S.D. Ohio, Western Division.

Paul W. Laumann, III, et al., Plaintiffs,

v.

ALTL, Inc., et al., Defendants.

Case No. 1:14-cv-00457

|

Signed 01/04/2016

 

 

ORDER GRANTING DEFENDANTS’ MOTION FOR PARTIAL SUMMARY JUDGMENT

Judge Susan J. Dlott, United States District Court

*1 Plaintiffs Paul and Monica Laumann, husband and wife, bring this civil suit against Defendants ALTL, Inc., a trucking company, and Robert C. Snyder, Jr., a tractor-trailer driver, in the wake of a collision that occurred on June 5, 2012 (Doc. 1 ¶ 11). Their Complaint contains ten causes of action: (1) negligence (against Snyder); (2) negligence per se (against Snyder); (3) punitive damages (against Snyder); (4) vicarious liability (against ALTL); (5) strict liability (against ALTL); (6) negligent hiring and retention (against ALTL); (7) negligence per se (against ALTL); (8) punitive damages (against ALTL); (9) loss of consortium (against both); and (10) a claim disputing any right to subrogation by involuntary Plaintiff Ohio Bureau of Workers’ Compensation. Pursuant to Fed. R. Civ. P. 41(a)(1)(A), Plaintiffs have dismissed, without prejudice, their second, third, fifth, and seventh causes of action (Doc. 26 ¶ 1). Further, the parties have stipulated and agreed that Plaintiffs will not pursue their claim for negligent hiring asserted in their sixth cause of action (id. ¶ 2). Additionally, Defendant Snyder has stipulated to liability only regarding Plaintiffs’ first cause of action for negligence against him (id. ¶ 3) and Defendant ALTL has stipulated to liability only regarding Plaintiffs’ fourth cause of action against it (id. ¶ 4).

 

Before the Court is Defendants’ Motion for Partial Summary Judgment (Docs. 19, 25). They seek judgment as a matter of law with regard to the remaining negligent retention claim asserted against ALTL in Plaintiffs’ sixth cause of action and with regard to the punitive damages claim against ALTL in Plaintiffs’ eighth cause of action. Were the Court to grant the relief Defendants seek, remaining for trial would be only the issue of compensatory damages owed to Mr. Laumann in connection with his negligence and vicarious liability claims against Snyder and ALTL, respectively, and Mrs. Laumann’s loss of consortium claim (see Doc. 19 at PageID 82-83). Plaintiffs oppose Defendants’ motion, arguing that their claims for negligent retention and punitive damages should be heard and decided by a jury (see Doc. 20). Were the Court to deny Defendants’ motion, left for trial would be not only the issue of compensatory damages owed to Mr. Laumann in connection with the negligence and vicarious liability claims against Snyder and ALTL, respectively, and Mrs. Laumann’s loss of consortium claim, but also the issue of compensatory and punitive damages owed to Mr. Laumann in connection with the negligent retention claim asserted against ALTL (see Doc. 20 at PageID 217-18).

 

For the reasons that follow, Defendants’ motion will be GRANTED.

 

 

1. BACKGROUND1

Defendant Snyder began his career as a tractor-trailer driver in 2004 when he took a job with Schneider. At the beginning of his employment, he attended a four-week driving school. The program included classroom instruction and in-truck training, with the latter consisting of driving practice in a nearby parking lot. At the end of the program, Snyder received two weeks of on-the-road training under the observation of an experienced Schneider driver. Snyder drove for Schneider for approximately two years. (Snyder Dep., Doc. 24 at PageID 583-84, 591.)

 

*2 In January 2006, Snyder accepted a job as a driver for Defendant ALTL. (Id. at PageID 589, 697.) Before hiring a new driver, ALTL runs a criminal background check and reviews certain reports that are common in the trucking industry, including a Federal Motor Carrier Safety Administration (“FMCSA”) report on the candidate’s compliance, safety, and accountability (“CSA Report”); a report of the candidate’s work and accident history (“DAC Report”); and a State Department report of the candidate’s driving history (“MVR Report”). (Lau Dep., Doc. 22 at PageID 422-23.) ALTL followed its normal course before offering employment to Snyder. (Id. at PageID 243.)

 

Once hired, each new ALTL driver attends a two-day in-house orientation that involves a review of all of the company’s manuals, policies, and procedures. (Id. at PageID 243-44.) Following the classroom training, each driver completes a three-day road assessment with the city fleet to determine whether the new hire “is ready or capable” to move forward. (Id. at PageID 244.)

 

ALTL continues to provide training and safety tips to drivers throughout their employment. It holds an annual company-wide meeting for this purpose. Drivers also receive individual instruction and training on an ongoing basis. (Id. at PageID 263-64.) ALTL reviews its employees’ FMCSA safety scores each month and their driving records annually. (Id. at PageID 362, 381.)

 

Under ALTL’s standard policies, a driver must report any instance in which he contacts something with his tractor-trailer. ALTL then creates a “Motor Accident Report” for each such instance, which is intended to roughly detail the facts and circumstances thereof. (Snyder Dep., Doc. 24 at PageID 689, 691.) Whether the individual continues to be regarded as a “safe driver” in the aftermath depends largely on the severity and frequency of any prior incidents. (Lau Dep., Doc. 22 at PageID 429.)

 

As earlier mentioned, the accident that underpins this lawsuit occurred on June 5, 2012. By this date, Snyder had been a driver for ALTL for six years, logging approximately 125,000 miles each year. (Snyder Dep., Doc. 24 at PageID 649.) In this period, he was involved in seven instances that resulted in a “Motor Accident Report” being prepared. They are as follows:

• July 2, 2007: Snyder’s tractor-trailer hit something while backing. He remembers no particular details other than, if there was any property damage, it would have been to his vehicle. (Id. at PageID 694.)
• January 18, 2008 (six months later): Snyder was turning left at a four-way stop in Queens, New York. The rear corner of his trailer, which he cannot see while turning, clipped a car parked in a crosswalk. No traffic citation was issued by the police. (Id. at PageID 694-697, 701.)
• January 18, 2008 (the same day): Snyder was backing into a customer’s loading dock, made dark by virtue of the roof over it. He broke two of the corner hinges on the rear door of his trailer when they clipped a chimney that protruded from an inside wall. (Id. at PageID 697-98.)
• October 21, 2008 (nine months later): Snyder hit a deer on I-65 that resulted only in damage to the front headlight assembly of his tractor. (Id. at PageID 699.)
• October 23, 2008 (two days later): While turning right at a traffic light, Snyder hit a car that was stopped but in operation. That car had just turned right on red at the end of an exit ramp off I-465. In an attempt to maneuver itself into the far left turn lane going north, the car crossed three lanes and then abruptly stopped ten feet out. No traffic citation was issued by the police. (Id. at PageID 702-06.)
• March 2, 2010 (one year, four months later): Snyder turned too sharply and a fairing bracket on the back side of the tractor caught against the side of the trailer. (Id. at PageID 707-08.)
• January 9, 2011 (ten months later): Snyder hit a small sign and a tree when his truck tandem went up over a curb. This contact occurred after he had been required to make three successive turns (left, left, right) into a “tight little parking lot” to make an office delivery. (Id. at PageID 708-10.)

 

*3 One year and five months pass. After his customary weekend off, on Monday, June 4, 2012, Snyder picked up his tractor from ALTL in Hudsonville, Michigan and then “bobtailed” to the shipper located 12 miles away to pick up a cargo trailer. (Id. at PageID 592-97.) He drove for six hours, arriving in Cincinnati around 7:00 p.m. He spent the entire evening in the yard of the first customer, eating and sleeping in the birth of the tractor. (Id. at PageID 597-98.)

 

The next morning, Snyder’s trailer was partially unloaded and he began his drive to the second leg of his trip—Atlanta, Georgia—at approximately 7:45 a.m. (Id. at PageID 607-09.) Heading southbound on I-75, he encountered “stop-and-go” traffic. In addition, the first (or farthest right) lane was blocked by a motorcycle unit from the Cincinnati Police Department. Accordingly, vehicles in that lane began to look for an opportunity to switch into the second and third lanes. To accommodate this flow, Snyder moved from the second lane to the third. At this point, the speed at which all vehicles were proceeding was no more than five-to-ten miles per hour. Within a mile or so, Snyder then changed lanes from the third back to the second, as trucks typically travel only in the first two lanes. (Id. at PageID 611-15.) Despite the fact that he checked his mirrors, Snyder did not see Mr. Laumann’s vehicle, which, at the time, was travelling in the “blind spot” on the passenger side of the truck. The front right passenger side of his tractor clipped the left rear quarter panel of Mr. Laumann’s vehicle. (Id. at PageID 625-27.) This contact caused Mr. Laumann’s vehicle to “spin” in front of Snyder’s truck before it stopped near the median. Snyder felt no impact, but assumed he must have hit Mr. Laumann. He slammed on his brakes to avoid any further impact. (Id. at PageID 628-31.)

 

Plaintiffs filed suit on June 2, 2014. Mr. Laumann seeks damages for injuries he alleges are the result of the June 5, 2012 accident, including, but not limited to, traumatic brain injury (Doc. 1 ¶ 14; Doc. 20 at PageID 201).

 

 

1. STANDARD OF LAW

Although a grant of summary judgment is not a substitute for trial, it is appropriate ‘if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. ‘ Fed. R. Civ. P. 56(a). The process of evaluating a motion for summary judgment and the respective burdens it imposes upon the movant and the non-movant are well-settled. First, ‘a party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of [the record] which it believes demonstrate the absence of a genuine issue of material fact[.]‘ Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); see LaPointe v. United Autoworkers Local 600, 8 F.3d 376, 378 (6th Cir. 1993). This burden may be satisfied, however, by the movant “pointing out to the court that the [non-moving party], having had sufficient opportunity for discovery, has no evidence to support an essential element of his or her case.” Barnhart v. Pickrel, Schaeffer & Ebeling Co., L.P.A., 12 F.3d 1382, 1389 (6th Cir. 1993).

 

Faced with such a motion, the opposing party must submit evidence in support of any material element of the claim or defense at issue in the motion on which it would bear the burden of proof at trial. Celotex, 477 U.S. at 331-32. As “the requirement [of the Rule] is that there be no genuine issue of material fact,” the Supreme Court has made clear that “[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) (emphasis in original). Ancillary factual disputes, those “that are irrelevant or unnecessary[,] will not be counted.” Id. Furthermore, “[t]he mere existence of a scintilla of evidence in support of the [non-movant’s] position will be insufficient; there must be evidence on which the jury could reasonably find for the [non-movant].” Id. at 252. Instead, the opposing party must present “significant probative evidence” demonstrating that “there is [more than] some metaphysical doubt as to the material facts” to survive summary judgment and proceed to trial on the merits. Moore v. Philip Morris Companies, Inc., 8 F.3d 335, 339-40 (6th Cir. 1993) (applying Anderson, 477 U.S. at 249-50; Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)).

 

*4 At this summary judgment stage, it is not the Court’s role “to weigh the evidence and determine the truth of the matter but [rather] to determine whether there is a genuine issue for trial.” Anderson, 477 U.S. at 249. In so doing, “[t]he evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in [her] favor.” Id. at 255 (citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 157-59 (1970) (citing United States v. Diebold, Inc., 369 U.S. 654, 655 (1962))). Adherence to this standard, however, does not permit the Court to assess the credibility of witnesses. See Adams v. Metiva, 31 F.3d 375, 378 (6th Cir. 1994) (citing Anderson, 477 U.S. at 255).

 

 

III. ANALYSIS

Defendants contend that Plaintiffs’ claims of negligent retention and punitive damages lack support in fact and law. The Court agrees.2

 

 

1. Negligent Retention

Under Ohio law, a plaintiff asserting a claim of negligent retention must demonstrate: (1) an employment relationship; (2) the employee’s incompetence; (3) the employer’s actual or constructive knowledge of that incompetence; (4) the employee’s act or omission causing the plaintiff’s injury; and (5) a causal link between the employer’s negligence in retaining the employee and the plaintiff’s injury. Alleman v. YRC, 787 F. Supp. 2d 679, 683 (N.D. Ohio 2011) (citing Lehrner v. Safeco Ins./Am. States Ins. Co., 171 Ohio App. 3d 570, 2007-Ohio-795, 872 N.E.2d 295, at ¶ 41). Defendants urge that no reasonable juror could conclude that Snyder was incompetent to drive a tractor-trailer, and thus Plaintiffs’ claim fails. Defendants are correct.

 

Alleman is instructive. There, summary judgment was granted to a trucking company whose employee—while driving a cab pulling two empty trailers in freezing rain—collided with another vehicle, killing its driver. Finding that the record did not reflect a “lack of competence,” Judge Gaughan observed that the driver was trained and licensed, attended regular safety meetings, and had driven tractor-trailers for more than 20 years without being involved in an accident “chargeable” against him. 787 F. Supp. 2d at 683-84. That the driver, prior to dispatch, raised a “safety concern” in connection with the weather forecast did not suffice to establish a genuine issue of material fact as to his competence. Id. at 684.

 

In contrast to Alleman, summary judgment was denied to a trucking company and its principals whose driver—having crossed the center line and collided with oncoming traffic—was hired without a background check and based on only a five-mile road test. Schlegel v. Li Chen Song, 547 F. Supp. 2d 792, 806-07 (N.D. Ohio 2008). Moreover, the driver spoke no English, did not know how to fill out logs mandated by the FMCSA, and had a United States driver’s license (issued in California) for just a few months. See id. at 796, 802. Significantly, there was no mention of any, much less ongoing, safety training. In addition, the plaintiff averred that the defendants were involved in a scheme in which they had “folded and re-opened trucking operations after substandard compliance reviews conducted by the Department of Transportation and the subsequent fines levied against [them] for violations of Federal Regulations.” Id. at 802.

 

*5 Here, nothing in Snyder’s background bespeaks incompetence. He came to ALTL with two years’ experience from Schneider, where he attended a four-week training course followed by two-weeks of on-the-road training. Prior to hire, ALTL ran a criminal background check and reviewed his CSA, DAC, and MVR Reports. Post-hire, Snyder participated in ALTL’s orientation and passed a three-day road test. Throughout his employment, Snyder attended annual safety meetings and routinely received individual instruction and safety tips. ALTL reviewed his FMSCA safety scores monthly and his driving record annually.

 

Snyder drove for ALTL for six years prior to the accident. In that time band, he estimated that he logged 125,000 miles annually, for a total of 750,000 miles, and filed only seven Motor Accident Reports. In one instance, Snyder hit a deer that leapt in from of him. As even Plaintiffs agree (see Doc. 20 at PageID 203, 204), this accident could not be avoided. In two instances, Snyder struck a stopped vehicle. The remaining four instances occurred on private property when Snyder was maneuvering his tractor-trailer in tight and sometimes poorly lit confines. The last one, on January 9, 2011, occurred one year and five months prior to the June 5, 2012 accident.

 

Plaintiffs’ description of these instances as “crashes” is a gross exaggeration, and their position that ALTL “put profits before the safety of people using the same roads as Defendant Snyder” (see id. at PageID 204) lacks any support. That ALTL requires a Motor Accident Report regardless of the severity of the contact would suggest concern—rather than contempt— for safety, even if done for purposes of insurance reporting. Regardless, no reasonable juror could conclude that they “warranted [his] removal” (see id.). These seven Reports amount to less than one per 100,000 miles driven. No personal injury resulted. Other vehicles were involved only twice, and they were stopped rather than in motion. Snyder was never cited. And property damage, if any, was negligible. In the absence of supporting case law, Counsel’s rhetoric cannot win the day. Accordingly, Defendant ALTL is entitled to judgment as a matter of law with regard to the remaining claim in Plaintiffs’ Sixth Cause of Action, negligent retention.

 

 

1. Punitive Damages

An employer can be liable for punitive damages in tort if its actions demonstrate “malice or fraud.” MacNeill v. Wyatt, 917 F. Supp. 2d 726, 732 (S.D. Ohio 2013) (Litkovitz, M.J.) (citing Ohio Rev. Code § 2315.21). Because the statute does not define “malice,” Ohio courts apply the definition set forth in Preston v. Murty, 32 Ohio St. 3d 334, 512 N.E.2d 1174, syl. (1987). Hence, an employer must have been aware of a “great probability of causing substantial harm” and then have “consciously disregarded” the injured party’s safety. Id. at 336, 512 N.E.2d at 1176. Something “more than mere negligence is always required.” Id. at 335, 512 N.E.2d at 1176 (emphasis added). Actual malice must be demonstrated by “clear and convincing evidence.” Kuebler v. Gemini Transp., No. 3:12-cv-114, 2013 WL 6410608, at *4 (S. D. Ohio Dec. 9, 2013) (Rose, J.). At its heart is whether there is proof of an employer’s conscious disregard “of an almost certain risk of substantial harm.” Id. at *5 (emphasis added).

 

In support of their claim, Plaintiffs urge only that ALTL was aware of “the multiple crashes Defendant Snyder caused” (see Doc. 20 at PageID 216) and did not discipline him therefor or provide any remedial training in their wake. But as the Court noted in its deliberations with respect to their negligent retention claim, Plaintiffs’ use of the pejorative term “crash” does not transform these instances into something they were not.

 

*6 Alleman, supra, is again instructive, where the court also held that “[b]eing aware of the dangers that accompany pulling empty doubles in freezing rain does not establish conscious wrongdoing, which requires more than knowledge of the possibility or probability that harm may occur from a reckless act.” 787 F. Supp 2d at 686. As recited previously, Snyder was a licensed, experienced, and highly-trained operator. The seven instances in which his tractor-trailer contacted “something” in the six years prior to the June 5, 2012 accident were inconsequential. Nothing about their circumstances come close to the standard necessary to prove conscious disregard of an almost certain risk of substantial harm. Indeed, were this Court to conclude otherwise, it would be inviting reversal on appeal. See Womack v. Gettelfinger, 808 F.2d 446, 454 (6th Cir. 1987) (applying Tennessee law). Accordingly, Defendant ALTL is entitled to judgment as a matter of law with regard to the claim for punitive damages pled in Plaintiffs’ Eighth Cause of Action.

 

 

1. CONCLUSION

For the foregoing reasons, Defendants’ Motion for Partial Summary Judgment (Doc. 19) is GRANTED.

 

IT IS SO ORDERED.

 

All Citations

Slip Copy, 2016 WL 28984

 

 

Footnotes

1

Except as otherwise indicated, background facts are drawn from Defendants’ Statement of Proposed Undisputed Facts (Doc. 18), having noted Plaintiffs’ response thereto (Doc. 20 at PageID 219-21) as well as Plaintiffs’ Proposed Disputed Issues of Material Fact (id. at PageID 222-24).

2

In the alternative, Defendants maintain that, inasmuch as they both have stipulated to liability on negligence regarding the June 5, 2012 accident, the negligent retention claim has been rendered moot, because—even if Plaintiffs were to prevail—they would not be entitled to any additional damages or other remedies. (See Doc. 19 at PageID 66.) The Court need not reach this issue given its determination that the negligent retention claim fails as a matter of law.

Superior Court of Pennsylvania.

Karla M. TURNER, Appellant

v.

SAFEWAY TRUCKING CORPORATION, Gemini Traffic Sales, Inc., Leoncio A. Castillo, and Henry Bowman, Appellees.

No. 1101 EDA 2015.

|

Filed Jan. 12, 2016.

Appeal from the Judgment Entered March 26, 2015, In the Court of Common Pleas of Philadelphia County, Civil Division, at No(s): January Term, 2012 NO. 01546.

BEFORE: FORD ELLIOTT, P.J.E., STABILE and STRASSBURGER,* JJ.

Opinion

MEMORANDUM BY STRASSBURGER, J.:

 

*1 Karla M. Turner (Turner) appeals from a judgment entered against her and in favor of Safeway Trucking Corporation (Safeway), Gemini Traffic Sales, Inc. (Gemini), Leoncio A. Castillo (Castillo), and Henry Bowman (Bowman) (collectively Appellees). We affirm.

 

The background underlying this matter can be summarized as follows.

This motor vehicle action arose from a three car motor vehicle accident that occurred on February 22, 2010 on I–78, a four lane highway. At the time of this accident, [Turner] was the driver of a school bus which struck the rear of [ ] Bowman’s van which had run out of gas and was stopped in the right most lane of the highway. The impact between [Turner’s] bus and the Bowman van caused [Turner’s] bus to veer out of control and was then struck on the passenger side by [ ] Castillo’s tractor trailer. Prior to the impacts, Castillo’s tractor trailer had also been travelling in the right lane behind [Turner’s] bus. [Turner] filed [a negligence] suit against [Appellees].[[1]

 

Trial began in this matter with jury selection on February 28, 2014 and concluded on March 11, 2014 with a jury verdict in favor of [Appellees], finding [Turner] to be 59% comparatively negligent and [ ] Bowman and Castillo to be 29% and 12% comparatively negligent, respectively. [Turner] timely filed post-trial motions for a new trial, which were denied by [the trial court] pursuant to an order [entered March 26, 2015. In the same order, the court entered judgment in favor of Appellees and against Turner.] On April 13, 2015, [Turner filed a notice of appeal]. On April 22, 2015, [the trial court] entered an order pursuant to [Pa.R.A.P.] 1925(b) requiring [Turner] to file a concise statement of errors complained of on appeal. [Turner] timely filed [her] 1925(b) statement[, and the trial court subsequently filed an opinion in compliance with Pa.R.A.P.1925(a) ].

Trial Court Opinion, 7/21/2015, at 1–2 (unnecessary capitalization omitted).

In her brief to this Court, Turner asks us to consider the questions that follow.

1. Did the trial court err in charging the jury as to the sudden emergency doctrine with respect to [Castillo], where the evidence adduced at trial established that [Castillo’s] negligence was responsible for creating any sudden emergency with which he was presented?
2. Did the trial court err in failing to give the assured clear distance ahead rule point of charge to the jury as to [Castillo] where [Castillo] was not confronted with a sudden emergency and where [Castillo] failed to bring his vehicle to a stop within a distance that he could clearly see?

Turner’s Brief at 4 (unnecessary capitalization omitted).

 

Turner’s issues are closely related; so, we will address them together. At trial, Turner objected to the trial court instructing the jury that the “sudden emergency” defense was available to Castillo. Instead, regarding Castillo, Turner believed the court should provide to the jury an instruction pursuant to the “assured clear distance ahead” rule. The court determined that the “sudden emergency” instruction was proper and instructed the jury in the following manner.

*2 In this case the defendants claim they’re not liable for plaintiff’s harm because they face [sic ] sudden emergencies and responded reasonably under the circumstances. In order to establish this defense the defendants must prove to you all of the following: That the defendant faced a sudden emergency requiring immediate responsive action, that the defendant did not create the sudden emergency, and that the defendants’ response to the sudden emergency was reasonable under the circumstances. Defendants must prove his [sic ] defense by a preponderance of the evidence.

A person may not avail himself of the protection of the sudden emergency doctrine if that person himself was driving carelessly or recklessly. A person will not be held to the usual degree of care or be required to use his best judgment when confronted with a sudden and unexpected position of peril only if the peril was created in whole or in part by someone other than the person claiming the protection under the doctrine. The mere happening of an accident is not evidence of negligence or of any liability on the part of the defendants.

N.T., 3/11/2015, at 42–43.2

 

On appeal, Turner first argues that the trial court erred by charging the jury with the “sudden emergency” doctrine as to Castillo. Turner’s Brief at 12–19. In this regard, Turner’s primary argument is that Castillo’s negligence created any sudden emergency Castillo encountered. Next, Turner contends that, because the “sudden emergency” charge was unavailable to Castillo, the court should have charged the jury with the “assured clear distance ahead” rule.3 Id. at 20–23. Lastly, Turner maintains that she was prejudiced by the court’s allegedly erroneous instruction. Id. at 23–24. In so doing, Turner states, inter alia, “In the event that the jury did not believe that Castillo was faced with a sudden emergency (which they did not appear to believe given the fact that he was held 12% liable) they were left without any clear guidance as to what specific standard to use with which to gauge his conduct.” Id. at 23.

 

Our Supreme Court has outlined the principles that govern the review of these matters as follows.

First, in reviewing a claim regarding error with respect to a specific jury charge, we must view the charge in its entirety taking into consideration all the evidence of record and determine whether [ ] error was committed and, if so, whether that error was prejudicial to the complaining party. Error will be found where the jury was probably misled by what the trial judge charged or where there was an omission in the charge which amounts to fundamental error. Additionally, in reviewing a claim regarding the refusal of a court to give a specific instruction, it is the function of [an appellate court] to determine whether the record supports the trial court’s decision. The law is clear that a trial court is bound to charge only on that law for which there is some factual support in the record. We note further that it is not the function of the trial court in charging a jury to advocate, but rather to explain the principles of law which are fairly raised under the facts of a particular case so as to enable the jury to comprehend the questions it must decide.

*3 Lockhart v. List, 665 A.2d 1176, 1179 (Pa.1995).

 

In Lockhart, our Supreme Court aptly explained the “assured clear distance ahead” rule, the “sudden emergency doctrine,” and the interplay between these two concepts in the following manner:

Both the assured clear distance ahead rule and the sudden emergency doctrine, which are most often employed in cases arising out of a motor vehicle accident, are well established in our case law. Given the fact specific nature of motor vehicle accident cases, however, the application of these two doctrines in our case law, either in isolation or in conjunction with each other, is somewhat varied rendering a precise and absolute rule of law thereon rather elusive. Accordingly, a review of the fundamentals of both doctrines is necessary before addressing the specifics of the instant matter.

The assured clear distance ahead rule, which is codified in the Vehicle Code, 75 Pa.C.S. § 3361, requires a motorist to be capable of stopping within the distance that he or she can clearly see…. Th[e Supreme] Court discussed the assured clear distance ahead rule at some length in Fleischman v. City of Reading, 130 A.2d 429 (Pa.1957). Specifically, th[e] Court noted:

“Assured clear distance ahead” means only what it says: a clear distance that is assured, that is, one that can reasonably be depended on. The rule does not mean that the motorist must carry in his mind every possible series of combinations which could conspire against him, and that he must transport ready-made solutions to overcome all fortuitous hazards which suddenly face him. Assured does not mean guaranteed. … The assured clear distance ahead rule has never been interpreted by th[e Supreme] Court as imposing a duty upon a driver to anticipate any and all possible occurrences, however remote. Rather, a driver is required to anticipate only that which is reasonable. In short, the assured clear distance ahead rule simply requires a driver to control the speed of his or her vehicle so that he or she will be able to stop within the distance of whatever may reasonably be expected to be within the driver’s path.

The sudden emergency doctrine, on the other hand, is available as a defense to a party who suddenly and unexpectedly finds him or herself confronted with a perilous situation which permits little or no opportunity to apprehend the situation and act accordingly. The sudden emergency doctrine is frequently employed in motor vehicle accident cases wherein a driver was confronted with a perilous situation requiring a quick response in order to avoid a collision. The rule provides generally, that an individual will not be held to the “usual degree of care” or be required to exercise his or her “best judgment” when confronted with a sudden and unexpected position of peril created in whole or in part by someone other than the person claiming protection under the doctrine. The rule recognizes that a driver who, although driving in a prudent manner, is confronted with a sudden or unexpected event which leaves little or no time to apprehend a situation and act accordingly should not be subject to liability simply because another perhaps more prudent course of action was available. Rather, under such circumstances, a person is required to exhibit only an honest exercise of judgment. The purpose behind the rule is clear: a person confronted with a sudden and unforeseeable occurrence, because of the shortness of time in which to react, should not be held to the same standard of care as someone confronted with a foreseeable occurrence. It is important to recognize, however, that a person cannot avail himself of the protection of this doctrine if that person was himself driving carelessly or recklessly.

*4 Lockhart, 665 A.2d 1176, 1179–80 (footnotes and citations omitted) (emphasis in the original).

 

Even if we assume arguendo that the court erred by charging the jury on the “sudden emergency doctrine” instead of the “assured clear distance ahead rule,” Turner has failed to convince us that such an error prejudiced her. First, as Turner points out, the jury found Castillo to be 12% comparatively negligent; thus, by all appearances, the jury did not afford Castillo the protection of his “sudden emergency” defense. Consequently, to the extent the court erroneously instructed the jury on this charge, the error was harmless. Kukowski v. Kukowski, 560 A.2d 222, 225–26 (Pa.Super.1989).

 

Moreover, we are not persuaded by Turner’s contention that she suffered prejudice because the trial court failed to charge the jury on the “assured clear distance ahead” rule. Contrary to Turner’s suggestion that the jury was left without any clear guidance as to what standard to use to gauge Castillo’s conduct, the trial court provided the jury with detailed instructions on negligence and its elements. N.T., 3/11/2015, at 38 to 51. Indeed, the jury’s verdict sheet reflects that the jury found that Castillo was negligent, that his negligence was a factual cause of harm to Turner, and that Castillo’s negligence constituted 12% of the overall negligence which caused harm to Turner.

 

After reviewing the trial court’s jury charge in its entirety, while taking into consideration all of the evidence of record, we conclude that the charge did not contain prejudicial error as to Turner. Consequently, the trial court did not err by denying Turner’s post-trial motion for a new trial. For these reasons, we affirm the judgment.

 

Judgment affirmed.

 

All Citations

Not Reported in A.3d, 2016 WL 128573

 

 

Footnotes

*

Retired Senior Judge assigned to the Superior Court.

1

Castillo owned the truck he was driving and was hauling a trailer for Safeway, who, according to Castillo’s testimony, merged with Gemini at some point. N.T., 3/7/2015, at 28–19.

2

It is unclear why the court utilized the words “defendants” and “defendant” instead of using “Castillo.” In any event, Turner has never challenged the court’s word choice.

3

In the middle of this argument, Turner contends that, at the very least, the trial court should have charged the jury on both the “sudden emergency doctrine” and the “assured clear distance ahead rule.” Turner’s Brief at 22. Turner does not indicate where in the record she preserved such an issue, in violation of Pa.R.A.P. 2117(c) and 2119(e). Our independent review of the record did not uncover any request from Turner to the trial court that the court give both of these instructions. Consequently, Turner has waived any issue as to whether the court should have given both of the instructions. Pa.R.A.P. 302(a). The issue also is waived because Turner did not include it in her 1925(b) statement, Pa.R.A.P.1925(b)(vii), or in the “statement of questions involved” portion of her appellate brief, Pa.R.A.P. 2116(a).?