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HomeMy WebLinkAbout98-2766 civilDONNA BLAIR, individually and Administrator ad Prosequendum of the Estate of Shannon Ditro, Deceased, Plaintiff VS. CONSOLIDATED RAIL CORPORATION, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 98-2766 CIVIL CIVIL ACTION - LAW IN RE: DEFENDANT'S MOTION FOR SUMMARY JUDGMENT BEFORE BAYLEY AND HESS, J.J. ORDER AND NOW, this day of June, 2001, the motion of the defendant for summary judgment is DENIED. Joseph J. Cappelli, Esquire For the Plaintiff BY THE COURT, ess, J. Craig J. Staudenmaier, Esquire For the Defendant :rim DONNA BLAIR, individually and Administrator ad Prosequendum of the Estate of Shannon Ditro, Deceased, Plaintiff VS. CONSOLIDATED RAIL CORPORATION, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA. 98-2766 CIVIL CIVIL ACTION- LAW IN -P~: DEFENDANT'S MOTION FOR SUMMARY JUDGMENT BEFORE BAYLEY AND HESS, J.J~. OPINION AND ORDER Before the court is the motion of the defendant, Consolidated Rail Corporation (Conrail), for summary judgment. The plaintiff, Donna Blair (Blair), initiated this wrongful death and survival action individually and as administrator of the estate of the decedent, Shannon Ditro, against Conrail on November 18, 1997, in the Court of Common Pleas of Philadelphia County. On motion of the defendant, the action was transferred to this court by order of the Court of Common Pleas of Philadelphia in February 1998 and discovery has proceeded since that time. According to the complaint, on June 21, 1996, at 6:39 a.m., the decedent, Shannon Ditro, was traveling on Station Road in Penn Township, Cumberland County when her car collided with a Conrail freight train traveling westbound at the intersection of the railroad tracks and Station Road. The decedent had driven around the crossing gate traveling north in the southbound lane of Station Road and was crossing the tracks when the Conrail train hit the passenger side of her car. Ms. Ditro was pronounced dead at the scene of' the accident. There is no dispute that the crossing gates and warning lights were functioning at the time of the collision 98-2766 CIVIL and that the train's lights were operational at the time of the accident. Furthermore, there is no dispute that the decedent drove around the gate to cross the tracks. The only known eyewitnesses to the collision itself are the engineer from the Conrail train, Albert Bartles, and the conductor, Earl Specher. The defendant cites the Pennsylvania Supreme Court's decision in Ertel v. The Patriot- News Company, 544 Pa. 93,674 A.2d 1038 (1996), wherein the court held that: A non-moving party must adduce sufficient evidence on an issue essential to his case and on which he bears the burden of proof such that a jury could return a verdict in his favor. Failure to adduce this evidence establishes that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Id_._:. at 101-! 02, 674 A.2d A.2d at 1042. The risks inherent in driving around a closed railroad crossing gate are obvious. The argument of Conrail for summary judgment is, therefore, at first blush, most compelling. Nonetheless, we believe that there are disputes with respect to material facts which could point to liability on the part of the railroad and, thus, summary judgment will be denied. There are, for example, affidavits of witnesses which conflict on the question of whether or not the train horn was used as the train approached Station Road on the morning of the accident. Also in dispute is the classification of the Conrail tracks in that area. The classification of the tracks impacts not only on the speed limit of the train, but also on sight distance requirements. Another factual dispute involves the allegation that the crossing gates on Station Road malfunctioned on multiple occasions prior to the date of the accident. Specifically, the plaintiff 98-2766 CIVIL claims that the crossing gates malfunctioned on a regular basis by coming down and blocking the roadway when no train was traveling on the tracks and that the gates would remain down for long periods of time, delaying motorists on Station Road. In support of these allegations, Blair has produced affidavits of witnesses, in addition to the accounts of other persons contained in the report of her expert, Dwight McLean. The defendant has not produced any evidence that would contradict the plaintiff's allegations and, instead, argues that prior malfunctions are irrelevant. We are not prepared, at this juncture in the proceedings, to agree with the defendant. Common sense tells us that a motorist who has repeatedly confronted a closed gate with no train coming would be inclined not to take the crossing gate seriously. The defendant, in arguing that the plaintiff's claim that the decedent was esensmzea to the warning devices is ggd ' · ' '~99 without merit, relies on this court's opinion in Kramlick v. United Van Lines, Consolidated Rail Corporation, et al_., 95-0298. In that case, we held that by ignoring the warning devices at a railroad crossing, the plaintiff's comparative negligence outweighed that of the defendant as a matter of law. The facts in the Kramlick case caused us to conclude that that case represented "one of those rare situations where it can be said that plaintiff is contributory [sic] negligent as a matter of law so as to preclude him from recovering against Conrail." Id.__=. at 8-9. The plaintiff, in Kramlick, admitted that he had not looked at the warning devices located to his left when he approached the railroad crossing. The train with which Mr. Kramlick collided was approaching the intersection from his left and there were no obstructions which would have prevented him from seeing the train before impact. In addition, the Kramlick case did not involve a malfunctioning crossing gate, but rather crossbucks with flashing lights which were located on either side of the roadway. 98-2766 CIVIL The defendant also makes mention of_Avoub v. National Railroad Passenger Co~-~R., 76 F.3d 794 (6th Cir. 199-6). In _Ayoub, the plaintiff drove around a crossing gate and was killed when his car was hit by a train. However, to do so, the plaintiff drove around two other vehicles that were stopped at the crossing gate in front of' him before driving onto the tracks. Id___~. In this case, there were no other vehicles stopped in front of the decedent at the stop line. It is well established that summary judgment should be granted only in the clearest case where the right thereto is clear and free from doubt. Anderson v. Moore, 437 Pa. Super. 642, 650 A.2d 1090 (1994). We are unable, in this case, to conclude with sufficient certitude that the defendant is entitled to summary judgment. AND NOW, this judgment is DENIED. ORDER day of June, 2001, the motion of the defendant for summary Joseph J. Cappelli, Esquire For the Plaintiff Craig J. Staudenmaier, Esquire For the Defendant :rlm BY THE COURT,