Osborne v. Cambridge Twp.

39 Pa. D. & C.4th 362, 1998 Pa. Dist. & Cnty. Dec. LEXIS 130
CourtPennsylvania Court of Common Pleas, Crawford County
DecidedSeptember 14, 1998
Docketno. A.D. 1995-642
StatusPublished

This text of 39 Pa. D. & C.4th 362 (Osborne v. Cambridge Twp.) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Crawford County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Osborne v. Cambridge Twp., 39 Pa. D. & C.4th 362, 1998 Pa. Dist. & Cnty. Dec. LEXIS 130 (Pa. Super. Ct. 1998).

Opinion

VARDARO, J.,

The matter before this court arises from an action brought under provisions of Pennsylvania’s Wrongful Death and Survival Acts by the plaintiff, Jeanette M. Osborne, in her capacity as administratrix of her husband’s estate. The claims were brought against the defendant, Cambridge Township, as a result of a fatal motor vehicle accident which occurred on a township roadway. It was alleged at trial that the defendant was negligent in its failure to take measures to warn of a large tree which had fallen across one of its roads and for which the township had timely notice of. The decedent was killed instantly when the automobile he was driving struck the fallen tree. The plaintiff’s claims were tried before a jury which returned a verdict in her favor for an aggregate total of $3,892,243.20. Negligence was established at 25 percent for the decedent and 75 percent for the defendant. The defendant has filed motions for judgment n.o.v., new trial, remittitur, and a molding of the verdict. [364]*364The plaintiff has filed a motion to mold verdict, award Rule 238 damages and post-verdict interest. We turn now to address these matters.

DISCUSSION

I. Motion for Judgment n.o.v.

A. Failure To Establish Care, Custody or Control

The defendant asserts that a compulsory nonsuit or a directed verdict should have been granted in favor of the defendant because the evidence set forth at trial failed to establish that the tree which had fallen across the roadway was within the right-of-way of Cambridge Township.

The general immunity of local agencies caused by acts or omissions of the agency or its employees is provided in 42 Pa.C.S. §8541. Exceptions to the general grant of immunity are provided in 42 Pa.C.S. §8542. The specific exception alleged at trial by the plaintiff to establish liability on behalf of the defendant provides the following:

“(4) Tree, traffic controls and street lighting. — A dangerous condition of trees, traffic signs, lights or other traffic controls, street lights or street lighting under care, custody or control of the local agency, except that the claimant to recover must establish that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred and that the local agency had actual notice or could reasonably be charged with notice under the circumstances of the dangerous condition at a sufficient time prior to the event to have taken measures to protect against the dangerous condition.” 42 Pa.C.S. §8542(b)(4).

[365]*365The defendant first argues that the plaintiff failed to establish at trial that the tree which had fallen on the township’s roadway was under the care, custody or control of the local agency. The fact that the tree had fallen across and upon the township’s roadway, in and of itself, the defendant argues, does not establish that the tree was in the care, custody and control of the township. In primary support of this assertion, the defendant cites Marker v. PennDOT, 677 A.2d 345 (Pa. Commw. 1996) and Babcock v. PennDOT, 156 Pa. Commw. 69, 626 A.2d 672 (1993), alloc. denied, 536 Pa. 647, 639 A.2d 33 (1994). These cases, however, were decided under an entirely different statutory authority1 than that under which this action was brought and turn upon distinctions irrelevant to the plaintiff’s cause of action. These cases, therefore, fail to advance the defendant’s argument.

The plaintiff suggests that the issue of care, custody and control was conclusively established by the fact that the township went to the scene after the accident, stopped traffic and removed the tree. We find this argument unpersuasive as well. See e.g., Mylett v. Adamsky, 139 Pa. Commw. 637, 591 A.2d 341 (1991) (that township police placed flares and re-routed traffic around a tree which had fallen across a state roadway did not establish that township exercised care, custody and control of tree).

Evidence which the jury could consider, however, in concluding that the subject tree was in the care, custody and control of the township were two admissions of the defendant which were read to the jury. By the parties’ stipulation, the following were offered:

[366]*366“(1) The cause of death of the plaintiff-decedent, Stephen K. Osborne, was the result of the vehicle he was operating striking a tree lying across Route T680/Center Road, Cambridge Township, Cambridge Springs, PA 16403 on July 28, 1993.
“(2) Route T680/Center Road, Cambridge Township, Cambridge Springs, PA 16403 is maintained by Cambridge Township.”

At trial, the plaintiff also offered evidence that the township maintained a right-of-way which extended 25 feet in both directions from the center of Route T680/Center Road. (Tr. at 50.)2 Therefore, at trial, evidence was provided to the jury that both the road and the right-of-way upon which the tree had fallen were maintained by the defendant. This is sufficient evidence from which the jury could reasonably conclude that the township was responsible for maintaining its roads and rights-of-way, the tree which had fallen across the township road was subject to this duty of maintenance and, therefore, the fallen tree was in the care, custody and control of the defendant.

A motion for compulsory nonsuit may only be granted where, viewing all of the evidence including all reasonable inferences which may be drawn from this evidence in the light most favorable to the plaintiff, it can only be concluded that the plaintiff has failed to establish a right to relief. 1 Goodrich-Amram 2d §230.1:4. On the evidence presented by the plaintiff, no such conclusion could reasonably be drawn. We find no case law which would require, as the defendant would suggest, that for the jury to find that the subject [367]*367tree was under the care, custody and control of the township that the subject tree, before it came to rest on township property, must have first been located on property under the care, custody and control of the township.

B. Failure To Establish Sufficient Time To Take Preventative Measures

The defendant next argues that the evidence failed to establish that the township had actual or constructive notice of the fallen tree in sufficient time to have taken preventative measures. At trial, Mr. Styborski testified that after observing the fallen tree on the night in question, he asked his wife to call the township supervisor, Mr. Herman, to advise him of the fallen tree. (Tr. at 61.) Mrs. Styborski’s testimony confirmed her husband’s testimony that she had called Mr. Herman on the night in question at some time before 9 p.m. (Tr. at 84.) Mr. Styborski, however, had given a statement to an investigator, some time not long after the accident, in which he indicated that it was he who had called Mr. Herman a couple of hours before the accident had occurred. PI. ex. 1. At the time of trial, Mr. Styborski indicated that perhaps he had made such a statement, but he may have exaggerated the time frame. (Tr. at 70.) Mr.

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Bluebook (online)
39 Pa. D. & C.4th 362, 1998 Pa. Dist. & Cnty. Dec. LEXIS 130, Counsel Stack Legal Research, https://law.counselstack.com/opinion/osborne-v-cambridge-twp-pactcomplcrawfo-1998.