Loading...
HomeMy WebLinkAbout97-6727 civilKAREN FLICKINGER, INDIVIDUALLY AND IN HER CAPACITY AS ADMINISTRATRIX OF THE ESTATE OF KRISTINA R. FEHRENBACH, DECEASED, Plaintiff go SARAH R. CHAPMAN, ROCK CHAPMAN, DENNIS JAMES WONDER, and WONDERS AUTO REPAIR, Defendants go PAUL FLICKINGER, Additional Defendant · IN THE COURT OF COMMON PLEAS OF · CUMBERLAND COUNTY, PENNSYLVANIA ·NO. 97-6727 CIVIL TERM · CIVIL ACTION- LAW · IN RE- PI~AINTIFF'S POST TRIAL MOTIONS AS TO DEFENDANT WONDER ONLY AND NOW, this BEFORE GUIDO~ J: ORDER OF COURT ~ day of JUNE, 2001, Plaintiff's Post Trial Motions are DENIED. Edward E. Guido, J. David W. Knauer, Esquire Dennis E. Reinaker, Esquire Thomas E. Brenner, Esquire KAREN FLICKINGER, INDIVIDUALLY AND IN HER CAPACITY AS ADMINISTRATRIX OF THE ESTATE OF KRISTINA R. FEHRENBACH, DECEASED, Plaintiffs Vo SARAH R. CHAPMAN, ROCK CHAPMAN, DENNIS JAMES WONDER, and WONDERS AUTO REPAIR, Defendants Vo PAUL FLICKINGER, ADDITIONAL DEFENDANT · 1N THE COURT OF COMMON PLEAS OF · CUMBERLAND COUNTY, PENNSYLVANIA o · : : · NO. 97-6727 CIVIL TERM : : · · ' CWIL ACTION- LAW o IN RE' PLAINTIFF'S POST TRIAL MOTIONS AS TO DEFENDANT WONDER ONLY BEFORE GUIDO, J. OPINION AND ORDER OF COURT This tragic case involved the death of a young child who was struck and killed by an automobile operated by defendant Chapman. Plaintiff alleged that the accident was caused by defective brakes on the Chapman vehicle. She brought this action against defendant Chapman as the driver of the vehicle and defendant Wonder as the mechanic who had recently inspected it. The defendants alleged that Mrs. Chapman did not have the opportunity to apply her brakes because the child darted into the path of her vehicle. 97-6727 CIVIL TERM The jury apparently agreed with the defendants. After a three-day trial, it returned a verdict in which it found that defendant Chapman was not negligent. While it found that defendant Wonder was negligent, it also found that his negligence was not a substantial factor in causing the accident. Plaintiff filed post trial motions in connection with the verdict as it relates to defendant Wonder.~ We directed plaintiff's counsel to file a brief in support of the post trial motions. The brief raises the following issues: 1 .) The Honorable Court erred when it allowed the fact witnesses to give opinion testimony to a situation of which they had little or no knowledge. 2.) The Defendant Wonder's guilty plea should have been admitted into evidence. 3.) The video containing family photographs of Kristina should have been allowed as admissible evidence. 4.) The jury should have been charged that the Defendant Wonder's violation of the regulations of the Pennsylvania Department of Transportation's was negligence per se 5.) The Court erred when it charged the jury on contributory negligence as to the Defendant Wonder because his conduct was an intentional tort. 6.) If the Court grants a new trial, the jury's decision that Defendant Dennis James Wonder was negligent is already established because it was fully and fairly litigated. "Plaintiff's Brief in Support of Post Thai Motions Directed to the Defendant Dennison James Wonder Only," p. 3.2 Defendant Wonder has filed a reply brief. This matter is now ready for disposition. ~ Apparently a high/low agreement precludes the filing of post trial motions in connection with the verdict as it relates to defendant Chapman. 2 There were additional issues raised in plaintiff's post trial motion. However, since they were not briefed, they are deemed to have been abandoned. See Local Rule 210-7. 97-6727 CIVIL TERM DISCUSSION Since the jury found that defendant Wonder was negligent, issues 2, 4, and 5 are rendered moot. Since the jury found that defendant Wonder's negligence was not a substantial factor in causing the accident, issue three (3) is rendered moot. Since plaintiff's request for a new thai will not be granted, issue six (6) is rendered moot. We will address the remaining issue. Plaintiff argues that we were erred in allowing one lay witness to give opinion testimony and refusing to allow such testimony by another lay witness. She points out that we allowed the following exchange between defendant Wonder's counsel and a fact witness' Q. From what you observed, was there any opportunity for Mrs. Chapman to avoid this accident? A. No. I'm not an expert, but, no, I don't think so. Therefore, she argues that we should have allowed another fact witness to answer the following question asked by her counsel. Q. If she needed a couple seconds to cross the road and the brake pumping routine took even more seconds, she could have gotten across the road?4 We note that plaintiff's counsel did not object to the opinion question posed by defense counsel. Our appellate Courts have held it to be "fundamental that the parties in a civil trial make timely and specific objections to alleged violations of evidentiary or trial procedure." Boyle v. Steiman, 429 Pa. Super. 1, 20, 631 A.2d 1025, 1035 (1993). Failure to do so results in a waiver of the issue. Id. 3 Notes of Testimony, p. 251. 4 Notes of Testimony, p. 330. 97-6727 CIVIL TERM However, waiver notwithstanding, we are satisfied that the question posed by defendant's counsel was proper, while that posed by plaintiff's counsel was not. Pa. Rule of Evidence 701 states: OPINION TESTIMONY BY LAW WITNESSES If the witness is not testifying as an expert, the witness' testimony in the form of opinions or inferences is limited to those opinions or inferences which are rationally based on the perception of the witness and helpful to a clear understanding of the witness' testimony or the determination of a fact in issue. The question asked by defense counsel came within the role. He merely requested an eyewitness to the accident to give her opinion as to whether there was any chance for the defendant to react to avoid striking the young girl who had darted out in front of her. On the other hand, the question posed by plaintiff's counsel required the witness to assume certain facts. An opinion by a lay witness based upon assumed facts goes well beyond what is permissible under Pa. R.E. 701. For the reasons set forth above, plaintiff's request for a new trial will be denied.~ ORDER OF COURT AND NOW, this 1sT day of JUNE, 2001, Plaintiff's Post Trial Motions are DENIED. By the Court, /s/Edward E. Guido Edward E. Guido, J. 5 The plaintiff also requested judgment n.o.v. While she did not brief the issue, we note that the evidence at trial was not such that a verdict for plaintiff"was beyond peradventure." Moure v. Raeuchle, 529 Pa. 394, 403,604 A.2d 1003, 1007 (1992). In other words, the evidence did not clearly establish "that no two reasonable minds could disagree that the outcome should have been rendered in favor of the (plaintiffs)." Id. 97-6727 CIVIL TERM David W. Knauer, Esquire 411-A East Main Street Mechanicsburg, Pa. 17013 Dennis E. Reinaker, Esquire 1347 Fmitville Pike Lancaster, Pa. 17601 Thomas E. Brenner, Esquire 320 Market Street, Strawberry Square P.O. Box 1268 Harrisburg, Pa. 17108-1268 :sld