Brown, F. v. Greyhound Lines, Inc. , 208 A.3d 1122 ( 2019 )

J-A04043-19
2019 PA Super 134MANAJA LIVINGSTON, DARREN : IN THE SUPERIOR COURT OF
SHIN, ROSAURA SANCHEZ, HECTOR : PENNSYLVANIA
AMADO SANCHEZ, ROSA MARIA :
TAPIA, SEMEN BABADZHANOV AND :
TATIANA LIAKH :
:
:
v. :
: No. 318 EDA 2017
:
GREYHOUND LINES INC., SABRINA :
ANDERSON, FIRSTGROUP AMERICA, :
C.A.V. ENTERPRISES, LLC, AKOS :
GUBICA AND KAROLLY GUBICA :
:
:
APPEAL OF: GREYHOUND LINES, :
INC. AND SABRINA ANDERSON :
Appeal from the Judgment Entered December 28, 2016
In the Court of Common Pleas of Philadelphia County Civil Division at
No(s): No. 2946 April Term, 2014
FAITHLEE BROWN AND JOSEPH : IN THE SUPERIOR COURT OF
HOANG AND KENNETH ROTHWEILER, : PENNSYLVANIA
ESQ., CO-ADMINISTRATORS OF THE :
ESTATE OF SON THI THANH HOANG, :
DECEASED AND HIREN PATEL, :
GUSTAV FREDERIKSEN, BRANDON :
OSBORN, ELORA LENCOSKI, :
BARBARA YERGER-DOYLE, WILLIAM :
KOOMSON, FNU SALFULAH, KEITH : No. 570 EDA 2017
PRESSMAN, CHARLES REID, :
MICHAEL KATCHPAW, SURAJ :
BALAKRISHNAN AND AHMED :
ALJAHMI :
:
:
v. :
:
:
GREYHOUND LINES, INC., AND :
SABRINA ANDERSON, FIRSTGROUP :
J-A04043-19
AMERICA, C.A.V. ENTERPRISES, LLC, :
AKOS GUBICA AND KAROLLY GUBICA :
:
:
APPEAL OF: GREYHOUND LINES, :
INC., AND SABRINA ANDERSON
Appeal from the Judgment Entered January 4, 2017
In the Court of Common Pleas of Philadelphia County Civil Division at
No(s): December Term, 2013 No. 02598
BEFORE: LAZARUS, J., KUNSELMAN, J., and COLINS, J.
OPINION BY COLINS, J.: FILED APRIL 29, 2019
These matters are consolidated appeals filed by appellants, Greyhound
Lines, Inc. and its bus driver Sabrina Anderson (collectively, the Greyhound
defendants), from judgments entered by the Court of Common Pleas of
Philadelphia County on a jury verdict in two consolidated multi-plaintiff
personal injury cases. For the reasons set forth below, we affirm.
The consolidated actions at issue here arose out of a rear-end motor
vehicle accident where a Greyhound bus carrying over 40 passengers collided
with a tractor-trailer truck. The accident occurred on Interstate 80 in
Pennsylvania near Mile Marker 204 at approximately 1:30 a.m. on October 9,
2013, while the bus was traveling an overnight route from New York City to
Cleveland, Ohio. Both actions are suits by bus passengers injured in the
accident against the Greyhound defendants. Seven passengers were plaintiffs
in the Livingston action; 15 passengers and the estate of a deceased
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 Retired Senior Judge Assigned to the Superior Court.
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passenger were plaintiffs in the Brown action. The Greyhound defendants
joined the truck driver, Akos Gubica, and the owner of the truck, C.A.V.
Enterprise, LLC, (collectively, the truck defendants) as additional defendants.
A jury trial was held in June and July 2016 on the individual claims of
four passengers, plaintiff Tatiana Liakh in the Livingston action and plaintiffs
Faithlee Brown, Elora Lencoski, and Brandon Osborn in the Brown action.
The trial court ordered that the liability verdict at this trial would apply to all
other plaintiffs in the two actions.
Plaintiffs and the truck defendants contended at trial that the accident
was caused by the bus driver falling asleep at the wheel. Plaintiffs asserted
that Greyhound was both vicariously liable for the bus driver’s conduct and
also independently liable for the accident because its procedures to prevent
fatigued driving were inadequate. The Greyhound defendants contended that
the accident was caused by the truck driver driving on the interstate at a
speed of only 16 miles per hour without activating his flashing hazard lights,
and disputed plaintiffs’ claims that its safety procedures were inadequate.
The data recorder on the bus showed that it was traveling at
approximately 67 miles per hour at the time of the accident. The bus driver
testified that the last thing that she remembered before the accident was that
her right leg went numb and would not move off the accelerator and that she
reached down with her right arm and blacked out. N.T. Trial, 6/14/16 (A.M.),
at 77-81. Several passengers and another driver on the road testified that
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shortly before the accident, the bus was swerving in and out of its lane and
went onto the rumble strips. N.T. Trial, 6/2/16 (P.M.), at 90-99; N.T. Trial,
6/3/16 (A.M.), at 28-31, 62-67; N.T. Trial, 6/3/16 (P.M.), at 33-36. Two
passengers testified that during the trip, the bus driver looked like she was
falling asleep. N.T. Trial, 6/3/16 (P.M.), at 33-34; N.T. Trial, 6/9/16 (A.M.),
at 8-13.
The evidence was undisputed that the weather at the time of the
accident was clear with no visibility problems. The Pennsylvania State Police
accident reconstructionist who investigated the accident, Corporal Steven
Schmit, testified that there was no physical evidence that the bus driver put
on the brakes or took any evasive action before the impact. N.T. Trial,
6/30/16 (A.M.), at 29, 39-40; N.T. Trial, 6/30/16 (P.M.), at 63. In addition,
a passenger who was awake and saw the truck through the front window of
the bus before the collision testified that the bus did not move to avoid the
truck. N.T. Trial, 6/3/16 (A.M.), at 31-33. Plaintiffs introduced expert
testimony that the bus driver fell into a micro-sleep, a brief episode of
involuntarily falling asleep, in the moments before the accident. N.T. Trial,
6/9/16 (A.M.), at 41-44, 66-70, 72-73; N.T. Trial, 6/9/16 (P.M.), at 91-93.
No evidence was introduced by any party that anything other than falling
asleep caused the bus driver to black out before the collision.
Corporal Schmit opined that the truck was traveling at approximately
16 miles per hour, a speed at which it was required to have its hazard lights
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on. The testimony of the truck driver and plaintiffs’ and the truck defendants’
experts placed the truck driver’s speed in the range of 40-45 miles per hour,
speeds at which hazard lights were not required. The evidence was
undisputed that the truck driver did not have his hazard lights on at the time
of the accident. Plaintiffs’ human factors expert testified that even if the truck
was traveling at 16 miles per hour without its hazard lights on, a reasonably
attentive driver in the bus driver’s position could have avoided the accident
and that hazard lights would have no effect if the bus driver was asleep. N.T.
Trial, 6/7/16 (A.M.), at 50-52, 69; N.T. Trial, 6/7/16 (P.M.), at 64. The
Greyhound defendants’ human factors expert testified that a reasonably
attentive driver would not have had sufficient reaction time to avoid the
collision if the truck was traveling at 16 miles per hour with no flashing hazard
lights, but admitted that a driver who was unconscious would not react. N.T.
Trial, 6/29/16 (P.M.), at 57, 62-84, 137.
The jury returned a verdict in favor of plaintiffs and against the
Greyhound defendants, finding that both Greyhound and its bus driver were
negligent and that their negligence caused plaintiffs’ injuries. The jury
assessed 55% of the liability to the bus driver and 45% of the liability to
Greyhound on plaintiffs’ independent liability claim. The jury found that the
truck defendants were negligent, but that their negligence was not a cause of
plaintiffs’ injuries. The jury also found both Greyhound and its bus driver
liable for punitive damages. The jury awarded each plaintiff $500,000 in
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punitive damages and awarded plaintiffs Liakh, Brown, Lencoski, and Osborn
compensatory damages of $75,000, $125,000, $2.5 million, and $350,000,
respectively.
The Greyhound defendants filed post-trial motions seeking a new trial
on all issues on 12 grounds and seeking judgment notwithstanding the verdict
(JNOV) on plaintiffs’ punitive damages claims and plaintiffs’ independent
liability claim against Greyhound. The trial court denied the post-trial motions
and entered judgments on the verdict for plaintiff Liakh, who was the only
remaining plaintiff in Livingston after settlements with other plaintiffs, and
for plaintiffs Brown, Lencoski, and Osborn. Because there remained one other
plaintiff in Brown, the trial court entered an order making an express
determination that the judgment for plaintiffs Brown, Lencoski, and Osborn
was a final order under Pa.R.A.P. 341(c). The Greyhound defendants timely
appealed both judgments.
In this Court, the Greyhound defendants raise the following six issues
for our review: 1) whether the trial court erred in excluding an alleged
admission by the truck driver that he was intoxicated; 2) whether the trial
court erred in permitting plaintiffs and the truck defendants to argue that an
internal Greyhound company rule, Rule G-40, constituted the legal standard
of care; 3) whether the trial court erred in failing to grant a mistrial after
plaintiffs’ counsel asked a Greyhound witness whether Greyhound had set
aside over $81 million to pay claims; 4) whether the trial court erred in ruling
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that Corporal Schmit could not testify concerning the cause of the accident;
5) whether the bus driver and Greyhound were entitled to JNOV on punitive
damages; and 6) whether Greyhound was entitled to JNOV on plaintiffs’
independent liability claim against it. Appellants’ Brief at 3-4.
We conclude that the trial court did not commit reversible error with
respect to its exclusion of the truck driver admission, its denial of JNOV on
punitive damages, or its denial of a mistrial, and that the claim of error with
respect to Corporal Schmit’s testimony was waived.1 In light of these rulings
and Greyhound’s vicarious liability for both the compensatory and punitive
damages awards against the bus driver, the remaining two arguments,
concerning Greyhound’s internal rule and Greyhound’s independent liability,
cannot affect the validity or amount of the judgments, and we therefore do
not rule on those issues.
Exclusion of the Truck Driver Admission
The Greyhound defendants argue that the trial court erred in excluding
the testimony of a witness, Matthew Welch, concerning a conversation with
the truck driver when the truck driver was detained in a State Police holding
cell after the accident for a drug influence evaluation. Our review of this ruling
is limited to determining whether the trial court abused its discretion. Vetter
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1We address these issues in a different order than they are listed and argued
by the Greyhound defendants in their brief.
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v. Miller, 157 A.3d 943, 949 (Pa. Super. 2017); Rohe v. Vinson, 158 A.3d
88, 95 (Pa. Super. 2016).
Questions regarding the admissibility or exclusion of evidence are
… subject to the abuse of discretion standard of review.
Pennsylvania trial judges enjoy broad discretion regarding the
admissibility of potentially misleading and confusing evidence.
Relevance is a threshold consideration in determining the
admissibility of evidence. A trial court may, however, properly
exclude evidence if its probative value is substantially outweighed
by the danger of unfair prejudice.
Rohe, 158 A.3d at 95 (quoting Whyte v. Robinson, 617 A.2d 380 (Pa.
Super. 1992)).
Welch’s excluded testimony was that the truck driver asked him whether
the police could get a warrant for a blood test, that the truck driver said that
he “was fucked up and a bus ran into the back of his truck and somebody
died,” and that the truck driver told Welch that he had been “smoking pot”
and that “if they tested him he would come up hot.” Brown R. Item #485
Ex. 7 Welch Dep. at 32-36; Brown R. Item #465 Ex. G Welch Dep. at 72, 77-
79; Id. Ex. H Welch Statement. Welch testified that when the truck driver
said he was “fucked up,” that was slang for saying that he was “high” or “not
normal” and that he understood this to mean that the truck driver “was on
drugs at the time.” Brown R. Item #485 Ex. 7 Welch Dep. at 33; Brown R.
Item #465 Ex. G Welch Dep. at 79, 86.
Welch, however, also testified that the truck driver did not say when he
smoked the pot or that he was intoxicated or impaired at the time of the
accident, stating that the truck driver “didn’t say I was impaired, like I couldn’t
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drive or anything.” Brown R. Item #465 Ex. G Welch Dep. at 78-79, 87.
Welch also testified that “[m]aybe he meant that he was fucked up mentally”
and that being in an accident where someone died “could fuck you up.” Id.Ex. G Welch Dep. at 80. There was no evidence that the truck driver appeared
intoxicated or impaired at the time of the accident. Id. Ex. A Andres Dep. at
47-48; Id. Ex. B Schmit Dep. at 112. The drug influence evaluation,
performed by the State Police over nine hours after the accident without a
urine or blood test, was negative. Id. Ex. D.
Because of its prejudicial effect, evidence of alcohol or drug consumption
by a person involved in an accident is admissible in a civil negligence action
only where there is evidence that reasonably shows intoxication and unfitness
to engage in the activity at issue at the time of the accident. Coughlin v.
Massaquoi, 170 A.3d 399, 404, 408-10 (Pa. 2017); Braun v. Target Corp.,
983 A.2d 752, 760 (Pa. Super. 2009); McKee v. Evans, 551 A.2d 260, 281
(Pa. Super. 1988) (en banc); Hawthorne v. Dravo Corp., Keystone
Division, 508 A.2d 298, 303-04 (Pa. Super. 1986). A party’s admission that
he was intoxicated at the time of the accident to a degree that he could not
legally drive can satisfy these requirements and is admissible. Vetter, 157
A.3d at 951-52 (DUI guilty plea admissible); McKee, 551 A.2d at 281
(defendant driver’s testimony that he was “probably” intoxicated and
“probably” above the blood alcohol limit properly admitted). However,
evidence of alcohol or drug consumption, including a party’s admission of
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alcohol or drug consumption, must be excluded absent evidence of chemical
testing sufficient to show intoxication or other evidence of impairment at the
time of the accident either in the party’s admission or from the testimony of
other witnesses. Rohe, 158 A.3d at 91-92, 98-101 (admission of evidence of
plaintiff’s alcohol consumption was reversible error where his blood alcohol
level was below the legal intoxication threshold and there was no evidence
that plaintiff appeared intoxicated at the time of the accident); Hawthorne,
508 A.2d at 303-04 (trial court properly excluded evidence of alcohol and
marijuana consumption where marijuana was smoked more than four hours
before the accident and blood alcohol level was below legal intoxication
threshold).
The Welch testimony did not satisfy the standard for admission of
evidence of alcohol or drug consumption. Although the truck driver’s
statements to Welch are admissions and Welch’s lack of personal knowledge
concerning the truck driver’s drug consumption therefore does not make them
inadmissible, the statements were at best ambiguous and indefinite about the
truck driver’s condition at the time of the accident. As such, they were
insufficient to show intoxication or unfitness to drive at the time of the
accident, absent other evidence that he was impaired at the time of the
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accident. Because there was no such additional evidence, the trial court did
not abuse its discretion in excluding Welch’s testimony.2
Punitive Damages
The Greyhound defendants argue that they were entitled to JNOV on
plaintiffs’ punitive damages claims because plaintiffs allegedly did not show
that the bus driver and Greyhound had subjective knowledge that the bus
driver was too fatigued to drive on the night of the accident and did not show
that Greyhound knew that its fatigue prevention program was inadequate. In
reviewing this claim of error, this Court must determine whether there was
sufficient competent evidence to sustain the verdict, viewing the evidence in
the light most favorable to the verdict winner, giving the verdict winner the
benefit of every reasonable inference arising therefrom, and rejecting all
unfavorable testimony and inferences. Maya v. Johnson & Johnson, 97
A.3d 1203, 1212-13 (Pa. Super. 2014).
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2 Indeed, given the jury’s verdict, it is questionable whether the Greyhound
defendants suffered any prejudice from the exclusion of this evidence. Proof
that the truck driver was under the influence of marijuana could only have
been relevant to the issue of whether the truck defendants were negligent,
not whether their negligence caused the accident. The Greyhound defendants’
claim that the truck defendants were liable for this accident failed on
causation, not negligence; the jury found the truck defendants negligent, but
that their negligence was non-causal. Brown R. Item #1006, Jury Verdict
Sheet at 2.
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Under Pennsylvania law,3 punitive damages can be awarded against a
defendant only if the plaintiff shows that the defendant had a subjective
appreciation of the risk of harm to which the plaintiff was exposed and acted
or failed to act in conscious disregard of that risk. Hutchison v. Luddy, 870
A.2d 766, 772 (Pa. 2005); Dubose v. Quinlan, 125 A.3d 1231, 1240 (Pa.
Super. 2015), aff’d, 173 A.3d 634 (Pa. 2017). The mere fact that the
defendant knew of a possibility of accidents and did not undertake additional
safety measures is not sufficient by itself to support a claim for punitive
damages. Phillips v. Cricket Lighters, 883 A.2d 439, 446-47 (Pa. 2005).
The bus driver testified that she slept for over seven hours on October
8, 2013 before she began the New York City-Cleveland trip at issue and that
she did not feel tired. N.T. Trial, 6/14/16 (A.M.), at 67-72. Although there
was evidence that the bus driver knew that she had less than four hours of
sleep prior to driving the Cleveland-New York City route the day before the
accident, id., at 37-42, 59-63; N.T. Trial, 6/21/16 (A.M.), at 16-18, there was
no evidence that she slept less than seven hours on October 8. N.T. Trial,
6/14/16 (A.M.), at 69-71; N.T. Trial, 6/9/16 (P.M.), at 61-62. The bus driver
also testified that she was wide awake and not tired while driving and that she
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3The Greyhound defendants argue this issue under Pennsylvania law and do
not dispute in this appeal that Pennsylvania law applies to plaintiffs’ punitive
damages claims.
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lost consciousness suddenly. N.T. Trial, 6/14/16 (A.M.), at 77-81, 83-86; N.T.
Trial, 6/14/16 (P.M.), at 83.
The fact that the defendant does not admit knowledge of a danger,
however, does not preclude punitive damages. The defendant’s subjective
appreciation and conscious disregard of the risk of harm can be proved by
circumstantial evidence. Dubose, 125 A.3d at 1236, 1240-41 (evidence was
sufficient to support punitive damages where plaintiff showed that nursing
home disregarded physician instructions and violated nursing statute and that
patient had numerous bed sores and suffered from malnourishment and
dehydration while in the nursing home); see also Joseph v. The Scranton
Times, L.P., 129 A.3d 404, 437 (Pa. 2015) (a defendant’s state of mind and
subjective awareness may be proved by circumstantial evidence).
Here, there was evidence contradicting the bus driver’s claim that she
was not tired and from which the jury could conclude that the bus driver was
aware that she was in danger of falling asleep for a substantial period of time
before the accident. There was testimony from bus passengers that the bus
driver was drinking Red Bull when they were boarding the bus and that during
the trip, more than an hour before the accident, her head was “slumping” for
brief periods and “would bob up and down.” N.T. Trial, 6/3/16 (A.M.), at 25-
28; N.T. Trial, 6/9/16 (A.M.), at 8-13; N.T. Trial, 6/13/16 (P.M.), Patel
Videotaped Dep. at 3-4. Bus passengers also testified that the bus had
swerved in and out of its lane over an hour before the accident. N.T. Trial,
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6/9/16 (A.M.), at 8-11; N.T. Trial, 6/13/16 (P.M.), at 50-52; N.T. Trial,
6/13/16 (P.M.), Reid Videotaped Dep. at 4. Plaintiffs’ fatigue expert opined
that this swerving behavior occurs when a driver is falling asleep. N.T. Trial,
6/9/16 (A.M.), at 62-67; N.T. Trial, 6/9/16 (P.M.), at 26-28.
This evidence was sufficient for the jury to find that the bus driver was
subjectively aware for an extended period before the accident that she was
too fatigued to safely drive and that she was in danger of falling asleep at the
wheel if she continued to drive. See Commonwealth v. Huggins, 836 A.2d
862, 869-70 (Pa. 2003) (holding that it is common knowledge that falling
asleep is ordinarily preceded by internal warnings of sleepiness of which the
driver is aware and that ignoring such warnings and continuing to drive
passengers can show recklessness). There was also evidence that the bus
driver knew that if she felt fatigued, she was to pull the bus over at a safe
location, such as a rest area, and take a rest or call Greyhound for a
replacement driver. N.T. Trial, 6/14/16 (A.M.), at 26, 29; N.T. Trial, 6/14/16
(P.M.), at 54-58; Exs. P-127, GLI-72. It was undisputed that the bus had
passed rest areas where the bus driver could have stopped in the hour before
the accident. N.T. Trial, 6/17/16 (P.M.), at 38-40. Viewing the evidence in
the light most favorable to plaintiffs, as we must on this appeal from a denial
of JNOV, we conclude that the evidence was sufficient for the jury to find that
the bus driver had a subjective appreciation of the risk that she would fall
asleep at the wheel and acted or failed to act in conscious disregard of that
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risk. Accordingly, the trial court did not err in denying JNOV on punitive
damages with respect to the bus driver.
In contrast, there was not sufficient evidence for the jury to find that
Greyhound as a company consciously disregarded a risk that it subjectively
appreciated. There was no evidence that Greyhound knew that the bus driver
had insufficient sleep on either of the days before the accident or knew that
she was fatigued on the night of the accident. The only evidence that
Greyhound knew of a problem with this bus driver consisted of a single
incident 10 months before the accident, where the bus driver was observed
drifting in traffic lanes on a 10-mile stretch of interstate highway, and that
Greyhound in response had reminded her of the need to get sufficient rest.
Ex. P-53A; N.T. Trial, 6/16/16, Lytle Videotaped Dep. at 6-13; N.T. Trial,
6/14/16 (P.M.), at 104-10; N.T. Trial, 6/20/16 (A.M.), at 38-48. This one
incident by itself is not sufficient to show that Greyhound had a subjective
appreciation that this bus driver, who had been driving for Greyhound for over
10 years, was likely to fall asleep at the wheel or that it was dangerous to
allow her to drive on the night of the accident.
There was evidence that Greyhound knew that its bus drivers were not
making stops at 150-mile intervals as referenced in its internal Rule G-40 and
that it did not schedule a 150-mile stop or require drivers to make stops every
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150 miles.4 This evidence was likewise insufficient to show subjective
appreciation or conscious disregard of the risk by Greyhound. Rule G-40 on
its face does not refer to driver alertness or fatigue, and there was no evidence
that Greyhound subjectively believed that 150-mile stops should be required
to prevent fatigue accidents.5 Indeed, there was no evidence at trial that it is
necessary or appropriate as a fatigue prevention measure to require bus
drivers to stop, regardless of whether they feel tired, at 150 miles or at any
distance or length of time that had been exceeded on the night of the
accident.6 The Greyhound documents introduced at trial which referred to
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4 The accident occurred 178 miles after the bus left New York City, 28 miles
beyond the 150-mile point, and the bus driver had not made any stop prior to
the accident.
5 Rule G-40 provided:
G-40 CHECKING TIRES/SAFETY STOPS: It is 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.
Ex. P-1 at 11. Greyhound witnesses testified that the stops required by Rule
G-40 were for tire and mechanical checks, not fatigue, and that the 150-mile
reference in the rule was based on a type of tires that is no longer in use and
on federal regulations that were repealed long before this accident. N.T. Trial,
6/10/16 (A.M.), at 23-26, 36-37; N.T. Trial, 6/10/16 (P.M.), at 45-49; N.T.
Trial, 6/13/16 (P.M.), at 17-18; N.T. Trial, 6/17/16 (A.M.), at 11, 38-44; N.T.
Trial, 6/17/16 (P.M.), at 5-8, 36-38; N.T. Trial, 6/20/16 (A.M.), at 7-8, 12-
13; N.T. Trial, 6/20/16 (P.M.), at 5-9, 104-06. There was no evidence that
there was anything wrong with the tires on the bus. N.T. Trial, 6/30/16 (A.M.),
at 62-63.
6 There was no expert testimony or other evidence at trial that mandatory
stops every 150 miles or even every 200 miles are a necessary or appropriate
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Rule G-40 in connection with driver fatigue only showed that Greyhound
recommended that drivers use the Rule G-40 stops to combat fatigue on an
as needed basis, if the driver felt less than alert. Exs. P-127, P-130.
The absence of proof of Greyhound’s subjective knowledge and
conscious disregard, however, does not defeat plaintiffs’ punitive damages
claim against it. Under Pennsylvania law, an employer is vicariously liable for
the reckless conduct of an employee without proof that the employer’s conduct
satisfies the standard for punitive damages. Dillow v. Myers, 916 A.2d 698,
702 (Pa. Super. 2007) (employer liable for punitive damages based on its
truck driver’s reckless conduct in overloading truck and driving at high speeds
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method to prevent fatigued driving accidents or connecting enforcement of G-
40 to fatigue prevention. Federal motor carrier regulations permit bus drivers
to drive up to 10 hours, 49 C.F.R. § 395.5(a)(1), and there was no evidence
that any federal or state law or regulation required a bus driver to stop at 150
miles to prevent fatigue or for any other reason. N.T. Trial, 6/10/16 (P.M.),
at 46-47; N.T. Trial, 6/20/16 (P.M.), at 8; N.T. Trial, 6/15/16, at 77-78. The
only expert witness who opined on the issue of how long or what distance it
is safe to drive a bus without a break testified that there is no need for a
mandatory break at 150 miles or after three hours of driving and that 228
miles was an appropriate distance for a scheduled break, provided that drivers
are permitted to stop earlier if they feel fatigued. N.T. Trial, 7/12/16 (A.M.),
at 96-106; N.T. Trial, 7/12/16 (P.M.), at 98-99. Plaintiffs’ fatigue expert did
not opine that mandatory stops every 150 miles or at any set distance or
number of hours that had been exceeded on the night of the accident should
be required to prevent fatigue-related accidents. Rather, his opinions
concerning Greyhound’s conduct related to its training of drivers and
supervisors and its screening of drivers, and his testimony concerning fatigue
impairment periods shorter than the period at issue here involved drivers who
had already worked an overnight shift before starting to drive. N.T. Trial,
6/9/16 (A.M.), at 45, 57-60, 70-72; N.T. Trial, 6/9/16 (P.M.), at 40-42, 93-
96.
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when he knew that he could not properly control it); Shiner v. Moriarty, 706
A.2d 1228, 1240 (Pa. Super. 1998); Dean Witter Reynolds, Inc. v.
Genteel, 499 A.2d 637, 643 (Pa. Super. 1985). The amount of punitive
damages awarded against the employer may be based on the employer’s
financial condition, even though liability for punitive damages is based on
vicarious liability. Dillow, 916 A.2d at 702-03. There was no dispute that
the bus driver’s conduct was within the scope of her employment and that
Greyhound was vicariously liable for her conduct. N.T. Trial, 7/19/16 (A.M.),
at 35, 40; N.T. Post-Trial Motions Argument at 4-5.
Because there was sufficient evidence for the jury to award punitive
damages for the bus driver’s conduct, Greyhound was liable for punitive
damages despite the lack of proof concerning its conduct as a company.
Dillow, 916 A.2d at 702; Dean Witter Reynolds, Inc., 499 A.2d at 643.
The trial court therefore did not err in denying Greyhound’s motion for JNOV
on punitive damages.
Denial of the Motion for a Mistrial
In the examination of a Greyhound accountant who was called by
plaintiffs to testify on Greyhound’s financial condition, plaintiffs’ counsel asked
the witness: “In the year of the crash, did Greyhound contribute or set aside
$81,885,000 for claims like the one that we are here for?” N.T. Trial, 6/21/16
(P.M), at 37. The Greyhound defendants immediately objected and moved for
a mistrial. Id. at 37-40, 47-50. The trial court sustained the objection and
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instructed the jury that the question was improper, that it was to disregard
the question, and that the attorney’s question was not evidence. Id. at 37,
53. The trial court, however, denied the motion for a mistrial. Id. at 47.
Greyhound argues that the trial court’s failure to grant a mistrial was
reversible error. This Court reviews the trial court’s denial of a motion for
mistrial for abuse of discretion. Buttaccio v. American Premier
Underwriters, Inc., 175 A.3d 311, 321 (Pa. Super. 2017).
A mistrial may be required where counsel makes “irrelevant remarks ...
which are reasonably likely to have a direct and prejudicial effect on the award
of damages.” Narciso v. Mauch Chunk Township, 87 A.2d 233, 235 (Pa.
1952); Buttaccio, 175 A.3d at 321-22 (quoting Narciso). Whether a trial
court has abused its discretion in refusing to grant a mistrial must be
determined by assessing the circumstances concerning the improper question
or statement and the precautions taken to prevent it from having a prejudicial
effect on the jury. Maya, 97 A.3d at 1224; Dolan v. Carrier Corp., 623 A.2d
850, 853 (Pa. Super. 1993); Rivera v. Philadelphia Theological Seminary
of St. Charles Borromeo, Inc., 580 A.2d 1341, 1346 (Pa. Super. 1990). In
determining whether misconduct by counsel is grounds for granting a new trial
where a mistrial was not granted, the court should consider whether the trial
court gave a curative instruction, the frequency and nature of the improper
questions or statements, and whether the verdict shows any prejudicial effect
from the improper conduct. Ferguson v. Morton, 84 A.3d 715, 724-26 (Pa.
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Super. 2013) (reversing grant of new trial where trial court had taken prompt
curative action with respect to counsel’s improper statements and jury verdict
was supported by the evidence and not excessive).
Here, the improper conduct consisted of a single question in the middle
of a seven-week trial and the trial court promptly instructed the jury to
disregard the question and gave a curative instruction. While even a single
reference to a defendant setting aside over $81 million to pay claims may in
some cases be too prejudicial to be cured by the instructions given by the trial
court, the impact was substantially tempered in this case by the fact that
evidence of Greyhound’s wealth was before the jury on plaintiffs’ punitive
damages claims and the jury heard properly admitted testimony from the
same Greyhound witness that Greyhound’s assets exceeded its liabilities by
$647 million. N.T. Trial, 6/21/16 (P.M), at 54-58, 65.
In addition, the trial court concluded that that jury’s verdicts on
compensatory and punitive damages were reasonable under the evidence at
trial and did not appear to be affected by plaintiffs’ counsel’s improper
question. 2/22/18 Trial Court Opinion at 21.7 The Greyhound defendants do
not point to anything in the jury’s verdict that indicates that the jury was
affected; they do not contend that the compensatory or punitive damage
____________________________________________
7 While the compensatory damages awarded to plaintiffs Lencoski and Osborn
were substantial, their injuries were severe. Plaintiff Lencoski suffered head
injuries and multiple fractures and was hospitalized for 40 days and plaintiff
Osborn had claims for future medical expenses of $200,000 or more.
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awards in this case were excessive nor do they dispute that the liability verdict
against the bus driver and against Greyhound on vicarious liability was amply
supported by the evidence.
The Greyhound defendants argue that a mistrial was nonetheless
required because the question violated a ruling that the trial court had made
before the witness’s testimony. Denial of a motion for mistrial can be a
reversible abuse of discretion where a party intentionally violates a trial court
order by referring in front of the jury to a matter that the trial court had
excluded as prejudicial. Mirabel v. Morales, 57 A.3d 144, 151 (Pa. Super.
2012); Poust v. Hylton, 940 A.2d 380, 386-87 (Pa. Super. 2007). Here, the
trial court found that the question violated a specific ruling it had made that
the jury was not to be told that Greyhound had set aside an amount of money
to pay claims. N.T. Trial, 6/21/16 (P.M), at 41, 45-47, 73-74; Post-Trial
Motions Argument Transcript at 81. The trial court, however, did not find that
plaintiffs’ counsel’s violation was intentional. N.T. Post-Trial Motions
Argument at 85-86. Given the trial court’s conclusion that the violation was
not intentional, coupled with the absence of evidence of prejudice, we cannot
say that the trial court was required to order a new trial simply because
plaintiffs’ counsel violated its order. Compare Mirabel, 57 A.3d at 151 (jury’s
damage award was excessive).
Because the improper question was a single isolated incident, a curative
instruction was given, a substantially higher figure concerning Greyhound’s
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wealth was properly before the jury, and there is no claim that the
compensatory or punitive damage award was excessive or that the liability
case against the bus driver was weak, we cannot say that the trial court
abused its discretion in declining to set aside the jury’s verdict on this ground.
Exclusion of Corporal Schmit’s Causation Opinion
On May 18, 2016, in its rulings on motions in limine prior to trial, the
trial court ordered that Corporal Schmit could not give expert testimony
concerning the pre-crash speed of the truck or the cause of the accident.
Brown R. Item #826. The Greyhound defendants filed a motion for
reconsideration seeking to vacate that order with respect to both the speed
and causation opinions. Brown R. Item #929. Following oral argument, the
trial court vacated its prior order in part and ruled that Corporal Schmit could
testify concerning the pre-crash speed of the truck if he was found qualified
as an expert on this issue at trial. Brown R. Item #951. At trial, the trial
court ruled that Corporal Schmit was qualified to testify as an accident
reconstructionist and Corporal Schmit testified at length as to his opinion that
the truck was traveling at only 16 miles per hour and as to the basis for that
opinion. N.T. Trial, 6/30/16 (A.M.), at 19, 21-32, 45-62, 70-72.
The Greyhound defendants argue that the trial court abused its
discretion in not vacating the portion of its May 18, 2016 order that barred
Corporal Schmit from testifying as to his opinion that the truck’s low speed
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and lack of hazard lights caused the accident and that the bus driver would
not have been able to avoid the accident. We find that this issue was waived.8
At the pre-trial argument on their motion for reconsideration, the
Greyhound defendants repeatedly represented to the trial court that they were
no longer seeking to call Corporal Schmit to testify as to his opinions on
causation. Argument Transcript, 5/30/16, at 23-28, 33-35. Counsel for the
Greyhound defendants stated:
He doesn’t have to talk about causation.
* * *
We certainly will refrain from asking Corporal Schmit what his
opinion is as to cause, who’s at fault, but he should be able to
testify under the law and based on his education, training,
experience, as to what his conclusions were from the science, the
math.
Id. at 24-25. Counsel for the Greyhound defendants further represented:
THE COURT: I mean, [Corporal Schmit] also testified as a human
factors expert, did he not?
MR. BARMEN [Counsel for the Greyhound defendants]: No, he is
not a human factors expert.
THE COURT: No. I know he’s not. But he made some opinions, he
gave some opinions that a human factors expert would give,
correct? So that's not what you're asking for? You’re asking simply
____________________________________________
8 The trial court found this issue waived, but on different grounds than those
on which we find waiver. 2/22/18 Trial Court Opinion at 27-28; 4/3/18
Supplemental Trial Court Opinion at 5-6. It is well established that this Court
may affirm a trial court’s decision if there is a proper basis for the result
reached, even if it is different than the basis relied upon by the trial court.
Generation Mortgage Co. v. Nguyen, 138 A.3d 646, 651 n.4 (Pa. Super.
2016); In re Estate of Rood, 121 A.3d 1104, 1105 n.1 (Pa. Super. 2015).
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for me to allow him to testify as an accident reconstructionist,
assuming that I believe he’s been properly qualified to testify to
that, and applying the sound scientific principles that an accident
reconstructionist used to determine that the speed of the tractor-
trailer was X.
MR. BARMEN: Yes, Your Honor.
THE COURT: And that’s it?
MR. BARMEN: Yes, Your Honor.
* * *
THE COURT: …[The Greyhound defendants] don’t want me to
consider my order with regard to anything other than his
testimony as an accident reconstructionist based on sound
scientific principles that he applied and that he learned through
his experience and training to determine the speed of the tractor-
trailer, correct? That’s the limit of your motion for reconsideration?
MR. BARMEN: Yes, Your Honor.
Id. at 27-28. In addition, the Greyhound defendants represented to the trial
court that if the court was not excluding Corporal Schmit’s opinion on the
speed of the truck, it was unnecessary for the court to hold a hearing on the
methodology in reaching his opinions. Id. at 34.
Following this argument, the Greyhound defendants did not seek any
further ruling on Corporal Schmit’s testimony before trial and did not argue at
trial that he should be permitted to testify as to causation of the accident or
the ability of the bus driver to avoid the accident. See Appellant’s Brief Ex. G
(stating that the only preservation of this issue before its post-trial motions
was its May 2, 2016 opposition to plaintiffs’ motion in limine). Instead, they
called another expert witness, a human factors expert, who testified that if
the truck driver was driving at a speed of 16 or 21 miles per hour without his
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hazard lights on, a reasonably attentive driver in the bus driver’s position
would not have been able to avoid the accident. N.T. Trial, 6/29/16 (P.M.),
at 57, 62-84.
Statements by a party’s counsel that the party has no objection to a
ruling constitute an affirmative waiver that bars the party from raising that
issue in post-trial motions or on appeal, even if the party had previously fully
raised and preserved the issue. Jones v. Ott, 191 A.3d 782, 791-92 (Pa.
2018) (claim that trial court erred in omitting requested jury charges was
barred by waiver where party’s counsel stated to trial court following the jury
charge that he had no objection to the charge).9
Trial lawyers waive claims, objections, and issues all the time, and
do so upon all sorts of rationales. These waivers may occur for
countless strategic or tactical reasons, or may be based upon
intervening developments in the trial record, or may reflect simple
inadvertence or error. Our trial courts must be free to accept such
unequivocal statements of counsel as consequential and binding.
Id. (footnote omitted).
That is precisely what occurred here. Because the Greyhound
defendants unequivocally stated to the trial court that they no longer sought
to have Corporal Schmit testify as to any opinions other than the speed of the
truck, they waived any claim of error with respect to exclusion of his testimony
____________________________________________
9While parts of this opinion are a plurality opinion, the portions cited herein
were joined in by a majority and represent an opinion of the Court. See 191
A.3d at 793 (Saylor, C.J., concurring).
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as an expert witness on other issues and are barred from seeking reversal of
the trial court’s judgments on this basis.
Rule G-40 and Greyhound’s Independent Liability
The only remaining issues that the Greyhound defendants have raised
in this appeal are claims that the trial court erred in permitting plaintiffs and
the truck defendants to argue that Rule G-40 constituted the legal standard
of care, and that Greyhound was entitled to JNOV on plaintiffs’ independent
liability claim because plaintiffs’ fatigue expert’s testimony was insufficient to
show that it was negligent in its fatigue management.
Both of these issues relate solely to plaintiffs’ independent liability claim
against Greyhound. The only prejudice that the Greyhound defendants
contend that they suffered from the extensive evidence and argument
concerning enforcement of Rule G-40 is that the jury was led to believe that
it could treat Rule G-40 as the legal standard of care and base liability solely
on the fact that Greyhound did not enforce that rule. Appellants’ Brief at 37-
38, 40-47; Appellants’ Reply Brief at 13-17.
Whether Greyhound was erroneously found liable based on Rule G-40
and whether there was sufficient evidence to find that Greyhound was
negligent in its fatigue management have no effect on the jury’s finding that
the bus driver was negligent, that her negligence caused the accident, or that
she acted in conscious disregard of a risk that she subjectively appreciated.
Rather, the verdict against the bus driver turned on the factual questions of
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whether the bus driver fell asleep at the wheel and whether she knew that she
was too tired to drive or was in danger of falling asleep before the accident.
Regardless of whether Rule G-40 required mandatory 150-mile stops, it was
undisputed that Greyhound’s bus drivers were instructed to stop if they felt
fatigued and that the bus driver received those directions. N.T. Trial, 6/14/16
(A.M.), at 26, 29; N.T. Trial, 6/14/16 (P.M.), at 54-58; Exs. P-127, P-130,
GLI-72.
As was discussed above, there is no dispute that the bus driver’s conduct
was within the scope of her employment and that Greyhound is vicariously
liable for her conduct. Greyhound is therefore liable to plaintiffs for the full
amount of both the compensatory and punitive damages awards and would
remain fully liable for the judgments, even if the jury’s verdict on Greyhound’s
independent liability were set aside. Dillow, 916 A.2d at 700-01 n.4, 702;
Costa v. Roxborough Memorial Hospital, 708 A.2d 490, 493 (Pa. Super.
1998). Any error with respect to Greyhound’s independent liability therefore
has no effect on the judgments.10
____________________________________________
10 We do not suggest that the vicarious liability and independent liability claims
were inherently duplicative or that plaintiffs could not properly pursue both of
these claims. See Scampone v. Highland Park Care Center, LLC, 57 A.3d
582, 591, 598 (Pa. 2012). Here, however, because the compensatory and
punitive awards on both claims are identical, the elimination of one of the
alternative bases of verdicts would have no effect on the judgments against
Greyhound.
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As discussed above, we have found no reversible error with respect to
the judgments against the Greyhound defendants based on the bus driver’s
conduct. The Greyhound defendants have not set forth any basis from which
we could conclude that reversal with respect to Greyhound’s independent
liability would have any effect on any party. Accordingly, we need not and
do not address whether the trial court erred in its rulings concerning Rule G-
40 or whether there was sufficient evidence to support an independent liability
claim against Greyhound for its own actions as a company.
Conclusion
For the foregoing reasons, we conclude that the trial court did not abuse
its discretion in its exclusion of the truck driver’s admission or its denial of a
mistrial, that the evidence was sufficient to support the jury’s punitive
damages verdict, and that the Greyhound defendants’ claim of error with
respect to expert testimony is barred by waiver. We further conclude that in
light of these rulings, the other claims of error in this appeal would have no
effect on the judgments, even if we found them meritorious. Accordingly we
affirm the trial court’s judgments.
Judgments affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/29/19
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