Opinion
No. 1308 C.D. 2011
02-16-2012
Mohammed Rahman and Jely Rahman, Individually and as Administrators of the Estate of Liza Rahman v. Falls Township, Caressa Hitner, Commonwealth of Pennsylvania, Department of Transportation, and Tullytown Borough Appeal of: Falls Township
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE LEAVITT
Falls Township appeals an order of the Court of Common Pleas of Bucks County (trial court) denying its post-trial motion for a new trial or judgment non obstante veredicto (n.o.v.). The Township's motion followed a jury verdict holding it liable for the death of Liza Rahman, who was killed while crossing a township road. Falls Township contends that the trial evidence did not prove that the lack of a speed limit sign caused the fatal accident and did not prove that it was the municipality responsible for the missing sign. Concluding that the trial court erred, we reverse and remand.
On November 10, 1999, nine-year-old Liza Rahman attempted to cross Falls-Tullytown Road on foot when she was struck and killed by a car driven by Caressa Hitner. Ms. Hitner had turned onto Falls-Tullytown Road approximately 1,600 feet before the point of impact. There was no sign on that 1,600-foot-long stretch of road posting the speed limit of 35 miles per hour (mph); there was a sign 250 feet beyond the accident point.
Ms. Hitner was 25 years old at the time of the accident and lived in the neighborhood of the accident scene. By the time of trial, she was 36, married, the mother of three children and employed as an 8th grade physics and chemistry teacher. She testified by her married name, Caressa Hitner Logue. However, the opinion will refer to her as "Hitner," which is how she was named in the complaint.
Plaintiffs' expert engineer, Joseph Bernard Muldoon, testified that in 1961, Falls Township and Tullytown Borough received permission from the Pennsylvania Department of Transportation to adopt ordinances to reduce the speed limit from 55 mph to 35 mph along the relevant stretch of Falls-Tullytown Road. In 1997, the signs were inventoried and showed a speed limit sign at approximately the mid-point of the 1,600 feet of road traveled by Ms. Hitner before the accident. There was no sign there on the day of the accident.
Mohammed Rahman and Jely Rahman, individually and as Administrators of the Estate of Liza Rahman (collectively Rahmans), filed suit against Falls Township, Caressa Hitner, the Commonwealth of Pennsylvania, Department of Transportation (PennDOT), and Tullytown Borough. As a result of pre-trial motions, PennDOT and Tullytown Borough were removed as defendants. Thereafter, a two-day jury trial was held to determine liability only, and on January 6, 2010, the jury returned a verdict in favor of the Rahmans and against Caressa Hitner (22.5%) and Falls Township (62.5%). Liza Rahman was found to be 15% contributorily negligent; a witness testified that she stepped into traffic without looking.
On January 15, 2010, Falls Township filed a post-trial motion for a new trial or judgment n.o.v., but it was denied. On November 12, 2010, the trial court entered an order approving a stipulation of counsel wherein the Rahmans, Falls Township and Caressa Hitner agreed that judgment would be entered against Falls Township and Caressa Hitner in the amount of $745,000, and that Falls Township would appeal the final order. On July 13, 2011, Falls Township appealed to this Court.
"Our standard of review of a trial court's denial of a motion for post-trial relief is limited to a determination of whether the trial court abused its discretion or committed an error of law." Koter v. Cosgrove, 844 A.2d 29, 32 n.4 (Pa. Cmwlth. 2004).
On appeal, Falls Township presents two issues for review: (1) whether the evidence supported the jury's verdict that the absence of a speed limit sign caused damages to the Rahmans; and (2) whether the evidence established that Falls Township breached a duty owed to the Rahmans.
Falls Township's second argument asserts that Tullytown Borough was responsible for the erection and maintenance of the missing speed limit sign. There was a factual dispute about the boundary between Falls Township and Tullytown Borough. Generally a municipality does not have a common law duty to erect official traffic-control devices, but it does have a common law duty to maintain traffic control devices if it exercises its discretionary authority to erect such devices. Miseo v. Ross Township Police Department, 607 A.2d 806, 809 (Pa. Cmwlth. 1992).
The standard for a judgment n.o.v. is high. A court may enter judgment n.o.v. only where, "after reviewing the evidence most favorably to the plaintiff, no two reasonable minds could fail to agree that the verdict was improper and should have been rendered in favor of the movant." Thomas v. City of Philadelphia, 804 A.2d 97, 103 (Pa. Cmwlth. 2002). Further,
[a] new trial will be granted only if the trial court abused its discretion or committed an error of law that controlled the outcome of the case. An abuse of discretion will not be found
merely because the appellate court might have reached a different conclusion; it requires a showing of manifest unreasonableness, partiality, prejudice, bias, or ill-will, or such lack of support as to be clearly erroneous.Cummings v. State System of Higher Education, 860 A.2d 650, 654 (Pa. Cmwlth. 2004) (internal citations omitted).
Falls Township argues that judgment n.o.v. or a new trial should have been granted because the evidence does not support the jury's finding that the absence of a speed limit sign caused the accident. The only evidence on this point was Ms. Hitner's testimony that the absence of a speed limit sign did not affect her driving. In light of this testimony, Falls Township argues that the jury could not find the missing sign to be the cause of the accident.
Sergeant Harvey C. Taylor testified that on the day of the accident he questioned Ms. Hitner about her driving speed, and she answered "about 30 miles an hour." Reproduced Record at 308a (R.R. ___). Sergeant Taylor also testified that he asked Ms. Hitner if she knew the speed limit, and she responded that she "thought it was 35 miles an hour." R.R. 308a. Sergeant Taylor, who was trained in accident reconstruction, also testified that based on his analysis, he believed that Ms. Hitner was driving at about 52 mph. In addition, Joseph Bernard Muldoon, a civil engineer who was qualified as an expert, reviewed Sergeant Taylor's skid analysis and agreed with his methodology and result. Sergeant Taylor did not charge Ms. Hitner with speeding, he said, because he believed that in the absence of a sign, the lawful speed limit defaulted to 55 mph.
Ms. Hitner testified that on the day of the accident she was driving a rented 2000 Toyota Corolla, in place of her own 1989 Ford Tempo. In response to questioning, she testified that the Toyota drove more "smoothly" and "guessed" that it had more pickup but did not remember. R.R. 534a. When she saw the child run into the street, she immediately applied the brakes but explained that there was "nothing [she] could have done" to avoid the accident. R.R. 528a. Ms. Hitner, who was 25 years old at the time of the accident, explained that she had never been issued a speeding ticket and did not drive fast. She was then asked:
Q. Do you believe that if you had seen a 35 mile-an-hour sign on Falls-Tullytown Road that that would have affected the way you were driving that day? Would you have slowed down [?].R.R. 536a. When asked whether she would have checked her speedometer if she had seen a sign, Ms. Hitner responded, "I don't know." R.R. 537a. Her testimony concluded with the following exchange:
A. No. I didn't think I was going fast. I didn't feel like I was going fast.
Q. Caressa, the fact that you didn't see a speed sign, a posted speed sign that day, did that have any effect on the accident?Id.
A. No.
Q. So that fact that there wasn't a sign there played no part in this accident?
A. None.
Falls Township contends that because Ms. Hitner testified that she believed she was driving under the speed limit and the absence of a speed limit sign did not affect her driving, the jury could not find that the absence of a speed limit sign was the proximate cause of the accident.
While not raised by the Township, we note that under Section 8542(b)(4) of the Act commonly known as the Political Subdivision Tort Claims Act, a municipality is only liable for damages if it "had actual notice or could reasonably be charged with notice under the circumstances of the dangerous condition at a sufficient time prior to the event to have taken measures to protect against the dangerous condition." 42 Pa. C.S. §8542(b)(4). A speed limit reduces the risk of vehicle collisions but is not generally understood as intended to protect pedestrians, as do traffic lights and crosswalks.
The jury, as fact finder, is free to believe all, part, or none of the evidence and to determine the credibility of the witnesses. Commonwealth v. Diggs, 597 Pa. 28, 39, 949 A.2d 873, 879 (2008). However, speculation is not evidence, and a jury may not reach a verdict based merely on speculation or conjecture. Fitzpatrick v. Natter, 599 Pa. 465, 484-86, 961 A.2d 1229, 1241-42 (2008); Butler v. City of Pittsburgh, 537 A.2d 112, 114-15 (Pa. Cmwlth. 1988) (mere occurrence of an accident is not proof of negligence; evidence offered to prove negligence must be more than speculation and reasonably and legitimately impute negligence). Here, the jury was free to credit plaintiffs' evidence that Ms. Hitner was traveling at 52 mph at the time of the accident over her testimony that she was traveling 30 mph. The jury was also free to credit plaintiffs' expert that at 35 mph, Hitner would have been able to stop before striking Liza Rahman.
The jury could not, however, ignore the absence of evidence critical to causation. The record is devoid of any evidence showing that had Falls-Tullytown Road been posted with a 35 mph speed limit sign, Ms. Hitner's speed would not have exceeded 35 mph. This is pure speculation. The only evidence on this point was Ms. Hitner's testimony, and she testified unequivocally that the presence or absence of a speed limit sign played no part in the accident. As such, the record does not establish that the absence of a 35 mph speed limit sign was the actual or proximate cause of the accident.
Not believing a witness does not allow a fact finder to infer that the opposite of what the witness said is fact. A negative inference is not positive evidence. Yi v. State Board of Veterinary Medicine, 960 A.2d 864, 875 (Pa. Cmwlth. 2008). Thus, not believing Ms. Hitner does not establish that a speed limit sign would have affected her driving.
This case is tragic. However, no two reasonable minds could agree that the verdict was proper. The jury's verdict that the missing speed limit sign caused the accident lacks support in the record. Accordingly, the Rahmans failed to prove common law negligence by Falls Township. We reverse and remand the case so that the trial court may enter judgment n.o.v. in favor of Falls Township.
The practical effect of the jury's verdict is that a municipality can be held strictly liable if it exercises its discretion to lower the speed limit on a road but then does not replace a sign that is either damaged or stolen before an accident occurs. The implications of making a township strictly liable in circumstances like this could have the unintended consequence of encouraging municipalities to leave the lawful and default speed limits in their municipalities at 55 mph.
Finding that the evidence offered by the Rahmans did not establish a cause of action in negligence, we need not address Falls Township's second issue that Tullytown Borough, not it, was responsible to place a speed limit sign on the 1,600 feet of road traveled by Ms. Hitner before the accident. --------
/s/_________
MARY HANNAH LEAVITT, Judge ORDER
AND NOW, this 16th day of February, 2012, the April 7, 2011 order of the Court of Common Pleas of Bucks County in the above-captioned matter is REVERSED and the case is REMANDED to the trial court with instructions to enter Judgment N.O.V. in favor of Falls Township.
Jurisdiction relinquished.
/s/_________
MARY HANNAH LEAVITT, Judge