On December 14, 1986, Gerard Hines was a front-seat passenger in a car which struck a concrete column owned by Conrail in the center of a City of Philadelphia street.
The column was one of a series of columns that supported a Conrail bridge over the street. Mr. Hines was rendered a C-5 Frankel B Quadriplegic as a result of the accident. He will never be able to walk, stand, dress or feed himself.
Liability and Defenses:
Suit was started against the City of Philadelphia and Conrail. Among the theories advanced was that the street leading up to and around the column did not have street markings, the “keep right” sign attached to the column had graffiti obscuring its lettering and directional information, the “keep right” sign was not the appropriate sign to place at that location, and the column should have been protected by an accident attenuating device. Plaintiff contended that these conditions were dangerous.
A critical issue in the case was who was driving the car at the time of the accident. Mr. Hines claimed that William Creswell was the driver and Mr. Hines was asleep in the right front passenger seat at the time of the crash. The police accused Mr. Hines of being the driver because the on-the-scene police officer was allegedly told by Creswell and by Shawn Bagnell, the back seat passenger, that Mr. Hines had been driving. At their depositions, however, Bagnell testified that Creswell had been the driver and Creswell testified that it was his car and he probably was driving, but he had no memory of what happened.
Because of this conflict in testimony, plaintiff’s counsel retained a biomechanical engineer who concluded that Creswell had been the driver based upon the respective injury patterns sustained by Mr. Hines and Mr. Creswell.
Plaintiff also had to confront issues relating to alcohol consumption. At the time of the collision, Mr. Hines had a blood alcohol concentration (BAC) of approximately 19-.20%, while Creswell had BAC of .17.9%. Plaintiff’s counsel prepared a Motion in Limine to exclude evidence of Hines’ BAC as irrelevant because Mr. Hines was a passenger in the car, defendants could not prove Mr. Hines knew the extent of Mr. Creswell’s alcohol consumption, and there was insufficient corroborative evidence to demonstrate Creswell’s unfitness to drive, distinguishing this case from Hannon v. City of Philadelphia, 1 20 Pa.CmwIth. 383, 548 A.2d 693 (19881 and Hill v. Reynolds. 384 Pa.Super. 34, 557 A.2d 759 (1989).
Depositions of City employees assisted plaintiff in proving that the conditions existing at the accident location were “dangerous” and that the City had notice of these “dangerous” conditions at a sufficient time prior to the accident to have rectified them. Specifically, City witnesses testified that the concrete column was “an obstruction in the roadway”. PennDOT regulations require that pavement markings precede and surround an obstruction in the roadway. Additionally, a City traffic investigator admitted that pavement markings would have assisted motorists in identifying the concrete obstruction and that the graffiti on the sign reduced its surface area, its reflectivity and visibility for nighttime drivers and should have been replaced. Approximately three (3) years after the accident, the City painted street markings, in compliance with PennDOT regulations, preceding and surrounding the column and replaced the “Keep Right” sign with a warning sign. Plaintiff contended that these subsequent measures were admissible to prove control since control of the street and the column was disputed. A City designee admitted that an impact attenuator would have been a safety benefit for occupants of cars that collided with the column. Plaintiff’s biomechanical engineer concluded that Mr. Hines would not have sustained quadriplegia if an impact attenuator was present on the night of the accident.
The City only admitted to two (2) prior accidents at this location. Plaintiff’s counsel then circulated a questionnaire in the neighborhood of the accident and received information regarding numerous other prior accidents and neighborhood complaints about accidents the City claimed no record of.
Plaintiff was able to establish that Conrail maintained and annually inspected the bridge columns, and that damage at the foot of the column was from cars striking the column. Conrail contended, however, that it had no legal responsibility to inspect, maintain or repair these columns and therefore did not do so. Conrail’s Motion for Summary Judgment was denied, however, as Marinelli v. Montour R. Co.. 278 Pa. Super. 403, 420 A.2d 603 (1980), requires a railroad company to safely maintain crossings of its railways with public highways for travelers upon the highways, thus establishing a duty by Conrail contrary to their stated position.
Outcome of the Case:
The case settled shortly before trial for $2,500,000.00. Conrail paid $1,350,000.00. The City of Philadelphia settled for $1,150,000.00.il.