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HomeMy WebLinkAbout02-5385 CivilJENNI L. WENGER, ADMINISTRATRIX OF THE ESTATE OF ELISABETH C. WENGER, JENNI L. WENGER, IN HER OWN RIGHT, AND JENNI L. WENGER, PARENT AND NATURAL GUARDIAN OF TAYLER L. WENGER AND AMBER N. WENGER Plaintiffs : IN THE COURT OF :COMMON PLEAS OF : CUMBERLAND COUNTY, :PENNSYLVANIA : CIVIL ACTION-LAW : NO. 02-5385 CIVIL TERM WEST PENNSBORO TOWNSHIP AND JASON I. WHITE Defendants :JURY TRIAL DEMANDED STEPHEN E. WENGER Additional Defendant IN RE: DEFENDANTS' MOTION FOR SUMMARY JUDGMENT BEFORE HOFFER, P.J. and OLER, J. OPINION AND ORDER Holler, P.J.: Plaintiff Jenni L. Wenger initiated this action on November 6, 2002 by filing a Complaint against West Pennsboro Township and Jason I. White, Defendants. The Complaint included allegations of negligence on the part of West Pennsboro for designing and maintaining a highway with a dangerous condition thereon and failure to erect four-way stop signs at an intersection at which an accident involving Ms. Wenger and her family occurred.~ Six-year-old Elisabeth Wenger died as a result of injuries sustained at the January 5, 2002 accident, when her family's car was struck by a truck while making a left turn. West Pennsboro Answered, denied any negligence on its part, and brought cross claims against co- Defendant White and Additional Defendant Stephen E. Wenger.2 On June 25, 2003, the Court issued a Scheduling Order requiring parties to serve expert reports by October 31, 2003. After completion of Discovery and delivery of expert reports, West Pennsboro filed this Motion for Summary Judgment, or in the alternative, Partial Summary Judgment, on December 9, 2003. Both parties submitted briefs on the issue, and were heard at Oral Argument on March 24, 2004. FACTS On January 5, 2002, Ms. Wenger, Mr. Wenger (the driver), and their three daughters were traveling northbound on McAIlister Road, and were struck by Mr. White's truck, traveling southbound in excess of the speed limit, as they attempted to make a left turn onto Barnstable Road.3 Elisabeth Wenger died as a result, and Ms. Wenger and her other two daughters all sustained injuries. ~Compl. ¶ 37. 2 Plaintiffs have since settled out of court with both Defendant White and Additional Defendant Wenger. 3 The intersection of McAIlister Church and Barnstable in located in West Pennsboro Township, Cumberland County. 2 The accident report stated that it was dark at the time of the accident, but that the roadway was clear and dry. The state police concluded that Mr. Wenger should have been able to perceive Mr. White's truck about one second before attempting the turn, and that Mr. White had insufficient time to react to the Wenger car. (Plaintiff's Ex. J. at 2.)'~ About three weeks after the accident, West Pennsboro directed its own traffic engineer to conduct a study of the intersection, and established four-way stop signs there on February 4, 2002. (Plaintiff's Ex. F.) The township engineer, Gregory Lambert, issued a report which included a geometric review of the intersection, speed data, site features that made the intersection substandard, traffic volume data, and recommendations. (Plaintiff's Ex. E.) Mr. Lambert also noted that sight distance was "severely obstructed along McAIlister Church Road," and that six accidents that had occurred there in the past seven years. He did not investigate the causes of these past accidents or take sight distance measurements. (Id.) Ms. Wenger's traffic engineering expert, James Druecker, also conducted an investigation of the accident and the intersection. His report concluded that the intersection layout was substandard and created a hazardous condition. (Plaintiff's Ex. J at 5.) He also stated that the intersection layout, the failure of West Pennsboro to alleviate the condition, 4 Referring to Exhibits from Plaintiff's Response to Defendant's Summary Judgment Motion. and the excess speed of Mr. White's truck were substantial factors in causing the accident. (Id.) He stated that there had been a number of past collisions at the intersection involving traffic turning left off McAIlister Church Road, but he did not have an accident analysis. (Id. at 4.) He noted that motorists turning left must cut the corner short because of the acute angle at the intersection. (Id. at 3.) This action reduces sight distance because it necessitates that drivers start their turns farther south before the crest of the hill. (Id.) Mr. Druecker concluded that four-way stop signs would dramatically increase safety. (Id. at 5.) DISCUSSION The question presented is whether there is any genuine issue of material fact regarding whether West Pennsboro was negligent in failing to install a traffic device or take other remedial measures regulating the intersection of McAIlister Church and Barnstable Roads. Because the Plaintiff has failed to produce expert opinion containing a traffic and engineering study which demonstrates that four-way stop signs at this intersection are appropriate, judgment must be entered in favor of West Pennsboro as a matter of law. In Pennsylvania, a motion for summary judgment may be granted "if, after the completion of discovery relevant to the motion, including the production of expert reports, an adverse party who will bear the burden of proof at trial has failed to produce evidence of facts 4 essential to the cause of action." Pa.R.C.P. 1035.2(2). Failure to produce sufficient evidence on an essential issue on which the non-moving party bears the burden of proof establishes that there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Washin,qton v. Baxter, 553 Pa. 434, 441 (1998). In this context, the record must be viewed in a light most favorable to the non- moving party, and all doubts as to the existence of genuine issues of material fact are to be resolved against the moving party. Id. In Start v. Veneziano, 747 A.2d 867 (2000), the Pennsylvania Supreme Court examined under what circumstances a township may be held liable for failure to take remedial measures after a dangerous traffic condition becomes known. It set forth the standard necessary for a plaintiff to establish a township's duty of care related to installation of a traffic control device, which requires a plaintiff to demonstrate three elements: 1) the municipality had actual or constructive notice of the dangerous condition that caused plaintiff's injuries; 2) the pertinent device would have constituted an appropriate remedial measure; 3) the municipality's authority was such that it can be charged with the failure to install the device. Start, 747 A.2d at 873. The court recognized that because government entities possess limited authority to build traffic controls to remedy dangerous situations on roads under their control, it is a plaintiff's burden to plead and prove elements of such a duty. Id. at 875. With respect to the second requirement, a plaintiff is required to demonstrate that the relevant control would have constituted a proper and effective measure to mitigate the hazard at the intersection. Id~ Further, the court emphasized that townships may not erect a traffic control device, unless it is first determined, based on a traffic and engineering report, that a particular device is a appropriate means of regulating traffic. Id~ (.See 67 Pa. Code §§201,211.5 (2004)) The reason for this statute reflects the public policy concern that some devices may have undesirable effects on the larger system of traffic which preclude their use. Therefore, a determination of appropriateness must be proven with an expert traffic and engineering study, and the township has authority only if a device is appropriate. Id. The plaintiff in Starr offered expert opinion from a traffic engineer that a no-left-turn sign constituted a potential remedy for the dangerous condition that caused a motorist's accident. Id. This expert opinion was unsupported by any traffic and engineering study of the intersection. Id. The court noted that although the expert concluded that a no-left-turn sign would have prevented the accident, he failed to demonstrate that a sign would have been appropriate. Id. Specifically, the expert failed to study the net effect of a sign on the large system of traffic control in the area. Id. at 874. Similar to the expert opinion in Starr, Mr. Druecker's report is missing the essential elements of the traffic and engineering study, and does not fulfill the second requirement of Starr. Specifically, his report does not contain any traffic count study, any analysis of prior accidents, any analysis of how the proposed changes would affect the existing traffic system, or any proper sight distance measurements. 5 (Plaintiff's Ex. J at 4). According to the Vehicle Code, a township must conduct a traffic and engineering study before installing any traffic control devices in order to determine the appropriateness and effect of such a device. See 67 Pa. Code §201.1. Without a complete investigation, it cannot be determined whether a traffic device would be statutorily warranted, and whether a township has authority to erect one under the circumstances. For example, without an accident analysis, it would be impossible to determine whether a pattern of past accidents has occurred as a result of a particular problem which can remedied with stop signs or other traffic devices. He also failed to offer any evidence of the net effect of four way stop signs at the intersection of McAIlister Church and Barnstable Roads on the larger traffic system other than a conclusory statement. 5 A study must be conducted which analyzes 1)acceleration lane; 2) accident analysis; 3) geometric review; 4) pedestrian volume; 5) sight distance; 6) speed date; and 7) traffic volume. See 67 Pa. Code §201.52(a). Furthermore, an accident analysis requires consideration of: 1) total number of accidents during last three years; 2) number of accidents by causation factor; 3) vehicle type involved; 4) pedestrian volume; 5) type of traffic control present; 6) roadway geometrics; 7) cause of accident; 8) time of accident; 9) environmental conditions. See 67 Pa. Code § 201.6(1). '7 The Plaintiffs attempt to use the fact that West Pennsboro has subsequently erected four-way stop signs as evidence that the Township was negligent. Furthermore, they argue that the Township engineer's report that facilitated the signs may be used as evidence of a traffic and engineering study showing the appropriateness of the signs? However, evidence of these subsequent remedial measures is inadmissible. The Pennsylvania Rules of Evidence states in relevant part: When, after an injury or harm allegedly caused by an event, measures are taken which, if taken previously would have made the injury or harm less likely to occur, evidence of the subsequent measures is not admissible to prove that the party who took the measures was negligent .... 407 (2004). The purpose of this rule is to prevent the very situation that the Plaintiff is now trying to create. Permitting the use of subsequent measures would have a negative impact upon the desire of parties to remedy potential hazards. Otherwise, defendants would hesitate and wait until the potential for litigation no longer exists, which could further exacerbate a dangerous situation. See Pa.R.E. 407. In Griffith v. Snader, the court found that the plaintiff did not have enough evidence to demonstrate that a traffic signal would have been appropriate to the intersection where he was involved in a car accident. 795 A.2d 502,507 (Pa. Commw. Ct. 2002). The plaintiff in Griffith had See Plaintiff's Memorandum in Opposition at 15. attempted to use correspondence sent from the township engineer to the township secretary stating that a traffic signal was statutorily warranted at the intersection. Id~ n.9. Because this correspondence was sent after the accident and was used to show that a traffic signal would have been warranted subsequent to the accident, the court held that it was inadmissible pursuant to the subsequent repairs doctrine. Id~ There are two separate reasons why West Pennsboro's report is insufficient to fulfill the Starr requirements. First, like the letter in Griffith, West Pennsboro's engineering report was authored after the accident on January 21,2002. (Plaintiff's Ex. E.) Based on the township engineer's recommendations in the report, West Pennsboro erected the four-way stop signs. Similar to the plaintiff in Griffith, Plaintiff is attempting to use this subsequent report and repair to fulfill the second requirement of Starr and establish negligence on the part of West Pennsboro by showing that signs were appropriate after the accident. Second, in any event, Plaintiff's reliance on the township engineer's report is substantively inadequate because the report lacks its own accident analysis and sight distance measurements. (Id.) Therefore, unlike the Griffith case, there continues to be a lack of sufficient evidence affirming that the existing signs at the intersection are statutorily appropriate. Beyond Mr. Druecker's insufficient report, the Plaintiff failed to produce any admissible evidence to demonstrate that four-way stop signs would have been appropriate prior to the accident. Therefore, judgment must be granted in favor of West Pennsboro on all negligence claims. ]0 JENNI L. WENGER, ADMINISTRATRIX OF THE ESTATE OF ELISABETH C. WENGER, JENNI L. WENGER, IN HER OWN RIGHT, AND JENNI L. WENGER, PARENT AND NATURAL GUARDIAN OF TAYLER L. WENGER AND AMBER N. WENGER Plaintiffs : IN THE COURT OF :COMMON PLEAS OF : CUMBERLAND COUNTY, :PENNSYLVANIA : CIVIL ACTION-LAW : NO. 02-5385 CIVIL TERM vi. WEST PENNSBORO TOWNSHIP AND JASON I. WHITE Defendants :JURY TRIAL DEMANDED vi. STEPHEN E. WENGER Additional Defendant IN RE: DEFENDANTS' MOTION FOR SUMMARY JUDGMENT BEFORE HOFFER, P.J. and OLER, J. ORDER OF COURT AND NOW, this day of ,2004, upon consideration of the Defendant's Motion for Summary Judgment and of the oral argument and briefs submitted by both parties, it is hereby ORDERED that said Motion is GRANTED. Judgment is entered in favor of the Defendant, West Pennsboro Township, on all Plaintiffs' claims. By the Court, George E. Hoffer, P.J. ]] Terry S. Hyman, Esquire Angino & Rovner, P.C. 4503 N. Front Street Harrisburg, PA 17110 (717)238-6791 Attorney for Plaintiffs Shaun J. Mumford Barry Kronthal Margolis Edelstein P.O. Box 932 Harrisburg, PA 17108-0932 (717)975-8114 Attorney for Defendant, West Pennsboro Township Jefferson J. Shipman, Esquire Goldberg, Katzman, & Shipman 320E Market Street P.O. Box 1268 Harrisburg, PA 17108-1268 Attorney for Defendant, Jason I. White Karl R. Hildabrand, Esquire Nestico, Druby & Hildabrand, LLP 840 E. Chocolate Avenue Hershey, PA 17033 Attorney for Additional Defendant, Stephen E. Wenger ]2