Opinion
No. 2397 C.D. 2011
11-13-2012
Hao Yin Zhao, Appellant v. City of Philadelphia and J.J. Deluca Company and Qi Zhao
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY SENIOR JUDGE FRIEDMAN
Hao Yin Zhao (Mrs. Zhao) appeals from the judgment entered on November 14, 2011, by the Court of Common Pleas of Philadelphia County (trial court), in favor of Qi Zhao (Mr. Zhao) and the City of Philadelphia (City). We affirm.
On November 8, 2006, Mrs. Zhao was a passenger in a car that Mr. Zhao drove into a ditch on Ninth Street in Philadelphia. The airbags deployed and Mrs. Zhao, startled and worried that the car would catch fire, exited the car before it completely stopped. The car ran over her ankle, breaking it.
Mr. Zhao testified that, on November 8, 2006, around 10:00 p.m., he picked Mrs. Zhao up in Chinatown. (N.T., 9/20/10, at 12.) It was raining, but Mr. Zhao's Nissan Altima had functioning wipers and headlights. (Id.) He stopped at a red light on Ninth Street, and, after proceeding slowly through the intersection, struck the ditch. (Id. at 13.) The car was travelling at six or seven miles per hour. (Id. at 34.) Mr. Zhao initially described the ditch as two feet deep, but later as eight inches deep. (Id. at 26.)
Some of the inconsistencies in Mr. Zhao's testimony may be related to the fact that he did not speak English and utilized an interpreter.
John Leahy, a representative from J.J. Deluca Company, (Deluca), testified that the ditch had been dug by the City for the installation of pipes to supply water to the property. Deluca kept daily logs; the entry for October 18, 2006, stated: "PWD [Philadelphia Water Department] Out on 9th Street again digging up the cold patch???" (N.T., 9/20/10, at 69.) The daily log entry for November 7, 2006, read: "Philly street departments made trench on 9th Street six inches deep at the mains." (Id. at 72.)
Deluca owned property adjacent to the ditch upon which Deluca constructed condominiums. The trial court granted Deluca's motion for a directed verdict and the question of Deluca's negligence never reached the jury. (N.T., 9/22/10, at 7.)
The log literally included three question marks.
The City called Robert Monaghan from the Philadelphia Water Department (PWD), who testified that the PWD last worked on the site on September 13, 2006. (N.T., 9/20/10, at 37.) Monaghan further testified that the PWD had then referred the job to the Philadelphia Streets Department (PSD), which had restored the street on October 2, 2006. (Id. at 42.)
After a four day trial, the jury returned a verdict finding neither Mr. Zhao nor the City negligent. Mrs. Zhao filed a motion for judgment notwithstanding the verdict or for a new trial. The trial court denied the motion. Mrs. Zhao appealed to this court.
Our scope of review when the trial court denies a motion for a new trial is "whether there has been an error of law controlling the outcome of the case, or an abuse of discretion where the ruling turns on the weight of the evidence." Tucker v. Bensalem Township School District, 987 A.2d 198, 202 n.3 (Pa. Cmwlth. 2009). A new trial should be awarded only when the "'jury's verdict is so contrary to the evidence as to shock one's sense of justice.'" Id. at 205 (citation omitted). The same scope of review similarly applies to denials of motions for judgment notwithstanding the verdict. See Ryals v. City of Philadelphia, 848 A.2d 1101, 1103 n.3 (Pa. Cmwlth. 2004).
Mrs. Zhao argues that the jury's verdict shocks the conscience and that post-trial relief is therefore appropriate. We disagree.
Mrs. Zhao avers that Mr. Zhao negligently drove the car into the ditch. In order to prevail in a negligence action, a plaintiff must establish that: 1) the defendant owed a duty of care to the plaintiff; 2) the defendant breached that duty; 3) the breach resulted in the plaintiff's injury; and 4) the plaintiff suffered an actual loss or damages. Brown v. Department of Transportation, 11 A.3d 1054, 1056 (Pa. Cmwlth. 2011).
Ample evidence supports the jury's finding that Mr. Zhao was not negligent. Mr. Zhao drove the car at a low rate of speed, six or seven miles per hour. (N.T., 9/20/10, at 34.) No signs or barriers alerted Mr. Zhao of danger. (Id. at 39.) After the airbags deployed, Mr. Zhao stopped the car immediately. (Id. at 39-40.) Therefore, the jury's verdict that Mr. Zhao was not negligent does not shock the conscience.
Mrs. Zhao also challenges the jury's determination that the City was not negligent. A local agency is immune from suit under section 8541 of what is commonly referred to as the Political Subdivision Tort Claims Act (Act), 42 Pa. C.S. §8541, except where the General Assembly has specifically waived immunity. Section 8542(b)(6)(i) of the Act, 42 Pa. C.S. §8542(b)(6)(i), waives immunity for damages arising from:
[a] dangerous condition of streets owned by 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.What constitutes a dangerous condition is a question of fact to be determined by the jury. Bendas v. Township of White Deer, 531 Pa. 180, 185, 611 A.2d 1184, 1186-87 (1992). To impose liability on a local agency, a plaintiff must prove that damages are recoverable under common law or a statute creating a cause of action. Sweeney v. Merrymead Farm, Inc., 799 A.2d 972, 977 (Pa. Cmwlth. 2002). Mrs. Zhao had to prove each of the elements of common law negligence. See Brown, 11 A.3d at 1056.
The jury could have found, based on the evidence of record, that no dangerous condition existed in the street on November 8, 2006. The jury heard conflicting evidence at trial about the characteristics of the ditch. The depth of the ditch was highly disputed. Other cars drove over the ditch without incident. The question of whether the ditch presented a dangerous condition is a question of fact, and substantial evidence exists supporting the jury's conclusion that no dangerous condition existed. Therefore, the jury's verdict that the City was not negligent does not shock the conscience.
Alternatively, the jury could have found that Mrs. Zhao did not prove each element of common law negligence. --------
For these reasons, we conclude that the trial court did not err or abuse its discretion by denying Mrs. Zhao's motion for post-trial relief. Accordingly, we affirm.
/s/_________
ROCHELLE S. FRIEDMAN, Senior Judge
ORDER
AND NOW, this 13th day of November, 2012, the judgment entered on November 14, 2011, by the Court of Common Pleas of Philadelphia County, is hereby affirmed.
/s/_________
ROCHELLE S. FRIEDMAN, Senior Judge