85 Pa. Commw. 94 | Pa. Commw. Ct. | 1984
Opinion by
Department of Environmental Resources, Bureau of State Parks (Commonwealth) appeals a Bucks County Common Pleas Court order denying post-trial motions. We affirm.
In May, 1977, decedent Caron Ehehalt drove his automobile up a tow path
At trial, the jury allocated the negligence percentages as follows: 20% for O’Dette; 70% for the Commonwealth; and 10% for Ehehalt under the Pennsylvania Comparative Negligence Act, as amended, 42 Pa. C. S. §7102. It then assessed wrongful death damages at $550,000 and survival act damages act $500,000. The trial judge reduced the award to reflect Ehehalt’s causal negligence and, after assessing delay damages pursuant to Pa. E.C.P. No. 238,
The Commonwealth contends first that the trial judge erred as a matter of law when he refused to direct a verdict, charge on, and/or grant the Common
The record adduced no evidence that Ehehalt entered the Roosevelt State Park premises for recreation.
The Commonwealth argues that judgment n.o.v. must be entered because of the indemnity clause
The Commonwealth finally seeks to restrict the verdict to the $250,000 limitation imposed by Act 142 and to remove the delay damages awarded under the authority of Pa. IÍ.C.P. No. 238. The Commonwealth argues that Act 142
Affirmed.
Order
The order of the Bucks County Common Pleas Court dated April 14, 1983 at No. 78-2361, is affirmed.
Two large diamond-shaped “No Outlet” signs were posted on either side of the driveway leading north into the Commonwealth’s park area from a restaurant parking lot, along with a small “No Motor Vehicles on Tow Path” sign.
Roosevelt State Park is a state historical park owned, maintained and controlled by the Commonwealth Department of Environmental Resources, Bureau of State Parks.
The cause of death was drowning.
The Commonwealth leased the restaurant parking lot to O’Dette, the restaurant owner.
O’Dette settled with Ehehalt prior to trial and did not file post-trial motions.
Rule 238 provides, in part:
(a) . . . [I]n an action seeking monetary relief for bodily injury, . . . the court . . . shall
(1) add to the amount of compensatory damages . . . , in the verdict of a jury, . . . damages for delay at ten (10) percent per annum, not compounded, which shall become part of the . . . verdict . . . ;
(2) compute the damages for delay from the date the plaintiff filed the initial complaint in the action or from a date one year after the accrual of the cause of action, whichever is later, up to the date of the . . . verdict ....
The delay damages were 10% per annum, not compounded, from October 16, 1979 to the verdict date, March 15, 1982.
Act of February 2, 1966, P.L. (1965) 1860, as amended, 68 P.S. §§477-1 — 477-8.
Ehehalt’s accident occurred after the effective date of the Recreation Act and before the adoption of the Sovereign Immunity Act (Act 152), Section 5111 of the Judicial Code, formerly 42 Pa. O. S. §5111, repealed by Section 221 (g) of the Act of October 5, 1980, P.L. 693. A similar provision is now found in Section 8528 of the Judicial Code, 42 Pa. C. S. §8528 (Act 142). Mayle v. Pennsylvania Department of Highways, 479 Pa. 384, 388 A.2d 709 (1978), abolished sovereign immunity retroactivity. Therefore, Mayle applies and Act 152 (presently Act 142) does not apply retroactively. See Gibson v. Commonwealth, 490 Pa. 156, 415 A.2d 80 (1980).
Also, Section 5 of the Act, 68 P.S. §477-5, makes provisions for land “leased to the state.” If land owned by the Commonwealth was intended to be covered by the Act, there would have been no need to specifically mention lands leased by landowners to the Commonwealth.
Section 2(3) of the Act, 68 P.S. §477-2(3) provides:
“Recreational purpose” includes, but is not limited to, any of the following, or any combination thereof: hunting, fishing, swimming, boating, camping, picnicking, hiking, pleasure driving, nature study, water skiing, water sports and viewing or enjoying historical, archeological, scenic, or scientific sites.
Paragraph 6 of the lease stated:
6. That it [the Restaurant] will at all times hereafter indemnity and save harmless the Commonwealth of Pennsylvania from and against any and all detriment, damages, loss, claims, suits, costs and expense work herein provided for which the Commonwealth may suffer, sustain or be subjected to directly or indirectly, by reason of the use and occupation of said premises by Lessee.
Act 142, 42 Pa. C.S.A. §8528(b) provides :
Damages arising from the same cause of action or transaction or occurrence or series of causes of action or transactions or occurrences shall not exceed $250,000 in favor of any plaintiff or $1,000,000 in the aggregate.
The Commonwealth also filed post-trial motions (1) for new trial based upon evidentiary rulings, certain jury instructions and admission of expert testimony and (2) for remitter of damages by reason of the alleged excessive verdict. We hold that the trial court properly disposed of these matters.