed into the Straws' stationary vehicle while traveling at a speed in excess of 60 miles per hour. Id. at ¶¶ 14-15. The collision caused serious injuries to Thomas, Jennifer, and Rowan Straw; horribly, the Straws' six-year-old son, Elijah, died from the injuries he received in the accident.[1] Id. at ¶¶ 16-19.

         Plaintiffs' ten-count complaint sought compensatory and punitive damages against Appellants. As Plaintiffs claimed: at the time of the accident, Mr. Fair was recklessly driving under the influence of narcotics; even if Mr. Fair were not under the influence of narcotics, Mr. Fair's conduct was negligent and reckless; Golon Masonry was vicariously liable for Mr. Fair's conduct; and, Golon Masonry was independently negligent for improperly hiring, training, and supervising Mr. Fair. Id. at ¶¶ 30-86.

         On May 22, 2013, Appellants filed an answer, new matter, and cross-claim. Amongst other things: the answer admitted that, "at the time of the [] accident[, Mr. Fair] was an employee of [Golon Masonry], and Mr. Fair was acting in the course and scope of his employment;" the new matter alleged that Thomas Straw was comparatively negligent for his injuries; and, the cross-claim, which Appellants asserted against Thomas Straw, alleged that Mr. Straw was negligent in causing the accident and was, therefore, directly liable to Jennifer Straw, Rowan Straw, and the Estate of Elijah Straw, or liable over to Appellants for contribution or indemnity. Appellants' Answer, New Matter, and Cross-Claim, 5/22/13, at ¶¶ 6 and 88 and Cross-Claim ¶¶ 1-4. Specifically, Appellants alleged in the cross-claim that Mr. Straw stopped his vehicle on Route 28 because the hood of his vehicle popped open while he was driving, thus obstructing his vision. Further, Appellants alleged, the hood opened because the hood latch failed. According to Appellants, Mr. Straw was negligent because he knew that "the hood and/or latching mechanism on the vehicle was not in good operating condition" and, yet, "continu[ed] to travel and/or remain on the highway [] when it was hazardous and unsafe to do so." Id. at Cross-Claim ¶ 2. In addition, Appellants claimed, Mr. Straw was negligent in failing to remove his vehicle from the highway and in "allow[ing the vehicle] to remain in the lane of travel when it was unsafe and hazardous to do so." Id.

         Appellants also filed complaints to join three additional defendants: Pittsburgh Lubes, Inc. d/b/a Jiffy Lube (hereinafter "Jiffy Lube"); Tower Auto Sales and Service (hereinafter "Tower Auto"); and, National Automotive Parts Association - NAPA Auto Parts (hereinafter "NAPA Auto Parts")[2](hereinafter, collectively, "Additional Defendants"). Within their complaints to join, Appellants repeated their allegation that, immediately before the accident, the hood latch failed on the Straws' vehicle. Appellants claimed that, when the hood latch failed, the vehicle's hood flew open and obstructed Mr. Straw's vision of the road, thus "result[ing] in him bringing his vehicle to a complete stop in the middle of Route 28, " which caused the accident. According to the complaints to join, the Additional Defendants negligently performed work on the hood latch of the Straws' vehicle or analyzed the vehicle and assured the Straws that the hood latch was safe; therefore, Appellants claimed that the Additional Defendants were all directly liable to the Plaintiffs or liable over to Appellants for contribution and indemnity. See Complaint to Join Additional Defendant Jiffy Lube, 6/26/13, at 1-7; Complaint to Join Additional Defendants Tower Auto and NAPA Auto Parts, 9/11/13, at 1-10.

         At the close of discovery, the Additional Defendants and Plaintiffs filed motions for summary judgment. We summarize these motions below.

         I.A. Tower Auto's Motion for Summary Judgment

         According to Tower Auto's summary judgment motion, on September 27, 2011, Thomas Straw took his Pontiac Vibe automobile to Tower Auto for its required annual state inspection. Tower Auto's Brief in Support of Motion for Summary Judgment, 8/10/15, at 6. "In the course of the state inspection, Tower's owner, [John] Fanto, noticed after he pulled the handle inside the vehicle to release the hood latch that the primary hood latch had not sprung back into place. . . . The secondary latch, which catches the hood when the primary latch is released, functioned properly at all times during the inspection, and did not require any service." Id. at 6-7.

         According to Tower Auto, "[Mr. Fanto] serviced the primary hood latch by spraying it with a lubricant, which flushed the debris from the latch, and mov[ed] it back and forth with a screwdriver, so that the primary latch functioned normally and moved freely again." Id. at 7. Mr. Fanto then closed the hood completely, issued Mr. Straw a certificate of inspection, and the Straws did not bring the vehicle back to Tower Auto at any point after the September 2011 state inspection. Id. at 7-9.

         Tower Auto claimed that it was entitled to summary judgment because "there was no evidence that [it] breached any duty owed to the Plaintiffs" and, relatedly, because, under the Pennsylvania Motor Vehicle Code, it was entitled to "limited immunity from suit [for work done during] the required state inspection." Id. at 11-13; Tower Auto's Motion for Summary Judgment, 8/10/15, at ¶ 2; see also 75 Pa.C.S.A. § 4702.1.

         I.B. Jiffy Lube's Motion for Summary Judgment

         Jiffy Lube's summary judgment motion declared:

In January 2012, [] Thomas Straw brought Plaintiffs' car to Jiffy Lube for an oil change. Approximately one week after the January 2012 oil change, Plaintiffs began noticing that the hood latch was not closing completely. Plaintiffs allege that shortly thereafter, still in January of 2012, they went back to the same Jiffy Lube location and advised an employee of the hood not closing properly. Plaintiff[s] further allege that an employee of Jiffy Lube, free of charge, performed some sort of work on the hood and got it to close properly. Subsequent to the alleged second visit to Jiffy Lube in January [] 2012, Plaintiffs drove their car to Ohio on a family trip and experienced no problem with the hood.
On March 16, 2012, Plaintiffs took their car to Additional Defendant, NAPA Auto Parts. . . . While at NAPA [Auto Parts, ] Plaintiffs allege that they had the hood latch inspected once again and asked if it should be fixed or was safe to drive since they had an inspection upcoming and they intended to take another family trip to Ohio. Plaintiffs state that they were advised by NAPA [Auto Parts] that the hood latch was working properly and was safe to drive. Plaintiffs traveled to Ohio after the March 2012 visit to NAPA [Auto Parts] and drove hundreds of miles with no problems with the hood or hood latch until the accident on May 1, 2012.

Jiffy Lube's Motion for Summary Judgment, 6/29/15, at ¶¶ 12-18 (internal paragraphing omitted).

         Jiffy Lube claimed that, under these facts: it owed no duty of care to the Plaintiffs because it is not "in the business of fixing hoods or hood latches of cars, particularly free of charge;" even if it owed Plaintiffs a duty of care, its negligence was not the proximate cause of the accident or resulting injuries; Mr. Fair's criminal conduct constituted a superseding cause of Plaintiffs' injuries, thus relieving Jiffy Lube of liability; the Straws' "continued operation of the vehicle long after it was last at Jiffy Lube and with actual knowledge that the hood was still not closing properly" constituted a superseding cause of Plaintiffs' injuries, thus relieving Jiffy Lube of liability; "[t]he examination of the hood latch at NAPA [Auto Parts], two months after it was last seen at Jiffy Lube, and the NAPA [Auto Parts'] manager's assurances that it was 'absolutely' safe to drive in its condition" constituted a superseding cause of Plaintiffs' injuries, thus relieving Jiffy Lube of liability; Appellants "have no right of contribution and/or indemnification [] since Jiffy Lube and [Appellants] are not joint tortfeasors;" and, Appellants "are not entitled to contribution and/or indemnity from Jiffy Lube" because Appellants' "conduct was reckless while, at best, Jiffy Lube's conduct is alleged to be negligent." Id. at ¶¶ 20-24; Jiffy Lube's Brief in Support of Motion for Summary Judgment, 6/29/15, at 4-13.

         I.C. NAPA Auto Parts' Motion for Summary Judgment

         Within NAPA Auto Parts' motion for summary judgment, NAPA Auto Parts claimed that it "is not an automotive repair facility and does not perform repairs on automobiles for the public." NAPA Auto Parts' Motion for Summary Judgment, 6/26/15, at ¶ 8. According to NAPA Auto Parts, Appellants' cross-claim against it is based upon the allegation that, on March 16, 2012, Thomas Straw visited a particular NAPA Auto Parts store and purchased a tail light bulb for his car. NAPA Auto Parts claimed that, during his visit, Mr. Straw "asked the cashier whether he would mind looking at the latch as Mr. and Mrs. Straw were intending to travel to Ohio." Id. at ¶ 9. The cashier then "looked at the vehicle and indicated that the vehicle should be able to be taken to Ohio, but that Mr. and Mrs. Straw should have the latch fixed." Id. at ¶ 10. According to NAPA Auto Parts, the Straws drove the vehicle "for approximately six [] weeks and [] for between 500 to 600 miles prior to the accident with no incidents." Id. at ¶¶ 11-13.

         According to NAPA Auto Parts, under this characterization of the facts, it could not be held negligent because: it did not owe any duty of care to any party; it did not breach any duty of care owed to any party; and, there was no evidence that the latch was defective on March 16, 2012. Id. at ¶¶ 14-15. Further, NAPA Auto Parts claimed that it could not be a joint tortfeasor with Appellants, as "[t]he conduct of [Appellants] was reckless and the conduct of [NAPA Auto Parts] was [only] allegedly negligent." Id. at ¶ 17; see also NAPA Auto Parts' Brief in Support of Motion for Summary Judgment, 6/26/15, at 4.

         I.D. Plaintiffs' Motion for Summary Judgment

         Finally, Plaintiffs filed a motion for summary judgment, where they requested that the trial court "dismiss the crossclaim [that Appellants] filed against Plaintiff Thomas Straw." Plaintiffs' Motion for Summary Judgment, 6/19/15, at "Wherefore" Clause (some internal capitalization omitted). In support of their motion, Plaintiffs attached a transcript from Mr. Fair's February 18, 2014 guilty plea and sentencing hearing, where Mr. Fair pleaded guilty to the following crimes arising out of the May 1, 2012 accident: four counts of recklessly endangering another person (hereinafter "REAP") (18 Pa.C.S.A. § 2705); three counts of aggravated assault by vehicle (75 Pa.C.S.A. § 3732.1(a)); one count of homicide by vehicle (75 Pa.C.S.A. § 3732(a)); and, one count each of exceeding the 55-miles-per-hour speed limit (by 16 miles per hour) (75 Pa.C.S.A. § 3362(a)(2)) and driving vehicle at safe speed (75 Pa.C.S.A. § 3361).

         During the guilty plea colloquy, the Commonwealth recited the factual basis for Mr. Fair's plea:

Had the Commonwealth proceeded to trial on this case . . ., the evidence would have shown that on May 1st of 2012 at approximately 7:30 p.m., Thomas Straw was driving on [] Route 28 North, in a blue 2004 Pontiac Vibe. . . . The Vibe's hood latch malfunctioned causing the Vibe's hood to be released upwards. Mr. Straw could not see the road due to this obstruction. He brought the vehicle to a stop in the center lane of Route 28 northbound, just prior to Exit 10 and activated his hazard lights.
Thomas Straw would testify that as he brought the vehicle to a stop, he looked in his rear view mirror and there were no cars approaching. His wife, Jennifer Straw, was seated in the front seat. His son, Rowan Straw was seated in the back seat on the left side and his son Elijah Straw was seated in the back seat on the right side.
The defendant Kirk Fair was driving North on [Route] 28 in a white F250 Ford truck. . . . At an impact point just prior to Exit 10 on northbound [] Route 28, Kirk Fair crashed into the rear of the Pontiac Vibe while traveling at a speed between 54 and 64 miles per hour as indicated by the Ford truck's Powertrain Control Module. The impact of the crash resulted in the Pontiac Vibe being totaled. The crash also caused severe injuries to Thomas, Jennifer and Rowan Straw, and caused the death of rear seated passenger Elijah Straw who was six years old at the time.
Data obtained from the download of Fair's Ford truck indicated that Fair was driving at approximately 71 miles per hour for 19 seconds prior to impact. Fair did not apply the brakes until .6 seconds prior to the impact with the Pontiac Vibe. The speed limit for this stretch of roadway is 55 miles per hour. The defendant did admit to taking his eyes off the road while driving. He stated that when he looked up he noticed the blue Pontiac Vibe with its flashing lights on, but due to the weight of the truck he could not control the truck and avoid the collision. The truck that Fair was driving was weighted down with materials that he had just loaded for work.
Based on a traffic crash reconstruction conducted by Corporal Gregory Brandt of the Pennsylvania State Police, who is an expert in the field of accident construction, Fair would have been able to see the victim's vehicle approximately 2, 058 feet prior to the impact if Fair was looking at the road. At a constant speed of 71 miles per hour, it would have taken Fair approximately 19 seconds for the Ford truck to travel that 2, 058 feet and reach the rear end of the Vibe. At that speed, the defendant would have needed approximately between 6 to 7 seconds to perceive the victim's vehicle, apply the brakes, and stop safely before striking the vehicle. Therefore, Fair could have safely stopped his truck prior to striking the vehicle if he had observed the vehicle within the first 12 to 13 seconds of possible perception. The result of his inattentiveness, driving reckless and gross[] negligen[ce] caused his vehicle to crash into the rear end of the Pontiac Vibe at a high rate of speed resulting in serious injuries for all four passengers and caus[ing] the death of Elijah Straw.

N.T. Guilty Plea and Sentencing Hearing, 2/18/14, at 6-9.

         At the conclusion of the factual recitation, Mr. Fair's attorney declared that he did not have "any additions or corrections" to the recitation. Id. at 9. Mr. Fair then pleaded guilty to the above-mentioned crimes, the trial court accepted Mr. Fair's plea, and the court sentenced Mr. Fair to serve an aggregate term of six to 23 months in jail, followed by ten years of probation. Id. at 9 and 12-13.

         Within Plaintiffs' summary judgment motion, Plaintiffs noted that Mr. Fair pleaded guilty to four counts of REAP, which requires a mens rea of "recklessness." Plaintiffs argued that Mr. Fair's REAP convictions constitute conclusive proof, in this civil proceeding, that Mr. Fair acted recklessly in causing the May 1, 2012 accident and, thus, in causing all harm against Plaintiffs. Plaintiffs' Motion for Summary Judgment, 6/19/15, at ¶ 15.

         Confusing Appellants' cross-claim against Mr. Straw with Appellants' affirmative defense pleaded in new matter that Mr. Straw was comparatively negligent for his own injuries, [3] Plaintiffs claimed that, since Appellants did not allege reckless behavior on the part of Mr. Straw, Appellants' cross-claim against Mr. Straw must be dismissed. Specifically, Plaintiffs argued:

a plaintiff's contributory negligence cannot serve as a viable defense if the defendant is found to have acted in reckless disregard of the plaintiff's safety. . . . Accordingly where, as here, [Mr.] Fair's acts were reckless, while Mr. Straw's acts have been alleged to be only ordinary negligence, comparative negligence principles are simply inapplicable under Pennsylvania law. . . . In light of [this, Appellants] cannot prove the elements of their crossclaim against Plaintiff Thomas Straw and as such Plaintiffs respectfully request that [the trial court] grant Plaintiffs' motion for summary judgment and dismiss the crossclaim.

Id. at ¶¶ 15-17 (some internal capitalization omitted).

         I.E. Appellants' Responses to the Summary Judgment Motions

         Appellants responded to the motions and argued that none of the movants were entitled to summary judgment. Moreover, Appellants attached deposition transcripts and documents to their responses that, they argued, established genuine issues of material fact that precluded the entry of summary judgment. These transcripts and documents included: the deposition transcripts of Thomas Straw, Jennifer Straw, John Robert Fanto, and Pennsylvania State Police Corporal Gregory Brant; answers to interrogatories; a Pennsylvania State Police Crash Report Narrative; a Pennsylvania State Police General Investigation Report; and, an expert report authored by Edward M. Weber of Rimkus Consulting Group, Inc. Viewed in the light most favorable to Appellants as the non-moving parties, the attached transcripts and documents presented the following evidence in opposition to the summary judgment motions. See Washington v. Baxter, 719 A.2d 733, 737 (Pa. 1998) ("as with all summary judgment cases, we must 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").

         The owner of Tower Auto, John Robert Fanto, testified that he performed the September 27, 2011 state inspection on the Straws' Pontiac Vibe automobile. Deposition of John Robert Fanto, 6/29/15, at 11-12.[4] Mr. Fanto testified:

Immediately upon popping the hood . . . [I] determine[d] that there was a hood latch assembly issue. . . . I didn't know what the problem was at that point, but when I reached down and I pulled the lever to open the hood, the little plastic lever did not return. That throws up, to me, a red flag. . . . At that point, I carried on with the rest of [the] inspection, finished all that, and as I was closing his hood, that's when I serviced that hood latch.

Id. at 19 and 20-21.

         Mr. Fanto testified that he serviced the hood latch by "hos[ing] it down with a penetrating oil and work[ing] the latch back and forth." Id. at 21. Specifically, Mr. Fanto testified, he hosed the latch down with a penetrating oil that was manufactured by a company called Zep; Mr. Fanto then used a screwdriver to "work the latch back and forth just to get it moving and operating correctly." Id. at 22 and 26. Mr. Fanto testified that, after he did this, he was able to successfully close the hood. Id. at 26. Mr. Fanto then issued Mr. Straw a certificate of inspection for the vehicle and wrote, in the service invoice, that he was charging Mr. Straw $21.00 for: "repair hood latch assembly, hood would not close, cable would not return." Tower Auto Service Invoice, 9/27/11, at 1.[5] As Mr. Straw testified, it was at this time that he first became aware that there was "an issue with the hood." Deposition of Thomas Straw, 5/13/15, at 29.[6]

         Mr. Straw testified that he next observed a problem with the Pontiac Vibe's hood in January 2012, following an oil change at Jiffy Lube. According to Mr. Straw, after the oil change, he returned to the Jiffy Lube and told the employees "I got an oil change here, and the next thing I know my hood doesn't close all the way." Id. at 33. Mr. Straw testified that a Jiffy Lube employee "just kind of grunted and went and got some tools, you know, worked with it for a little bit, grunted some more, went and got some other tools, worked with it, got it down and that was that." Id. Upon completion, Mr. Straw asked the Jiffy Lube employee, "is [this] safe to drive? It's not going to pop up on me?" Id. at 34 and 71. The employee responded by telling Mr. Straw that the vehicle was indeed safe to drive. Id.

         The third time Mr. Straw addressed the problem with the Pontiac Vibe's hood was in March 2012, when he and his family were driving to Ohio. In particular, Mr. Straw testified that he stopped his vehicle at a NAPA Auto Parts store to purchase a tail light bulb for the vehicle. Id. at 35. While there, Mr. Straw asked an employee to "take a look at [the hood] and . . . let me know if it's all right, if it's safe." Id. at 36. Mr. Straw testified: "I said I have a state inspection coming up in a couple months, is this going to make it to the state inspection, is it safe[?] He said absolutely. He said it's metal on metal. They don't call it a safety latch for nothing." Id. at 36.

         Mr. Straw testified that he could not remember whether the NAPA Auto Parts' employee did "anything physically with the car, " but Mr. Straw testified that he relied upon the employee's assurances that the hood was safe. Id. at 36-37. Mr. Straw also testified that he did not "recall opening [the hood] up between the time [he] left NAPA [Auto Parts] and the [May 1, 2012] accident." Id. at 39.

         Regarding the accident, Mr. Straw testified that the accident occurred at around 7:00 p.m. on May 1, 2012 and that, at the time of the accident, he was driving his Pontiac Vibe automobile with Jennifer, Elijah, and Rowan Straw as his passengers. Id. at 40 and 44. Mr. Straw testified that he was driving down the middle lane of Route 28, in daylight, with a clear sky, in light traffic, and in an area that had a 55-mile-per-hour speed limit. Id. at 40-41. As recounted in the Pennsylvania State Police Crash Report Supplemental Narrative:[7]

[Mr. Straw] said he was driving north and for a second or so before the hood popped he could hear some kind of noise under the hood. Then he said the hood popped and the hood blocked his view through the front so he [could not] see. He said his immediate priority was to bring the vehicle to a stop. He said he used his rearview and side mirrors to bring the vehicle to a complete stop.
. . . He said that he activated his hazard lights once he was stopped. He said he also recalled his wife placing her hand on his lap and saying everything is going to be [OK]. He said he looked in the rearview mirror and the first thing he saw was the truck on the horizon line. He said for a brief second he thought to himself [it's] a good thing he is back far enough to react. He said it seemed like an eternity at the time but it was probably something like 5 to 8 seconds minimum that the truck crashed into him. He said at no time was there any cars between him and the truck. In fact he said he didn't recall any traffic in the area around him, or even southbound really at the time of this crash.

         Pennsylvania State Police Crash Report Supplemental Narrative, 4/24/13, at 1.

         Pennsylvania State Police Corporal Gregory Brandt investigated the accident for the Pennsylvania State Police. Following the investigation, Corporal Brandt issued a General Investigation Report, where he concluded that "[a] mechanical problem with [the] hood latch [on the Straws' Pontiac Vibe automobile] resulted [in] its hood opening while [the vehicle] was traveling" on Route 28. Pennsylvania State Police General Investigation Report, 1/22/13, at 21.[8] Further, Corporal Brandt "concluded with [a] high level of certainty" that, prior to the accident, the hood latch on the Pontiac Vibe had been damaged "for a substantial amount of time." Id. at 17.

         Finally, Corporal Brandt wrote: "in a post-crash interview with investigators, [Thomas Straw] related that he was aware of the faulty hood latch and attempted to have the latch repaired one or two weeks prior." Id. at 21.

         Appellants also relied upon an expert report authored by Edward M. Weber, of Rimkus Consulting Group, Inc. (hereinafter "the Weber Report"), to oppose Additional Defendants' motions for summary judgment.[9] The Weber Report declared:

The 2004 Pontiac Vibe Owner's Manual states . . . that the hood latch should be lubricated with multi-purpose lubricant, GM part no 12346241, yearly.
It is extremely rare that hood latches fail to lock. The most vulnerable areas are the latch release lever (on latch itself) and hood release cable. When the hood latch is not lubricated at regular intervals, the original grease becomes hard and dries out. It also becomes gritty with the accumulation of dirt, which causes the lever and latch to stick and bind. To properly repair the latch, a de-greasing solvent should be used to remove all of the old grease and dirt. The debris in the latch should be blown out using compressed air. Penetrating oil does not last and is not the proper lubricant for this application.
When Mr. Fanto of Tower Auto sprayed the penetrating oil on the Pontiac's hood latch, it was just a temporary fix. The penetrating oil eventually dried out, which reverted the latch back to its malfunctioning condition. After removing the old grease with the proper solvent, lithium, or white, grease should have been liberally applied. The thicker grease serves two purposes: it keeps the latch lubricated and prevents dirt and dust from entering the mechanism.
The secondary hood latch should have been degreased and lubricated in the same manner. Because its return spring was ineffective, vibrations and movement of the hood allowed it to move away from the secondary striker plate, causing the hood to disengage from the secondary latch, which allowed the hood to swing open.
There was not enough information to determine Jiffy Lube's culpability other than it appears that the mechanic just manually moved the release lever back so the hood would latch. He should have advised Mr. Straw to have the hood latch repaired.
[The NAPA Auto Parts] manager[] incorrectly advised Mr. Straw that the Pontiac was safe to drive. Although he did correctly advise Mr. Straw to have the vehicle fixed, he should have advised Mr. Straw to have the hood latch repaired as soon as possible.

Weber Report, 8/11/15, at 4.

         I.F. Trial Court's Summary Judgment Rulings, the Trial, and the Current Appeal

         On August 31, 2015, the trial court heard oral argument on the summary judgment motions and, on November 10, 2015, the trial court granted all four motions. As the trial court later explained, it granted Plaintiffs' motion for summary judgment because, first, it concluded that Mr. Straw's conduct was not a proximate cause of the harm. Trial Court Opinion, 9/8/16, at 5 n.3. Second, the trial court reasoned that Mr. Fair pleaded guilty to REAP and Mr. Fair was, therefore, bound by his admission that he acted recklessly in causing the accident. According to the trial court, "[f]lowing from [the guilty plea] and the law that contributory negligence cannot be weighed or applied to reckless conduct, the claims of contributory negligence against Mr. Straw were improper and irrelevant to any contested issue. As such, the [trial] court granted summary judgment on this issue."[10]Trial Court Opinion, 9/8/16, at 4-5. With respect to the summary judgment motions filed by Tower Auto, Jiffy Lube, and NAPA Auto Parts, the trial court declared that it granted the motions because: 1) the Additional Defendants did not owe a duty to the Plaintiffs, and 2) "the conduct of [Appellants] was not reasonably foreseeable . . . [and, therefore, ] proximate cause could not be established against the Additional Defendants." Id. at 7-9. The trial court thus dismissed the cross-claim Appellants filed against Mr. Straw and the complaints to join that Appellants filed against Additional Defendants.

         The case was called for trial and, on December 7, 2015, the trial court issued a number of pre-trial rulings, including a ruling bifurcating the trial into compensatory and punitive damages phases. With respect to the compensatory damages phase of the trial, on December 15, 2015, after six days of trial, the jury found in favor of Plaintiffs and against Appellants in an aggregate amount of $32, 000, 000.00. N.T. Trial, 12/15/15, at 1175-1180.

         Following the jury's compensatory damages award, Plaintiffs withdrew their punitive damages claim without prejudice to their right to reassert the claim if the case were to be remanded after an appeal. Id. at 1201-1202. The trial court denied Appellants' timely post-trial motions and, on April 28, 2016, the prothonotary entered judgment in favor of Plaintiffs and against Appellants in the amount of $35, 114, 122.78. Appellants filed timely notices of appeal and now raise the following claims to this Court:

I. Did the trial court err in granting summary judgment to Additional Defendants Tower [Auto], Jiffy Lube, and NAPA [Auto Parts], and Plaintiff/Cross-Claim Defendant Thomas Straw?
A. Did the trial court err in granting summary judgment to Tower [Auto] where there was ample evidence from which the jury could have found that Tower [Auto] was both negligent and reckless?
B.Did the trial court err in granting summary judgment to Jiffy Lube where there was ample evidence from which the jury could have found that Jiffy Lube was both negligent and reckless?
C. Did the trial court err in granting summary judgment to NAPA [Auto Parts] where there was ample evidence from which the jury could have found that NAPA [Auto Parts] was both negligent and reckless?
D. Did the trial court err in granting summary judgment to Thomas Straw where there was ample evidence from which the jury could have found that Thomas Straw was both negligent and reckless?

         Appellant Kirk Fair's Brief at 5; see also Appellant Golon Masonry's Brief at 5.

         In this appeal, Appellants also raise claims regarding the trial court's pre-trial, trial, and post-trial rulings. As Appellants' claims on these rulings differ somewhat from one another, we will independently quote the parties' claims. Mr. Fair claims:

II. Did the trial court err in refusing to award a new trial based on numerous improper and unfairly prejudicial rulings at trial?
A. Did the trial court err in admitting irrelevant, inflammatory, and unfairly prejudicial evidence of prior convictions and pre-accident and post-accident drug use and treatment against Kirk Fair?
B. Did the trial court err in denying [Appellants'] motions for a mistrial and permitting [Plaintiffs'] counsel to make a number of improper and unfairly prejudicial statements in his closing argument, which individually and collectively inflamed the jury and tainted the verdict?
C. Did the trial court err in submitting a verdict sheet which shifted the burden to Appellants[] to disprove Decedent Elijah Straw's claim for conscious pain and suffering and improperly directed a verdict against Kirk Fair on the issue of recklessness?
D. Did the trial court err in precluding Kirk Fair from contesting that he had 19 seconds and 2058 feet of distance in which to avoid the stopped Straw vehicle based on Kirk Fair's criminal plea?
E. Did the trial court err in refusing to grant judgment N.O.V., a new trial, or a substantial remittitur because the jury's verdict was shocking, manifestly excessive, and unsupported by the trial evidence?

         Appellant Kirk Fair's Brief at 5. Golon Masonry claims:

II. Did the trial court err in refusing to award a new trial based on numerous improper and prejudicial rulings at trial?
A. Did the trial court err in permitting [Plaintiffs] to pursue a negligent entrustment claim against Golon [Masonry] without the requisite expert testimony to explain the applicable standard of care?
B. Did the trial court err in admitting irrelevant, inflammatory, and highly prejudicial evidence regarding co-defendant Kirk Fair's drug problems?
C. Did the trial court err in permitting [Plaintiffs'] counsel to make a number of improper and highly prejudicial statements in his closing argument, which individually and collectively inflamed the jury and tainted the verdict?
D. Did the trial court err in shifting to [Appellants] the burden to disprove decedent Elijah Straw's claim for conscious pain and suffering?
E. Did the trial court err in submitting a jury verdict sheet that diluted [Plaintiffs'] burden of proof, directed a verdict against Golon [Masonry] with respect to causation on the direct claim against it, failed to apportion liability between Golon [Masonry] and co-defendant Kirk Fair on the direct claims against them, and contained numerous other reversible errors?
F. Did the trial court err in refusing to grant a new trial or a substantial remittitur based on the excessiveness of the verdict?

         Appellant Golon Masonry's Brief at 5-6 (some internal capitalization omitted).

         We conclude that the trial court erred when it granted summary judgment to Additional Defendants and to Thomas Straw. Therefore, we must vacate the judgment and remand. [11]

         II. Analysis

         II.A. Standard of Review

         As this Court has stated:

Our scope of review of a trial court's order granting or denying summary judgment is plenary, and our standard of review is clear: the trial court's order will be reversed only where it is established that the court committed an error of law or abused its discretion.
Summary judgment is appropriate only when the record clearly shows that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. The reviewing court must view the record in the light most favorable to the nonmoving party and resolve all doubts as to the existence of a genuine issue of material fact against the moving party. Only when the facts are so clear that reasonable minds could not differ can a trial court properly enter summary judgment.

Englert v. Fazio Mech. Serv.'s, Inc., 932 A.2d 122, 124 (Pa. Super. 2007) (internal citations omitted); see also Summers v. Certainteed Corp., 997 A.2d 1152, 1159 (Pa. 2010) ("an appellate court may reverse a grant of summary judgment if there has been an error of law or an abuse of discretion. But the 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").

         II. B. Analysis Regarding the Trial Court's Grant of Summary Judgment to Additional Defendants

         We will first consider the trial court's grant of summary judgment to Additional Defendants.

         As the trial court explained, it granted summary judgment to Additional Defendants because, it determined, Additional Defendants did not owe Plaintiffs a duty and because "the conduct of [Appellants] was not reasonably foreseeable . . . [and, therefore, ] proximate cause could not be established against the Additional Defendants." Trial Court Opinion, 9/8/16, at 7-9. Respectfully, we conclude that the trial court erred.

         II. B.1. Additional Defendants' Duties and Breaches of their Duties to Plaintiffs

         Our Supreme Court has explained:

         In Pennsylvania, the elements of a cause of action based on negligence are:

(1) a duty or obligation recognized by the law requiring the defendant to conform to a certain standard of conduct for the protection of others against unreasonable risks;
(2) defendant's failure to conform to the standard required;
(3) a causal connection between the conduct and the resulting injury; (4)actual loss or damage resulting to the plaintiff.

R.W. v. Manzek, 888 A.2d 740, 746 (Pa. 2005).

         As to the element of duty, "[i]t is a fundamental principle of tort law [that] there cannot be a valid claim sounding in negligence unless there is a duty upon the defendant in favor of the plaintiff which has been breached." Alumni Ass'n v. Sullivan, 572 A.2d 1209, 1210-1211 (Pa. 1990). "The existence of a duty is a question of law for the court to decide." Manzek, 888 A.2d at 746; see also Restatement (Second) of Torts § 328B(a) and (b) ("[i]n an action for negligence the court determines . . . (a) whether the evidence as to the facts makes an issue upon which the jury may reasonably find the existence or non-existence of such facts; (b) whether such facts give rise to any legal duty on the part of the defendant"). However, "[t]he determination of whether an act or failure to act constitutes negligence . . . in view of all the evidence has always been particularly committed to determination by a jury." Snead v. SPCA, 929 A.2d 1169, 1183 (Pa. Super. 2007) (internal quotations and citations omitted).

         The Pennsylvania Supreme Court has held that Sections 323 and 324A of the Second Restatement of Torts correctly state the law of this Commonwealth. Section 323 provides:

§ 323 Negligent Performance of Undertaking to Render Services
One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of the other's person or things, is subject to liability to the other for physical harm resulting from his failure to exercise reasonable care to perform his undertaking, if
(a) his failure to exercise such care increases the risk of such harm, or
(b) the harm is suffered because of the other's reliance upon the undertaking.

         Restatement (Second) of Torts § 323; Feld v. Merriam, 485 A.2d 742, 746 (Pa. 1984) (recognizing that the Supreme Court has "adopted [Restatement (Second) of Torts ยง 323] as an ...


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