Vu, L. v. Durnell, M.

J.S45042/14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
LY PHAM VU, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
v. :
:
:
MARVIN DURNELL, :
:
Appellee : No. 3338 EDA 2013
Appeal from the Judgment Entered January 7, 2014
In the Court of Common Pleas of Philadelphia County
Civil Division No(s).: March Term, 2012 No. 01774
BEFORE: BOWES, WECHT, and FITZGERALD,* JJ.
MEMORANDUM BY FITZGERALD, J.: FILED SEPTEMBER 30, 2014
Appellant, Ly Pham Vu, appeals from the judgment entered in the
Philadelphia County Court of Common Pleas in favor of Appellee, Marvin
Durnell.1 Appellant contends the trial court erred in instructing the jury as
*
Former Justice specially assigned to the Superior Court.
1
Appellant purports to appeal from the November 4, 2013 order denying the
post-trial motion for a new trial. However,
the appeal properly lies from entry of final judgment in this
matter. [The] appeal was perfected when the trial court
entered final judgment on [January 7, 2014]. See
announcement of a determination but before the entry of
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Appellant and Appellee were involved in a motor vehicle accident on
January 21, 2011. On March 16, 2012, Appellant filed a complaint against
Appellee sounding in negligence. At the time of trial, Appellee testified, inter
alia, as follows:
[Counsel for Appellant]: .
that happened January 21st, 2011, correct?
A: Yes.
* * *
Q: Sir, when you got in your car to go home . . . when you
walked to your car, could you see snow on the ground?
A: Yes.
Q: Could you see ice on the ground?
A: Some places maybe. But it was snow underneath them
* * *
Q: . . . You drove your car to this intersection; is that
right?
A: Yes.
Q: And you made a right-hand turn on 10th Street. And
when you made that right-hand turn on 10th Street, could
you see the traffic light immediately?
an appealable order shall be treated as filed after such
Health Care & Ret. Corp. of Am. v. Pittas, 46 A.3d 719, 721 n.1 (Pa.
Super. 2012), appeal denied, 63 A.3d 1248 (Pa. 2013). We have amended
the caption accordingly.
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A: Yes.
Q: And when you first saw your traffic light, it was red,
correct?
A: Yes.
Q: Steady red light?
A: Yes.
Q: There were no vehicles ahead of you?
A: No.
* * *
red light, you slide through the intersection past the red
A: Yes.
N.T., 10/16/13, at 43, 48-49. Appellee also testified he
Id. at 51.
At trial, Appellee contended the basis for a sudden emergency
instruction was black ice on the roadway. N.T., 10/16/13, at 11. Appellant
opposed the instruction. Id. at 85-88. The court charged the jury, inter
alia, as follows:
In this case, [Appellee] claims he is not liable for
and responded reasonably under the circumstances. In
order to establish this defense, [Appellee] must prove to
you all of the following:
[Appellee] faced a sudden emergency requiring
immediate responsive action.
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[Appellee] did not create the sudden emergency.
emergency was reasonable under the circumstances.
N.T., 10/18/13, at 61-62.
post-trial motion was denied. Judgment was entered in favor of Appellee
and this timely appeal followed. Appellant filed a timely court-ordered
Pa.R.A.P. 1925(b) statement of errors complained of on appeal. The trial
court filed a Pa.R.A.P. 1925(a) opinion.2
Appellant raises the following issue for our consideration:
2
issue raised on appeal. In the Rule 1925(b) statement, Appellant raised
seven issues. Six of the issues addressed the sudden emergency doctrine.
Appellant also averred the court erred in denying the post trial motion
without oral argument. The court stated that because the trial transcripts
were not part of the record it could not determine whether Appellant had
preserved the issues raised on appeal or whether they had any merit. Trial
Ct. Op., 1/23/14, at 3. As a result, the trial court suggested that Appellant
has waived the issues raised on appeal and that we should affirm the
judgment.
The trial transcripts are likewise not included in the certified record on
appeal, but copies are included in the reproduced record. This Court has
uracy of the reproduction has not been disputed . .
Commonwealth v. Brown, 52 A.3d 1139, 1145 n.4
(Pa. 2012). Appellee does not dispute the accuracy of the reproduced
record. We note that Appellant raised this issue before the trial court at the
time of trial and in a post trial motion, thus preserving the issue on appeal.
See N.T., 10/16/13, at 85-
2.
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1. Whether the trial court abused its discretion and
otherwise committed an error of law when it charged the
[Appellee] failed to prove all the required elements of the
Appellant argues the sudden emergency doctrine was inapplicable in
Lockhart v. List, 665
that the charge on the sudden emergency doctrine was not harmless error
and as such a new trial is warranted. Id.instruction indicated that Appellee could avoid liability if the jury believed
that he faced a sudden emergency and responded reasonably. Id. at 21.
Appellant concludes the jury instruction controlled the verdict in this case
and constituted prejudicial error. Id. We agree.
Our Supreme Court has stated:
In examining jury instructions, our scope of review is
limited to determining whether the trial court committed a
clear abuse of discretion or error of law controlling the
outcome of the case. Error in a charge is sufficient ground
for a new trial if the charge as a whole is inadequate or not
clear or has a tendency to mislead or confuse rather than
clarify a material issue. Error will be found where the jury
was probably [misled] by what the trial judge charged or
where there was an omission in the charge. A charge will
be found adequate unless the issues are not made clear to
the jury or the jury was palpably misled by what the trial
judge said or unless there is an omission in the charge
which amounts to a fundamental error. In reviewing a trial
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its entirety. Because this is a questio
review is plenary.
Passarello v. Grumbine, 87 A.3d 285, 296-97 (Pa. 2014) (citation
omitted).
Our Supreme Court first recognized the sudden
emergency doctrine 160 years ago. More recently, our
Supreme Court described the sudden emergency doctrine
as follows:
The sudden emergency doctrine . . . is available as a
defense to a party who suddenly and unexpectedly
finds him or herself confronted with a perilous
situation which permits little or no opportunity to
apprehend the situation and act accordingly. The
sudden emergency doctrine is frequently employed
in motor vehicle accident cases wherein a driver was
confronted with a perilous situation requiring a quick
response in order to avoid a collision. The rule
provides generally, that an individual will not be held
with a sudden and unexpected position of peril
created in whole or in part by someone other than
the person claiming protection under the doctrine.
The rule recognizes that a driver who, although
driving in a prudent manner, is confronted with a
sudden or unexpected event which leaves little or no
time to apprehend a situation and act accordingly
should not be subject to liability simply because
another perhaps more prudent course of action was
available. Rather, under such circumstances, a
person is required to exhibit only an honest exercise
of judgment. The purpose behind the rule is clear: a
person confronted with a sudden and unforeseeable
occurrence, because of the shortness of time in
which to react, should not be held to the same
standard of care as someone confronted with a
foreseeable occurrence. It is important to recognize,
however, that a person cannot avail himself of the
protection of this doctrine if that person was himself
driving carelessly or recklessly.
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[3]
o whether
an emergency situation existed, wholly independent of and
recklessness, it is incumbent upon the trial [court] to
Drew v. Work, 95 A.3d 324, 330 (Pa. Super. 2014) (citations omitted).
This Court stated in Drew road conditions, such as gravel or ice,
are not sudden emergencies Id. at 338 (citing Kukowski v.
Kukowski, 560 A.2d 222, 225 (Pa. Super. 1989)) (emphasis added).
In Kukowski, this Court found that the sudden emergency doctrine
was inapplicable where the driver lost control of his vehicle after hitting
several potholes. Kukowski, 560 A.2d at 225. We reasoned:
In motor vehicle accident cases, the sudden emergency
doctrine may be invoked where there is testimony
into a vehicle's path of travel. Brown v. Schriver, [ ] 386
of confrontation with pre-existing, static road conditions
does not properly call for an instruction on the applicability
McKee et al. v.
Evans et al., 551 A.2d 260, 274 ( Pa. Super. 1988)]. In
Brown v. Schriver, for example, the driver of a car had
lost control of his vehicle when it apparently slipped on
some gravel or cinders on the roadway surface. The driver
had testified that he did not notice the gravel prior to
losing control of his car. We granted a new trial in Brown,
3
affirmative defense . . . and thus, unlike an affirmative defense, the sudden
Shiner v.
Ralston, 64 A.3d 1, 4 (Pa. Super. 2013), appeal denied, 72 A.3d 604 (Pa.
2013).
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because the trial court had not charged the jury
concerning the assured clear distance ahead rule, but had
instead charged them regarding the sudden emergency
ts
moving instrumentalities suddenly and unexpectedly thrust
Brown, [ ] 386 A.2d at 46
(footnote and citations omitted). In Brown, the jury
determined that the driver of the car which had
encountered the gravel was not negligent in his operation
of the vehicle. See also Hanlon v. Sorenson, [ ] 433
A.2d 60 ([Pa. Super.] 1981) (trial court erred in charging
to the fact that the highway was covered with gravel);
McErlean v. McCartan, [ ] 421 A.2d 849 ([Pa. Super.]
1980) (where jury returned a verdict in favor of the
defendant-driver, new trial was required because the
d in the
jury instructions, does not apply to a wet road surface
involved in an auto accident); Sullivan v. Wolson, [ ]
396 A.2d 1230 ([Pa. Super.] 1979) (snow and ice on
road, as well as presence of stopped automobile,
were all preexisting conditions so that defendant
motorist was not entitled to sudden emergency
doctrine).
Id. (emphasis added).
Analogously, in the instant case, we find that black ice on the roadway
did not constitute a sudden emergency. See Drew, 95 A.3d at 330;
Kukowski, 560 A.2d at 225. Accordingly, the trial court erred as a matter
See
Passarello, 87 A.3d at 296-97. The jury returned a verdict in favor of
Appellee, therefore, a new trial is required because of the sudden emergency
jury instruction. See Drew, 95 A.3d at 330; Kukowski, 560 A.2d at 225.
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We vacate the judgment and remand for further proceedings
consistent with this memorandum. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/30/2014
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