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IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY. PENNSYLVANIA
STEVEN J. VOORHEES
Plaintiff
v,
q 4 - "C> '7 I c.;.vJ.. ~
NO. CIVIL 1994
CIVIL ACTION . LAW
TERRY GROVE, P.E, D/B/A
GROVE ENGINEERING
and
DENNIS E. MILLER, P.E.
Defendants
COMPLAINT
.frl.
AND NOW this 2 day of October. 1994, comes Plaintiff, by and lhrough his
counsel. Joseph D, Buckley, Esquire and complains of Defendant as follows:
1. Plaintiff is an adult male currently residing at 5316 Oxford Circle, Apartment 13.
MC(:hanicsburg. PA 17055.
2, Defendants are professional engineers whose ol11ce is located at 4810 Derry
Street. Harrisburg. P A 17111,
3, On or about January 1. 1993, at approximately 0100 A.M, Plaintiff was a
pusenger in a motor vehicle driven by William D, Bonney.
4. As said Mr. Bonney was driving his vehicle with Plaintiff as a passenger upon a
township road. commonly referred to as Whiskey Spring Road, said road being located in
Soulh Middleton Township, Cumberland County and under the control, ownership and
maintelWl(e of said lownship, a serious accident occurred when lhe said vehicle struck a
lree along said road injuring Plaintiff,
5, On February 2, 1993, Plaintiff, lhrollllh counsel, notified said township lhrough
Barbara Wilson that Plainliff had been injured in a molor vehicle accidenl, lhal he believed
the ICcidenl was caused by said lownship's failure to warn of a known hazardous
condition of the road and that Plaintiff had suffered severe injuries including a broken
femur, tibiA, fibula and cNshed ankle,
6. By letter dated February 2S, 1993, Plaintiff, through counsel was contacted by
laid township'a agents and further contacts have been made belween the parties.
7. The said lownship's road was posted with a speed limit of thirty-five (3S) miles
per hour,
8, A sign bearing an indication that the road would curve 10 the left precedes the
MCtion oflhe road where the vehicle driven by said Mr, BOMey stNck a tree, but does
not indicate that lhe road seclion involves a double curve to the left, commonly called a
"broken-back" or "lIat-back" curve, and the singing does not indicate that the posted
speed of thirty-five (3S) miles per hour should be reduced,
9, Prior to the accident involving Mr, Bonney and Plaintiff, said lownship had
written nolice that accidents involving other vehicles striking fixed objecls had occurred
on the same section oflhe same road.
10, Prior to the said accidenl, said township had been given nolice of the
dangerous condition of lhe section of road and had taken measures to stop erranl vehicles
ITom I~aving the highway and striking the trees along said section of road.
II, Said lownship had inslNcted ils agenls and employee~ 10 pile mounds of dirt
a10nalhe edge oflhe highway in an allemplto stop vehicles from leaving the road and
strikinll the trees along said roadway,
12, Subsequenl of the notice ofaccident. occurring on the seclion of its road,
includinll notice of one or more than one other vehicles Slriking the tree which was struck
by 1M vehicle in which Plaintiff was a passenger, said lownship did nol place or cause 10
be places a sign reducing lhe speed limit on this section of road.
13, Subsequent 10 lhe nolice ofaccidents occurrinll on lhe seclion ofil. road,
includina nOlice of one or more lha;l one olher vehicle. striking lhe Iree which was SINCk
by lhe vehicle in which Plainliffwas a passenger, said lownship did nol replace lhe sip
which indicated that the road curved once to the left with a sign that warned lhat the
MCtion had a sharp double curve in that section of road nor did said township remove the
tree.
14. Said township claims that in 1986, it contracted with Defendant to conduct an
enaineering and traffic study on the section of Whiskey Springs Road involved in the
incident at hand, for the purposes of determining the safe speed over which the said road
could be driven and also to determine the appropriate signing to be placed Ilona said road.
1 S, After allegedly conducting an engineering and traffic study on Whiskey Springs
Road from Mountain Road to County Line Road, Defendant recommended to the said
township lhat the recommended speed limit and safe running speed for the entire section
of Whiskey Springs Road from Mountain Road to the County line was thirty-five miles per
hour,
16. Said township claims that based on the Defendant's professional
recommendations it posted a speed limit of thirty-five miles per hour for the section of said
road and did not place a reduced speed limit below the sign indicating a curve to the left
on said road's section,
17. As Mr, Bonney's vehicle, carrying Mr, Bonney and Plaintiff, approached the
top of the hill near where lhe sign indicates a curve 10 the left, then lraveling at
approximately the posted speed Iimil, Mr, Bonney successfully negotiated the f1rst curve.
but when he found the road took another sharp turn to the left as il was lravelina
downhill. he began to skid on the pebbles and lhe vehicle rounded lhe edge of the curve
and the mounds of dirt piled on the edge by the Oefendanl acted as a ramp over which the
vehicle traveled off the road way a few feet striking. tree of more than two feet in
diameter,
18, As a result of lhe impact of lhe vehicle with lhe lree, Plaintiff suffered severe
injuries,
19. The proximate cause andlor a substantial faclor in causina the accident was
Defendant's failure to conduct a proper examination and study of the section ofrold from
Mountain Road to lhe County Line and giving improper inslructions as to the safety of the
roadway which would have warned Mr. Bonney as to lhe dangerous condition oflhe
section oflhe rold which could nol be safely negotiated at lhe posted speed limit of thirty-
five miles per hour because:
a. there is a dramatic change in the roadway condition, a "broken-back"
curve with an unexpected second shape curve while traveling downhill and proper warning
is not provided;
b, for south-bound traffic, the long straight stretch preceding the broken-
back curve, and the second curve being the sharpesl, increase the likelihood of accidents
relUhing from lhis dangerous condition;
c, the area to be outside of the accident curve is dangerous, because it
ahould have been free of obstacles and available for recovery of an out-of.control vehicle,
and was not;
d. Defendanls failed 10 conducl studies and teslS for lhe safe speed for
driving the accident curve based on an acceptable professional engineering standards for
determining such speeds;
e, Defendanls failed to consider lhalthe section of road allegedly sludied
and specifically the section of the curves were negatively superelevaled;
f. Defendants failed to negligenlly failed to recommend lhe accident curve
10 be marked with a Left Turn warning sign and an advisory speed of 1 S miles per hour;
g. Defendants failed 10 recommend lhalthe accidenl curve be marked with
a Large Sinale Arrow sign and Chevrons;
h Defendanls tailed to recommend lllallhe accidenl curve could not safely
be traversed at lhe speed Iimil of lhiny-Iive miles per hour and sllch is a dangerous
condition and that drivers, such. Mr. Booney would withoul a change in signina
ncopize the character of the curve at . time when it wu too late to reduce his speed and
travene the curve safely. By not warning drivers, such as Mr, Booney, of the character of
the curve and the need to reduce speed would deprive the driver of information that
IhouId be provided 10 avert accidents;
i. Defendants failed to recommend that the presence oflhe lrees on 1M
out.ide of the curve, within a zone which should be free of obstacle.. would lake away
any chance of recovery and would resull in an injury producing accident
20 As a resull of the accident caused by Defendants' negligent acts or omissions.
Plaintiff suffered a broken femur, tibia and libula, multiple lacerations and a crushed ankle
and has undergone, to date, four separate operations, to alleviate or correct the injuries
suft'ered u a result of the accident and has been hospitalized for a total of more than
thirty day.. and is still under doctor's care.
21. As a result of the accident caused by Defendants' negligent acls or omissions.
Plaintiff has been unable to work in his former capacity, thaI being a house builder and has
been advised lhal he will never be able to so return to any labor intensive employment.
22, As a resull of the accidenl caused by Defendants' negligent acls or omission..
Plaintiff has been disfigured and must use a cane to help him walk. He also has a
pronounced limp while walking,
23. As a result of the accident caused by Defendants' negligcnl acls or omissions
and lhe multiple injuries suslained lherefrom, Plaintiff will have to endure gradually
inlensil)1ns pain in his ankle unlil the pain becomes unbearable, al which time his ankle
wiU have 10 be fused leaving him with a permanenl club foot.
24. Plainliffhas incurred medical bills in excess oflwenty.five thousand dollars,
25, Plaintiff will incur future medical bills in excess oflwenly.five thousand
dollars,
26, Plaintiff has suITered loss of wages in excess of twenly.five lhousand dollars,
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problems with the section of road. Plaintiff further alleges that he was severely injured and
that defendants' negligence was a. substantial factor in causing Plaintitl's injuries,
Defendants have filed a demurrer to plaintitl's action arguing that defendants and
plaintiff had no contract or privity between them and therefore the action should be
dismissed.
Statement ofthe.La.w
"One who undertakes, gratuitously or for consideration to render services
for another which he should I'ccognize as necessary for the protection of a third
person or his things, is subject to the third person for physical harm resulting from
his failure to exercise reasonable care to protcct his undertaking, if
(a) his failure to exercise reasonable care inc.'eases the risk of harm, or
(b) he has undertaken to perform a duty owed by lhe other to the third
person, or
(c) the harm is suffered because of reliance of the other or the lhird person
upon lhe undertaking," Seclion 324A, Res/a/eme'" of Tor/s (Sec01rd)
"II is the primary social dUly of every person to take thoughl and to have care lest
his action result in injuries to others, This social duty the law recognizes and enforces, and
for any injury resulting from any person's lack of elementary forethought, the law holds
that person accountable," Bis,mn v, Joh" B. Kelly, Inc., 314 Pa, 99, 110, 170 A. 139, 143
(1934)
"Where a party to a conlract assumes a duty to the other party to the contract, and
il is reasonable foreseeable lhat a breach of that dUly will cause injury to some lhird party
to the contract, the contracting party owes a dUly to alllhose falling within the foreseeable
orbil of risk of harm." Printed Terry Fini.,hinK v. Cily of Lebanon, 247 Pa, Super 277,
290,372 A2d 460, 466, citing Doyle v, SOIl/h Piluhlll'gh Water Comapny. 414 Pa. 199,
207 199 A2d. 875,878 (1964).
"Every covenanl, agreemenl or understanding in, or in connection wilh any
conltact or agreemenl made or entered inlo by owners, conlractors, subconlractors or
suppliers whereby an architect, engineer, sUl'veyor or his agents, servants or employees
shall be indemnified or held ham'less for damages, claims or losses or ellpenses including
allorneys' fees arising oul of: (I) lhe preparalion or approval by an .. engineer ". of,
opinions, reports, surveys, or (2) lhe giving of or the failure to give direclions or
inslructions by the. engineer.. providing such giving or failure to give is the primary
cause of lhe damage, claim, loss or ell pense, shall be void a,s Igainsl public policy and
-2-
wholly unenforceable,. The Act of 1970, July 9, P,L, 484, No, 164, Section 1 (68 P.S.
Section 491),
A{JlIment
Defendants argue that they owe no duty to plainlift' or any other persons who
motor over a road it has studied and set speed limits it determined to be proper because it
has no privity with plaintiff Defendants support their argumenl utilizing cases where only
economic was the damage alleged by the third parties, The Restatement of Contracls and
the definition of what constitutes a third party beneficiary were the cases' central
argument. All the cases confirm that Pennsylvania does not recognize a duty on the part of
any party to perform the contract to protect third parties from economic loss.
In cases involving personal injury and property damage, Pennsylvania has long
since held professionals liable on a negligence theory, In the present maner the duty with
which defendants are charged with breaching arises not from its contractual duly with
South Middlelon Township but rather a duty imposed by law: lhe II.uJJ to all lhose
persons who would be reasonably foreseeable to fall in harm's way if the defendanls'
engineering and traffic study was negligently performed.
The Pennsylvania Courts have for many years accepted Section 324A of the
Restatemenl of Torts, Second and have on numerous occassions held professionals,
including engineering firms, liable for personal injury or property damages caused by lhe
professional's negligence in performing a contracl for a third party, See, Dimarco v. Lynch
HomeJ' CMJler CouII/y, ~2S Pa. SS8, _A2d _(1990), Primed Terry Fi1liJhing II,
City of l.eba1l0n. supra.
In DiMarco, suprl, lhe Court delermined thaI I physician owes a duly of care 10
a Ihird party where Ihe physician fails 10 properly advise I pllienl who has been exposed
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to a communicable disease. and lhe patienl, relying upon the advise. spreads Ihe disease 10
lhe lhird party plaintiff. In reaching ils decision Ihe Court slated:
"In order 10 stale a cause of aClion under Section 324A. a complaint must contain
factual allegations sufficient to establish the legal requirement thaI Ihe defendant has
undertaken "to render services to anolher which he should recognize as necessary for the
protection of a Ihird person" (in this case. Ihe plaintiff, appellee), This is essentially a
requirement offoreseeabilily. " Dimarco, al S61.
When a physician treals a person exposed to or who has contracted a
communicable disease, the Court found Ihal he owes a duly 10 prolecllhe health of olhers
who may physically inlimale wilh Ihe palient.
In Printed Terry Finishina, supra, Ihe Court affirmed an award for real and
business property losl in a fire based on a negligence action filed against s professional
engineering firm which specialized in analyzing municipal water syslems hired by the City
of Lebanon. The trial court determined Ihal Ihe engineering firm had not followed
slandard engineering practices and Ihe jury found the engineers 10 be negligent. The
engineering firm argued amon!! other Ihings, Ihat because it lacked privilY with Printed
Terry Finishing. it owed no duly 10 it for Ihe loss of ils production planl. The Court
disagreed citing Section 324A of the Reslalemenl. Second and Bisso" v, Joh" B. Kelly,
/I/c.. supra., and del ermined Ihal lhe engineering firm had a legal duly 10 persons outside
its contract wilh Ihe Cily,
lIIuslration 2 of Seclion 324A Reslalement of Torts Second provides lhe
following example.
2 The A Telephone Company employs 8 10 inspect ils lelephone poles, 8
negligently inspects and approves a pole adjoining lhe public highway. Becaufe of ilS
defeclive condilion lhe pole falls upon and injures a traveler upon lhe highway, 8 is
lubjecllo liabilily 10 lhe traveler
-4-
Why? Because a traveler on the highway was a person who would be a probable
candidate to be harmed if the pole was defeclive, The injury to the traveler was reasonably
forseeable.
Other states which have likewise judicially adopted Section 324A of the
Re.v/a/emetlt of Tor/s, Secolld have held consulting civil engineers who undertook to
inspect highways and bridges, or to design traffic control systems owed a duty to the
motoring public to perform their tasks in a competent manner and could be held liable for
a breach of this duty, See, Schmeck v. Shaw"ee, 232Kan II, 6S I P2d S8S, (1982); Ingram
v. Howard-Needles-Tammen & Bergendorff, 234 Kan 289, 672 P2d 1083 (1983),
In the present case persons and their passengers who travel over roads which the
defendants have examined and given opinions as to safe driving speeds could reasonably
be expected to be harmed if the defelldants had negligently performed the studies it was
hired to perform. The Defendants owe a legal duty to the motoring public and their
pusengers, These members of lhe class rely on the posted speed limilS and other signing
when traveling on the roads and if the posled speeds and/or warning signs are improper,
they can reasonably be expe(;ted to be harmed. Plaintiff was a member of the class to
whom the duty was owed, Defendants have allegedly breached their duty and as a result of
their breach, Plaintiff received severe personal injury,
Not only have the Couns adopted the theory thaI a professional engineer may nol
limit his liabilty for personal injuries to third panies by hiding behind a conlraCl, but lhe
General Assembly passage of Acl 164 funher evidences the public policy asainst
indemnification and limiting lhe liabilily of professional engineers lhrough conlraclual
provisions.
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SNIL-IIAKI"
.
.NINNIMAN.
Plaintiff brings this action against Defendants as a result
of engineering services provided South Middleton Township by
Defendants respecting the area of Whis~ey springs Road where the
accident at issue occurred. Specifically, plaintiff alleges that
the Township contracted with the Defendants to conduct an
engineering and tratfic study on a section ot whiskey springs
Road. (Complaint, paragraph 14.) As a result of the study, it
is alleged Detendants recommended a speed limit tor a section ot
the road. (Complaint, Paragraph 15.) Alleging that the
recommended posted speed limit was too high and that there were
inadequate warnings ot curves on the road, plaintitf therefore
concludes that the proximate cause or substantial tactor in
causing the accident was Detendants' failure to conduct a proper
examination and etudy ot the section ot the road where the
accident occurred. (COMplaint, paragraph 19,)
Detendante on November J, 1994 timely tiled preliminary
objections to Plaintiff's Complaint in the nature of a demurrer
claiming, inter AliA, that due to the lack ot privity between the
Plaintiff and Defendants, plaintiff cannot maintain this action
against Defendants tor negligence as engineers. This Brief is
submitted in support ot Detendants' preliminary objections in
accordance with C.C.R.P. 210-6.
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LAw 0"''::..
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II. STATEMENT OF OUESTIONS INVOLVED.
A. Whether Defendants' preliminary objection in the nature
of a demurer should be sustained on the basis that
there is no privity ot contract between Plaintiff and
Defendants.
(Proposed Answer: Yes)
III. ARGUMENT.
THE ABSENCE OF PRIVITY BETWEEN PLAINTIFF AND DEFENDANTS
PRECLUDES PLAINTIFF FROM MAINTAINING A CAUSE OF ACTION
FOR NEGLIGENCE AGAINST DEFENDANTS,
A demmurer is an assertion that the complaint does not set
forth a cause of action upon which relief can be granted. It
admits, for purposes of testing the sufficiency of the complaint,
all properly pleaded facts, but not conclusions of law.
Balsbauah v. Rowland, 447 Pa. 423, 290 A.2d 85 (1972). The
question presented by a demurrer is whether on the facts averred,
the law says with certainty that no recovery is possible.
Santiaao v. Pennsvlvania National Mutual Casualtv Insurance
ComDanv, 418 Pa. Super. 178, 613 A.2d 1235 (1992). Any doubts
about sustaining preliminary objections in the nature of a
demurrer should be resolved in favor of overruling the demurrer.
Hill v. Thorne, 430 Pa, Super. 551, 635 A.2d 186 (1993).
In spite of the rather stringent requirements for the grant
of a demurrer, Defendants submit that the failure of Plaintiff to
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UW O""ICIS
SNlL.'3A1I(("
.
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plead privity of contract between Plaintiff and D.f.ndants in the
cont.xt ot the facts alleged in Plaintiff'. complaint compel.
D.f.ndant.' demurrer to be sustained.
The ba.is for a claim of negligence i. that there i. a duty
ow.d to the plaintiff which has been breached by the defendant.
as. St.ven. v. Readina State R~ilroad Co., 384 Pa. 390, 121 A.2d
128 (1956). Accordingly, it is a fundamental rule of tort law
that a n.gligence claim must fail if it is based on circumstances
for which the law imposes no duty of care on the defendant.
Briaht v. Federal Machine Co.. Inc., 535 F. Supp. 645 (D.C,Pa.
1982); Gerace v. Holmes Protection of Philadelphi~, 357 Pa.
Super. 467, 516 A.2d 354 (1986).
It i8 well established in Pennsylvania that privity between
partie. i. required to maintain an action for professional
negligence. as. Landell v, Lvbrand, 264 Pa. 406, 107 A. 783
(1919); Guv v. Leiderbach, 507 Pa. 47, 459 A.2d 744 (1983); Linde
Ent.rnri.... Inc. v. Hazelton City Authoritv, 412 Pa. Super. 67,
602 A.2d 897 (1992) alloc. denied 617 A.2d 1275; Hartford
Accid.nt and Indemnitv CompanY v. Parente. Randolnh, et al., 642
r. Supp. 38 (M.D.Pa. 1985); Pell v. Weinst.in, 759 r. Supp. 1107
(M.D.Pa. 1991). Absent a contractual relationship between
parties respecting prOfessional services, there is no duty of
care ow.d by the provider of a prof'essional service to a
plaintiff. a.t Linde EnterDrises. Inc.. sunra., 602 A.2d at 899.
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BRIENNIEMAN
The mo.t r.c.nt appellate deci.ion addre..ing the i..ue ot
privity in relation to proteseional service. i. Linde
Ent.rllri.... Inc., .UJ:lra. In Linde, the plaintitt ("Linde") was
the low bidder on a contract with the plaintitt Hazelton city
Authority tor the reconstruction ot a dam. Hazelton city
Authority hired Westmoreland Engineering Co., Inc.
("We.tmoreland") as the project engineer to provide
.p.citication. and supervise construction. In its suit against
the Hazelton City AuthQrity, Linde claimed that signiticant cost
ov.rruns on the project were caused by taulty .pecitications and
n.glig.nt supervision by the Authority's agent, Westmoreland.
Th. Authority joined Westmoreland in the action as an additional
det.ndant. In recognizing that penn.ylvania court. have long
h.ld that privity is required to maintain an action tor
prot.ssional negligence, the Superior Court in Linde reversed the
trial court's decision which was based on a erroneous charge to
the jury that Linde could recover directly trom Westmoreland even
it there were no contractual relationship between the two.
In the case at hand, it is evident trom the Complaint that
Plaintitt has sued the Defendants in their capacity as
protessional engineers. (Complaint, Paragraph 2.) Plaintiff
alleg.s that the Township contracted with the Detendants to
conduct an engineering and traffic study on Whiskey Springs Road.
(Complaint, Paragraph 1~.) Due to alleged negligence ot the
Detendants in examining and studying the section ot road where
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UW (IF,..,CkS
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the accident occurred, the accident was alleged to have occurred.
(See Complaint paragraph. 19, 20.) It i. therefore beyond
dispute that the basis of Plaintiff's claim against the
Defendants i. the alleged negligence of Defendants in providing
prOfessional engineering .ervice.. However, plaintiff nowhere in
his Complaint allege. a contract or contractual relationship
between him and the Defendant.. The failure of plaintif.f to
allege privity with the Defendant. i. a fatal flaw in Plaintiff'.
cause of action.
The Defendant. are not unmindful of the Pennsylvania
Superior Court'. decision in Youna v. Eastern Enaineerina and
Elevator ComDanv. Inc., 381 Pa. Super. 428, 554 A.2d 77 (1989),
aDDe~l denied 524 Pa. 608 (1989). In Youna, an employee of a
subcontractor on a construction project brought a personal injury
action against the design architect, among others, claiming the
architect had a duty to protect him from hazards on the
construction site. However, since the architect never undertook
by contract or conduct the responsibility of supervising
eonstruction and maintaining safe conditions on the project, the
lower court's decision entering summary judgment in favor of the
architect was affirmed. Younq, however, must be limited in its
application to the facts of that case.
Youna was decided three years before Lind. and did not
address the issue of lack of privity between the architeot and
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SNCLiI"'KI:IIt
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....INNIMAN
the injured employee. The Court in Linde, however, did note in a
footnote:
Although we have recently indicated that a
contractor'. employee could potentially .ue tgx
~ereonal in~urv an engineer for negligent
.upervi.ion in Youn9, .UDra., we have a1.0 held in
that ca.e no direct action would lie for negligent
drafting of epecifications.
Linde sUD~a. 602 A.2d at 901, n.3. (emphaeie .upplied)
Linde therefore preeented an opportunity for the Superior Court
to recognize a duty by engineer to all pereons who euetain
pereonal or economic injury a. a re.ult of professional .ervices
rendered, but it chose not to do so. Further, the abOVe footnote
comment by the Court auggests that a primary diatinction muat lie
between thoee undertakings relating to professional engineering
eervice. (i.e. drafting plans, inapecting construction) and those
that may be contractually assumed but nonetheless do not involve
profeeeional engineering services (i.e. ensurIng safety on the
job eite during conetruction.) There has been no allegation of
'the aeeumption of a contractual obligation alleged by Plaintiff
in the ca.e at hand that does not involve the providing of
profee.ional engineering service.. Plaintiff ha. further not
alleged that he haa the atatua of an injured employee on a
conetruction project.
A. indicated in Linde, sunra., privity i. required to
.aintain an action for profea.ional negligence. Plaintiff ha.
failed to allege any contract or contractual relation.hip with
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in South Middleton Township ("Township"), Cumberland County and
that said portion is under the control of the Township. It is
also a~mitted that the vehicle driven by Bonney struck a tree
along Whiskey Spring Road. After reasonable investigation,
Defendants are without sufficient knowledge or information to
form a belief as to the truth of the allegation that a ..rious
accident occurred; therefore, same is denied and proof thereof
demanded.
It is admitted upon information and beli.f that the
Plaintiff may have been injured as a result of the accident, but
the extent of said injuries, after reasonable investigation, is
unknown.
5. Admitted in part; denied in part. It is admitted upon
information and belief that Plaintiff's counsel notified the
Township as alleged in Paragraph 5. The substance of said
notice, however, contains conclusions of law to which no respons.
is required by Defendants and is deemed to be denied pursuant to
l029(d). In reference to the alleged injuries
ustained by Plaintiff, after reasonable investigation,
efendants are without sufficient knowledg6 or information to
orm a belief as to the truth of same; therefore, same are denied
proof thereof demanded,
6. Denied. After reasonable investigation, Defendants are
ithout sufficient knowledge or information to form a be,lief as
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to the truth of the allegations in Paragraph 6; therefore, same
are denied and proof thereof demanded.
7. Admitted.
8. Admitted in part; denied in part. It is admitted that a
portion of Whiskey Spring Road bears a sign indicating that the
road would curve to the left. It is also admitted upon
information and belief that said sign is believed to precede the
section of the road where the accident in question occurred,
although the Defendants, after reasonable investigation, are not
aware of the exact location wher~ the accident took place. It is
further admitted only that Defendants are aware of no sign that
indicates a double curve to the left. FinallY, it is admitted
that the present sign does not indicate that the posted speed of
thirty-five miles per hour should be reduced.
9. After reasonable investigation, Defendants are without
sufficient knowledge or information to form a belief as to the
truth of the allegations in Paragraph 9/ therefore, same are
denied and proof thereof demanded,
10. After reasonable investigation, Defendants are without
sufficient knowledge or information to form a belief as to the
truth of the allegations 1n Paragraph 10; therefore, sa.e are
denied and proof thereof demanded.
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"INNIMAN
11. After reasonable investigation, Defendants are without
sufficient knowledge or intormation to form a belief as to the
truth of the allegations in paragraph 11; therefore, same are
denied and proof thereof demanded.
12. Admitted in part; denied in part. After reasonable
investigation, Defendants are without sufficient knowledge or
information to torm a beliet as to the truth of the allegations
concerning notice of accidents on the section of the road in
question or notice by the Township of any vehicle striking any
tree or when such notice, if given, was given; therefore, same
are denied and proof thereof demanded. It is admitted that the
Township did not place or cause to be placed a sign reducing the
thirty-five miles per hour speed limit on the section of the road
in question.
13. Admitted in part; denied in part, After reasonable
investigation, Defendants are without sufficient knowledge or
information to form a belief as to the truth of the allegations
concerning notice of accidents on the section of the road in
question by the Township or notice of vehicles striking any trees
or when such notice, if given, was given; therefore, same are
denied and proof thereof demanded. It is admitted upon
information and belief that the Townohip did not replace any left
curve sign. After reasonable investigation, Defendants are
without sufficient knowledge or information to form a belief as
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to the truth of the allegation that the Township did not remove
any tree or trees along the road; therefore, same is denied and
proof thereot demanded.
14. Admitted in part; denied in part. After reasonable
investigation, the Defendants are without sufficient knowledge or
information to form a belief as to the truth of the allegatione
in Paragraph 14 concerning what the Township claims; therefore,
ea.e are denled. It is admitted only that Grove Engineering
agreed to conduct an engineering and traffic study on a portion
of Whiskey Spring Road for purposes of determining the proper
speed limit for said portion,
15, Admitted in part; denied in part. It is admitted that
Defendant Miller of Grove Engineering, after conducting an
engineering and traffic study, recommended a speed limit on the
portion of Whiskey Spring Road studied of thirty-five miles per
hour. It is denied that such study involved or referenced any
road identified as "County Line Road".
16. Denied. After reasonable investigation, Oefendants are
without sufficient knowledge or information to form a belief ..
to the truth of the allegations of Paragraph 16 which purport to
.et forth what the Township claims; therefore, same are denied
and proof thereot demanded,
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UWO"ICU
SNIL.AKI..
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'''INNIMAN
17. Admitted in part; denied in part. It is admitted, upon
information and belief, that a vehicle operated by Bonney in
which Plaintiff was a passenger was involved in an accident with
a tree. concerning all other allegations in Paragraph 17, after
reasonable investigation, Defendants are without sufficient
knowledge or information to form a belief as to the truth of said
allegations; therefore, same are denied and proof thereof
demanded,
18. Admitted in part; denied in part. It is admitted upon
information and belief that Plaintiff was injured as a result of
the impact by the vehicle in which he was traveling with a tree.
After reasonable investigation, Defendant. are without eufficient
knowledge or information to form a belief as to the truth of the
allegations that Plaintiff's injuries were severe; therefore,
same are denied and proof thereof demanded.
19. Oenied. Paragraph 19 contains an unwarranted
conclusion of law to which no response is required by the
Oefendants; therefore, same is deemed to be denied pursuant to
Pa.R.C.P. 1029(d). To the extent a response is necessary, it is
denied that the proximate cause or substantial factor in causing
the accident in question was Defendants' alleged failur. to
conduct a proper examination or study of Whiskey Spring Road or
by the purported lack of proper instruction as to the salety of
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the roadway. To the contrary, the proximate cause and
sub.tantial factor in causing the accident was the negligence ot
Bonney and/or the cont.ributing negligence of Plaintiff a. more
fully set forth in New Matter, the averments of which are
incorporated by reference herein.
It is further denied that the section of roadway in
question was dangerous or constituted a dangerous condition. To
the contrary, the roadway as signftd and the postsd speed limit of
thirty-five miles p6r hour posed no danger to any person
operating a vehicle in a sate and prudent manner or any pa..enger
in .uch a vehicle. By way of further answer to the part. of
Paragraph 19:
a. It 18 denied that there existed any "dramatic
change" in the "roadway condition". It is further
denied that there was an unexpected second shape curve.
To the contral'y, any curves on the road would be
obvious to and expected by any person operating a
vehicle on a mountain road exerci.ing reasonable care
and prudence;
b. It is denied that tor .outh-bound traffic, the
configuration of the road in term. of the combination.
of straight stretches and curve. increased the
likelihood of accidents or constituted a dangerous
condition. To the contrary, tho configuration of the
road pre.ented no danger or increa.ed the likelihood of
any accident for any person operating a vehicle on the
road with re~sonable care and prudence or any passenger
in such a vehicle;
c. It is denied that the area outside the alleged
"accident curve" is dangerous. After reasonable
investigation, Defendante are without suffioient
knowledge or information to form a belief as to what
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portion of the roadway in question Plaintiff has
labeled as the "aocident curve"; therefore, same is
denied. By way of further answer, any area outside the
curve of any portion of the road constituted no danger
to a person who operates a vehicle in a reasonable and
prudent manner or to any passenger of such a vehicle.
By way of further answer, any recollllllendations '
concerning removal of items from the area adjoining the
roadway were beyond the scope of any study requested;
d. After reasonable investigation, Defendants are
without sufficient knowledge or information to form a
belief as to what portion of the roadway in question
Plaintiff has labeled the "accident curve"; therefore,
same is denied. It is denied that the study and tests
conducted by Defendant Miller were not based on
accepted professional engineering standards for
determining roadway speed;
e. Denied, It is denied that Defendants failed to
consider all aspects of roadway geometry, including
superelevation, on the section of roadway studied;
f. Part f. of Paragraph 19 constitutes an unwarranted
conclusion of law to which no response is required;
therefore, 8ame i8 deemed to be denied pur8uant to
Pa.R.C.P. 1029(d);
g. Admitted in part; denied in part. After reasonable
investigation, Defendants are without sufficient
knowledge or information to form a belief as to what
portion of the roadway in question Plaintiff has
labeled the "accident curve"; therefore, 8ame is
denied. It is admitted, to the extent relevant, that
Defendant Miller did not recollllllend that a large arrow
sign and chevrons be utilized on any portion of the
roadway, By way of further answer, it is denied, to
the extent it is implied, that Defendants had any
obligation to make such a recollllllendation under the
circumstances;
\A" a,"CU
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...INNIMAN
h. Admitted in part; denied in part. After reasonable
inve.tigation, Defendants are without sufficient
knowledge or information to form a belief as to what
portion of the roadway Plaintiff has labeled the
"accident curve"; therefore, aame i. denied, It ia
admitted, to the extent relevant, that Defendant Miller
did not recommend that any portion of Whiskey Spring
Road could not be traver.ed at thirty-five mile. per
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hour. By way ot turther anawer, it ia denied, to the
extent implied, ttlat Detendant. had any obligation to
make auch a recommendation under the circumatancea. It
ie denied that any portion ot Whiskey Spring Road is
dangerous or conatitutea a dangeroua condition to any
driver operating a vehicle thereon in a reaaonable and
prudent manner or any paa.enger ot auch a vehicle. It
ia alao denied that any driver, including Mr. Booney or
Mr. Bonney, would without aignage on any part ot the
road, tail to recognize the character ot any curve at a
time to late to reduce the vehicle's apeed and traverae
the curve. To the contrary, all portiona ot Whiakey
Spring Road aa posted can be sately traversed by any
peraon operating a vehicle in a reasonable and prUdent
manner. It is also denied that any driver, including
Mr. Booney or Mr. Bonney, when operating a vehicle in a
reasonable and prudent manner on the road, is or waa
deprived of any intormation neceeaary to avert
accidents thereon; and
1. It is admitted to the extent relevant, that
Detendant.s did not recommend that trees on the outaide
ot any curve would take away any chance ot recovery and
would re..ult in any injury producing accident. It ia
denied, however, to the extent it ia implied, that
Detendants had any obligation to make .uch a
recommendation under the circumatancea. By way ot
turther answer, the area out. ide any curve on Whiakey
Spring Road posed no danger to any driver operating a
vehicle in a aate and prudent manner or any paaaenger
in such a vahicle so operated.
20. Denisd. Paragraph 20 contains unwarranted conclusiona
ot law to which no reaponse is required by the Detendanta
purauant to Pa.R.C.P. 1029(d); theretore, same are deemed to be
denied. In addition, atter reasonable investiqatior., the
Detendants are without autticient knowledge or intormation to
torm a belief as to the extent ot the physical injuries alleged
to have been sustained by Plaintitt in the accident in question;
theretore, aame are denied and proot thereot demanded.
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21. Denied. Paragraph 21 contains an unwarranted
conclusion of law to which no response is required by the
Defendants pursuant to Pa.R.C.P. 1029(d); therefore, same is
deemed to be denied, In addition, after reasonable
investigation, the Defendants are without sufficient knowledge or
information to form a belief as to the truth of the averments
concerning Plaintiff's inability to work, the nature of his
former employment and his ability or inability to engage in any
employment in the future; therefore, same are denied and proof
thereof demanded.
22. Denied. Paragraph 22 contains unwarranted conclusions
ot law to which no response is required by the Defendants
pursuant to Pa,R.C,p, 1029(d); therefore, eame are deemed to be
denied. In addition, after reasonable investigation, the
Defendants are without sufficient knowledge or information to
form a belief ae to Plaintiff'. diSfigurement, need for a cane to
walk and the existence ot any limp; therefore, same are denied
and proof thereof demanded.
23. Denied. Paragraph 23 contains unwarranted conclusions
of law to which no response is required by the Detendants
ursuant to Pa.R.c.P. 1029(d); therefore, same are deemed to be
enied. In addition, atter reasonable investigation, the
etendants are without sufficient knowledge or information to
torm a b.lief as to the truth of the averments concerning
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Plaintiff'. alleged ankle pain, future medical or surgical
procedures and future phy.ical limitation. or impairment.;
therefore, .ame are denied and proof thereof demanded.
24. Denied. After reasonable investigation, the Defendant.
are without sufficient knowledge or information to form a belief
as to the truth of the allegations contained in Paragraph 24 of
Plaintiff's Complaint; therefore, same are denied and proof
thereof demanded,
25, Denied, After reasonable investigation, the Defendant.
are without sufficient knowledge or information to form a belief
as to the truth of the allegations contained in Paragraph 25 of
Plaintiff's Complaint; therefore, same are denied and proof
thereof demanded.
26. Denied. After reasonable investigation, the Defendants
are without sufficient knowledge or information to form a belief
as to the truth of the allegations contained in Paragraph 26 of
Plaintiff'. Complaint; therefore, same are denied and proof
thereof demanded,
27. Denied. After reasonable investigation, the Defendants
re without sufficient knowledge or information to form a belief
s to the truth of the allegations contained in Paragraph 27 of
laintiff's Complaint; therefore, same are denied and proof
hereof demanded.
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28. Denied. Atter reasonable investigation, the Detendants
are without sutticient knowlsdge or intormation to torm a beliet
as to the truth ot the allegations contained in Paragraph 28 ot
Plaintitt's Complaint; therefore, same are denied and proot
thereot demanded.
29. Denied, Atter reasonable investigation, the Detendants
are without sutticient knowledge or intormation to torm a beliet
as to the truth ot the allegations contained in Paragraph 29 ot
Plaintitt's Complaint; therefor~, same are denied and proot
thereot demanded,
30. Denied. After reasonable investigation, the Defendants
are without sutticient knowledge or intormation to torm a beliet
as to the truth ot the allegations contained in Paragraph 30 ot
Plaintitf's Complaint; therefore, same are denied and proot
thereot demanded.
31. Denied. Atter reasonable investigation, the Detendftnts
are without sufticient knowledge or intormation to torm a beliet
as to the truth ot the allegations contained in Paragraph 31 ot
Plaintitf's Complaint; therefore, same are denied and proot
thereot demanded,
WHEREFORE, Defendants request this Court to dismi.s
l~intift'. Complaint with prejudice and enter judgment in their
avor together with costs ot this action,
-12-
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re.ulted from a motor vehicle accident. A true and correct copy
of Plaint!ff'. Complaint i. attached hereto and incorporated by
reference herein a. "Exhibit A".
5. On November 3, 1994 Defendant. timely filed a
Preliminary Objection in the nature of a demurrer to Plaintiff"
complaint. A true and correct copy of Defendants' Preliminary
Objection is attached hereto ann incorporated by reference herein
ae "Exhibit B".
6. On May 5, 1995 the Court denied Defendants' preliminary
objection. On May 26, 1995 Defendants filed an Anewer with New
Matter in reeponse to Plaintiff's Complaint. A true and correct
copy of Defendants' Answer with New Matt,r is attached hereto and
incorporated by reference herein as "Exhibit C".
7. On or about June 7, 1995 plaintiff filed a Reply to the
New Matter raised by the Defendants. A true and correct copy of
Plaintiff's Reply to New Matter is attached hereto and
incorporated by reference herein a. "Exhibit D".
8. On or about January 1, 1993 plaintiff was a pae..nger in
a motor vehicle owned and operated by Additional Defendant.
9. The accident complained of in Plaintiff'. complaint,
tQgether with the injurie., los..e and damages alleged by
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81l11NNIMAN
Plaintiff to have been sustained by him as a result thereof, were
caueed eolely, proximately and in fact by the negligence,
recklesene.. and careles.neBs of Additional Defendant William D.
Bonney in the following particulare:
(a) in failing to keep his vehicle under proper
control;
(b) in failing to drive his vehicle at a safe .peed;
(c) in operating hi. vehicle in exce.. of the poeted
speed limited;
(d) in operating hi. vehicle while under the influence
of alcohol;
(e) in failing to apply his brakes in time to avoid
collision with a tree;
(f) in negligently applying his brakes so as to cause
his vehicle to skid out of control; and
(g) in failing to take due cognizance and notice of
the layout, features and conditions of the roadway
and the areas adjacent thereto.
10. All of the injuries, dam~ges and losses alleged in
Plaintiff's Complaint were the direct, factual and proximate
result of Additional Defendant's negligence, carelessnes. and
recklessness as more fully set forth above.
11. The Additional Defendant is solely liable for all of
the injuriea, damages and losses alleged in Plaintiff'.
Complaint.
12. Additional Defendant William D. Bonney is solely
li~ble to the Plaintiff, or, in the alternative, in the event
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'...\....v~ 'I~~......, ~1....I_.~"...
. I.. ......
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYL VANIA
STEVEN 1. VOORHEES
Plaintiff
v,
q of - t. 0 ') , ~ ..:r..""",-
NO. Clvn. 1994
CIVIL ACTION. LAW
TDAY GllOVE. P.E. DIBIA
GlOVE ENGINEERING
IIId
DENNIS E. ~ r InI" P.E.
Dclllndanls
COMPI..UNT
AND NOW dais ;.~~ October, 1994, comes Plainllft: by IIId throuah his
COUDMI, loaeph D. Buckley, ElqUirc and complains olDcfcndant u follows:
I. PIaind.lfi. an Idult mal. currently rcaidina It '316 Olllord Circle, Apulm8nl13,
MechanicIbut.. PA 170".
2. Detendant. arl profetsional cnaill88l's whoM olllcc i.IOCItId at 4110 Dtrry
SInIt, HarrbburJ, P A 17111.
3. On or about January I, 1993, II approximately 0100 A.M. P1aintift'wu a
,,-~""...ln a lIIOlor 'llhicl. driven by William D. Bonney.
4. As said Mr. Bonney wu drivina his vehicl. with Plainlift'u a puaen,er upon I
tOWlllhlp road, commonly relmed to u Whilkl)' Sprin, Road, said road bein. Joclttd in
SClUlh MlddIeton ToWlllhip, Cumberland Cowuy and under the conlro~ ownmhip ud
llllincelllllCl 01 said township, a serious accident 0CC\IITed when the said vehicl.ltNclt I
ll1I aIoaa said road injurin. Plainlitr
,. On ,.bNary 2, 1993, P1ainlitr. Ihroup COUIIM~ nolitled said lownahlp lhrouab
Iarbua Wlbon tllll Plainlift' had been injured in I motor vehicl. accident, ,bal he betievcd
the accid... WII cauald by said IOwnship'. fkIur. 10 warn 0( a known huardOlll
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'.JI"\lr.J.....c. II'~"";'I' i-I"""I~.~I'''''
. ...
condltlon ofthl road and thlt PlaintiJrhad sutrored severe injurl.. includlnj a broken
femur, libia, ftbu1a and crushed ankle.
6. By lena' dated Febnwy 2', 1993, Plaintift: lhrouah counsel WU c:ontaded by
lllid lownship'. ...nu and ftulhcr contacts have been made between tho pard..,
7. The said township's road wu polled wilh a speed limil oflhirly.ftve (35) miIea
per hour.
I. A sian boarlnl an indiCllion lhallho road would curve 10 Ih. left preced.s the
section OllM road where the vehicl. driven by said Mr. Bonney ItnIck a UN, but do..
not indK:ato lhalth. road section involves a double CUrve to Ihc left, commollly called I
"broken-back" or "ftat.back" curv., IIId the sinaiDII doc. not indicatl dw the PO'led
speed ofthiny.five (3'> miles per hour should be reduced.
9. Prior to the accident involvin. Mr. BOMey and Plaintiff, said township had
wrinen noliclthat accident. involvina olher vehicle. .trikilllllxld objecu had occurred
on die sun. Mction Oflh. sam. road.
10. Prior 10 tbe said accid.nt, said township had been aiven nOlic. ofthc
danlcroul condition of the lIClion ot road and had laken measures to .top In'IIII vehiclea
tom leavin. Ih.hi,h""y and strlkinlthe lr... alon, said section o( road.
II. Said township had instructed iu laent. and employ... 10 pile mound. of dirt
aloa.the edac ortM hiaJ\way in an attempt 10 SlOp vehicl.. ITom lavin,lh. road and
Sllildnt the ue.. alon. said roadway.
12. Subsequent ollhe notice olaccidenes occurrinl on the section orit. road,
Iacludin. nolic. of one or more lhan one other vehicles .trillina the Ie" which was stl\lCk
by ebe vehicl. in whil:h Plaintitrwu a pusenaer, said lownship did 1101 place or cause 10
be pIeces a sian r.ducinllhe .peed limit on lhis seclion of road
13. Subsequ.nllo the notice of accident. occurrin. on lhe MCtion of it. road,
iacludin. nOlice or on. or more lhan one olher vehicles 'lrikina lhe It" which WU slRlck
by lJle vehicle in which Plaintill'wu . passen,er, said lownship did nol replac'lh. sian
whidlladlcatld thallhe road curved one. to the left with a II.,. lhat WIIMd thllthe
..~ bad . Wrp doubl. curv.ln lhaI MClion ofroad nor did laid lOwftIhip nmovelbe
tree.
14. Said townsllip claims thaI In 1916, it contracted with Det'cndanllo conduclu
..1MIina ud de study on the secdon ofWhlalcf'/ Sprlnp ReId IAvoIved lAthe
incident Il hand, for the purposu of detcrminina the u apecd over which the said road
couIct be driven and also to determine llle appropriate slanina 10 be pJaced Will said road.
15. Mcr all1acdly conductina an enain..m, and lrafIc study on WhiIkey Sprinp
Road tom Mollllllin Road 10 County LiIle Road, Detendanl rocommeaded to the said
lOWIqbIp thai the recommendld speed limit and safe NIInina .peed for the _ire section
ofWhislcey Sprin.. Road fi'om Moulllain Road to th. County line wu lbirty-8ve mil.. per
hour.
16. Said townahip c1aimlthal buld on the Defendant'l profllsional
reoomm.nclationa it polled a Ip.1d limil ofthil1y.ftv. mll.. per hour for the l8Clion of said
rued and did not place a reduced speed limit below ,he sian indicatin. a curve 10 the left
Oft said road's l8ction.
17. AI Mr. Bonney'. vehicle, carryina Mr. BOMI)' and PIaiDtift; approKhed lbe
lOp of tbe hill near where the sian indiCtl" a curve to th. left, lhen lrIvelin. at
~...ely thl polled.peed limil. Mr. Bonney succadilly "'Iouated the first curve,
but whca he round the road took anotbcr sharp lum 10 theld u it wu mvelin,
cIownIIlIJ, be bepn to alcid on the p.bbl.. and the vehicle rounded the IdS' of the c:urve
IIIcIthe mounds of din pilld on lhe edle by the DelencIant actld u a ramp O~ wbich the
'l8tJc"lrI~ off lhe road way . few f.. Ilrikin. .trel o( more than two .... in
diameter
II. As a "sull o( the impact of lhe vehicl. wilh the tree. Plaintill'suft'tred severe
...
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19. Th. proximate caus. andlor a .ubllanliallictor in cauain.th. accident wu
Defenduu's fkilure to conduct a proper examination and 'l\Idy oflh. sec:tion olroad tom
MOWIlIIn Road to the County Linc and liviD, improper lnatructiona U 10 the safety ollhc
roadway which wOllld have warned Mr. Bonney II to Ih. danacrou. condition ollht
section or tbe road whicb could nOl be satily neaoriated II the POlled speed limil olthiny-
8ft mil.. per hour because:
a. th.r. is a dramatic chlU1ae In the roadway condition, a "brokcn-back"
curv. with an unexpected second sh.p. curve while lrav.Una downhiU and proper wamin,
is nol provid.d;
b. for sOllth-bOllnd lraftlc, th.lon, suai&ht stretch preccdinilh. broken-
back curve, and the second curve beina the sharpest, increase the likelihood of accidents
rtlUhin. from dais watrou. condition;
c. lhc area 10 b. oUllide of the Iccidenl curve is danaerous, because it
Ihou1d have been fr.. of obllacles and availabl. for recovery of an out-of.control vehicle,
and was not;
d. Defcndanls failed 10 conduct studi.. and tnu for the safe .peed for
drivill. lh. accident curve baed on all acceptable prof...aional ensineerilllltandarda fur
delmninina such speeds;
.. Derendanll failed 10 consid.r thll the section ohoad a1leacdly .tudied
and .pecillcally lh. section olthe curv.s w.r. neaatively .uperelcvlled;
f. Defendants fiiled to neaJia.ndy failed to recommend the accident curve
to be marked with I Left Tum wamina sian and an advisory .pald of I' mil.. per hour,
.. Def.ndants failed 10 rCCOlI\III8nd tlw lhe accid.nt curve be lIIIIlced with
a LII" Sinal' Arrow sian and Chevrons;
h. Defendants ~iled 10 recommend thatlhe accident curv. could nolllf'eJy
be travers.d lIthe speed limil of lhiny.tiv. miles per hour .and such is a dana.reus
condition and thaI driv.rs, such. MI Booney would without a chana' in sianina
,..~ I ,
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!wM'U"'-'I;. l"~""" 1,..1"'............."'"
. I.'
.1tOOIftIu die c11l1aclcr olthe cu"" II a lime when it wu too 1111 to reduce hiI...._
In... tile llUI'V8 Ate1y. By IIOt wamina driven, such u Mr. Booney, orlhe cIwact. ol
daI curve IIICIIM IIIId to reduc.1p8Id would depriw the driver olintonrwlOD tbat
abou1d be provided 10 .vert ac:cid8llIs;
i. DelencIanlI AUld to recomm.nd that the ptaence oldalll'l8l on the
0lIhid1 olthe curw, widlin . zone which sbould be he or oblC&Clea, would tab away
Ill)' chanc:e olrecovery and would result in an injury produc:ina accid8lll.
20 As. re.ult oflb.lCCidenl c."1Cd by Delcndanu' lIIIIiIenl acts or omisaiona,
PIIinlIff II\I&rId . broken femur, tibia and fibula, mulliplllaMlliOlll and . C1\IahIcI aalde
_ hu underaone, to dIla, four separale open&iona, to alleville or comc:l &hi iDJuriee
IlI4Ind u . ruuit of the accident and hu been hospitalized for .tola1 or more than
dIiny daya, and is IIW under doctor's care.
21. As. mull OllM accident caused by Defendants' ll8Iliacnt aet. or omiaaiona,
PlaiDtHrhu bien unabl. 10 work in hi. fol1ll8l' capacity, thai bIina a hoUM build. and hu
bleD IdvbecIlhal hi will never be abl. 10 so return 10 any labor iatcnsive IIIlploymllU.
22. AI . rllUh OllM accident clUsId by Delendants' ncaJipnlKl' or ~j..IOIll,
Pllinlift' has been disfiprld and RIUIllll8 . can. to help him walk. H. also has .
proDOUIICed limp whit. walkinf.
23. AI. rnult otlhl KCidem caUHd by Def'tndllll.'lJIIIipnllCll or omiaaiona
IDd thllllUlliplelnjuriu .ustained Ihcreft'om, PlainriJJ' will have to encIunI padually
iDltlllityina paln in his ankN until the pain becom.. unbearable. It which Umt hi. .....
wUlltIve 10 be ftIHd le.vlna him with a J*IIIIftIIIt club tool.
24. Plaintill'hu incurred l118dic:a1 biD, in exc..s 0(tw8llIy-6v. thousand doIIan.
2'. P1aintift'will incur Attun medical billa in ClCCes. ottMMy-ftvllhouMnd
dolIatt.
26. Plainlill'hu suWered Iou otw.... in .:-.CIlS otlwtnty.1lve thousand doDan.
, .'",,"
\,A'" O"IC..
.N.Io.....IC.1lI
.
llItlNNIIMAN
I Ln south Middleton Township ("Township"), Cumberland County and
,I
that said portion is under the control of the Townlhip. It is
also admitted that the vehicle dr!ven by Bonney Itruck a tree
along Whiskey Spring Road. After reasonable inveltigation,
Defendants are without sufficient knowledge or informat!on to
form a belief a. to the truth of the allegation that a .eriou.
accident occurred; therefore, lame i. denied and proof thereof
demanded.
It is admitted upon informat!on and belief that the
Plaintiff may have been injured as a re.ult of the accident, but
the extent of said injuries, after reasonable inve.tigation, i.
unknown.
5. Admitted in part; deni.d in part. It i. admitted upon
information and belief that Plaintiff's coun.el notified the
Township as alleged in Paragraph 5. The .ubstance of said
notice, however, contains conclusions of law to which no re.ponse
i~ required by Defendants and il deemed to be denied pur.uant to
Pa.R.C.P. 1029(d). In reference to the alleged injurie.
sustained by plaintiff, after reasonable investigation,
efendants are without sufficient knowledge or information to
form a belief as to the truth of same; therefore, .ame are denied
nd proof thereof demanded.
6.
Oenied,
After reasonable investigation, Defendants are
I
1 ithout sufficient knowledge or information to form a belief as
I
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.NIL.IA..1lI
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."CNNIMAN
to the truth of the all.gation. in paragraph 61 tb.refor., ....
are deni.d and proof th.reof d..and.d.
7. Admitted.
8. Admitted in part; deni.d in part. It i. .daitt.d th.t a
portion of Whi.key Spring Road bear. a .iqn indicat!nq that the
road would curve to the l.ft. It i. al.o adaitted upon
information and b.lief that .aid Gign i. believed to pr.c.d. the
.ection of the road wh.re the accid.nt in qu..t!on occurred,
although the Defendants, after rea.onabl. !nv..tiqation, ar. not
aware of the .xact location where the accid.nt took plac.. It!.
furth.r admitted only that Def.ndant. are aware of no .ign that
indicate. a double curv. to the left. Finally, it i. admitted
that the pre.ent .ign do.. not indicate that the po.ted .p.ed of
thirty-five mil.. per hour .hould be reduc.d.
9. After rea.onable inv..tigation, D.f.ndant. are without
.uffici.nt knowledge or information to form a beli.f .. to the
truth of the allegation. in Paragraph 9; therefor., .... are
deni.d and proof thereof demanded.
10. After reasonable investigation, Defendant. are w!thout
.uffici.nt knowl.dge or information to form a belief a. to the
truth of the all.gations in Paragraph 10; th.refore, .am. are
d.nied and proof thereof demanded.
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UW O"IC..
.N.....K...
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....NNI..AN
11. After reasonable inv.st!gation, D.fendants are w!thout
sufficient knowledge or information to form a belief a. to the
truth of the allegations in paragraph 11; therefore, lame are
denied and proof thereof demanded.
12. Admitted in part; denied in part. After r.a.on.ble
investigation, Defendants are without sufficient knowledge or
inform~tion to form a beli.f as to the truth of the alleg.tion.
concerning notice of accidents on the .ection of the road in
question or notice by the Town.hip of any v~hicle .triking any
tree or when such notice, if given, was giv.n; ther.fore, ....
are denied and proof thereof demanded. It is admitted that the
Township did not place or cauee to be placed a .ign reducing the
thirty-five mile. per hour speed limit on the ..ction of the road
in question.
13. Admitted in part; denied in part. After rea.onable
investigation, Defendants are without sutficient knowledge or
information to form a belief as to the truth of the allegation.
concerning notice of accidents on the .ect!on of the road in
question by the Township or notice of vehicles striking any treel
or when such notice, if given, was given; th.refore, .ame ar.
denied and proof thereof demanded. It il admitted upon
information and belief that the Township did not replace any left
curve sign. After reason~ble inveltigation, D.fendant. are
wlthout sufficient knowledge or information to form a belief a.
II
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.N.lt.eAKIIlI
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1tfl........A..
to the truth of the allegation that the Township did not remove
any tree or tree. along the road; therefore, lame i. deniad and
proof thereof demanded.
14. Admitted!n part; denied in part. After reasonable
!nve.tigation, the Defendant. are without sufficient knowledge or
information to form a belief as to the truth of the allegation.
in Paragraph 14 concerning what the Town.hip Claim.; therefore,
.ame are denied. It il admitted only that Grove Inqine.r!nq
agreed to conduct an engineering and traffic study on a port!on
of Whiskey Spring Road for purposes of determining the proper
speed limit for said portion.
15. Admitted in part; denied in part. It is admitted that
Defendant Millar of Grove Engineering, after conducting an
engineering and traffic study, reco..ended a .p.ed limit on the
portion of Whi.key Spring Road studied of thirty-five mile. per
hour. It i. den!ed that such study involved or referenced any
rClad identified a. "County Lin. Road".
16. Denied. After rea.onable inveltiqation, Defendant. are
without .ufficient knowledge or information to form a belief a.
to the truth of the allegation. of Paragraph 16 which purport to
.et forth what the Townlhip claims; therafore, sa.e are denied
and proof thereof demanded.
-!l-
17. Admitted in part; denied in part. It i. adm!tted, upon
information and belief, that a vehicle operated by Bonney in
which plaintiff was a passenger wal !nvolved in an accident with
a tree. concerning all other alleqationl in Paragraph 17, after
reasonable investigation, Defendants are without lufficient
Knowledge or information to form a beliet a. to the truth of .aid
allegations; therefore, same are d.nied and proof thereof
demanded.
18. Admitted in part; denied in part. It is admitted upon
information and belief that Plaintiff was injured a. a re.ult of
the impact by the vehicle in which he was travellng with a tree.
After reasonable inve.tigation, Oefendants are without sufficient
Knowledge or information to form a belief as to the truth of the
allegations that Plaintiff's injuries were .evere; therefore,
sam~ are denied and proof thereof demanded.
19. Denied, Paragraph 19 contains an unwarranted
conclusion of law to which no response is required by the
Defendants; therefore, .ame is deemed to be denied pursuant to
Pa.R.C.P. 1029(d). To the extent a response is nece.sary, it i.
denied that the proximate cause or substantial factor in cau.ing
the accident in question was Detendants' alleged failure to
conduct a proper examination or study of Whiskey Spring Road or
..... 0"'"'
.NI....AIC...
.
....NN.MAN
by
I
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Ii
II
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the purported lack of proper instruction as to the lafety of
loAIII' 0"11:'.
SI'tIL.,AM;&1It
.
."'NN.""N
the roadway. To the contrary, the proximate cau.. and
.ub.tantial factor in causing the accident wa. the n.gl!g.nc. of
Bonney and/or the contributing n.gligence of Pla!nt!ff a. more
fully .et forth in New Matt.r, the av.rment. of which ar.
incorporated by reference herein.
It is further denied that the lection of roadway in
que.tion was dangerous or con.tituted . dang.rou. condit!on. To
the contr.ry, the roadway .s signed and the po.ted .p.ed lim!t of
thirty-five miles per hour posed no d.nger to any p.r. on
operating a vehicle in a eafe and prudent manner or any pa'lenger
in such a vehicle. By way of further anlwer to the parts of
Paragraph 19:
a. It is denied that there exi.t.d any "dramatic
change" in the "roadway condition". It i. furth.r
deni.d that there was an unexpected s.cond .hap. curve.
To the contrary, any curv.. on the road would b.
obviou. to and expected by any p.r.on operating a
vehicle on a mountain road exerci.ing r.a.onable care
and prudence;
b. It i. denied that for .outh-bound traffic, the
configur.tion of the road in term. of the coabinati~n.
of .traight .tretches and curve. incr....d the
likelihood of accidents or const!tut.d a dangerous
condition. To the contrary, the conf!guration of the
road pre.ented no danger or increa.ed the lik.lihood of
any accident for any per.on operating a veh!cle on the
road with reasonable care and prud.nce or any pas.enger
in .uch a vehicle;
c. It i. denied that the area out. ide the alleged
"accident curve" i. dangerou.. After r.asonable
investigation, Defend.nt. are without sufficient
knowledge or information to form a belief as to what
-7-
portion of the roadway in que.tion Plaintiff hat
labeled a. the "accident curve"; therefore, same is
denied. By way of further an.wer, any area outside the
curve of any portion of the road con.tituted no danger
to a person who opera tee a vehicle in a rea.onable and
prudent manner or to any pa..enger of .uch a vehicle.
By way of further an.wer, any recommendations
concerning removal of item. from the area adjoin!ng the
roadway were beyond the scope of any .tudy requested;
d. After reasonable inve.tigation, Defendant. are
without eufficient knowledge or information to form a
belief al to what portion of the roadway in que.t!on
Plaintiff hat labeled the "accident curve"; therefore,
same is denied. It!s denied that the study and te.ts
conducted by Defendant M!ller were not based on
accepted profe..ional engineering standards for
determining roadway speed;
e. Denied. It ia denied that Defendants fa!led to
con.ider all aspects of roadway geometry, inclUding
luperelevation, on the eection of roadway studied;
f. Part f. of Paragraph 19 con.titute. an unwarranted
conclusion of law to which no respon.e i. requ!red;
therefore, same ia deemed to be den!ed pur.uant to
Pa.R.C.P. 1029(d);
g. Admitted in part; denied in part. After rea.onable
investigation, Defendant. are without sufficient
knowledge or information to form a bel!ef a. to what
portion of the roadway in question Pla!ntiff hat
labeled the "accident curve"; therefore, same i.
denied. It i. admitted, to the extent relevant, that
Defendant Miller did not recommend that a large arrow
lign and chevron. be utilized on any portion of the
roadway. By way of further an.wer, it i. denied, to
the extent !t i. implied, that Defendants had any
obligation to make such a recommendation under the
circum.tances;
"". ."'..
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h, Admitted in part; denied in part. After reasonable
inve.tigation, Defendants are without sufficient
knowledge or information to form a belief as to what
portion of the roadway Plaintiff has labeled the
"accident curve"; therefore, .a.e is denied. It i.
admitted, to the extent relevant, that Detendant Miller
did not recommend that any portion of Whiskey Spring
Road could not be traver.ed at thirty-five m!le. per
-Ill-
hour. By way of furth.r .n.wer, it i. d.ni.d, to th.
extent impli.d, that D.f.nd.nt. bad .ny obliq.tion to
make .uch a recomm.nd.tien und.r th. oira~t.nc... It
is d.n!.d that any portion ot Whi.k.y sprinq Ro.d i.
danq.rous or con.t!tut.. . danqarou. oondition to any
driver op.rat!ng a veh!cl. th.r.on in a r.a.onabla .nd
prudent mann.r or any p....nq.r ot .uch a vehicl.. It
il al.o d.ni.d that any driver, inalud!nq Mr. loon.y or
Mr. Bonney, would w!thout .i9".q. en .ny part ot the
road, fail to r.cogniz. the ch.r.cter ot .ny curv. .t .
time to lat. to r.duce the vehicl.'. .pe.d .nd tr.v.r..
the curve. To the contr.ry, .11 portion. ot Whi.k.y
sprinq Road a. po.t.d can be ..t.ly tr.v.r..d by .ny
person operating a v.hicle in a r...on.bl. and prud.nt
manner. It i. al.o d.ni.d th.t .ny driver, includinq
Mr. Booney or Mr. Bonn.y, wh.n oper.tinq . vehicle in a
r.a.onable and prud.nt .ann.r on the ro.d, i. or w..
depriv.d ot any !nformation n.c....ry to .v.rt
accidents th.reon; and
i. It i. admitted to the ext.nt r.l.v.nt, th.t
Def.ndants did not recommend th.t tr... on the ou~.id.
of any curv. would take aw.y any ch.nc. ot r.cov.ry and
would r.sult in any injury producing .coid.nt. It i.
denied, howev.r, to the ext.nt it i. !.plied, th.t
Defendants had any obliqation to ask. .uch a
recomm.ndation under the circuaat.na... Iy w.y ot
furth.r an.w.r, tha ar.a out.id. any curv. on Whiak.y
sprinq Road po.ed no danq.r to .ny driv.r op.r.tinq a
vehicle in a .at. and prudent aann.r or .ny p....nq.r
in .uch a vehicle .0 op.rat.d.
...... O"ICI'
'NIL-IAII"
.
"'INNIIWAN
~O. D.nied. Paragraph 20 contain. unw.rr.nted conclu.ion.
of law to which no r..pon.e i. requir.d by the D.f.nd.nt.
pur.uant to Pa.R.C.P. 10~9(d); th.r.for., .... are d....d to be
denied. In addition, after r.ason.bl. !nve.tiqation, the
Def.ndants are without sufficient knowl.dqe or information to
form a belief as to the extent of the phy.ical injuri.. all.ged
o have b.en lu.tained by Plaintiff in the accident in qu.stion;
therefore, .a.e are denied and proof ther.of d..and.d.
-9-
uw on....
INK".".'"
.
Ill.NN....N
21. Denied. Paragraph 21 contains an unwarranted
conclulion of law to which no response is r.quir.d by the
Def.ndants pursuant to Pa.R.C.P. 1029(d)i th.r.fore, .am. is
deemed to be deni.d. In addition, after reasonable
investigation, the Defendants are without suffici.nt knowledge or
information to form a b.li.f as to the truth of the averment.
concerning Pla!ntiff's inability to work, the nature of his
former employm.nt and hi. ability or inability to engag. in any
employm.nt in the future; ther.for., sam. are d.nied and proof
thereof dem.nded.
22. Denied. Paragraph 22 contains unwarrant.d conclus!on.
of law to which no response is requir.d by the D.fendants
pursuant to Pa.R.C.P. 1029(d); th.r.for., .ame are d....d to be
d.nied. In addition, after r.asonable inv.stigation, the
Defendants are w!thout sufficient knowl.dge or informat!on to
form a belief as to Plaintiff's disfigur...nt, ne.d for a can. to
walk and the existence of any limp; ther.fore, sam. are d.nied
and proof th.reof d.manded.
23. Denied. Paragraph 23 contains unwarrant.d conclu.ions
of law to which no res pons. i. required by the D.f.ndantl
pursuant to Pa.R.C.P. 1029(d); therefore, same are d....d to be
denied. In addition, after reasonable investigation, the
Defendants are without sufficient knowledge or information to
form a belief aM to the truth of the averments conc.rning
-10-
Plaintiff'. alleged ankle pain, future .edic.l or .urqic.l
procadure. and future phy.ical li.itation. or !.p.irm.nt.;
th.rafore, .ame .re denied and proof th.reof demand.d.
24. D.nied. After raalonabl. inv..tig.tion, the D.fand.nt.
are w!thout .uff!c!ant knowledge or information to form. bel!.f
a. to the truth of the alleqation. cont.in.d !n p.r.qr.ph 24 of
Pl.intiff'. Co.plaint; th.rafor., .... are danied .nd proof
th.reof de.and.d.
25. Denied. After rea.onable inve.tig.t!on, the Defend.nt.
are w!thout .uffic!ent knowladg. or information to form . belief
a. to tha truth of the allaqation. contained !n Paragraph 2S of
Plaint!ff'. Complaint; th.refor., .a.. are den!.d and proof
th.raof de.and.d.
26. Denied. After realonable inv..tig.tion, the Defendant.
are without .ufficient knowladg. or information to fora a beli.f
a. to tho truth of the allegation. conta!n.d in Paragraph 26 of
Plaintiff'. Complaint; therefor., .... are denied and proof
th.reof de.anded.
~. .~..
IN.......
.
"'NN'MAN
27. Deni.d. After realonable inv..tig.tion, the D.fendant.
without .ufficient knowledge or information to fora a beli.f
· to the truth of tha allegation. contained in Paragraph 27 of
laintiff'. Complaint; therefore, .a.e are deni.d and proof
h.raof de.anded.
-11-
28. Denied. After rea.onable inve.tigation, the Defendants
are without ,ufficient knowledge or information to form a belief
as to the truth of the allegation. contained in Paragraph a8 Of
Plaintiff'. Complaint; therefore, .ame are denied and proof
thereof de.anded.
29. Denied. After reasonable inve.tigation, the Defendants
are without 'Ufficient knowledge or information to fora a belief
as to the truth of the allegations contained in Paragraph at of
Plaintiff's Complaint; therefore, same are denied and proof
thereot d..anded.
30. Denied. After reasonable invest!gation, the Defendants
are without sufficient knowledge or information to form a belief
as to the truth of the allegations contained in Paragraph 30 of
Plaintiff'. Complaint; therefore, same are denied and prOof
thereot demanded.
31. Denied. After reasonable investigation, the Defendants
are without ,ufficient knowledge or information to form a beli.f
a. to the truth of the allegation. contained in Paragraph 31 of
Plaintiff'. Complaint; therefore, same are denied and proof
hereof demanded.
.... ......
...n.......
.
...............
WHERErOR~, Detendant. reque.t this Court to dis.is.
laintiff'. Complaint with prejudice and entu jUdqJIent in their
favor together with costs ot this action.
-12-
WHEREFORE, Plainlift'praY.lhalthi. Honorable COW1 cIi.unlu dle
Defendant. New Malter and enter a judament in ill favor u apinal Defendant..
h D. BuclcJ ,Esquire
AllOmey orebe Plainlift'
m /I 38444
1231 Holly Pike
CllliaJe, PA 17013
(717) 249.2448
I\. Denied in conformancc with Rule 1029(e) and the slalute oflimitalions. and olher
defenses more fUlly HI forth in New Maller herelo.
12. Denied in conformance with Rulc 1029(e) and denied on Ihe basis oflhe slalute of
limitations llnd other New Maller defcnses raiscd in Ncw Maller herclo which is incorporaled by
reference in further answer 10 lhis paragraph.
WHEREFORE, Addilional Defendant. William D. BOMey, dcmands thaI the Complaint be
dismissed and judgmenl enlered in his favor and againsl all parties wilhoul cosllo him but 10IJelher
wilh such coslS, expcnses and attorneys fees as aUlhorizcd by law and which the Court deem.
ncccssary, just and approprialc under the circumslanccs.
NEW MATIER
13. Any claim rclalive 10 sole liabilily as referenccd in the Joinder Complaint is
prohibiled and barred by virtue of Ihe slatute of Iimilalions inasmuch as Ihe incidenl referred 10 by
lhe Plaintiff occurred on or about January I, 1993 and joindcr of the Addilional Defendant was
not made until on or about May 26, 1995.
14. The presenl suil dockclCd 10 No. 94-6071 Civil Term. relates 10 and should be
consolidated wilh Ihe lawsuil commenced by the same Plaintiff againsl olhers pending in lhe
Court of Common Pleas of Cumberland County, PeMsylvania, dockclcd to No. 2134 Civil 1993.
IS. II is believcd and lherefore averrcd Ihallhe Defendants in this malter, Tcrry
Grovc, P.E.. d/b/a Grove Engineering and Dennis E. Miller, P.E., are bein~ sued by the Plaintiff
wilh respect 10 professional acts and/or omissions which do nol give rise 10 a valid claim of
joindcr aaainst lhe Additional Defendant. William D. BOMey, under any lheory of contribution
J
OCT I') .",~ 1~:~7 [Rle 1tiSU'>Vj(( fi~,
P.l
'Il'f--a
-
.
NOI ~ HDI ft 'l1CCl1 PI\alEHt'll UIIt. fO&" w in ooll8hSu'ation of u... plI)'M1lt. of 908 1uldr94
1,....'...., t'100,OOO,09) m:"",,, on ~U of IIUll.. D. Ilor'IIla Ill8niMft.er r"~.s \0 ...
....1..,. _ ,,"), ft.wn <3. VOOI'-. (bc-eil\&.ftu refene4 \0 .. ''i'al____') bu relMMd -
II~ _ b)' tAU lIoel_ ck>a r~ ...1_ lUllS cU~e Ml..... '&"CII aU clAL.,
A ..... e.n4 ee_ of ~iou, bown 01' \IMnc:Nn, It.hII 15180 to tM 4IXUnt, it 1If'/, 0'
~1..-_'. UabiUt)' rOl' ClOIlUu.uUon to ot.hea' joillt. tol'U.uon vuing out or u.. aooUet
OD ClI' ~ .........rv ~, uU, at 01' IllMr l/hblulY I\>.rintpl ........ SouUI Kiddl.uu. ~" iA
Ule ClIlW\ty 0' 190, in tM ltAlte of ~, ... IDQC'e tully Nt fCICUI iA .-a-etd1nr;e
~ at 110. ~n4 civil 01 Un in tM 0CIUrt of 0....._. "... of ro._larod ClIUDty,
rw-ylWI\iA (her.inrltel' r,'err.s to u "the OU4").
~leuor -s*litiCllly f""'" an claw, ac:tiOllS and (lI\1M18 of tetiOG vuUlq eM of U.
.WW --",UClIlIId aoc!4ent -'1dMt all oUlM per~, finw .,., torUeuon .,.s allO rwerv.e
Ule ri'ilht to .u. claiA UlIt othen &/lIl not Il.el..- ve IOlely liaal14 \0 Mleuar fQl' U.
in~\U'l_. 10._ and cIaItJ.. WltAllnod b)' MlM.SOl'.
Jh the .wnt that otJl8 tort.f-.on v. respCll'lSibl. to MllUOl' fQl' A....~ ... a rewlt 01
Ule ~ticlMd ~idClt, Ule lDIeCIltion of WI Rel_ .haU cpe.rate at a Nti'factiaa
of IlelNoSOl'" claw ~wt S\ICh othar p41'tla to the Gtant of UIe r.SAUve pro ntl IhUt
01 ............. ll.&bUity of \hi Mle.uee her.in r.leased.
If it ehgW4 appeu to be adju41c:.te4 in UIe Case, haweYv, that Jl,eleuee IIld otben II'IIA
9\li 1 ty of joint lllI911qence V1Ucll ClWlud UIe inj u.ri u of fteYUI J. VOOI'Mes arlit UII 1mI888 01' '
~ &l'i.1nq thenfna, in ordv to Nve ll.eloasee MmlUI, MIWlllOl', ... f\Irtbu'
oone14entiClll, will MU,ry IIf'/ deer..., j\lll1n8nt or aWU1l in whicb then u well lin4tP9 01'
adjllUcaUCllI iDYo1v1n9 lIel_ cc hb behillf lUllS to 01. extcl~ of hia liaalUit)' fw:
OQII~I"i1.,,^ion, if it b beld tl'lu. i, arry liabUit)' foe oontzUlUUon; a.1eo lIoel..- rill
u.s-u.ry a.n4 M~ for_ b&nI1N~ Ml__ a~w~ 1005 or du6ge beo::aWM of IIf'/ arlit all
f\IrUler el.ailU, II..,. or actiona N4e by othon on ~~ of the injuri_ of ~
VoorL- a.n4 UIe 1"_ OZ' 4I/Ila9a uisinq Uluetrall.
1\ ia '-he intu\ of the parties and W, Ml_ t.Mt the Ml_ shall w int.erpretld ill
aooord.anc:e vitll the nUolllll' of ctlules v. oian~ ....91. Karbb, 511 h. 474, 522 A.ZII 1
U9l7), to the .ff~ tMtl I..) the responsibility of Raleuee be finally resolwll W Ule
~ ~f aIld hi. turthlIz fiNncial i.nV'Olv~t in the cue be avoidAllS; Ib) Ule vdiot
in the cas. be r..tllced only by Ule Releasee', proportiOMU &hare of cav..lIal 1IOI911941lO1, U
arry: (e) "-1..... .hall bave 110 ri9ht of OO/luibYtion ffQII or aqawt U'/ oUler d.,mSut
in the Ca.M: (II) Il.eleuor be pemit~ to reoovw the MI aK>Unt of 1ta1euor'. 111CMd
reoave:cy fna IlI'/ 4efendllnt iA the CUt &CJIwt .. thf! Mleuor U 110\ tur.. ~
~: &IllI (.) a IIOn-Mtt11nq joint tortf8UOl' not tie r.1i~ed of leepoMj!)i1iq for
pe~t of bitI proslOI'tiOllllte ahare or IWnI9U AI dete.mined b)' UII jury _ tJq all aan-
Mt.t1lnq tonfeuon in the CUe be required to pay Uleir full ~nte eJIu.. of the
\'lIIr'41~ _
It is \8'Ident.004 aIld ~ tMt UlJs ll.ele.,. and the ~)'IlIIIlt Md, ~t U1a,\o i. .
cc.plete ~.. ..tUnallt w not an <IUuiOll of 1~1 liaaliUty br 1\81.... Ullt U
not to M -.,.t.rlaI4 .. well arlit Mleasee llIIprwely ~_ 1114 lUbUlty.
Dl WlTMll5& "'1rf', and i.IIWld1I19 to be leqllly tlcI.Ild t.hefeby, UII WldenlCjllll4 flu ~
W. Jlot1.... W'lnb'clay of ~NI"ap, Un.
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