2019 WL 1569626
CHECK OHIO SUPREME COURT RULES FOR REPORTING OF OPINIONS AND WEIGHT OF LEGAL AUTHORITY.
Court of Appeals of Ohio, Eighth District, Cuyahoga County.
MARK D. SOBERAY Plaintiff-Appellee,
v.
GREYHOUND LINES INC., ET AL., Defendants-Appellants.
No. 106525
|
RELEASED AND JOURNALIZED: April 11, 2019
JUDGMENT: AFFIRMED
Civil Appeal from the Cuyahoga County Court of Common Pleas
Case Nos. CV-13-817909, CV-14-820348, CV-14-820610, and CV-14-824998
Attorneys and Law Firms
Appearances: Miller, Canfield, Paddock & Stone, P.L.C., Christina J. Marshall and Conor T. Fitzpatrick, for appellants.
Kent B. Schneider Co., L.L.C., Kent Schneider; McCarthy Lebit Crystal & Liffman, Co., Charles Kampinski, Kristin M. Roberts, and Jay H. Salamon; and Robert M. Weber Co., .L.C., Robert M. Weber, for appellee.

JOURNAL ENTRY AND OPINION
LARRY A. JONES, SR., JUDGE
*1 LARRY A. JONES, SR., J.:

{ ¶ 1} Defendants-appellants, Greyhound Bus Lines, Inc. (“Greyhound”) and Sabrina Anderson (“Anderson”) (collectively referred to as “Greyhound”), appeal the jury verdict awarded in favor of plaintiff-appellee Mark Soberay (“Soberay”). For the reasons that follow, we affirm.

{ ¶ 2} On October 9, 2013, Anderson was driving a Greyhound motorcoach westbound on Interstate 80 in Pennsylvania from New York City to Cleveland when the bus collided with a tractor trailer. Akos Gubica (“Gubica”) was driving the tractor trailer, which was rear-ended by the Greyhound bus. According to Anderson, she did not see Gubica’s truck before the collision.

{ ¶ 3} Soberay was a passenger on the bus and suffered severe injuries as a result of the collision. Soberay alleged that the collision occurred after Anderson fell asleep while operating the bus. Greyhound alleged that the collision could not be avoided because Gubica’s truck was traveling so slowly or because Anderson had a medical emergency that caused the collision; specifically that she had a ministroke.

{ ¶ 4} Forty-two plaintiffs filed personal injury actions in Pennsylvania, New York, Ohio, and Texas against Greyhound. Soberay filed suit against Greyhound and Anderson in Cuyahoga County Common Pleas Court. Greyhound filed a third-party complaint against Gubica and his company, C.A.V. (collectively referred to as “Gubica”). Greyhound and Gubica ultimately settled their claims; Gubica was dismissed as a party in the underlying case and is not a party to this appeal.

Pretrial motions
{ ¶ 5} Prior to trial, the trial court decided numerous pretrial motions and determined that substantive Pennsylvania law would apply to the case, but Ohio law would apply to the procedural aspects of the case. The trial court ordered that Greyhound would not be permitted to argue to the jury that Gubica caused the accident and could not discuss Gubica’s conduct in a way that might suggest he was at fault for the accident. The court ruled that any violation of its order would allow Soberay to disclose to the jury the details of the settlement agreement reached by Greyhound and Gubica.

{ ¶ 6} Gubica was taken into custody shortly after the accident and placed in a holding cell with Matthew Welch (“Welch”). Welch testified in a discovery deposition that Gubica told him that he smoked marijuana before the accident. The trial court ordered that Welch’s testimony was inadmissible.

{ ¶ 7} The trial court excluded the conclusion contained in the Pennsylvania State Police Accident Reconstruction Report as to who caused the accident. Accident reconstructionist Corporal Steven Schmit was prepared to testify to the report’s conclusion that a fully attentive driver would have been unable to avoid colliding with Gubica’s truck due to the low speed and lack of visibility of the truck. Trial

{ ¶ 8} The case proceeded to a month-long jury trial at which the following pertinent evidence was presented.

Plaintiff’s Case

1. Gubica
{ ¶ 9} Gubica testified that he told the police he was traveling around 45 m.p.h. at the time of the accident but his speed throughout his trip varied from 40 m.p.h. to 70 m.p.h. depending on the grade of the road. Gubica’s flat bed truck was carrying a load that was secured by a tarp. According to Gubica, the tarp was secure and nothing occurred during the trip that would have caused the tarp to hang off the back of the truck or obscure the truck’s rear lights.

*2 { ¶ 10} Gubica did not see the Greyhound bus prior to the collision.

2. James Evans
{ ¶ 11} James Evans (“Evans”), a professional truck driver who saw Gubica driving prior to the accident, observed Gubica’s truck climbing Mount Pocono at a steep grade and recalled that the vehicle was in decent condition. According to Evans, Gubica was doing a “pretty decent job of getting up the mountain” and thought Gubica was traveling at a regular speed before the accident occurred: “He would have been [going] 35 [m.p.h.], 40 [m.p.h.] plus, * * * going up the mountain.” Evans also saw that Gubica’s truck lights were on and visible and his tarp was properly secured.

{ ¶ 12} Evans also encountered the Greyhound bus before the accident. The bus came over the center line into his lane and he was forced to swerve to the right to avoid colliding with the bus. He also saw the bus veer back and forth hitting the rumble strips. He noted that the bus was weaving and “top swaying,” which made Evans think that the driver was either texting or sleeping.

3. John Smith
{ ¶ 13} John Smith (“Smith”), an expert in accident investigation and reconstruction, testified that he examined Gubica’s rear lights after the crash and opined that all nine of the truck’s lights were on at the time of the collision. He observed that Gubica’s load was not obscuring the lights and the truck had reflective tape, known as “conspicuity tape,” on the back of the vehicle. Smith opined that there were no inherent sight obstructions, and Anderson should have been able to see Gubica’s vehicle with sufficient time and distance to avoid the collision.

{ ¶ 14} Smith testified that CADEC (GPS) data for seven miles prior to the accident demonstrated that the bus had been weaving or drifting in its lane for an extended period before impact: “The data does show that there’s been a weaving to the bus driver’s actions leading up to the area of impact.” Smith opined that Anderson did not take any evasive maneuvers before the accident because she was fatigued or asleep. He found no evidence that Anderson blacked out prior to the collision because “there’s braking action that’s occurring within a second of impact.” Smith testified:
One of the things you look for in fatigue collisions is driver input soon or at the time of the event. That’s the key characteristic of a fatigue or a fall-asleep type of collision, is suddenly the driver does something because they become aware of their surroundings. And in this case we have that. We have the brake application within about a second of the collision time, which is somebody becoming aware of their surroundings again and then taking the action.

{ ¶ 15} Smith testified that he considered defense expert Steven Schorr’s (“Schorr”) report. Smith found that Schorr used incorrect data to calculate the speed of Gubica’s truck. Smith testified “to a reasonable degree of engineering certainty” that Gubica’s speed at the time of impact was at least 43 to 45 m.p.h. and that there was “no possible way he was doing 21 [m.p.h.]” as Greyhound alleged.

{ ¶ 16} Smith testified that the cause of the collision was Anderson driving into a vehicle that “should have been readily apparent to her.” According to Smith, Anderson could have seen Gubica’s truck from 1,000 feet away and would have had “25 seconds to see, perceive, react, slow down, move into the other lane, go around it, whatever you choose to do. But there’s certainly plenty of time and distance to avoid. Even if she waited until the very last moment and slammed on her brakes, she still would be able to avoid it if she’s more than a few seconds out.” Smith opined that there was no evidence that Gubica contributed to the collision.

4. Dr. Mark Edwards
*3 { ¶ 17} Dr. Mark Edwards (“Dr. Edwards”) testified as an expert in human factors.1 Dr. Edwards testified that, based on accident and research data, Anderson’s failure to even attempt to avoid the collision showed that she was not alert and attentive at the time the accident occurred.

{ ¶ 18} Dr. Edwards testified that Gubica’s truck had the brightest type of conspicuity tape permitted by the Department of Transportation, and the tape was displayed properly, running the entire width of the truck. According to Edwards, the truck’s rear lights would have made it “even more obvious” that the object ahead of Anderson was a truck. He testified that a reasonably attentive driver would have seen and known from 1,000 feet back that a tractor-trailer was ahead of his or her vehicle. According to Edwards, even if he were to assume that Gubica was traveling 16 m.p.h. and the bus was traveling 67 m.p.h., Anderson could have avoided colliding with the truck by employing either a combination of mild braking and a lane change or a “little bit harder braking and no lane change.”

{ ¶ 19} Dr. Edwards disputed the opinion of defense expert, Dr. Robert Sugarman (“Dr. Sugarman”), who had opined that Anderson would not have been able to avoid the collision. Dr. Edwards opined that Dr. Sugarman’s opinion had no scientific basis and the scientific method the doctor relied on “consistently produces incredibly short distances that just aren’t realistic.”

5. Dr. Steven Levin
{ ¶ 20} Dr. Steven Levin (“Dr. Levin”), an expert in neurology, testified that he was contacted to evaluate Greyhound’s theory that Anderson had suffered a transient ischemic attack (“TIA”), commonly known as a “ministroke,” just prior to the collision. Dr. Levin opined that Anderson did not suffer a TIA. According to Dr. Levin, people who experience a TIA do not lose consciousness, instead they have “an event that typically lasts for minutes and they know about it and they can give a history about it, * * * they don’t black out. Another reason Dr. Levin did not think Anderson suffered a TIA was that a TIA usually effects a person’s face and arm, not their leg: “And in her case it started with her leg and then it’s not clear whether the arm — how much time was between the arm and the leg, a short period of time, and then the leg — the arm slumped over in terms of her shoulder and her face was not involved.”

{ ¶ 21} Dr. Levin opined that if Anderson had a right-sided TIA, she still should have been able to see what was in her path and presumably would have been able to use her left arm and leg to steer the bus and control the pedal. Dr. Levin asserted that a neurologist could not reasonably diagnose Anderson as having had a TIA because one would have to explain the fact that she was reported to be driving erratically but had no recollection of anything prior to the accident except for the arm and leg symptoms.

{ ¶ 22} Dr. Levin disagreed with defense expert Dr. Lee Harris’s hypothesis that Anderson had a TIA and suffered a concussion that caused her to experience retrograde amnesia. Dr. Levin pointed out that Anderson did not suffer a head impact and he had not seen medical records or other evidence that indicated she experienced a TIA. Dr. Levin also rejected the theory that a concussion could have resulted from sudden deceleration of the bus. Dr. Levin opined to a reasonable degree of medical certainty that Anderson did not suffer a TIA, but rather fell asleep prior to the crash.

6. Testimony of Various Passengers (read in from depositions)
*4 { ¶ 23} Several passengers testified at deposition and their testimony was read into the record, in the presence of the jury. The passengers testified that Anderson looked exhausted when she first got on the bus. The passengers noted that, once the bus reached Interstate 80, it began weaving and swerving from lane to lane and the swerving got worse closer to the time of the accident. Certain witnesses noted that the bus hit rumble strips at least two times prior to the accident. They also noted that the bus was varying between accelerating and slowing down, as if Anderson was repeatedly pressing and releasing the accelerator. Passengers feared there was something wrong with the driver and several passengers saw Anderson nod off.

{ ¶ 24} One passenger said that shortly before the accident, Anderson almost hit a truck, which had to move over to avoid her. This passenger testified that he could clearly see Gubica’s red tail lights along the back of the truck as they approached it. According to the witness, the truck was moving and “there is no way it was only going 16 m.p.h.”

{ ¶ 25} Several passengers testified that during the last seconds before the collision the bus was weaving from one lane to another and they knew there would be an accident.

7. Mark Soberay
{ ¶ 26} Soberay testified that the bus began weaving back and forth as soon as it got on the highway outside of New York City. He thought the driver was dozing off. Soberay stated that he thought about trying to get off the bus but they were in the middle of nowhere and he worried he would get in trouble for distracting the driver.

{ ¶ 27} Soberay was asleep when the collision occurred. He was trapped for two to three hours before being rescued and thought he was going to die. Soberay was hospitalized for over a month in constant excruciating pain. He estimated he had 12 surgeries during his time in the hospital and 30 surgeries by the time of trial. Soberay lost his right leg below the knee and had extensive, irreparable injuries to his left leg, shoulder, eye, back, gallbladder, urethra, heart, pelvis and hips. Soberay testified that he is unable to have sexual intercourse, is sterile, lives in fear of sudden death due to the stint in his heart, still spends 15 to 24 hours a day in bed, and is in constant pain.

Greyhound’s Case
{ ¶ 28} Greyhound proceeded on two theories that Anderson was not at fault: the “emergency exception” to the assured clear distance rule or “reasonable discernability.” Under the emergency exception, Anderson was not negligent because she suffered a medical emergency. Pursuant to the theory of “reasonable discernability,” a reasonable person would not have seen Gubica’s truck in time to have avoided the collision.

1. Sabrina Anderson
{ ¶ 29} Anderson started driving for Greyhound in 2001. Anderson completed a multistep training process before she began driving a bus, including training on how to prevent fatigued driving. According to Greyhound, a person’s own fatigue can be hard to gauge, so its drivers are trained extensively to recognize signs of fatigue that might otherwise go unnoticed. Drivers are trained about “body clocks,” circadian rhythms, proper diet, proper rest, and about accumulated sleep debt that could occur. Drivers are retrained on fatigue management every two years and are tested about the materials after each session.

{ ¶ 30} At the time of the accident, Anderson had driven “tens of thousands of hours” for Greyhound, was in a supervisory position, and had not been involved in an accident while employed by Greyhound.

{ ¶ 31} On October 8, 2013, Anderson drove her route from Cleveland to New York City. Before that route, she had been off work for four days. Anderson arrived in New York City around 11:30 a.m. She checked into staff dormitory housing before noon and requested an 8:30 p.m. wake-up call.

*5 { ¶ 32} After checking out of the dorm, Anderson conducted a pretrip inspection of the bus she was to drive to Cleveland. She noticed a mechanical problem and requested a replacement bus. She got a new bus and departed for Cleveland around 10:30 p.m., 20 minutes behind schedule.

{ ¶ 33} Anderson testified that just before the collision occurred, she tried to “move my leg off the accelerator, and it wouldn’t move, my right leg. And I put my arm on my leg to figure out why it wouldn’t move and I don’t remember my arm coming back up. I just don’t remember anything after that.” According to Anderson, she did not remember anything until she regained consciousness after the collision.

{ ¶ 34} The police took Anderson’s statement and she related that after moving her arm, she blacked out. Anderson testified that she left New York City well rested and did not fall asleep behind the wheel. Anderson did not remember weaving or hitting rumble strips prior to the accident.

{ ¶ 35} Anderson underwent a neurological exam after the accident, which found “negative symptoms, no syncope, seizures, weakness, gait problems, numbness, burning pain, tremors or memory loss.” After the accident, Anderson did not experience any neurological symptoms similar to what she reported happened prior to the crash.

{ ¶ 36} Anderson lost her right leg in the accident.

2. Alan Smith
{ ¶ 37} Greyhound established a fatigue management program for its drivers in 2003. Alan Smith (“Alan”), Greyhound’s director of safety, testified regarding the program and extensive training drivers receive when they are hired and every two years thereafter. According to Alan, when a driver spots a sign of fatigue, he or she is trained to take appropriate action such as calling off beforehand or, if the driver experiences fatigue during a route, stopping their vehicle. Alan testified that Greyhound instructs its drivers not to try and “make up time” on the road. Alan stated that the company’s policy was “if you know you’re going to be late, it don’t matter, just stay late. As long as everyone makes it to the location safely. So we do preach on-time performance, but if you know you’re going to be late, just stay late.”

3. Emergency Exception — Dr. Lee Harris
{ ¶ 38} Neurologist Dr. Lee Harris (“Dr. Harris”) opined that Anderson had a TIA just prior to the accident. He based this on her report that she experienced numbness in her arm and leg. Dr. Harris admitted there is no objective test that can diagnose a TIA and a TIA would not have caused Anderson to lose consciousness. Dr. Harris theorized that sudden deceleration caused Anderson to suffer a concussion, and the concussion caused her to experience unconsciousness and retrograde amnesia; but, he conceded that nothing in the medical records indicated that Anderson had hit her head.

{ ¶ 39} Dr. Harris admitted that a TIA would not have affected Anderson’s vision; she would not have been prevented from seeing what was in front of her. He further conceded that even if Anderson had experienced a TIA, she could have used her left arm and leg to steer the bus and operate the brake. Finally, Harris conceded that the alleged erratic driving that occurred before the accident would not be attributable to a TIA but could be attributable to her falling asleep.

4. Reasonable Discernability
*6 { ¶ 40} Greyhound’s second theory of the case was reasonable discernability, or that a reasonable person would not have seen Gubica’s truck in time to avoid it.

{ ¶ 41} Accident reconstruction expert Schorr testified that he calculated Gubica’s speed at the point of collision to have been between 19 – 21 m.p.h. Dr. Sugarman testified that Anderson would not have been able to avoid the collision with Gubica if he was traveling around 21 m.p.h. In rendering his opinion, Dr. Sugarman assumed that Gubica’s tail lights were visible and there was reflective tape below the lights. He testified that Anderson would have seen the lights and the tape, but she still would not have had enough time to avoid the impact. Thus, according to Dr. Sugarman, it did not matter whether Anderson was asleep at the time of the accident because the collision would have happened to an awake and alert driver.

Jury Instructions
{ ¶ 42} During the jury charge, and over Greyhound’s objections, the trial court instructed the jury that any act or failure to act by Gubica, including his speed, was not a cause of this collision or Soberay’s injuries.

Verdict and Post-Trial Motions
{ ¶ 43} The jury awarded Soberay $23,018,790 in compensatory damages and $4,000,150 in punitive damages. Soberay moved for prejudgment interest and attorney fees. Greyhound moved for a new trial and judgment notwithstanding the verdict (“JNOV”). The court denied Greyhound’s motions and awarded Soberay $1,276,938.96 in prejudgment interest and $300,000 in attorney fees. Greyhound filed a notice of appeal and assigns seven errors for our review.

Law and Analysis

JNOV/New Trial
{ ¶ 44} As mentioned, Greyhound filed a post-verdict motion for JNOV, or in the alternative, a new trial, pursuant to Ohio Civ.R. 50(B). The trial court denied Greyhound’s motion. Greyhound’s JNOV motion was governed by the version of Civ.R. 50(B) that was in effect at the time its motion was made:2
Whether or not a motion to direct a verdict has been made or overruled and not later than twenty-eight days after entry of judgment, a party may move to have the verdict and any judgment entered thereon set aside and to have judgment entered in accordance with the party’s motion * * *. A motion for a new trial may be joined with this motion, or a new trial may be prayed for in the alternative. If a verdict was returned, the court may allow the judgment to stand or may reopen the judgment. If the judgment is reopened, the court shall either order a new trial or direct the entry of judgment, but no judgment shall be rendered by the court on the ground that the verdict is against the weight of the evidence. * * *

{ ¶ 45} A motion for JNOV is used to determine whether the evidence is totally insufficient to support the verdict. Harper v. Lefkowitz, 10th Dist. Franklin No. 09AP-1090, 2010-Ohio-6527, ¶ 8. A motion for JNOV raises a question of law because the motion examines the “ ‘materiality of the evidence, as opposed to the conclusions to be drawn from the evidence.” ’ Texler v. D.O. Summers Cleaners & Shirt Laundry Co., 81 Ohio St.3d 677, 680, 693 N.E.2d 271 (1998), quoting Ruta v. Breckenridge-Remy Co., 69 Ohio St.2d 66, 68-69, 430 N.E.2d 935 (1982). Therefore, neither the weight of the evidence nor the credibility of the witnesses is proper consideration for the trial court. Posin v. A.B.C. Motor Court Hotel, Inc., 45 Ohio St.2d 271, 275, 344 N.E.2d 334 (1976). The evidence ‘ “must be construed most strongly in favor of the party against whom the motion is made, and, where there is substantial evidence to support [that] side of the case, upon which reasonable minds may reach different conclusions, the motion must be denied.’ ” Osler v. Lorain, 28 Ohio St.3d 345, 347, 504 N.E.2d 19 (1986), quoting Posin at id.

*7 { ¶ 46} A favorable ruling on such a motion is not easily obtained. Osler at id. We employ a de novo review on a trial court’s ruling on a JNOV motion. Kanjuka v. MetroHealth Med. Ctr., 151 Ohio App.3d 183, 2002-Ohio-6803, 783 N.E.2d 920, ¶ 14 (8th Dist.).

{ ¶ 47} On appeal, Greyhound claims that its motion for a new trial was filed pursuant to Civ.R. 59(A). Civ.R. 59(A) sets forth grounds by which a party may seek a new trial. We note, however, that although Greyhound requested a new trial if the court did not grant it a JNOV, Greyhound did not request a new trial pursuant to Civ.R. 59(A). Greyhound did not discuss Civ.R. 59 in its post-verdict motion nor did it discuss grounds for a new trial pursuant to that rule.

{ ¶ 48} The issues raised on appeal in the first and second assignments of error, the “empty chair” rule and the “assured clear distance exception” jury instruction, were not raised in Greyhound’s JNOV/motion for a new trial.3 Consequently, Soberay argues, Greyhound has waived the first and second assignments of error on appeal.

{ ¶ 49} Soberay cites A N Bros. Corp. v. Total Quality, L.L.C., 2016-Ohio-549, 59 N.E.3d 758, ¶ 43 (12th Dist.), where the court declined to consider whether the jury erred in finding in favor of the plaintiff on its quantum meruit claim because the jury found in favor of the defendant on the unjust enrichment claim. The court determined that it would not consider the issue on appeal because it was not raised in the defendant’s motion for a new trial. Id.

{ ¶ 50} In support of its finding, the A N Bros. Corp. court cited Wells Fargo Bank, N.A. v. Geiser, 12th Dist. Butler No. CA2013-06-103, 2014-Ohio-3379, where the court found that a party cannot raise new issues or legal theories for the first time on appeal and failure to raise an issue before the trial court results in the waiver of that issue for appellate purposes. In Geiser, the court declined to address an issue that was raised for the first time on appeal; the issue had not been raised at the trial-court level. Id. at ¶ 10, fn. 3.

{ ¶ 51} In this case, although the exact issues raised by the first and second assignments of error were not raised in Greyhound’s JNOV motion, they certainly were raised numerous times at the trial-court level. We find that Greyhound has properly preserved these issues for review. That said, because Greyhound failed to argue in its motion that it was entitled to a new trial pursuant to Civ.R. 59(A), we decline to consider whether the court erred in denying its motion for a new trial. Accordingly, we will consider whether the court erred in denying its JNOV motion pursuant to Civ.R. 50 but Greyhound has waived review of whether the court erred and/or abused its discretion in denying its alternative motion for a new trial.4

{ ¶ 52} We thus proceed to consider the assignments of error.

“Empty Chair” Rule

I. The trial court cited Pennsylvania’s empty chair rule as a basis to prohibit Defendants from arguing that a non-party who Plaintiff elected not to sue was the cause of Plaintiff’s harm. The trial court cited that same Pennsylvania rule as a basis to instruct the jury that the non-party did not cause Plaintiff’s harm. Defendants argue that Pennsylvania has no such rule and a new trial should be ordered.
*8 { ¶ 53} According to Greyhound, the trial court erred when it held that Pennsylvania’s “empty chair rule” (1) prevented Greyhound from attempting to argue that Gubica’s actions caused the accident; (2) necessitated a jury instruction that Gubica “did not” cause the accident and the jury could not take Gubica’s actions into consideration when determining Greyhound’s negligence; and (3) necessitated excluding evidence that Gubica caused the accident.

{ ¶ 54} Both parties agree that the “empty chair rule” does not exist. Greyhound contends that the trial court applied the purported empty chair theory to exclude evidence that was key to its case; specifically, the Pennsylvania State Police Accident Reconstruction Report and Welch’s deposition testimony that Gubica told him he smoked marijuana before the collision. But the trial court excluded this evidence prior to trial through motions in limine, before Greyhound and Gubica reached a settlement and Gubica was dismissed from the case. Thus, the court did not exclude the report and Welch’s witness testimony on the basis of the empty chair rule.

{ ¶ 55} Pennsylvania’s comparative negligence statute, 42 Pa.C.S. 7102 (“Fair Share Act”) allows parties in a tort action to submit a nonparty “who has entered into a release with the plaintiff with respect to the action” to the trier of fact for the limited purpose of apportioning liability. 42 Pa.C.S. 7102(a.2). Any attribution of responsibility imputed to the nonparty is inadmissible “in any other action or proceeding for any purpose.” Id.; see also Baum v. Metro. Property & Cas. Ins. Co., W.D.Pa. No. 2:16-CV-623, 2018 U.S. Dist. LEXIS 5048, 5 (Jan. 11, 2018). As mentioned, the trial court decided prior to trial that Greyhound was prohibited from arguing that Gubica caused the accident. It was Greyhound’s decision to settle with Gubica and not seek to apportion fault under the Fair Share Act; therefore, pursuant to the Fair Share Act, Greyhound was prohibited from imputing responsibility to Gubica. We find no error with the trial court’s judgment in this regard.

{ ¶ 56} In light of the above, the first assignment of error is overruled.

Assured Clear Distance and the Emergency Exception

II. A jury must be instructed that the assured clear distance rule is inapplicable if the jury could permissibly find that a reasonably careful driver would not have appreciated the hazard until nearly upon it. Defendants presented expert testimony that, due to visibility factors and the abnormally slow highway speed of the Gubica’s truck, a reasonably attentive driver in Ms. Anderson’s position would not have been able to avoid Gubica’s truck. Defendants argue a new trial should be ordered because of the trial court’s failure to charge the jury on the exception.
{ ¶ 57} In the second assignment of error, Greyhound claims that the trial court erred in failing to instruct the jury on the emergency exception to the assured clear distance rule.

{ ¶ 58} 75 Pa.C.S. 3361, Pennsylvania’s assured clear distance statute, provides:
Driving vehicle at safe speed
No person shall drive a vehicle at a speed greater than is reasonable and prudent under the conditions and having regard to the actual and potential hazards then existing, nor at a speed greater than will permit the driver to bring his vehicle to a stop within the assured clear distance ahead.

{ ¶ 59} The assured clear distance rule requires a driver to control the speed of his or her vehicle so that the driver will be able to stop within the distance of whatever may reasonably be expected to be within the driver’s path. Fleischman v. Reading, 388 Pa. 183, 187, 130 A.2d 429 (Pa. 1957).

*9 { ¶ 60} The range of a driver’s assured clear distance may vary from one situation to another:
It is apparent that this distance, the range of a driver’s vision, may vary according to the visibility at the time and other attendant circumstances, and that it may be “long, as on a straight road in bright daylight, or it may be shortened by storm, fog, a curve in the road or other conditions.” At night, the assured clear distance is the scope of the driver’s headlights and the motorist driving at night must take care not to drive at a speed that is faster than would allow him [or her] to stop inside that range of vision.
(Citations omitted.) Unangst v. Whitehouse, 235 Pa.Super. 458, 464, 344 A.2d 695 (1975).

{ ¶ 61} The Pennsylvania Supreme Court has held that “where a violation of the assured clear distance rule has been clearly established by the evidence, the violation can be deemed negligence as a matter of law.” Springer v. Laptowski, 535 Pa. 332, 333, 635 A.2d 134 (1993), citing Haines v. Dulaney, 424 Pa. 608, 227 A.2d 625 (1967), and Metro v. Long Transp. Co., 387 Pa. 354, 127 A.2d 625 (1956).

{ ¶ 62} Greyhound argues that the trial court erred in failing to charge on the sudden emergency doctrine, claiming there was ample evidence a jury could have believed that would have made applicable that exception to the assured clear distance rule. In Levey v. DeNardo, 555 Pa. 514, 519, 725 A.2d 733 (Pa. 1999), the Pennsylvania Supreme Court explained the purpose of the emergency exception to the assured clear distance rule:
[A] person confronted with a sudden and unforeseeable occurrence, because of the shortness of time to react, should not be held to the same standard of care as someone confronted with a foreseeable occurrence.

{ ¶ 63} Here, the court instructed the jury that it could find that Anderson’s alleged medical emergency was a sudden emergency. Greyhound claims that it was entitled to an additional jury instruction that Gubica’s truck, either its speed or its lack of visibility, was also a sudden emergency.

{ ¶ 64} In Unangst, 235 Pa.Super. 458, 344 A.2d 695, the court summarized Pennsylvania law relative to assured clear distance:
At night, the assured clear distance is the scope of the driver’s headlights, and the motorist driving at night must take care not to drive at a speed that is faster than would allow him [or her] to stop inside that range of vision. The obstacle must be discernible, however. The rule has been held inapplicable where the object ahead of the driver is so deceptive in appearance or camouflaged that even a reasonably careful driver could not realize the object was there until [the driver] was upon it.
(Citations omitted.) Id. at 463-464.

{ ¶ 65} Expert testimony from both parties established that a reasonably alert and attentive driver would have seen the tail lights and conspicuity (reflective) tape on the back of Gubica’s truck come into view at a distance of 1,000 to 1,200 feet. Soberay’s human factors expert, Dr. Edwards, testified that while Anderson might not have recognized that she needed to begin evasive maneuvers at a sight distance of 1,000 feet, she would understand at 1,000 feet that there was something in front of her because the tape would be visible, and she would know that it was a tractor-trailer because those are the only vehicles marked with the reflective tape. Soberay’s accident investigation and reconstruction expert, Smith, testified that there were no inherent sight obstructions to the bus driver’s visibility and she should have been able to see the truck with sufficient time and distance to avoid the collision. Dr. Sugarman, Greyhound’s expert witness, testified that the lights on the truck would have been visible from “a good distance back. Maybe 1,000 feet.”

*10 { ¶ 66} Greyhound has not alleged that a reasonably alert and attentive bus driver going approximately 65-67 m.p.h. could not have sufficiently slowed the bus or changed lanes within the sight distance of 1,000 feet so as to avoid the collision. Instead, Greyhound argued that a reasonably alert driver would not have seen the truck until the driver was upon it — Greyhound’s defense was based solely on Dr. Sugarman’s testimony that, at a distance of 1,000 feet, the presence of a truck was discernible, but the alleged slowness of the truck was not readily apparent.

{ ¶ 67} The purpose of the assured clear distance rule, however, is to require drivers to operate their vehicles at such a rate of speed and in such a manner that they can always stop within the distance they can clearly see, which at night is the distance covered by their headlights.

{ ¶ 68} Greyhound relies on Stano v. Rearick, 441 Pa. 72, 271 A.2d 251 (1970), to support its position that there was a question of fact concerning whether Gubica’s truck was indiscernible until it was too late for Anderson to avoid it. In Stano, the driver of an automobile in which Stano was a passenger testified that he was not more than 20 feet away from a tractor-trailer when he first perceived it. The Stano court noted that the major thrust of the driver’s argument against the application of the assured clear distance rule was that the truck was so dirty as to be camouflaged and not perceptible even though it was within the driver’s range of vision. Id. at 77. The court noted that the driver’s argument rested on the determination that the tractor-trailer, under these conditions, would be imperceptible to a reasonably prudent driver until approximately 20 feet away. Id. The Stano court remanded the case for a new trial in which the jury was to be charged on both the assured clear distance rule and the sudden emergency exception, but recognized that reasonable persons could differ about whether the tractor-trailer was so dirty as to be camouflaged and not perceptible to a reasonably prudent driver until the vehicle was just 20 feet away. Id. at 78.

{ ¶ 69} In the present case, Greyhound does not contend that Gubica’s truck was imperceptible within a reasonably attentive driver’s range of vision. Instead, Greyhound claims that even though it was perceptible, Anderson did not stop within the assured clear distance because of the truck’s purported slow speed. We find, however, that even if it were the case that Gubica was traveling slower than the estimated speed, it would not excuse Anderson’s failure to comply with the assured clear distance rule. Based on this, unless Anderson encountered a sudden emergency, she violated the assured clear distance rule.

{ ¶ 70} The following cases are instructive on this issue.

{ ¶ 71} In Lockhart v. List, 542 Pa. 141, 150-151, 665 A.2d 1176 (1995), the Pennsylvania Supreme Court held that a person cannot avail him or herself of the protection of the sudden emergency exception if that person was driving carelessly or recklessly. See also Levey, 555 Pa. 514, 725 A.2d 733. Thus, an occurrence resulting in a collision is not a sudden emergency unless it was an unforeseeable occurrence and was not in any way caused by the negligence of the person seeking to claim it as a defense.

{ ¶ 72} In Erie Ins. Exchange v. United States, 115 F.Supp.2d 493 (M.D.Pa. 2000), the driver of a U.S. Postal Service tractor-trailer collided with the back of a SUV while driving after midnight on a snow-covered highway. The defendant driver argued that he should be excused from liability under the assured clear distance rule because his encounter with the slowing or fully stopped SUV represented a sudden emergency. The court held that the sudden emergency doctrine was inapplicable, stating:
*11 The defendant’s “sudden emergency” rationale depends upon the proposition that [its employee driver] could not reasonably be expected to have anticipated an encounter with a stopped or very slow moving vehicle in the roadway or partially in the roadway. First, it must be noted that an encounter with a stopped vehicle in a roadway, including a 65 miles per hour roadway, is by no means an uncommon experience. It is an experience that any driver at any time must anticipate, whether the stopped vehicle is the result of an accident, road construction, a car stopped to permit an animal to cross, a snowstorm, intense rainfall, or any other such occasional roadway phenomenon.
Id. at 495.

{ ¶ 73} In Grochowalski v. Young, E.D.Pa. CIVIL ACTION No. 93-CV-2590, 1994 U.S. Dist. LEXIS 7993 (June 13, 1994), a driver traveling within the speed limit collided with the rear of a vehicle that changed lanes in front of him without using a turn signal and then unexpectedly slowed down. The court rejected the notion that this was a sudden emergency, stating:
Defendants asserted that Young was unable to stop in time to avoid the collision with Grochowalski’s vehicle because Grochowalski changed lanes suddenly and without using his turn signal and then slowed down. Defendants contend that this created a sudden emergency which would excuse any liability arising from a failure to stop in time to avoid this collision. In Pennsylvania, the sudden slowing or stopping of a vehicle must be anticipated.
Id. at 6.

{ ¶ 74} In Commonwealth v. Matroni, 2007 PA Super 110, 923 A.2d 444, the defendant argued that a sudden emergency arose when the pickup truck traveling in front of him changed lanes, unexpectedly revealing a slow moving tractor-trailer. The court addressed the sudden emergency argument, stating:
Matroni argues that a sudden emergency arose when the pick-up truck traveling in front of him changed lanes, revealing the slow moving tractor-trailer. The sudden emergency doctrine, however, does not apply to vehicles moving in the same direction, nor does it apply when the defendant is responsible for creating the emergency.
* * *
Here, the tractor trailer, a vehicle moving in the same direction as Matroni, was clearly not suddenly or unexpectedly thrust into Matroni’s path of travel. Even if we were to assume that the tractor trailer decelerated quickly, sudden braking has been held not to constitute a sudden emergency.
Id. at ¶ 22, 23.

{ ¶ 75} In Cunningham v. Byers, 1999 PA Super 146, 732 A.2d 655 (Pa. Super. 1999), the plaintiff was struck from behind on a dark, rainy night as she began to make a turn at an intersection. The defendant saw the plaintiff’s car and began to slow down. When the defendant realized the plaintiff was stopped, he tried to slow down, but did not have time to avoid hitting her car. The court of appeals found that the trial court erred in instructing the jury on the sudden emergency doctrine:
This case does not present a factual situation in which Mr. Byers was suddenly presented with an emergency by an unexpected interjection of a moving object in his path. Mr. Byers testified that as he descended from the crest of the hill on Dinnerbell Road, he observed Mrs. Cunningham’s vehicle. * * * Unlike situations where a driver unexpectedly comes upon a vehicle blocking a roadway, the evidence revealed Mr. Byers’ vehicle was traveling in the same direction as Mrs. Cunningham’s vehicle, and he observed her vehicle in plain view for at least 100 yards before the point of impact. The fact that Mr. Byers did not observe any brake lights or turn signal from Mrs. Cunningham’s vehicle does not constitute a situation which qualifies as a sudden emergency.
*12 Id. at ¶ 9.

{ ¶ 76} Thus, it is generally reversible error for a court to charge a jury on both the assured clear distance and sudden emergency doctrines unless a reasonable person could find that a driver, without any negligence on the driver’s own part, encountered an unforeseeable occurrence that suddenly appeared in the driver’s path and cut down or eliminated the driver’s assured clear distance.

{ ¶ 77} In this case, the evidence was that Gubica’s truck was visible from a minimum distance of 1,000 feet and there was nothing obstructing Anderson’s line of sight from the moment she would or should have seen tail lights and reflective tape until the moment she struck the truck. Moreover, numerous witnesses testified that Anderson was driving negligently.

{ ¶ 78} Evans, a professional truck driver, testified that he saw the Greyhound bus cross the center line, hit the rumble strips more than once, and saw the bus weaving and “top swaying.” Several witnesses testified at deposition that the bus was weaving and swerving from lane to lane and the swerving got worse closer to the time of the accident. Witnesses noted that the bus hit rumble strips at least twice and, prior to the accident, the bus would alternately accelerate and slow down, as if the driver was repeatedly pressing and releasing the accelerator. Some passengers feared there was something wrong with the driver and several passengers saw Anderson nod off. One passenger said that shortly before the accident, Anderson almost hit a truck, which had to move over to avoid her. Soberay testified that the bus began weaving back and forth as soon as it got on the highway outside of New York City and he observed Anderson appear to be dozing off.

{ ¶ 79} Next, we emphasize that in Pennsylvania, the sudden slowing of a vehicle or the presence of a stopped vehicle on a roadway, even a highway, is deemed a foreseeable occurrence that must be anticipated by drivers in calculating a safe speed as a matter of law. In this case, Anderson was following a steadily moving truck whose presence would have been known to a reasonably attentive driver well within the distance needed to avoid it, even if we assume, as Greyhound argued, that Gubica’s truck was traveling 16 to 21 m.p.h.

{ ¶ 80} As mentioned, numerous other lawsuits were filed by passengers injured in this crash. Two of those cases, Livingston v. Greyhound Lines, Inc., C.P. No. 140402946 (Philadelphia C.P.) and Brown v. Greyhound Lines, Inc., C.P. No. 131202598 (Philadelphia C.P.) were consolidated and proceeded to trial. After a verdict was reached for the plaintiffs, the trial court issued a post-verdict opinion. In its opinion, the court noted that Greyhound, in asking for a new trial, alleged that the trial court had failed to instruct the jury that the assured clear distance ahead rule is inapplicable if the collision between its bus and the truck it rear ended was unavoidable due to a sudden emergency. See Livingston v. Greyhound Lines, Inc., C.P. Nos. 140402946 and 131202598, 4 (Feb. 22, 2018).

*13 { ¶ 81} The court noted that in order to be afforded the charge on the sudden emergency defense, it was Greyhound’s burden to prove that (1) Anderson faced a sudden emergency requiring immediate responsive action; (2) Anderson did not create the sudden emergency; and (3) Anderson’s response to the sudden emergency was reasonable under the circumstances. (In Livingston, as in this case, Greyhound blamed Anderson’s inability to avoid the collision on Gubica’s alleged slow speed and the assertion that his truck was not properly visible.)

{ ¶ 82} The Livingston court held:
Part of Greyhound’s defense was that the C.A.V. trailer was not properly visible to Anderson as she approached it. A driver’s failure to observe the brake lights, tail lights or turn signals of the leading vehicle does not warrant an instruction on the sudden emergency doctrine. This is true even when the leading vehicle’s taillights are inoperable. Elder v. Orlich, 483 A.2d 474 (Pa. Super. 1984).

{ ¶ 83} The court concluded:
There is no disagreement that the bus and truck were traveling in the same direction at the time of the collision. Although there was testimony that the truck’s tail lights may have been partially covered prior to impact, some of the tail lights would still have been visible. As explained in Elder, Anderson’s failure to see those tail lights did not warrant a sudden emergency situation. Even though the tail lights may have been partially covered, which is analogous to some degree to the inoperable taillights of the leading vehicle in Elder, that fact did not automatically warrant this court giving the instruction.
This conclusion is further supported by the fact that not a single witness, not even Anderson herself, testified to any evasive action being taken prior to impact and further the evidence to support the fact that she never even attempted to apply the brakes. In light of this, there was no evidence to show that she responded at all, let alone reasonably, when faced with this situation. Therefore, Greyhound could not meet its burden to be entitled to this charge * * *.
Livingston, C.P. Nos. 140402946 and 131202598, at 23-24.

{ ¶ 84} Likewise, we agree that Anderson violated that assured clear distance rule and that no emergency exception relative to Gubica’s vehicle existed so as to warrant an additional jury instruction on the doctrine. Therefore, the trial court did not err in failing to give such an instruction and a JNOV is not warranted on this claim.

{ ¶ 85} The second assignment of error is overruled.

Greyhound’s Internal Rules and Regulations

III. Internal company rules are not a company’s legal standard of care, and Plaintiff presented no testimony that Defendants had a legal duty to make stops after driving any particular distance. Despite this, the trial court permitted Plaintiff to repeatedly argue to the jury that Greyhound company rule G-40, which Plaintiff interprets as requiring a stop approximately every 150 miles or 3 hours, was the standard of care. And the trial court instructed the jury that they could find Greyhound negligent for failing to enforce company rules. Defendants argue that a new trial should be ordered because the jury instruction was reversibly erroneous and Plaintiff’s 334 separate references to the rule were unduly prejudicial.
{ ¶ 86} In the third assignment of error, Greyhound contends that it is entitled to a new trial due to (1) jury instructions with regard to Greyhound’s standard of care; and (2) the court’s error in allowing into evidence internal company safety rules. Again, as discussed under the previous assigned errors, we are reviewing this assignment of error solely to consider whether the court should have granted Greyhound’s JNOV motion on this matter and note that Greyhound raised this issue in its JNOV motion.

*14 { ¶ 87} Greyhound, as a company, had internal fatigue management rules and policies. Anderson testified that she had received extensive training in fatigue management both prior to being allowed to drive and during her years driving for Greyhound. She further testified, contrary to other witness testimony, that she was not fatigued prior to the accident and she did not fall asleep while driving.

{ ¶ 88} Greyhound issued a safety bulletin G-40 in September 2011. G-40 provides:
Designated tire check points, meal and rest stops. It’s the driver’s responsibility to check the tires at all designated tire check points, meal and rest stops. Abuse of tires will not be tolerated. Drivers are to stop approximately every 150 miles to check tires and walk around the bus for a safety stop at roadside rests.

{ ¶ 89} Greyhound contends that its internal rule G-40 should not have been used to show that it violated its legal duty of care. Greyhound contends that Soberay conflated Greyhound’s company rules and its legal standard of care and argues that the trial court incorrectly instructed the jury that it could find the company negligent solely for failing to follow or enforce its own safety rule.

{ ¶ 90} The evidence at trial, however, showed that Greyhound did not enforce this company rule.

{ ¶ 91} Michael Parnell (“Parnell”), Greyhound’s former chief scheduler, testified at deposition that there was an “understanding” that drivers were not to stop anywhere other than the published, authorized stops on the schedules, unless the driver received prior approval from a manager. According to Parnell, schedulers tried to make sure drivers did not go more than four and one-half hours without a stop. Parnell, who was familiar with rule G-40, testified that he was never told he should endeavor to make sure drivers could stop approximately every 150 miles, but that if “on as-needed basis, if the drivers so needed to refresh themselves, take the stop, they were able to do so, and that was acceptable.” Parnell was asked how it was communicated to a driver that one could ignore that admonition not to stop except at designated stops when the rule was to stop only at designated stops. Parnell stated that he did not know.

{ ¶ 92} Anderson testified that Greyhound sets the driving schedule, which included rest stops, and she followed its set schedule. Anderson testified that “no one” ever enforced rule G-40 and she only stopped at company-scheduled designated stops unless there was an emergency or the driver needed a restroom break. She admitted she did not follow rule G-40 and would keep driving even if the next stop was more than 150 miles from her last stop.

{ ¶ 93} At deposition, Anderson testified:
Counsel: You don’t jump out — and nobody really jumps out after every two or three hours or 150 miles and does jumping jacks or, you know, pretends to check the tires. You guys drive. I mean, that’s what you do, you go to your next scheduled stop, right?
Anderson: Yes.
Counsel: And Greyhound knows that, right? True?
Anderson: Yeah, they know.

{ ¶ 94} Stephen Hutchings (“Hutchings”), the regional vice president of the Midwest region for Greyhound, noted that Greyhound issued safety bulletins in 2004, 2010, and 2011, all of which were signed by Greyhound’s national safety director and all of which referenced rule G-40. Hutchings conceded that, based on Parnell’s deposition testimony, Greyhound did not comply with rule G-40 with respect to scheduling driver’s stops and, to Hutchings’s knowledge, no driver had even been disciplined for violating rule G-40. Hutchings acknowledged that, according to rule G-40, drivers should stop approximately every 150 miles. He admitted that the distance in this case between Anderson’s last rest stop and the collision, 179 miles, was not within the “approximate” range that rule G-40 required. He further conceded that although Anderson may have considered rule G-40 a recommendation, the rule was a rule, not a discretionary recommendation.

*15 { ¶ 95} Hutchings testified that drivers do not know when they themselves are getting tired and that was the reason for rule G-40. During trial, the court inquired of Hutchings:
Court: * * * if the rule were just discretionary, you’re putting the discretion to people, putting the rule in the hands of the people that are least able to judge their level of being fatigued?
Hutchings: Yes

{ ¶ 96} Hutchings also testified that there were other stops Greyhound could have placed into a route’s schedule that would have made it so a trip complied with rule G-40, but the company did not implement other stops:
Counsel: There were good stops that Greyhound could have put into their schedule that would have complied with this rule, aren’t there * * * [at] 159, 149 miles?
Hutchings: Yes.
Counsel: And then another [stop] 155 miles [after that]?
Hutchings: Yes.
Counsel: That would have complied with the rule, right?
Hutchings: That’s the opportunity, yeah. * * *
Counsel: And that would have allowed her [Anderson] to get out, refresh herself, do all the things with the studies that you guys did and been refreshed, right?
Hutchings: There is opportunity there that we could have had a scheduled stop, yes.
Counsel: And you didn’t do it?
Hutchings: No.

{ ¶ 97} Additionally, the trial court did not instruct the jury, as Greyhound argues, that it could find the company negligent solely for failing to follow or enforce rule G-40. The court’s instruction was as follows:
You must * * * decide whether Greyhound Lines, Inc., was negligent because it failed to use the highest standard of care, which is required of a common carrier, regarding plaintiff’s claim directly against Greyhound Lines, Inc.
Employer liability for negligent entrustment or supervision or training or instruction of employee. A company conducting activity through its employees, servants or other agents is liable for harm to others if the company is negligent or reckless:
First, in employing an improper person, in this case Sabrina Anderson, in work involving risk of harm to others, and/or;
Second, in supervising the activity, and/or;
Third, in permitting, or failing to prevent, negligent or other wrongful conduct by Sabrina Anderson, while on Greyhound Lines’ buses that are under Greyhound’s control, and/or;
Fourth, in failing to enforce its own safety rules and policies.

{ ¶ 98} Greyhound relies on Anstine v. Pennsylvania RR. Co., 342 Pa. 423, 20 A.2d 774 (1941), for its argument that internal company rules cannot serve as the sole evidence that a defendant’s conduct was negligent. In Anstine, a train collided with a car at a railroad crossing. The Pennsylvania Supreme Court held that the trial court’s admission of the railroad’s safety rules, which had been violated, and the reiteration of them in the jury charge, were prejudicial because the jury was thereby permitted to judge the “reasonableness of the operation of the train as it approached the crossing by a standard of care much greater and far more inflexible than that which the law requires.” Id. at 431.

{ ¶ 99} But in a later case, Dollison v. Baltimore & Ohio RR. Co., 446 Pa. 96, 284 A.2d 704 (1971), the Pennsylvania Supreme Court stated, in citing Anstine:
*16 The admission into evidence of a railroad’s private operating rule may be prejudicial when that rule establishes a standard of care greater than, or more inflexible than the law requires. There is no error, however, when such a rule does no more than promulgate a standard that is no greater than that imposed by law.
(Citations omitted.) Dollision at 102.

{ ¶ 100} Greyhound is a common carrier of passengers and is obligated to exercise the highest standard of care for passengers’ safety. Short of making a rule guaranteeing or insuring the safety of its passengers under all circumstances, there is no internal safety rule it could adopt that would impose a standard of care greater than that imposed by law, i.e., the highest standard of care. Thus, it was appropriate under Pennsylvania law for the trial court to permit the introduction of Greyhound safety rules, including rule G-40.

{ ¶ 101} In Marks v. Mobil Oil Corp., 562 F. Supp. 759 (E.D. Pa. 1983), a Mobil Oil tanker truck driver collided with an automobile carrying the plaintiff’s son. After the plaintiff prevailed at trial, Mobil Oil filed motions for JNOV and for a new trial. The company argued that Mobil driver’s handbook, which contained instructions for the operation of the company’s vehicles, should not have been admitted into evidence. The Marks court disagreed, finding that because the handbook was relevant to the issues of the case and not prejudicial to Mobil, its introduction did not entitle defendants to a JNOV or a new trial. The Marks court explained:
Every driver of a Mobil vehicle is provided with a copy of the handbook and each driver signs a receipt to indicate that [the driver] has received the Handbook and agrees to read and follow its instructions. The Handbook contains rules for safe driving, including rules and procedures for passing other vehicles when driving a Mobil vehicle. The Handbook safety rules represent standards established by Mobil for the desired operation of corporate vehicles. The rules embody the company’s definition of proper driving practices. The card each driver signs acknowledges his or her awareness of these standards and intention to comply with the rules when driving a company vehicle. The Handbook is thus clearly relevant to the issues in this litigation, particularly the questions of whether [the driver] exercised due care and whether the harm caused by Mobil’s negligence was foreseeable.
Id. at 769.

{ ¶ 102} Noting that failure to comply with a company rule is not negligence per se, the Marks court stated: “However, a company’s safe driving rules are relevant in a negligence action when, as the jury was told, the plaintiff contends that the accident was caused by a violation of the rules. The jury is entitled to consider such rules in making its determination as to whether the defendant was negligent.” Id. at 770.

{ ¶ 103} Likewise, Greyhound’s rule book was properly entered into evidence. Anderson received a copy of the rule book, which included rule G-40, as part of her employment. Greyhound’s safety director, Alan Smith, referred to the rule book as “the Bible.” The preface of the rule book provides:
The drivers rule book is provided to you as a guide and forms the basis for a general outline of your duties and responsibilities. It is your responsibility to be familiar with and observe all rules contained in this rule book. Ignorance of a rule, directive or bulletin will not be accepted as an excuse for non-compliance.

*17 { ¶ 104} The evidence showed that Greyhound implemented rule G-40 but did not require drivers to follow it, despite issuing safety bulletins, literature, and training videos that emphasized the danger of fatigue and the importance of complying with rule G-40. In fact, the rest stops along a route were not scheduled in compliance with rule G-40 nor was it communicated to drivers that they must follow the rule.

{ ¶ 105} In light of the above, the trial court did not err in allowing testimony and jury instructions regarding Greyhound’s internal policies.

{ ¶ 106} Accordingly, the third assignment of error is overruled.

{ ¶ 107} We next consider the fifth assignment of error; the fourth assignment of error is discussed under assignments of error relating to post-verdict motions.

Expert Testimony

V. Under Pennsylvania law, when the subject-matter of a defendant’s alleged negligence is beyond the acumen of an average person, a plaintiff must present expert testimony establishing the defendant’s standard of care and a breach of that standard. Here, Plaintiff did not present expert testimony about Greyhound’s practices. Greyhound argues it should have been awarded judgment notwithstanding the verdict as to the independent claims against it.
{ ¶ 108} In the fifth assignment of error, Greyhound contends that the trial court erred in denying its JNOV motion because Soberay did not present expert testimony to establish that Greyhound failed to meet the standard of care owed to its passengers. Specifically, Greyhound claims that it was Soberay’s burden to establish through expert testimony that Greyhound’s actions deviated from an accepted standard of care.

{ ¶ 109} Expert testimony is often employed to help jurors understand issues and evidence that is outside the average juror’s normal realm of experience. The Pennsylvania Supreme Court has found that the employment of expert testimony rises from necessity when the subject matter of the inquiry is one involving “special skill and training beyond the ken of the ordinary [layperson].” Young v. Dept. of Transp., 560 Pa. 373, 376, 744 A.2d 1276 (2000), citing Reardon v. Meehan, 424 Pa. 460, 227 A.2d 667 (1967). Conversely, “if all the primary facts can be accurately described to a jury and if the jury is as capable of comprehending and understanding such facts and drawing correct conclusions from them as are witnesses possessed of special training, experience or observation, then there is no need for the testimony of an expert.” Young at id., citing Reardon.

{ ¶ 110} To support its claim, Greyhound cites cases to demonstrate that Soberay needed expert testimony with regard to the standard of care that Greyhound owed its passengers. A review of those cases, however, show that they are distinguishable from the case at bar. See Young (expert testimony needed regarding the duty of Pennsylvania Department of Transportation to determine the necessity for and proper placement of road signage); Phillips v. Lock, 2014 PA Super 38, 86 A.3d 906 (plaintiff did not identify any experts or other evidence in support of negligent entrustment claim against bus company); Burton v. Terry, 140 Pa.Commw. 336, 592 A.2d 1380 (1991) (expert testimony needed regarding duty of municipality in designing intersection).

{ ¶ 111} Here, Greyhound enacted rule G-40 that required drivers to take rest breaks approximately every 150 miles. The company repeatedly referenced the rule in safety bulletins, company literature, and training videos. Greyhound’s director of safety and security, Alan Smith, testified:
*18 Counsel: Greyhound is held to the highest standard, held to the highest duty, are they not?
Smith: They’re held to a higher standard of care, that would be correct.

{ ¶ 112} Based on the above, we find no merit to Greyhound’s claim that expert testimony was needed to establish that failing to enforce compliance with rule G-40 was a failure to provide the highest degree of care for passenger safety.

{ ¶ 113} In light of the above, the fifth assignment of error is overruled.

Assignments of Error Relating to Post-Verdict Motions

Punitive Damages

IV. The jury awarded punitive damages based on Greyhound’s supposed failure to enforce voluntarily imposed internal company rules. Under Pennsylvania law, violation of voluntarily imposed rules cannot independently form the basis for punitive damages because it does not establish the requisite mental state conscious disregard of a known high degree of risk of harm. Greyhound argues it should have been awarded judgment notwithstanding the verdict as to punitive damages.
{ ¶ 114} In this case, the jury awarded punitive damages based on Greyhound’s failure to enforce voluntarily imposed internal company rules. In the fourth assignment of error, Greyhound contends that the trial court erred awarding punitive damages.

{ ¶ 115} In Pennsylvania, a punitive damages claim must be supported by evidence sufficient to establish that (1) a defendant had a subjective appreciation of the risk of harm to which the plaintiff was exposed and that (2) the defendant acted, or failed to act, in conscious disregard of that risk. Hutchison v. Luddy, 582 Pa. 114, 124, 870 A.2d 766 (2005).

{ ¶ 116} Greyhound claims that, under Pennsylvania law, violation of voluntarily imposed rules cannot independently form the basis for punitive damages because it does not establish the requisite mental state of conscious disregard of a known high degree of risk of harm. We disagree.

{ ¶ 117} A recent decision stemming from the same bus accident was issued in Bauta v. Greyhound Lines, Inc., E.D.N.Y. No. 14-CV-3725 (RER) (Jan. 4, 2019). In Bauta, the district court addressed the issue of punitive damages in a post-trial memorandum and order.5

{ ¶ 118} As in this case, in Bauta, Greyhound claimed that the trial court erred by allowing the plaintiff to introduce evidence of internal company rules. Greyhound relied on Valentino v. Philadelphia Triathlon, L.L.C., 150 A. 3d 483 (Pa. Super. Ct. 2016), to support its claim that the court erred in awarding punitive damages. In Valentino, the court struck the plaintiff’s punitive damage claims because it found that the allegations in the amended complaint, which alleged that the defendant was inattentive to the needs of the contestants and failed to inspect or maintain the event course, warn of or remove dangerous conditions, properly plan or organize the event, follow safety standards, and properly train and supervise its employees, did not support a claim involving outrageous behavior or a conscious disregard for risks confronted by triathlon participants. Id. at 488-489.

*19 { ¶ 119} The district court distinguished Valentino because that case dealt with the sufficiency of the pleadings, not a violation of internal company policies. The court noted that, in Pennsylvania, “a cause of action that requires only a showing of basic negligence to merit compensatory damages can still give rise to punitive damages if the behavior is found to be outrageous or reckless, rather than merely negligent.” Bauta at 20-21, citing Hutchison v. Laddy, 582 Pa. 114, 124, 870 A.2d 766 (2005) (holding that a blanket ban on punitive damages for claims of negligent supervision was not appropriate because outrageous conduct, even when rooted in negligence, warrants punitive damages). The court further noted that Greyhound failed to offer support other than Valentino for its argument that Pennsylvania law does not allow punitive damages for violations of internal company policies. The court declined to preclude this evidence at trial and reaffirmed that decision in its post-trial order. Bauta at 21.

{ ¶ 120} Here, the evidence presented at trial demonstrated that Greyhound had a subjective appreciation of the risk of harm to which passengers were exposed by its failure to enforce its internal rules and its drivers’ failure to comply with rule G-40. Greyhound knew about the dangers of driver fatigue; the company had a fatigue management program in place. Greyhound authored and circulated fatigue bulletins and training materials in which the company repeatedly mentioned rule G-40 as a safety measure.

{ ¶ 121} Witnesses provided sufficient evidence to show that Greyhound failed to enforce its own safety rules that had been designed to prevent fatigue related crashes. Greyhound failed to enforce rule G-40, despite knowing that its drivers were not making the safety stops required under that rule. See Livingston, C.P. Nos. 140402946 and 131202598, at 9.

{ ¶ 122} Hutchings, whose region included Cleveland, testified that rule G-40 is an admonition to stop every 150 miles and admitted that a bus driver is the last one who can assess his or her own level of fatigue. Anderson testified that she would only stop in designated rest stops or if she had to use the restroom so she would keep driving even if it had been more than three hours and 150 miles since her last stop. She testified that Greyhound knew of this fact. Thus, Anderson routinely ignored rule G-40 and Greyhound knew about it.

{ ¶ 123} As for the second element, that the defendant acted, or failed to act in conscious disregard of that risk, multiple witnesses testified that the company consciously disregarded the risk. Rex Kemp (“Kemp”), who worked for Greyhound for 44 years, retired in 2015 as the general manager of Greyhound’s Resource Management Group. Kemp assisted Safety Director Alan draft Greyhound’s rule book. Kemp testified that G-40 was a rule, not a guideline. Alan testified to the same, calling the rule book “the Bible” and testifying that the rule book controlled Anderson’s conduct.

{ ¶ 124} Thus, Greyhound, despite having repeatedly urged its drivers to remember rule G-40 and despite recognizing that drivers are poor judges of their own fatigue, treated compliance with rule G-40 as voluntary, delegating discretion to drivers to ignore it and, thus, to ignore the safety of passengers.

{ ¶ 125} In light of the above, reasonable persons could have found from the evidence that Greyhound had a subjective appreciation of the risk of harm to which Soberay was exposed and acted, or failed to act, in conscious disregard of that risk.

{ ¶ 126} Therefore, the fourth assignment of error is overruled.

Prejudgment Interest

VI. Ohio prejudgment interest is a substantive remedy. Despite the fact that this case proceeded under Pennsylvania substantive law, the trial court awarded Ohio prejudgment interest. Defendants argue that the facts did not support and the law did not permit the trial court’s award of prejudgment interest.
*20 { ¶ 127} In the sixth assignment of error, Greyhound argues that the trial court erred in granting Soberay’s motion for prejudgment interest.

{ ¶ 128} Under Ohio law, R.C. 1343.03 allows for the award of prejudgment interest under certain circumstances. R.C. 1343.03(C) provides:
If, upon motion of any party to a civil action that is based on tortious conduct, that has not been settled by agreement of the parties, and in which the court has rendered a judgment, decree, or order for the payment of money, the court determines at a hearing held subsequent to the verdict or decision in the action that the party required to pay the money failed to make a good faith effort to settle the case and that the party to whom the money is to be paid did not fail to make a good faith effort to settle the case[.]

{ ¶ 129} Greyhound first contends that the court erred in awarding prejudgment interest under Ohio law instead of Pennsylvania law.

{ ¶ 130} The purpose of a choice- or conflict-of-law analysis is to determine which state’s law should be applied. In Pennsylvania, prejudgment interest is governed by Civ.R. Pa.R.C.P. No. 238. The Pennsylvania Supreme Court has held that it is procedural in nature. Pivirotto v. Pittsburgh, 515 Pa. 246, 255, 528 A.2d 125 (1987), citing Laudenberger v. Port Auth. of Allegheny Cty., 496 Pa. 52, 436 A.2d 147 (1981), appeal dismissed, 456 U.S. 940, 102 S.Ct. 2002, 72 L.Ed.2d 462 (1982). Since prejudgment interest is procedural under Pennsylvania law, there is no conflict of substantive law, thus, the court did not err in finding that the law of the forum state, Ohio, would apply.

{ ¶ 131} In addition, we note that in determining choice of law, the law of the forum governs both procedural matters and remedial rights. Dorman v. Laux, 8th Dist. Cuyahoga No. 76352, 2000 Ohio App. LEXIS 2546, 1 (June 8, 2000); Heinz v. Steffen, 112 Ohio App.3d 174, 180, 678 N.E.2d 264 (2d Dist.1996). The Ohio Supreme Court has held that Ohio’s prejudgment interest statute is remedial. Huffman v. Hair Surgeon, Inc., 19 Ohio St.3d 83, 87, 482, N.E.2d 1248 (1985), fn. 7; see also Mills v. Dayton, 21 Ohio App.3d 208, 208, 486 N.E.2d 1209 (2d Dist.1985) (R.C. 1343.03(C) is remedial in nature, in that it merely imposes a civil sanction upon a party for a failure to make a good faith effort to settle.) Finally, Greyhound has not shown that it was prejudiced by the choice of Ohio law as the forum for prejudgment interest. Pursuant to R.C. 1343.03(C), Greyhound owed 3 percent interest computed on compensatory damages. Under Civ.R. Pa.R.C.P. No. 238, damages for delay are calculated at 3 1/4 percent plus 1 percent, not compounded for the applicable years. Thus, Soberay could be entitled to a higher amount of prejudgment interest under Pennsylvania law than what the court ordered Greyhound to pay him pursuant to Ohio law.

{ ¶ 132} Because R.C. 1343.03(C) is remedial and the law of the forum governs procedural matters and remedial rights, and because Greyhound was not prejudiced by the court’s decision to grant prejudgment interest under Ohio law, we find no merit to Greyhound’s claim.

{ ¶ 133} Greyhound next argues that the court erred in granting prejudgment interest.

*21 { ¶ 134} “ ‘The purpose of R.C. 1343.03(C) is to encourage litigants to make a good faith effort to settle their case, thereby conserving legal resources and promoting judicial economy.” ’ Moskovitz v. Mt. Sinai Med. Ctr., 69 Ohio St.3d 638, 657-658, 635 N.E.2d 331 (1994), quoting Peyko v. Frederick, 25 Ohio St.3d 164, 167, 495 N.E.2d 918 (1986). R.C. 1343.03 was “ ‘enacted to promote settlement efforts, to prevent parties who have engaged in tortious conduct from frivolously delaying the ultimate resolution of cases, and to encourage good faith efforts to settle controversies outside a trial setting.” ’ Moskovitz at 658, quoting Kalain v. Smith, 25 Ohio St.3d 157, 159, 495 N.E.2d 572 (1986).

{ ¶ 135} A party has not failed to make a good faith effort to settle under R.C. 1343.03(C) if the party has
(1) fully cooperated in discovery proceedings, (2) rationally evaluated [the party’s] risks and potential liability, (3) not attempted to unnecessarily delay any of the proceedings, and (4) made a good faith monetary settlement offer or responded in good faith to an offer from the other party. If a party has a good faith, objectively reasonable belief that [the party] has no liability, [the party] need not make a monetary settlement offer.
Moskovitz at 658-659, citing Kalain. Prejudgment interest awards are within the sound discretion of the trial court. Huffman, 19 Ohio St.3d at 87, 482 N.E.2d 1248. Greyhound does not argue that the trial court abused its discretion; the company alleges that the trial court erred in evaluating disputed evidence. A trial court may err without its error amounting to an abuse of discretion — in order to show an abuse of discretion, a party must show that the court’s determination was “palpably and grossly violative of fact and logic [so that] that it evidences not the exercise of will but perversity of will, not the exercise of judgment but defiance thereof, not the exercise of reason but rather of passion or bias.” Huffman at id., citing State v. Jenkins, 15 Ohio St.3d 164, 473 N.E.2d 264 (1984).

{ ¶ 136} In this case, the parties submitted post-trial briefs and the court held an extensive hearing on prejudgment interest. The court concluded that Soberay was entitled to $1,276,938.96 in prejudgment interest. Before determining the amount to which Soberay was entitled, the court found that Greyhound withheld evidence and failed to truthfully answer interrogatories. The court reasoned:
The evidence supports the finding that the Defendant Greyhound made unreasonable low offers to settle before the trial of this case commencing with the offer of $6,700,000.00 and augmenting the offer to $8,000,000.00. These offers were made while Defendants had been (1) fully apprised of the profound injuries of the plaintiff; (2) coupled with knowledge that the case was valued at amounts between $20,000,000.00 to $32,000,000.00; and, (3) with knowledge of the results of the three mock jury findings (all conducted by Defendants) all of which unanimously found the Defendants liable; (4) and, which mock juries awarded the Plaintiff between $25,000,000.00 to $50,000,000.00 in compensatory damages, and, between $25,000,000 to $100,000,000 in punitive damages.
The evidence further shows that during the trial of this case the Court encouraged settlement in the amount of $18,000,000.00 to which Defendant declined to negotiate. At midpoint into the trial (trial commenced on January 6, 2016 and ended on January 28, 2016), Defendant offered $10,000,000.00 to settle the case, again a showing of an unreasonably low calculation in light of the afore-stated information in the possession of the Defendants. Therefore, this Court concludes that the Defendants failed to rationally evaluate the risks and potential liability of this case. Furthermore, this Court finds that Defendant failed to make good faith monetary settlement offer and failed to respond in good faith to an offer from the other party.
*22 * * *
The evidence supports a finding that the plaintiff offered repeated times to settle the case within the policy limits that last of which was initiated by the Court * * *.

{ ¶ 137} The court concluded that Greyhound failed to rationally evaluate the risks and potential liability of the case, failed to make a good faith monetary settlement offer, and failed to respond in good faith to an offer from Soberay. The court further concluded that Soberay rationally evaluated the risks and potential liability of the case and responded in good faith to an offer by Greyhound.

{ ¶ 138} As the trial court noted, Greyhound was aware of the value of the case, which varied from 20 million to 32 million dollars with three mock juries finding in favor of Soberay in the amount of 25 million to 50 million dollars in compensatory damages and between 25 million and 100 million dollars in punitive damages. The trial court encouraged settlement for 18 million dollars but Greyhound refused to negotiate. Midtrial, Greyhound offered to settle for 10 million, far less than the case had been valued at. In addition, the trial court found that Greyhound withheld important discovery and filed three interlocutory appeals, all of which were dismissed, and a motion forum non conveniens, which the court found could serve to delay the case.

{ ¶ 139} The trial court was in the best position to determine if the parties put forth a good-faith effort to settle the case. The court’s decision was not arbitrary, unreasonable, or unconscionable.

{ ¶ 140} Therefore, the sixth assignment of error is overruled.

Attorney Fees

VII. Pennsylvania follows the American rule that each side must bear their own attorney fees. Despite this, the trial court awarded $300,000 in attorney fees to Plaintiff on the same basis as the jury’s punitive damages award: that Defendants did not follow company safety rules. Defendants argue this award was contrary to law.
{ ¶ 141} In the seventh assignment of error, Greyhound contends that the trial court erred in granting Soberay’s motion for attorney fees in the amount of $300,000.

{ ¶ 142} Greyhound first argues that the trial court should have applied Ohio law, despite the parties’ agreement that Pennsylvania law governed the issue. We agree with Soberay that there is no merit to Greyhound’s argument because Greyhound agreed, on more than one occasion, that Pennsylvania law applied to Soberay’s motion for attorney fees.

{ ¶ 143} The trial court awarded attorney fees to Soberay pursuant to 42 Pa.C.S.A. 2503 (7) and (9), which provide:
2503. Right of participants to receive counsel fees.
The following participants shall be entitled to reasonable counsel fee as part of the taxable costs of the matter:
(7) Any participant who is awarded counsel fees as sanction against another participant for dilatory, obdurate or vexatious conduct during the pendency of matter.
* * *
(9) Any participant who is awarded counsel fees because the conduct of another party in commencing the matter or otherwise was arbitrary, vexatious or in bad faith.

*23 { ¶ 144} Appellate review of a trial court’s order awarding attorney fees to a litigant is limited solely to determining whether the trial court palpably abused its discretion in making a fee award. Thunberg v. Strause, 682 A.2d 295, 299 (1996), citing In re Estate of Liscio, 432 Pa. Super. 440, 444, 638 A.2d 1019 (1994). If the record supports a trial court’s finding of fact that a party violated the conduct provisions of the relevant statute providing for the award of attorney fees, the award should not be disturbed on appeal. Thunberg at id., citing Liscio.

{ ¶ 145} The trial court justified its award of attorney fees based on the following: (1) Greyhound had its drivers ignore rule G-40; (2) Greyhound intentionally failed to disclose the CADEC files to Soberay; (3) Greyhound intentionally failed to disclose its insurance coverage; (4) Greyhound failed to provide video of the mock trials to Soberay; (4) Greyhound filed three interlocutory appeals, all of which were dismissed for lack of a final, appealable order; and (5) Greyhound filed a motion forum non conveniens in an attempt to delay the case.

{ ¶ 146} Vexatious conduct is conduct “instituted without sufficient grounds and serving only to cause annoyance.” Santoro v. Philadelphia, 59 Pa.Commw. 114, 121, 429 A.2d 113 (1981). The trial court found that Greyhound’s activities amounted to dilatory or vexatious conduct during the pendency of the case. Based on our review of the record, we do not find that the trial court’s decision was arbitrary, unreasonable, or unconscionable.

{ ¶ 147} Therefore, the seventh assignment of error is overruled.

Conclusion
{ ¶ 148} Even when there is considerable conflict in the testimony, it is within the jury’s province to reconcile such differences and determine which side prevails. Anstine, 342 Pa. at 429-430, 20 A.2d 774. Here, the jury reconciled the differences in testimony and found in favor of Soberay. The trial court did not err in denying Greyhound’s JNOV motion.

{ ¶ 149} Judgment affirmed in toto.

It is ordered that appellee recover from appellants costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate be sent to said court to carry this judgment into execution.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure

MARY J. BOYLE, P.J., CONCURS;
PATRICIA ANN BLACKMON, J., CONCURS IN JUDGMENT ONLY
All Citations
Slip Copy, 2019 WL 1569626, 2019 -Ohio- 1371

Footnotes

1
Dr. Edwards defined human factors engineering as “the application of the science of human performance and human behavior to the design of things that humans use or come in contact with.”

2
Civ.R. 50(B) was amended, effective July 1, 2018, so that the time to serve a JNOV motion does not begin to run until after the clerk serves the parties with notice of a judgment.

3
In its motion, Greyhound argued that grounds existed for JNOV on the issue of punitive damages and on the merits of the case.

4
We note, however, that even if Greyhound had not waived review of its motion for a new trial, Greyhound has not shown that it met the grounds for a new trial pursuant to Civ.R. 59.

5
In Bauta, the district court issued an order applying collateral estoppel to the issue of defendants’ liability and held a jury trial on compensatory and punitive damages. The jury awarded the plaintiff $653,152.47 in compensatory damages and $3,235,000 in punitive damages.