Opinion
No. 1782 C.D. 2011
06-04-2012
Karen M. Borzymowski, Executrix of the Estate of John M. Kupetz and Mary Ann Kupetz, h/w, Appellant v. Donald Smith, Melissa A. Williams, and Department of Transportation of the Commonwealth of Pennsylvania
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE ANNE E. COVEY, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE COVEY
Karen M. Borzymowski, Executrix of the Estate of John M. Kupetz and Mary Ann Kupetz, husband and wife (Borzymowski), appeals from the Montgomery County Court of Common Pleas' (trial court) August 16, 2011 order denying her motion for post-trial relief. The issues before this Court are: (1) whether the trial court erred or abused its discretion by permitting the Commonwealth of Pennsylvania, Department of Transportation (DOT) to introduce evidence of Donald Smith's (Smith) guilty pleas and criminal convictions after Smith stipulated that he was negligent, and that his negligence caused the Kupetz' deaths; and, (2) whether the trial court erred or abused its discretion by excluding 5 accident reports that occurred in substantially the same location. We affirm.
The facts of this case are undisputed. State Route 611/Easton Road (Route 611) is owned and maintained by DOT. On July 6, 2007, Route 611 in Horsham Township, Montgomery County near Moreland Avenue consisted of two northbound and two southbound lanes separated by two solid yellow lines. There was no separate turning lane. The speed limit was 45 miles per hour.
At approximately 7:15 p.m., John and Mary Ann Kupetz were stopped in the southbound passing lane with their left turn signal on, intending to turn onto Moreland Avenue. The road was straight, flat, and dry. It was still light outside, and the weather was good. Smith was also traveling southbound and, after abruptly changing lanes from the right lane to the passing lane, struck the Kupetz' vehicle at a speed of approximately 87 miles per hour, pushing it into the vehicle in front of it. Due to the impact, the Kupetz' vehicle burst into flames, causing their deaths. As a result of the accident, Smith pled guilty to two counts of homicide by vehicle while under the influence, driving under the influence of alcohol (DUI), and recklessly endangering other persons. He is currently serving a sentence in state prison. At the time of the accident, DOT was in possession of numerous accident reports from the Horsham Township Police Department detailing rear-end collisions involving vehicles attempting to make left-hand turns from Route 611 onto Moreland Avenue.
Smith's blood alcohol content was .134.
Borzymowski filed a complaint with the trial court containing wrongful death and survival actions against DOT, Smith and Melissa A. Williams on behalf of her parents' estate. The complaint alleged that DOT was negligent, inter alia, due to the absence of signage or other devices to prohibit or restrict left turns for southbound traffic at the accident site. Smith and DOT filed cross-claims against one another. DOT's cross-claim averred that Smith's criminal conduct was the sole cause of the accident.
The vehicle Smith was driving was owned by Melissa A. Williams. She was dismissed from the action before trial took place.
Following the pre-trial conference on August 26, 2010, the trial court issued an order scheduling trial for April 25, 2011. The order specified: "All Motions to be filed by 9-30-10. . . . Answers to Motions by 10-30-10." Original Record (O.R.), Trial Court's Pre-Trial Conf. Order. On September 30, 2010, DOT filed a motion in limine seeking to exclude certain accident reports Borzymowski sought to have introduced at trial. Borzymowski opposed the motion. After reviewing them, the trial court excluded 5 of the accident reports because they were not substantially similar to the accident at issue.
On the morning of the April 25, 2011 trial, Smith's counsel stated on the record: "[Smith] stipulates he was negligent in the operation of the vehicle in his control on July 6th, 2007, and that such negligent operation . . . was a factual cause of the occurrence of said accident." Reproduced Record (R.R.) at 222a. Borzymowski filed a motion in limine to preclude evidence of Smith's guilty pleas and resulting convictions on the basis that his stipulation made them irrelevant as to the degree of his negligence relative to DOT's negligence or, in the alternative, such evidence was unfairly prejudicial. The trial court denied the motion in limine, and trial proceeded. On May 4, 2011, the jury returned a verdict finding Smith negligent and awarding Borzymowski damages in the amount of $7,000,000.00, and further found that DOT was not negligent.
Borzymowski filed a motion for post-trial relief asserting entitlement to a new trial on the bases that the trial court erred by admitting evidence of Smith's criminal convictions, and by excluding the 5 similar accident reports. DOT opposed the motion. After argument, by order of August 16, 2011, the trial court denied the motion. Borzymowski appealed to this Court.
"This Court's scope of review of a decision of a trial court denying motions for . . . a new trial is limited to a determination of whether the trial court abused its discretion, or committed an error of law controlling the outcome of the case." Cheng v. Se. Pennsylvania Transp. Auth., 981 A.2d 371, 374 (Pa. Cmwlth. 2009).
In reviewing a ruling on a motion in limine, we apply the scope of review appropriate to the particular evidentiary matter. When a party challenges a ruling pertaining to the admissibility of evidence, we will not reverse the ruling unless the trial court abused its discretion or committed an error of law.
Borzymowski first argues that the trial court erred or abused its discretion by permitting DOT to introduce evidence of Smith's guilty pleas and criminal convictions after Smith stipulated that he was negligent, and that his negligence caused the Kupetz' deaths. We disagree.
The trial court denied Borzymowski's motion in limine on procedural grounds because the motion was untimely, and on substantive grounds as an admissible statement against interest. Relative to the motion's timeliness, we recognize that a trial court has the discretion to control its calendar, and this Court may interfere only when justice demands it. Cheng v. Se. Pennsylvania Transp. Auth., 981 A.2d 371 (Pa. Cmwlth. 2009). Here, the trial court's August 26, 2010 pre-trial order specifically mandated that all pre-trial motions must be filed by September 30, 2010. Borzymowski, however, filed her motion in limine on April 25, 2011, nearly 7 months later. Borzymowski's claim that she had no basis on which to file the motion until Smith's admission was placed on the record on the morning of trial is without merit.
Smith's guilty pleas and convictions were well-known from the inception of the case. DOT's cross-claim made its position clear that Smith was solely liable for the accident. O.R., DOT's Answer, New Matter and Cross-claim at 21. Accordingly, DOT always had the burden of proving that claim. In her pre-trial memorandum filed August 17, 2010, Borzymowski specifically stated, "[s]ince Smith admitted his guilt in the criminal case, his liability in this civil case is a certainty." O.R., Borzymowski's Pre-Trial Memo at 3. She listed among her exhibits to be admitted at trial the police criminal complaint against Smith, the hearing transcript containing his guilty plea, and other criminal records related to the accident. O.R., Borzymowski's Pre-Trial Memo at 8. In its pre-trial memorandum, DOT likewise indicated its intention to admit at trial Smith's certified conviction records and transcripts related thereto. O.R., DOT's Pre-Trial Memo at 6. Because these circumstances were known to Borzymowski early in this litigation, and certainly at the time the trial court's pre-trial order was issued, she had no basis on which to wait until April 25, 2011 to file her motion in limine. The content of Smith's stipulation and/or when it was placed on the record was irrelevant. Therefore, the trial court properly denied her motion as untimely.
Relative to the substantive grounds of Borzymowski's motion in limine, "[t]he admissibility of evidence is a matter addressed to the sound discretion of the trial court and should not be overturned absent an abuse of discretion." Delpopolo v. Nemetz, 710 A.2d 92, 94 (Pa. Super. 1998). This Court has stated:
The fundamental consideration in determining the admission of evidence is whether the evidence is relevant to the fact to be proved. Pennsylvania Rules of Evidence No. [Pa.R.E. Rule] 402 . . . . Evidence is considered relevant if it logically tends to establish a material fact in the case, tends to make the fact at issue more or less probable, or supports a reasonable inference or presumption regarding the existence of a material fact. Pa.R.E. [Rule] 401. All relevant evidence is admissible, except as otherwise provided by law. Evidence that is not relevant is not admissible.Carpenter v. Pleasant, 759 A.2d 411, 414 (Pa. Cmwlth. 2000) (citation and footnotes omitted).
Borzymowski claims that Smith's stipulation was a judicial admission that gave the jury what it needed to assess negligence as between Smith and DOT concerning the cause of the accident, so Smith's guilty pleas and criminal charges were irrelevant, and the trial court erred by admitting them. We disagree.
The trial court denied Borzymowski's motion, in part, on the grounds that the comparative negligence claims against DOT and Smith, and DOT's cross-claim against Smith, were still disputed. The trial court ruled that the stipulation was an admission as well as a statement against interest.
"Statements of fact by one party in pleadings, stipulations, testimony, and the like, made for that party's benefit, are termed judicial admissions and are binding on the party." John B. Conomos, Inc. v. Sun Co., Inc. (R&M), 831 A.2d 696, 712 (Pa. Super. 2003).
A [j]udicial admission is 'an express waiver made in court or preparatory to trial by a party or his attorney, conceding for the purposes of trial, the truth of the admission,' and may be contained in pleadings, stipulations and other like documents. . . . An important facet of such an admission is that it has been made for the advantage of the admitting party and once the admission has been made, the party making it is not allowed to introduce evidence attempting to disprove it.Lower Mount Bethel Twp. v. North River Co., LLC, 41 A.3d 156 (Pa. Cmwlth. 2012) (quoting Sherrill v. Workmen's Comp. Appeal Bd. (Sch. Dist. of Phila.), 624 A.2d 240, 243 (Pa. Cmwlth. 1993)). By definition, Smith's stipulation in this case was a judicial admission that prohibited him from attempting to dispute those facts. It also had the practical effect of relieving Borzymowski and DOT from proving that Smith was negligent, and that his negligence was the cause of the accident.
"Evidence of a guilty plea is admissible in a civil action as an admission against interest." Stidham v. Millvale Sportsmen's Club, 618 A.2d 945, 952 (Pa. Super. 1992). Because there were comparative negligence claims against Smith and DOT, and a cross-claim by DOT against Smith, the statement against interest was relevant and, therefore, admissible in this case. Borzymowski brought DOT into this action, thus the jury must have the opportunity to assess whether Smith's driving or DOT's maintenance of the road was responsible for the Kupetz' deaths. Accordingly, even though it is clear from the record that Smith's stipulation was a judicial admission, Smith's guilty pleas and convictions were relevant as statements against interest and the trial court did not err by admitting them.
Moreover, there was no harm or prejudice to Borzymowski in the trial court admitting the guilty pleas and criminal convictions. "[W]hen a party requests a new trial based on the trial court's evidentiary rulings, such rulings must be shown to have been erroneous and harmful to the complaining party. If the evidentiary rulings in question did not affect the verdict, we will not disturb the jury's judgment." Cacurak v. St. Francis Med. Ctr., 823 A.2d 159, 164-65 (Pa. Super. 2003) (citation omitted) (emphasis added).
Borzymowski contends:
That the jurors had to decide between [DOT] and an individual convicted of killing Mr. and Mrs. Kupetz as to which one was responsible for the accident, it is reasonable to conclude that a very real and substantial possibility existed that the jurors would not meaningfully consider the evidence against [DOT] but rather blame the entire accident on the [Kupetz'] killer.Borzymowski Br. at 27.
Rule 402 of the Pennsylvania Rules of Evidence states: 'All relevant evidence is admissible, except as otherwise provided by law. Evidence that is not relevant is not admissible.' Pa.R.E. 402. Nevertheless, Rule 403 provides:
Rule 403. Exclusion of relevant evidence on grounds of prejudice, confusion, or waste of time
Although relevant, evidence may be excluded if its probative value is outweighed by the danger of unfair prejudice . . . or needless presentation of cumulative evidence.Commonwealth v. Levanduski, 907 A.2d 3, 28 (Pa. Super. 2006).
Pa.R.E. 403. In this balancing test for admissibility the question is whether the challenged evidence is so unfairly prejudicial that its inflammatory nature substantially outweighs its probative value.
Here, Smith's guilty pleas and convictions were at most cumulative of the testimony supplied by officers, eyewitnesses, experts and Smith himself. All parties were permitted to fully conduct their cases. DOT specifically questioned Smith about his criminal convictions. See R.R. at 363a. The record reflects that the trial court highlighted to the jury before the trial commenced that Borzymowski's case was against both DOT and Smith. See R.R. at 228a. At the end of the trial, the trial court reminded the jury that there are two defendants, and that it may find either or both liable. See R.R. at 441a-443a. Borzymowski has not produced any evidence that the admission of Smith's guilty pleas and convictions was so unfairly prejudicial that it outweighed its probative value. Because no mistake occurred, and there was no harm or prejudice to Borzymowski, she is not entitled to a new trial on the basis that the trial court permitted evidence of Smith's guilty pleas and criminal convictions to be admitted at trial.
Borzymowski next argues that the trial court erred or abused its discretion by excluding 5 accident reports for incidents in substantially the same location. We disagree.
In certain circumstances 'evidence of similar accidents occurring at substantially the same place and under the same or similar circumstances may, in the sound discretion of the trial Judge, be admissible to prove constructive notice of a defective or dangerous condition and the likelihood of injury.' Stormer v. Alberts Construction Co., 401 Pa. 461, 466, 165 A.2d 87, 89 (1960) (emphasis in original). Such
evidence will be permitted 'for the purpose of establishing the character of the place where [the accidents] occurred, their cause, and the imputation of notice, constructive at least, . . . of the defect and the likelihood of injury.'Mendenhall v. Dep't of Transp., 537 A.2d 951, 953-54 (Pa. Cmwlth. 1988) (quoting Whitman v. Riddell, 471 A.2d 521, 523 (Pa. Super. 1984)).
The trial court in this case reviewed with counsel all of the accident reports Borzymowski sought to admit. The trial court excluded those reports dated October 5, 2002, December 2, 2003, September 23, 2004, November 23, 2004 and January 5, 2007, because they were not substantially similar to the accident that resulted in the Kupetz' deaths. The accident in this case occurred as the Kupetz' were waiting to turn left onto Moreland Avenue, during daylight, in nice weather, on a dry road. The trial court excluded reports for accidents involving left turns into nearby Horsham Inn, rather than Moreland Avenue (10/5/02, 12/2/03), reports involving accidents that did not occur in the daylight (10/5/02, 9/23/04, 11/23/04), and reports for accidents that occurred in wet weather (11/23/04, 1/5/07). The trial court used Mendenhall's substantially similar analysis. It was anything but arbitrary, and was well within the trial court's discretion, so it will not be disturbed by this Court. Accordingly, the trial court made no mistake by excluding the 5 accident reports at issue.
Moreover, exclusion of the 5 reports was not harmful or prejudicial to Borzymowski. Despite the fact that 17 accident reports in the exact location of this one were admitted, Borzymowski contends that, by excluding the 5 reports, DOT was able to successfully argue that the number of accidents over a certain period of time was insufficient to place DOT on notice of the dangerous condition. She bases her argument on Section 212.111(1) of DOT's regulations, 67 Pa. Code § 212.111(1), which sets forth criteria for DOT to determine if turn restrictions are necessary on roads within DOT's jurisdiction.
It is true that Section 212.111 of DOT's regulations provides in pertinent part:
A straight-through or turning movement may be restricted if the movement can be made at an alternate location, and if one or more of the following conditions are present:(Emphasis added). Ultimately, 17 reports were admitted to demonstrate DOT's notice of similar accidents occurring on Route 611 at Moreland Avenue. They were the basis for Borzymowski's expert, Serge Borichevsky (Borichevsky), to say that DOT had notice of accidents as early as 2000 and should have taken corrective action, DOT was negligent for failing to correct issues at the intersection and, if it had done so, the Kupetz would still be alive. R.R. at 316a, 318a-320a. However, even if introducing the 5 additional reports would have triggered action pursuant to Section 212.111(a) of DOT's regulations, it would have been a discretionary review, and would not necessarily have resulted in changes to the road.
(1) A review of vehicle crashes shows that ten crashes have occurred during the previous 3 years, or five crashes have occurred during any 12-month period in the previous 3 years that can be attributed to vehicles making or attempting to make the movement.
In addition, evidence that there were additional accidents at the area in question was introduced by Borzymowski. Despite the trial court's exclusion of the 5 reports, over DOT's objections and despite warnings by the trial court (R.R. at 360a), Borichevsky mentioned a distinction between the reports admitted and the ones he reviewed, and stated "I looked at more reports." R.R. at 328a. Even after being restricted to the 17 reports admitted, when asked by DOT's counsel on cross-examination if he would agree that there were two similar accidents in 1999, Borichevsky answered, "[n]o, . . . because I looked at 40-some reports and the fact that you've dwindled them down to 17, doesn't take away from my opinion." R.R. at 328a. Even after additional correction, he refused to agree that based upon only the 17 reports there were not 5 accidents in a calendar year, since "in 2005, I think there were five." R.R. at 330a. When asked, "[i]n 2001 is the only time period that we have to go back to find five, correct?" Borichevsky answered, "[i]n that pile." R.R. at 330a.
Thus, despite Borzymowski's claim that she was prejudiced by exclusion of the 5 reports, the jury clearly heard that DOT was aware of more accidents. Despite the above testimony, the jury declared that DOT was not responsible for the Kupetz' deaths. Thus, Borzymowski's statement in her brief that the exclusion of the records "might have affected the verdict" is without basis. Borzymowski Br. at 32. Because no mistake occurred, and there was no harm or prejudice to Borzymowski, she is not entitled to a new trial on the basis that the trial court excluded the 5 accident reports.
Accordingly, we affirm the trial court's order.
/s/_________
ANNE E. COVEY, Judge
ORDER
AND NOW, this 4th day of June, 2012, the Montgomery County Court of Common Pleas' August 16, 2011 order is affirmed.
/s/_________
ANNE E. COVEY, Judge BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE ANNE E. COVEY, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
CONCURRING OPINION BY SENIOR JUDGE COLINS
I agree with the majority's opinion, except for its declaring that Borzymowski's motion in limine, relating to the guilty pleas and criminal convictions, should have been denied on substantive grounds. However, the resolution of this controversy is moot, since the trial court properly denied the same motion in limine on procedural grounds, because of its untimely filing.
/s/ _________
JAMES GARDNER COLINS, Senior Judge
Cacurak v. St. Francis Med. Ctr., 823 A.2d 159, 168 (Pa. Super. 2003) (citation omitted).